Case 1:04-cv-02944-BSJ-HBP Document 1 Filed 04/16/04 Page 1 of 18

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK --------------------------------------------------------------------X HAROLD BAERGAS, on Behalf of Himself and Others Similarly Situated,
Plaintiff,

04 Civ. 2944 (BSJ) (ECF Case)

-against-

CLASS ACTION COMPLAINT AND JURY DEMAND

THE CITY OF NEW YORK, NEW YORK CITY POLICE DEPARTMENT, FEDERATED LOGISTICS, FEDERATED DEPARTMENT STORES, INC., MACY’S EAST, THE FRICK COMPANY, and SCOTT CHESTER, CHRIS DE SANTIS, MICHAEL GREEN, JOHN DOES 1 – 5, Individually,
Defendants. --------------------------------------------------------------------X
PRELIMINARY STATEMENT
1. This is an action for monetary damages (compensatory and punitive) against
Defendants arising out of the false arrest, malicious prosecution, defamation and other violations
of the constitutional, statutory and legal rights of Harold Baergas (“Baergas” or “Plaintiff”),
including violations of section 1983. Plaintiff brings this action on behalf of himself and others
similarly situated for discrimination on the basis of race and/or national origin with respect to
harassment, hostile work environment, retaliation, promotion, termination and other terms and
conditions of employment, and retaliation, pursuant to the New York State Human Rights Law, Executive Law §290, et seq. (the “State Human Rights law”) and the New York City Human Rights Law, §8-107, et seq. (the “City Human Rights law”) of the Administrative Code.
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2. On March 6, 2002, various police officers, acting under color of state law, intentionally and willfully subjected Plaintiff to, inter alia, false arrest and imprisonment, detention, and malicious prosecution for acts of which Plaintiff was innocent, and thereby violated Plaintiff’s constitutional rights.
PARTIES 3. Plaintiff, a Hispanic male of Puerto Rican descent, is a citizen of the United States and resides in Glendale, New York. 4. Defendants FEDERATED LOGISTICS, FEDERATED DEPARTMENT STORES, INC., MACY’S EAST, THE FRICK COMPANY (collectively “Macy’s”) are upon information and belief, corporations incorporated under the laws of the State of New York. Macy’s has a principal location at Herald Square, New York. 5. Defendant Scott Chester is Caucasian and was at all relevant times herein the Senior Supervisor of Macy’s Handling Department, and as such was a managerial and supervisory employee of Macy’s. 6. Defendant Chris De Santis is Caucasian and was at all relevant times herein a Director of Macy’s Security Department, and therefore was a managerial and supervisory employee of Macy’s. 7. Defendant Michael Green is an African-American former employee of Macy’s. 8. The City of New York is a municipality duly incorporated under the laws of the State of New York. 9. The New York Police Department is a subdivision of the City of New York. 10. Defendants "John Does 1 through 5” (presently unknown police officers) were, at
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all times relevant hereto, employees of the Defendant City of New York as police officers. At all times mentioned herein, Defendants John Does 1 – 5 were acting under color of state law, to wit, under color of the statutes, ordinances, regulations, policies, customs and usages of the City and State of New York.
11. All the matters complained of herein occurred within this district. FACTUAL ALLEGATIONS
12. Plaintiff worked for Macy’s from 1992 until his unlawful termination on March 6, 2002.
13. Plaintiff was hired in the position of Stock person and worked in Macy’s Handling Department, located on its tenth floor, and at all relevant times Plaintiff’s work performance was excellent.
14. Plaintiff remained in that entry level position throughout his employment and was passed over for promotion.
The Employment Discrimination 15. Plaintiff’s supervisors throughout his employment were Defendant Chester, the Senior Supervisor of the Handling Department and Richard Harris (“Harris”), who was, upon information and belief, the Junior Supervisor of Macy’s Handling Department. (“the Department”) 16. Defendant Chester and Harris both had direct hiring and firing responsibilities over Plaintiff and other employees within the Department, directed and supervised their work, and decided promotions within their department. 17. Despite his qualifications and his seniority, Plaintiff was passed over for
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promotion for the position of Team Leader in the Handling Department due to his race in 2001. 18. Plaintiff was discriminated against also because he associated with and was
friends with other minority employees within his department. Defendants similarly passed over other similarly situated minority employees within Macy’s.
19. Plaintiff was not promoted to the next promotional level, Team Leader of the Handling Department, despite his seniority of 10 years’ unbroken employment with Defendants.
The Hostile Work Environment 20. Plaintiff and other minorities were subjected to a hostile and discriminatory work environment, which was created and fostered by Defendant Chester and Harris. 21. This hostile work environment was created in part by regular comments that were derogatory towards minorities, including Hispanics. These derogatory comments would be stated by Defendant Chester and Harris, as well as other employees of Macy’s, in front of Plaintiff and other minorities. 22. For example, on one occasion when Plaintiff asked Defendant Chester for a razor blade, he responded sarcastically that he thought “all Hispanics carried their own razor blades.” 23. Chester would often make comments about Hispanics and other minorities stealing cars. During one conversation about cars, Chester told Plaintiff that getting a nice car “shouldn’t be a problem for you... you’ll just steal it.” 24. Chester also made numerous comments about African Americans during Plaintiff’s employment, likening them to gorillas. 25. Chester stated that he believed minorities have a propensity to steal, take drugs and engage in other criminal activity.
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26. Defendant Chester, Harris, and others would often spy on Plaintiff and other minorities, ostensibly because they believed that they were stealing items from the store in accordance with their discriminatory belief that minorities were more likely to steal.
27. Plaintiff’s work environment was thus one fraught with hostility, insecurity and suspicion.
28. Defendants had instituted a policy under the umbrella term “Shortage Awareness.”
29. Under this policy, employees were encouraged to report illegal activities on the part of other employees of Defendants.
30. In return for the apprehension of any alleged perpetrators, the employees would be rewarded with a payment of $500.
31. This policy was often used by Macy’s Special Investigations Unit to propagate and justify their discriminatory hyper scrutiny of minority employees within Macy’s.
32. Macy’s did not scrutinize its Caucasian employees in the same way. 33. This policy also encouraged unscrupulous individuals to make false allegations for the economic incentive it entailed. 34. This policy also furthered the atmosphere of suspicion and hostility felt overwhelmingly and disproportionately by Macy’s minority workforce. 35. Many minorities, including Plaintiff, complained about this hostile environment and filed grievances with their union, but to no avail, and the discrimination continued. 36. Moreover, some minorities, including Plaintiff, who complained of improper treatment would be the subject of retaliatory adverse action on the part of Defendants.
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37. Plaintiff heard many of these comments derogatory to minorities and was offended by them.
38. Throughout his employment, Plaintiff complained to Chester regarding Defendants’ employment practices and filed grievances including during the last year of his employment in 2002.
39. Plaintiff also complained that Chester was unfairly targeting minorities. 40. The frequency of Plaintiff’s complaints increased when he became union shop steward for Macy’s Handling Department, and therefore was charged with raising any employment related complaints of union member co-workers. 41. Plaintiff became union shop steward in 2001. 42. Plaintiff’s and his co-workers’ union is Local 1-S Department Store Worker’s Union. (“the Union”) 43. Despite Plaintiff’s complaints to Defendant Chester, to Harris, and to other managerial employees in Macy’s, Defendants failed to take remedial and preventative action, and the discrimination and hostility continued unabated throughout Plaintiff’s employment. 44. In addition, in retaliation for making these complaints as shop steward, Plaintiff was subjected to intensified hostility and retaliatory action, which included hyper scrutiny and suspension without pay in early part of 2002. 45. The retaliation culminated in Plaintiff’s false arrest and malicious prosecution, and the unlawful termination of Plaintiff’s employment.
The Unlawful Arrest and Malicious Prosecution 46. On March 6, 2002, Plaintiff was falsely and maliciously accused by Macy’s
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Security Personnel of stealing merchandise. 47. While Plaintiff was in the locker room in the process of leaving work at the
end of his shift, five of Defendants’ employees from its internal security department appeared from both sides of the locker room, and ran towards both Plaintiff and a co-worker, Michael Green (“Green”)
48. One of these individuals, the head of Macy’s Internal Security department, yelled “I’ve got you!” while pointing at Plaintiff.
49. These internal security employees then handcuffed Plaintiff and escorted him to the security holding room, in full view of Macy’s employees and Plaintiff’s co-workers.
50. Plaintiff felt humiliated and emotionally distressed. 51. Plaintiff was then handcuffed to a bench in the security room where he remained for approximately 3 hours. 52. Plaintiff asked why he was being handcuffed and why Macy’s own internal procedures were being violated. 53. Green was then taken into another room where his bag was searched. 54. Plaintiff asked for but was refused assistance from his union representative. 55. Plaintiff demanded, but was refused, legal assistance. 56. Plaintiff remained handcuffed against his will for approximately three hours. 57. A security guard then approached Plaintiff and asked him to sign a statement that he was caught stealing Macy’s merchandise and that he was not to return to the store. 58. Plaintiff refused to sign this document because he had not stolen anything. 59. Director of Internals, Defendant Chris DeSantis (“DeSantis”), entered the holding
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room carrying a book bag and a coat. 60. DeSantis falsely claimed that these alleged stolen items were recovered from
Plaintiff’s locker. 61. In fact, the items were not recovered from Plaintiff’s locker and DeSantis knew
this. 62. Defendants, including DeSantis, knew that Plaintiff had not stolen these items. 63. Plaintiff’s only locker, which had remained locked throughout, contained only
Plaintiff’s jacket, home keys, book bag and his identification tag. 64. Plaintiff told a member of security to go to his locker and check for himself. 65. DeSantis then stated that he could not find Plaintiff’s locker. 66. Plaintiff requested that security escort him to his locker in order to prove that his
locker had been locked throughout and therefore could not have contained the alleged stolen items.
67. The security employees refused to escort Plaintiff to his locker, upon information and belief, because they knew that the alleged stolen items had not been recovered from Plaintiff’s locker.
68. Then in further breach of Macy’s own procedures, Plaintiff was uncuffed and frisked by DeSantis.
69. Plaintiff stated that DeSantis had no right to frisk him and that he should be released.
70. DeSantis falsely claimed that Macy’s had videotape in which Plaintiff was seen stealing the merchandise and in which he was seen selling drugs.
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71. DeSantis said this knowing that it was false and that there was no videotape that showed what he alleged.
72. DeSantis again handcuffed Plaintiff again to the bench, where Baergas remained until the police arrived.
73. When the police arrived, Plaintiff was arrested and escorted him from Macy’s premises in handcuffs.
74. At this time, Plaintiff requested legal representation, but was denied. 75. Plaintiff was taken to the Midtown South Precinct where he was charged with theft of Macy’s property and questioned for 6 hours. 76. Plaintiff was released after 24 hours of police custody, much of which was spent in a holding cell. 77. Plaintiff’s employment was unlawfully terminated by Macy’s on or about March 7, 2002. 78. On March 8, 2002, Plaintiff filed a grievance with his union for unlawful termination, false arrest, and for Defendants’ refusal to provide Plaintiff with assistance from a shop steward while he was being detained and searched without his consent. 79. Plaintiff appeared before Hon. Judge E. Coin for his arraignment on or about April 29, 2002, and was charged with two counts of larceny/theft of Macy’s property, counts PL 155.30 and PL 165.45. No other charges were preferred against Plaintiff. 80. Plaintiff refused to accept a guilty plea in return for a two years’ suspended sentence and probation. 81. Plaintiff appeared for a second hearing on October 28, 2002, and again refused to
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accept a guilty plea. 82. The Assistant District Attorney prosecuting the criminal case against Plaintiff (the
“Assistant District Attorney”) represented to the court at these hearings that Macy’s had evidence that implicated Plaintiff, including a videotape of Plaintiff committing the theft.
83. Defendants never produced any of this evidence to the court or to Plaintiff’s attorney.
84. On May 5, 2003, Judge E. Coin dismissed both charges PL 155.30 and PL 165.45 against Plaintiff for lack of evidence.
85. On or about June 27, 2003, Plaintiff was forced to appear for yet another arraignment before Hon. C. Berkman for the same charges that had been dismissed by Hon. Coin on May 5, 2003.
86. Based on the Assistant District Attorney’s representations, Plaintiff was again charged with two counts of larceny/theft of Macy’s property, counts PL 155.30 and PL 165.45.
87. At this second arraignment of Plaintiff, at which Plaintiff again plead not guilty, the Assistant District Attorney, again represented to the court that Defendants had videotape evidence of committing the theft for which he was being accused/charged.
88. Plaintiff and his criminal defense attorney were approached by an agent of Macy’s, who urged Plaintiff to plead guilty and then accept a lesser or deferred sentence.
89. This individual threatened Plaintiff that he would face a prison term based on the “evidence” against him if he did not accept a plea bargain.
90. Despite this coercion, Plaintiff refused to plead guilty to a crime he did not commit.
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91. Despite the court’s increasingly urgent demands for Defendants to produce the claimed evidence, and numerous court hearings, they failed to present the evidence.
92. Finally Defendants had to concede that they did not have the evidence they claimed.
93. On August 13, 2003, Hon. Berkman dismissed both theft charges a second time for lack of evidence.
94. Plaintiff’s arrest and prosecution was procured by Macy’s on the basis of Defendants’ false, biased, and/or misleading testimony, including the testimony of Defendants Chester and DeSantis.
95. Upon information and belief, this false testimony included stating that the allegedly stolen items were recovered from Plaintiff’s locker and claiming that Defendants had videotape evidence of Plaintiff committing theft and selling drugs.
96. Upon further information and belief, Plaintiff’s arrest and prosecution were procured on the basis of the testimony of Michael Green, which testimony was obtained by the use of coercion on the part of Defendants.
97. Defendants knowingly fabricated these allegations of criminal activity on the part of Plaintiff in order to procure his arrest and subsequent prosecution and were successful in so procuring his arrest and malicious prosecution.
98. In addition, upon information and belief, Defendants submitted false and/or misleading documentation to the District Attorney that was prosecuting Plaintiff’s criminal case.
99. Defendants had no probable cause to arrest and detain Plaintiff on Macy’s property.
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100. Defendants acted maliciously and intentionally. 101. Defendants’ acts were motivated by discriminatory animus towards Plaintiff because of his race and ethnicity and in retaliation for complaining of discrimination and filing union grievances against Defendants. 102. Defendants unlawfully terminated Plaintiff and then proceeded to conduct a smear campaign against Plaintiff, falsely alleging criminal acts and impropriety on the part of Plaintiff, thus defaming him. 103. Defendants’ unlawful and retaliatory actions towards Plaintiff continue to this day. 104. As a direct and proximate result of the acts of Defendants, Plaintiff suffered mental suffering, anguish, shame, humiliation, psychological and emotional distress, loss of wages, deprivation of physical liberty, and detriment to his career and loss of career opportunities.
FIRST CAUSE OF ACTION (FALSE ARREST AND IMPRISONMENT) 105 Paragraphs 1 through 104 are incorporated herein by reference. 106. Defendants subjected Plaintiff to false arrest, imprisonment, and deprivation of liberty without probable cause. 107. Defendants intended to confine Plaintiff, Plaintiff did not consent to the confinement and Plaintiff arrest and confinement were not privileged. 108. As a result of the false arrest, imprisonment, and deprivation of liberty, Plaintiff was damaged in an amount as yet undetermined but exceeding One Million ($1,000,000.00)
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Dollars. SECOND CAUSE OF ACTION (MALICIOUS PROSECUTION)
109. Paragraphs 1 through 108 are incorporated herein by reference. 110. Defendants caused two false criminal accusatory instruments to be filed against Plaintiff. 111. Said criminal instruments were dismissed with prejudice on May 5, 2003 and August 13, 2003, respectively. 112. Plaintiff was damaged in an amount as yet undetermined but exceeding One Million ($1,000,000.00) Dollars as a result of the malicious prosecution implemented by the defendants.
THIRD CAUSE OF ACTION (DEFAMATION)
113. Paragraphs 1 through 112 are incorporated herein by reference. 114. Defendants intentionally defamed Plaintiff’s character and reputation by publishing false statements about Plaintiff. 115. Plaintiff has been damaged as a result of Defendants' wrongful acts in an amount as yet undetermined but exceeding One Million ($1,000,000.00) Dollars.
FOURTH CAUSE OF ACTION (INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS) 116. Paragraphs 1 through 115 are incorporated herein by reference.
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117. Defendants intentionally committed acts against Plaintiff that were shocking and outrageous and transcended the bounds of civilized society.
118. Plaintiff has been damaged as a result of defendants' wrongful acts in an amount as yet undetermined but exceeding One Million ($1,000,000.00) Dollars.
FIFTH CAUSE OF ACTION (STATE HUMAN RIGHTS LAW) 119. The allegations of paragraphs 1 through 118 are repeated here as if fully stated. 120. Defendants intentionally retaliated against and discriminated against Plaintiff and others similarly situated to Plaintiff on the basis of race and ethnicity in violation of the State Human Rights Law. 121. Defendants subjected Plaintiff and other similarly situated members of the putative class to a racially hostile work environment. 122. The above described class is so numerous that joinder of all members, whether otherwise required or permitted, is impracticable, and their identities are presently unknown. 123. Plaintiff claims of employment discrimination are typical of the claims of the above described class, in that the interests of the named Plaintiff are co-extensive with the interests of the other members of the class, and there is a lack of adverse interests between the named Plaintiff and the other members of the putative class. 124. There are questions of law and fact common to the class, which predominate over any questions affecting only individual members: Were class members passed over for promotion and regularly kept in lower level positions? Did Defendants allow to exist in Macy’s a racially hostile work environment, including hyper scrutiny and false allegations of theft?
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125. The named Plaintiff will fairly and adequately protect the interests of said class. 126. A class action is superior to other available methods for the fair and efficient adjudication of the class claims under the State Human Rights Law. 127. As a result of the foregoing, the named Plaintiff seek judgment against Defendants on his own behalf and on behalf of other members of the class for compensatory damages, together with an award of costs, interest, and attorney’s fees, as provided for under the State Human Rights Law. 128. Plaintiff has thereby been damaged in an amount as yet undetermined, but exceeding $1,000,000.
SIXTH CAUSE OF ACTION (CITY HUMAN RIGHTS LAW) 129. The allegations of paragraphs 1 through 128 are repeated here as if fully stated. 130. Defendants intentionally retaliated against and discriminated against Plaintiff and others similarly situated to Plaintiff on the basis of race and ethnicity in violation of the City Human Rights Law. 131. Defendants subjected Plaintiff and other similarly situated members of the putative class to a racially hostile work environment. 132. The above described class is so numerous that joinder of all members, whether otherwise required or permitted, is impracticable, and their identities are presently unknown. 133. Plaintiff claims of employment discrimination are typical of the claims of the above described class, in that the interests of the named Plaintiff are co-extensive with the interests of the other members of the class, and there is a lack of adverse interests between the
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named Plaintiff and the other members of the putative class. 134. There are questions of law and fact common to the class, which predominate over
any questions affecting only individual members: For example, were class members passed over for promotion and regularly kept in lower level positions? Did Defendants allow to exist in Macy’s a racially hostile work environment, including hyper scrutiny and leveling false allegations of theft against minority employees?
135. The named Plaintiff will fairly and adequately protect the interests of said class. 136. A class action is superior to other available methods for the fair and efficient adjudication of the class claims under the City Human Rights Law. 137. As a result of the foregoing, the named Plaintiff seeks judgment against Defendants on his own behalf and on behalf of other members of the class for compensatory damages, together with an award of costs, interest, and attorney’s fees, as provided for under the City Human Rights Law. 138. Plaintiff has thereby been damaged in an amount as yet undetermined, but exceeding $1,000,000.
SEVENTH CAUSE OF ACTION (MUNICIPAL LIABILITY)
139. Paragraphs 1 through 138 are incorporated herein by reference. 140. Defendants City of New York knew or should have known of the police officers’ propensity to engage in the illegal and wrongful acts detailed above. 141. Upon information and belief, Defendants have in the past falsely arrested
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individuals, and solicited improper prosecutions of such individuals, and allowed police officers to make false entries in official police department records.
142. Defendant City of New York has failed to take the steps to discipline, train, supervise or otherwise correct the improper, illegal conduct of defendant officers.
143. Defendant City of New York has damaged the Plaintiff by its failure to properly supervise, train, discipline, review, remove, or correct the illegal and improper acts of defendants.
144. As the employers of the defendant police officers, Defendant City of New York is liable for the damages suffered by plaintiff as a result of the conduct of Defendant police officers (John Does 1 – 5).
145. Plaintiff has been damaged as a result of the wrongful and illegal acts of the Defendant City of New York in an amount as yet undetermined but exceeding One Million ($1,000,000.00) Dollars.
EIGHTH CAUSE OF ACTION (Section 1983 and 1985) 146. Paragraphs 1 through 145 are incorporated herein by reference. 147. Defendants have deprived Plaintiff of his civil, constitutional and statutory Rights and have conspired to deprive him of such rights and are liable to plaintiff under 42 U.S.C. Section 1983 and 1985 and the N.Y. State Constitution. 148. Plaintiff has been damaged as a result of defendants' wrongful acts in an amount as yet undetermined but exceeding One Million ($1,000,000.00) Dollars. WHEREFORE, Plaintiff demands judgment against the Defendants, jointly and severally,
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as follows:

A. In favor of Plaintiff in an amount as yet undetermined but exceeding One Million

($1,000,000.00) Dollars on each of Plaintiff's Causes of Action;

B. Awarding Plaintiff punitive damages as yet undetermined but exceeding One

Million ($1,000,000.00) Dollars

C. Awarding Plaintiff reasonable attorneys' fees, costs and disbursements of this

action; and

D. Granting such other and further relief as this Court deems just and proper.

JURY DEMAND

Plaintiff demands a trial by jury.

Dated:

New York, New York April 16, 2004

MICHAEL SHEN & ASSOCIATES, P.C.

By:

/s/

IAN F. WALLACE (IW:3100) MICHAEL SHEN (MS: 5714) Attorneys for Plaintiff 225 Broadway, Suite 2515 New York, New York 10007 (212) 227 0300

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 Case 1:04-cv-02944-BSJ-HBP Document 21 Filed 09/02/04 Page 1 of 15

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

________________________________________________

HAROLD BAERGAS, on Behalf of Himself and

)

Others Similarly Situated,

)

Plaintiff,

)

)

-against-

)

)

THE CITY OF NEW YORK, NEW YORK CITY

)

POLICE DEPARTMENT, FEDERATED LOGISTICS, )

FEDERATED DEPARTMENT STORES, INC., MACY’S )

EAST, THE FRICK COMPANY, and SCOTT CHESTER, )

CHRIS DE SANTIS, MICHAEL GREENE,

)

JOHN DOES 1-5, individually,

)

Defendants

)

________________________________________________)

04 CV 02944(BSJ/HGP)

MEMORANDUM OF LAW IN SUPPORT OF THE MACY’S DEFENDANTS’ MOTION TO SEVER

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Preliminary Statement Plaintiff Harold Baergas was terminated from his employment in the Receiving Department at Macy’s East, Inc.’s (“Macy’s”) flagship store located on West 34th Street in New York, New York in or around March 2002 after an investigation by the Macy’s Security Department revealed that plaintiff had engaged in theft. After being detained by members of Macy’s Security Department, plaintiff was arrested by members of the New York City Police Department and then prosecuted by the New York County District Attorney’s Office for theft. The charges against plaintiff were, however, ultimately dismissed. Plaintiff brings the current action against Macy’s, as well as a host of other defendants,1 alleging a myriad of statutory and common law claims.2 Notwithstanding the plethora of counts and parties in the case, plaintiff’s claims essentially boil down to two (2) distinct sets of claims that are based upon entirely separate and distinct factual circumstances -- (1) that plaintiff, and a class of other employees he purports to represent, were discriminated against based upon his race and national origin during his employment at Macy’s (Counts V and IV), and (2) that plaintiff was falsely arrested, prosecuted and defamed, and that his civil rights were violated by Macy’s
1 Specifically, plaintiff also names the following additional parties as defendants: Federated Department Stores, Inc., Macy’s parent corporation; Federated Logistics, an unincorporated division of Federated Department Stores, Inc.; Christopher DeSantis, an individual employed in Macy’s Security Department; Scott Chester, Jr., plaintiff’s former supervisor at Macy’s; Michael Green, a former co-worker at Macy’s; the City of New York; the New York City Police Department; and, the Frick Company. 2 The counts in plaintiff’s complaint are as follows: false arrest and imprisonment (Count I); malicious prosecution (Count II); defamation (Count III); intentional infliction of emotional distress (Count IV); violations of the New York Human Rights Law, Executive Law section 296 et seq.(Count V); violations of the New York City Human Rights Law, Administrative Code section 8-107, et seq. (Count VI); municipal liability under 42 U.S.C. section 1983 (Count VII); and, violations of 42 U.S.C. sections 1983 and 1985 (Count VIII).
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and the City defendants, in connection with his arrest and prosecution for theft (remaining Counts).
For the reasons set forth more fully herein, defendants Macy’s, Federated Department Stores, Inc., Federated Logistics and Christopher DeSantis (hereinafter collectively referred to as the “Macy’s defendants”) hereby request that this Court sever plaintiff’s employment discrimination claims arising under state and local law (Counts V and VI), which are brought as a putative class action, from his remaining claims, which consist of federal civil rights claims and pendent state law claims. As set forth herein, plaintiff’s class action discrimination claims under state and local law and his federal civil rights/common law claims are entirely different from one another and involve different factual circumstances. They will require the testimony of different witnesses and different documentary proof. Severance will further the interests of judicial economy, prevent unfair prejudice to all named parties and will not unfairly prejudice plaintiff. Accordingly, the Macy’s defendants’ motion to sever should be granted.
STATEMENT OF FACTS3 Background
Plaintiff, a Hispanic male of Puerto Rican decent, was employed at Macy’s for ten years. (Complaint, ¶¶ 3, 12). During the latter part of his employment at Macy’s, plaintiff worked in the Receiving Department under the supervision of Scott Chester, Jr. (“Mr. Chester”), a white male. (Complaint, ¶¶ 15, 6; Macy’s defendants’ Answer at ¶¶ 15, 6).
Plaintiff’s Discrimination Claims According to plaintiff, he was discriminated against on the basis of his race/national origin, passed over for promotion and subjected to a hostile work environment during his
3 Defendants admit those facts as alleged in Plaintiff’s Complaint solely for purposes of the instant Motion. 2

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employment at Macy’s. (Complaint, ¶¶ 17-20). Plaintiff claims he began suffering from racial/national origin discrimination in 2001 when he was passed over for promotion to Team Leader. (Complaint, ¶ 17). Plaintiff believes Macy’s failed to promote him to Team Leader because of his race/national origin and because he associated with and befriended other minority employees in his Department. (Complaint, ¶¶ 18-19).
Plaintiff also asserts that Mr. Chester made derogatory statements to and about plaintiff and other minority employees and subjected them to hyper scrutiny as a result of Mr. Chester’s belief that minorities had a “propensity to steal, take drugs, and engage in other criminal activity.” (Complaint, ¶¶ 21-26). As a result, plaintiff claims he was subjected to a hostile work environment. (Complaint, ¶ 21, 27). He claims he complained to Mr. Chester about “Defendants’ employment practices and filed grievances” with his union. (Complaint, ¶ 38). In 2001, plaintiff became union shop steward. (Complaint, ¶ 41). As a result, the frequency of his complaints increased because his duty as union steward was to bring the employment complaints on behalf of his co-workers. (Complaint, ¶ 40).
Despite his alleged complaints to Mr. Chester and to other managerial employees, plaintiff asserts that Macy’s made no attempt to stop/prevent the alleged discrimination plaintiff and other union members suffered. (Complaint, ¶ 43). In retaliation for making complaints as a shop steward, plaintiff alleges that he was subjected to intensified hostility and retaliatory acts. (Complaint, ¶ 44). Plaintiff claims this retaliation culminated in his termination on March 7, 2002. (Complaint, ¶¶ 44-45, 77).
Plaintiff’s Claims Relating to his Arrest and Prosecution While still employed at Macy’s, on or about March 6, 2002, plaintiff was detained by members of Macy’s Security Department for stealing merchandise. (Complaint, ¶ 46). As
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plaintiff was leaving work, he and another minority employee (Michael Greene, who is also a named defendant in the above action) were escorted by members of Macy’s Security Department to separate holding rooms. (Complaint, ¶ 47). Plaintiff alleges that members of Macy’s Security Department handcuffed him to a bench where he remained for three hours. (Complaint, ¶ 51). During this time, plaintiff claims he was denied both legal counsel and the assistance of his union representative despite requests for both. (Complaint, ¶¶ 54-55). Plaintiff further alleges that he was frisked by Mr. DeSantis. (Complaint, ¶¶ 68-69).
Eventually, members of the New York City Police Department arrived and placed plaintiff under arrest. (Complaint, ¶ 73). He was taken to the Midtown South Precinct and charged with theft. (Complaint, ¶ 23). According to plaintiff, he was questioned for six hours and then spent 24 hours in a holding cell. (Complaint, ¶¶ 75-76). After his release, plaintiff filed a grievance with his union for “unlawful termination, false arrest, and for refusal to provide him with assistance from the shop steward while he was being detained and searched without his consent.” (Complaint, ¶ 78).
Several months later, plaintiff appeared before Justice E. Coin and was charged with two counts of larceny. (Complaint, ¶ 79). He refused to accept a guilty plea. (Complaint, ¶ 80-81). Thereafter, according to plaintiff, Justice Coin dismissed both larceny counts for lack of evidence. (Complaint, ¶ 84). Following the dismissal, plaintiff appeared before Justice C. Berkman and was again charged with two counts of larceny. (Complaint, ¶¶ 85-87, 90). Just as he had done before, plaintiff refused to accept a plea. (Id.). Eventually, according to plaintiff, Justice Berkman also dismissed the second two larceny charges for lack of evidence. (Complaint, ¶ 93).
4

Case 1:04-cv-02944-BSJ-HBP Document 21 Filed 09/02/04 Page 6 of 15
Procedural History Plaintiff brings the current action against, inter alia, the Macy’s defendants, Mr. Chester, the City of New York and the New York City Police Department (hereinafter collectively referred to as “the City defendants”), alleging a myriad of statutory and common law claims.4 Notwithstanding the plethora of counts and parties in the case, plaintiff’s action alleges two distinct branches of claims that are based upon entirely separate and distinct factual circumstances -- (1) that plaintiff, and a class of other employees he purports to represent, were discriminated against based upon his race and national origin during his employment at Macy’s in violation of state and local law (Counts V and IV), and (2) that plaintiff was falsely arrested, prosecuted and defamed, and that his federal civil rights were violated by Macy’s and the City defendants, in connection with his arrest and prosecution for theft (remaining Counts). Plaintiff makes this dichotomy in his claims clear in the very first paragraph of his complaint when he states that he files this action
for monetary damages (compensatory and punitive) against Defendants arising out of the false arrest, malicious prosecution, defamation and other violations of [his] constitutional, statutory and legal rights … including violations of section 1983. Plaintiff [also] brings this action on behalf of himself and others similarly situated for discrimination on the basis of race and/or national origin with respect to harassment, hostile work environment, retaliation, promotion, termination and other terms and conditions of employment, and retaliation. (Complaint, ¶ 1). Note: Plaintiff does not purport to represent a class of people in connection with his civil rights and common law claims, only with regard to his discrimination claims. At no point in his complaint does plaintiff allege that Mr. Chester, the individual who he claims harbored discriminatory animus against him and who harassed him based upon his race
4 Plaintiff’s complaint does not clearly delineate which claims he is bringing against which particular defendant(s). 5

Case 1:04-cv-02944-BSJ-HBP Document 21 Filed 09/02/04 Page 7 of 15
and national origin, was involved in any way in the investigation conducted by Macy’s Security Department or in his arrest and prosecution. Mr. Chester, for his part, has denied having any knowledge or information regarding plaintiff’s allegations relating to his arrest and prosecution. (Chester’s Answer at ¶¶46-104.) The Macy’s defendants in their Answer further explained that Mr. Chester was employed in Macy’s Receiving Department whereas Mr. DeSantis, and the other individuals involved in the facts relating to plaintiff’s arrest, were all employed in an entirely different department, the Security Department. (Macy’s defendants’ Answer, ¶¶ 5, 6, 47, 48).
It is, moreover, apparent from the Macy’s defendants’ initial disclosures in this case that the witnesses and documents relating to plaintiff’s discrimination and civil rights/common law claims are entirely different. The witnesses having information about plaintiff’s employment discrimination claims are those who worked in the Receiving and Human Resources Department, whereas the witnesses having information about plaintiff’s civil rights/common law claims are those who worked in the Security Department. (Saunders Dec., Macy’s defendants’ Initial Disclosures at ¶1). The documents relating to plaintiff’s claims are similarly distinct. The documents relating to plaintiff’s employment discrimination claims are plaintiff’s personnel file, his union grievance file, Macy’s policies and procedures, etc. (Saunders Dec., Macy’s defendants’ Initial Disclosures at ¶2). Whereas, the documents relating to plaintiff’s civil rights and common law claims are the Security Department investigation file and records created by the New York City Police Department and the New York County District Attorney’s Office. (Id.).
As the Macy’s defendants’ initial disclosures make clear, there are no overlapping witnesses or documents in connection with the two main branches of plaintiff’s claims in this
6

Case 1:04-cv-02944-BSJ-HBP Document 21 Filed 09/02/04 Page 8 of 15
case. Therefore, discovery on these claims will involve unrelated documents and witnesses, and the trial of this matter will not include overlapping witnesses or documents.
ARGUMENT Rule 21 of the Federal Rules of Civil Procedure permits the severance of any claim when doing so benefits the efficient disposition of litigation without severely prejudicing a party to the litigation. In his complaint, plaintiff advances claims based on two separate sets of factual circumstances and legal theories, and involving multiple and different defendants -- class action discrimination claims under state and local law against Macy’s (and probably an aiding and abetting claim against defendant Chester) on the one hand, and federal civil rights/common law claims against Macy’s and the other defendants arising from his arrest and prosecution on the other hand. The result is not only confusion, but the potential for unfair prejudice to the multiple parties to the litigation. As such, plaintiff’s discrimination claims should be severed from his civil rights/common law claims in the interest of clarity and the efficient administration of justice. I. Legal Standard for Evaluating a Motion to Sever Claims “Rule 21 of the Federal Rules of Civil Procedure provides that ‘[a]ny claim against a party may be severed and proceeded with separately.’ This provision authorizes the severance of any claim and is not limited to situations where there has been a finding of improper joinder or improper venue.” Wyndham Assoc. v. Bintliff, 398 F.2d 614, 618 (2d Cir.), cert. denied, 393 U.S. 977 (1968); see also Sporia v. Pennsylvania Greyhound Lines, 143 F.2d 105, 106-107 (3rd Cir. 1944). Accordingly, Rule 21 of the Federal Rules of Civil Procedure “’permits a court to add or drop parties to an action when doing so would serve the ends of justice and further the prompt and efficient disposition of the litigation.’” German by German v. Federal Home Loan
7

Case 1:04-cv-02944-BSJ-HBP Document 21 Filed 09/02/04 Page 9 of 15
Mortgage Corp., 896 F. Supp. 1385, 1400 (S.D.N.Y. 1995) (Sweet, J.)(quoting E.I. DuPont de Nemours & Co. v. Fine Arts Reproduction Co., 1995 WL 312505, * 1-2 (S.D.N.Y. 1995)). The decision to order severance is left to “’the sound discretion of the trial court’”. Id. (quoting State v. Hendrickson Bros., Inc., 840 F.2d 1065, 1082 (2d Cir.), cert. denied, 488 U.S. 848 (1988). As such, decisions to sever are “interlocutory, and thus not ordinarily appealable.” Cain v. Board of Elections, 630 F. Supp 221, 225 (E.D.N.Y. 1986) (Wexler, J.).
When determining whether severance is appropriate, courts generally consider the following four factors: “(1) whether the issues sought to be tried separately are significantly different from one another, (2) whether the separable issues require the testimony of different witnesses and different documentary proof, (3) whether the party opposing the severance will be prejudiced if it is granted and (4) whether the party requesting the severance will be prejudiced if it is not granted.” German, 896 F. Supp. at 1400 (citing Hal Leonard Publ’g. Corp. v. Future Generations, Inc., No. 93 Civ. 5290, 1994 WL 163987, at *1-2 (S.D.N.Y. 1994)).
II. Severance of Plaintiff’s Class Action Employment Discrimination Claims from his Civil Rights/Common Law Claims Is Appropriate
As set forth above, plaintiff’s various claims in the complaint can be categorized into two distinct branches -- (1) putative class action employment discrimination claims under state and local law against Macy’s, and (2) federal civil rights and common law claims against the Macy’s and City defendants relating to his arrest and prosecution. Essentially, plaintiff has not only lumped together claims for two unrelated, distinct events against multiple, different defendants, he has lumped together a putative class action claim against Macy’s (and probably an aiding and abetting claim against defendant Chester) with civil rights and common law claims against Macy’s and a host of other specific and unrelated defendants.
8

Case 1:04-cv-02944-BSJ-HBP Document 21 Filed 09/02/04 Page 10 of 15
These two main branches of claims are based upon different legal theories, different facts and circumstances, and were allegedly perpetrated by multiple, unrelated actors over several discrete periods in time. As such, plaintiff’s class action discrimination claims and his civil rights/common law claims are entirely different from one another and involve different factual circumstances, the testimony of different witnesses and different documentary proof. Thus, discovery of and the trial on these claims will be different.
Plaintiff’s class action employment discrimination claims against the Macy’s defendants are based upon experiences over his plaintiff’s ten (10) years of employment at Macy’s, and in particular, in the Receiving Department. They involve his interaction with co-workers, his work for the union, his desire for promotion, and the alleged racially motivated slurs made by his supervisor, Mr. Chester. The witnesses having information about plaintiff’s employment discrimination claims are those who worked in the Receiving and Human Resources Department. (Macy’s defendants’ Initial Disclosures at ¶1). The documents relating to these claims are plaintiff’s personnel file, his union grievance file, Macy’s policies and procedures, etc. (Macy’s defendants’ Initial Disclosures at ¶2).
Plaintiff’s other claims in his complaint for civil rights violations, false arrest, malicious prosecution, and defamation are all based upon plaintiff’s experience with Macy’s Security Department and law enforcement officials for the City. They involve his interaction with and detention by members of Macy’s Security Department, his arrest by the City, and the City’s two prosecutions of the charges which caused his arrest. The witnesses having information relevant to these claims are members of the Macy’s Security Department, the New York City Police Department and the New York District Attorney’s Office. (Saunders Dec., Macy’s defendants’ Initial Disclosures at ¶1). The documents relating to plaintiff’s civil rights and common law
9

Case 1:04-cv-02944-BSJ-HBP Document 21 Filed 09/02/04 Page 11 of 15
claims are the Security Department investigation file and records created by the New York City Police Department and the New York County District Attorney’s Office. (Id. at ¶2). In sum, there are no overlapping witnesses or documents in connection with the two main branches of plaintiff’s claims in this case.
At no point in his complaint does plaintiff allege that Mr. Chester, the individual who he claims harbored discriminatory animus against him and who harassed him based upon his race and national origin, was involved in any way in the investigation conducted by Macy’s Security Department or in his arrest and prosecution. Mr. Chester, for his part, has denied having any knowledge or information regarding plaintiff’s allegations relating to his arrest and prosecution. (Chester’s Answer at ¶¶46-104.) The Macy’s defendants in their Answer further explained that Mr. Chester was employed in Macy’s Receiving Department whereas Mr. DeSantis, and the other individuals involved in the facts relating to plaintiff’s arrest, were all employed in an entirely different department, the Security Department. (Macy’s defendants’ Answer, ¶¶ 5, 6, 47, 48).
Because of the distinct nature of these two main branches of plaintiff’s claims and the fact that plaintiff is not seeking to certify a class on any of his claims other than his employment discrimination claims against Macy’s, discovery in this case will be very broad and potentially difficult to control. The defendants in the case other than Macy’s will needlessly incur significant fees and expenses to participate in discovery on plaintiff’s class action discrimination claims, and in class action certification motion practice, despite the fact that plaintiff’s class action claims do not concern any of the defendants other than Macy’s. Severing plaintiff’s class action employment discrimination claims arising under state and local law (Counts V and VI) from the remaining claims in the complaint will allow for the controlled litigation of each
10

Case 1:04-cv-02944-BSJ-HBP Document 21 Filed 09/02/04 Page 12 of 15 discrete set of claims. Moreover, severance will allow the Court to easily define the scope of discoverable evidence and provide a forum where the relevant statutory defenses can be clearly articulated with little to no concern that severance of the claims will result in overlapping witnesses or proof during discovery or at trial.
Severing the main branches of plaintiff’s claims into two separate actions would also provide clarity and would allow a jury to focus on plaintiff’s individual claims instead of being overwhelmed by one mega-trial on numerous unrelated claims, some of which could be tried as a class action. The potential for juror confusion clearly exists should this action progress to trial without severance.
In sum, the Macy’s defendants believe severance will further the interests of judicial economy, prevent unfair prejudice to all named parties and will not unfairly prejudice plaintiff. Accordingly, the Macy’s defendants’ motion to sever should be granted.
11

Case 1:04-cv-02944-BSJ-HBP Document 21 Filed 09/02/04 Page 13 of 15
CONCLUSION For the forgoing reasons, the Macy’s defendants’ motion to sever Counts V and VI from plaintiff’s remaining claims should be granted. Dated: September 2, 2004
Respectfully submitted, FEDERATED LOGISTICS, FEDERATED DEPARTMENT STORES, INC., MACY’S EAST, INC., and CHRISTOPHER DESANTIS, By their attorneys, __________/S/__________________ Diane Saunders (DS6500) MORGAN, BROWN & JOY, LLP One Boston Place, Suite 1616 Boston, MA 02108-4472 (617) 523-6666
12

Case 1:04-cv-02944-BSJ-HBP Document 21 Filed 09/02/04 Page 14 of 15
CERTIFICATE OF SERVICE I hereby certify that on September 2, 2004, I caused a true and correct copy of the foregoing to be served, by first class mail, postage prepaid, upon:
Ian F. Wallace, Esquire Michael Shen, Esquire Michael Shen & Associates, P.C. Attorneys for Plaintiff 225 Broadway, Suite 2515 New York, New York 10007 Alison Gugel, Esquire Assistant Corporation Counsel Office of the Corporation Counsel for the City of New York Attorneys for City Defendants 100 Church Street New York, New York 10007 and Mercedes Colwin, Esquire L=Abbate, Balkan, Colavita & Contini, LLP Attorneys for defendant Chester One Battery Park Plaza New York, New York 10004 being the addresses designated by said attorneys for service of all pleadings.
_________/S/____________________ Diane Saunders (DS6500)
13

Case 1:04-cv-02944-BSJ-HBP Document 21 Filed 09/02/04 Page 15 of 15
TABLE OF CONTENTS Page
Preliminary Statement …………………………………………………………. 1 Statement of Facts ……………………………………………………………… 2
Background ……………………………………………………………… 2 Plaintiff’s Discrimination Claims ……………………………………….. 2 Plaintiff’s Claims Relating to his Arrest and Prosecution ………………. 3 Procedural History ………………………………………………………. 5 Argument ………………………………………………………………………… 7 I. Legal Standard for Evaluation a Motion to Sever Claims ……………….. 7 II. Severance of Plaintiff’s Class Action Employment Discrimination Claims from his Civil Rights/Common Law Claims is Appropriate …….. 8 Conclusion ………………………………………………………………………… 12

 
 Case 1:04-cv-02944-BSJ-HBP Document 55 Filed 04/01/05 Page 1 of 16
04 cv 2944
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
HAROLD BAERGAS, on BehalfofHimselfand Others Similarly Situated,
Plaintiff,
-against-
THE CITY OF NEW YORK, NEW YORK CITY POLICE DEPARTMENT, FEDERATED LOGISTICS, FEDERATED DEPARTMENT STORES, INC., MACY'S EAST, THE FRICK COMPANY, and SCOTT CHESTER, CHRIS DESANTIS, MICHAEL GREEN, JOHN DOES 1-5, Individually,
Defendants.
DEFENDANTS CITY OF NEW YORK AND NEW YORK CITY POLICE DEPARTMENT'S MEMORANDUM OF LAW IN SUPPORT OF THEIR MOTION FOR SUMMARY_JUDGMENT
MICHAEL A. CARDOZO Corporation Counsel ofthe City ofNew York
Attorney for Defendants City ofNew York and New York City Police Department 100 Church Street, Room 3-178 New York, N.Y. 10007
Of Counsel: Alison Gugel Tel: (212) 788-9391

Case 1:04-cv-02944-BSJ-HBP Document 55 Filed 04/01/05 Page 2 of 16
TABLE OF CONTENTS
TABLE OF AUTHORITIES .......................................................................................................... ii PRELIMINARY STATEMENT .................................................................................................... 1 STATEMENT OF THE FACTS .................................................................................................... 1 STANDARD OF REVIEW ............................................................................................................ 2 ARGUMENT
POINT I
THE NYPD IS NOT A SUABLE ENTITY. .............................................. .4 POINT II
THE CLAIMS AGAINST THE CITY OF NEW YORK SHOULD BE DISMISSED BECAUSE PLAINTIFF HAS FAILED TO ESTABLISH MONELL LIABILITY................................................................................4 A. There was Probable Cause for Plaintiff's Arrest. ................................. 5 B. Plaintiff Fails to State a Claim for Malicious
Prosecution.......................................................................................... 7 C. Plaintiff has Failed to Establish a Policy or
Practice of the City ofNew York ........................................................ 8 POINT III
PLAINTIFF'S STATE LAW CLAIMS SHOULD BE DISMISSED..........................................................................................9 CONCLUSION ............................................................................................................................. 10

Case 1:04-cv-02944-BSJ-HBP Document 55 Filed 04/01/05 Page 3 of 16
TABLE OF AUTHORITIES
Cases
Anderson v. Liberty Lobby, Inc.,
477 u.s. 242 (1996) ................................................................................................................... 3
Baez v. New York City Health and Hosp. Corp., 80 N.Y.2d 571 (1992) ...............................................................................................................9
Batista v. Rodriguez, 702 F.2d 393 (2d Cir. 1983)....................................................................................................... 5
Bernard v. United States, 25 F.3d 98 (2d Cir. 1994).........................................................................................................5, 6, 7 Brogdon v. City ofNew Rochelle,
200 F. Supp. 2d 411 (S.D.N.Y. 2002) ....................................................................................... 7 Broughton v. State,
37 N.Y.2d 451 cert. denied, 423 U.S. 929 (1975) .................................................................... 7 Brown v. Metropolitan Transportation Authority,
717 F. Supp. 257 (S.D.N.Y. 1989) ........................................................................................... 9 Celotex Corp. v. Catrett,
477 u.s. 317 (1986) ................................................................................................................... 2
City of Canton v. Harris, 489 U.S. 378 (1989) ................................................................................................................... 4
City of Oklahoma City v. Tuttle, 471 U.S. 808 (1985) ................................................................................................................... 8
Colon v. New York, 60 N.Y.2d 78 (1983) .................................................................................................................. 7
Cunnyv. CityofNew York, 2001 LEXIS 10806 (S.D.N.Y. July 31,2001) .................................................................................7 Daniels v. United States,
393 F.2d 359 (D.C. Cir. 1968) .................................................................................................. 6 Dukes v. The City ofNew York,
879 F. Supp. 335 (S.D.N.Y. 1995) ........................................................................................... 7
- 11 -

Case 1:04-cv-02944-BSJ-HBP Document 55 Filed 04/01/05 Page 4 of 16
Cases Eastman Kodak Co. v. Image Technical Services, Inc.,
504 U.S. 451 (1992) ................................................................................................................... 2
Felder v. Casey, 487U.S. 131 (1988) .........................................................................................................................9
Gallo v. Prudential Residential Services, Ltd. Partnership, 22 F.3d 1219 (2d Cir. 1994).......................................................................................................2
Gonzalez v. City of New York, 2002 U.S. Dist. LEXIS 2749 (S.D.N.Y. Feb. 21, 2002) ...........................................................................................................4
Jenkins v. City ofNew York, 1999 U.S. Dist. LEXIS 15353 (S.D.N.Y. September 29, 1999) ................................................ 8
Lindsey v. Loughlin, 616 F. Supp. 449 (E.D.N.Y. 1985) ........................................................................................... 5
Matsushita Electric Industrial Co. v. Zenith Radio Corp.,
475 u.s. 574 (1986) ...................................................................................................................2
Mistretta v. Prokesch, 5 F. Supp. 2d 128 (E.D.N.Y. 1998) .......................................................................................... 5
Monell v. Department of Social Services,
436 u.s. 658 (1978) .............................................................................................................. 4, 8
Ricciuti v. N.Y.C. Transit Authority, 941 F.2d 119 (2d Cir. 1991).................................................................................................. .4, 5
Robinson v. Matos, 1999 U.S. Dist. LEXIS 5447 (S.D.N.Y. Apr. 16, 1999)..........................................................................................................9
Rothstein v. Carriere, 373 F.3d 275 (2d Cir. 2004) .....................................................................................................7
Russell v. Smith, 68 F.3d 33 (2d Cir. 1995) ......................................................................................................... 7
Sarus v. Rotundo, 831 F.2d 397 (2d Cir. 1987).................................................................................................. .4, 8
- 111 -

Case 1:04-cv-02944-BSJ-HBP Document 55 Filed 04/01/05 Page 5 of 16
Savino v. City ofNew York, 331 F.3d 63 (2d Cir. 2003) ......................................................................................................... 8
Shakur v. McGrath, 517 F.2d 983 (2d. Cir. 1975) .................................................................................................... 9
Singer v. Fulton County Sheriff, 63 F.3d 110 (2d Cir. 1995)......................................................................................................... 5
U.S. v. Ceballos, 812 F.2d 42 (2d Cir. 1987) .......................................................................................................5
U.S. v. Fisher, 702 F.2d 372 (2d Cir. 1983) .....................................................................................................5
U.S. v. Tarango-Hinojos, 791 F.2d 1174 (5th Cir. 1986) ..................................................................................................6
Velaire v. City of Schenectady, 862 F. Supp. 774 (N.D.N.Y. 1994) .................................................................................................. 5 Walker v. New York City Police Dep't,
1996 U.S. Dist. 22608 (E.D.N.Y. July 12, 1996) ........................................................................................................... 8 Wyler v. United States, 725 F.2d 156 (2d Cir. 1983).......................................................................................................2 Ying Jing Gan v. City of New York, 996 F.2d 522 (2d Cir. 1993).......................................................................................................2
-IV-

Case 1:04-cv-02944-BSJ-HBP Document 55 Filed 04/01/05 Page 6 of 16 Statutes Fed. R. Civ. P. 56 ......................................................................................................................... 1, 2 §1983 ............................................................................................................................................ 1, 4
- v-

Case 1:04-cv-02944-BSJ-HBP Document 55 Filed 04/01/05 Page 7 of 16

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
------------------------------------------------------------------------X
HAROLD BAERGAS, on Behalf of Himself and Others Similarly Situated,
Plaintiff,

-against-
THE CITY OF NEW YORK, NEW YORK CITY POLICE DEPARTMENT, FEDERATED LOGISTICS, FEDERATED DEPARTMENT STORES, INC., MACY'S EAST, THE FRICK COMPANY, and SCOTT CHESTER, CHRIS DESANTIS, MICHAEL GREEN, JOHN DOES 15, Individually,

04 CV 2944 (BSJ)(HBP)

Defendants.

------------------------------------------------------------------------X
DEFENDANTS CITY OF NEW YORK AND NEW YORK CITY POLICE DEPARTMENT'S MEMORANDUM OF LAW IN SUPPORT OF THEIR MOTION FOR SUMMARY JUDGMENT
PRELIMINARY STATEMENT

Plaintiff Harold Baergas brings this Section 1983 action against the City of New

York and New York City Police Department (hereinafter "City defendants"), alleging that New

York City police officers unlawfully arrested him and he was maliciously prosecuted.

City defendants now move, pursuant to Rule 56 of the Federal Rules of Civil

Procedure, for an order granting summary judgment in their favor and dismissing the complaint

against it on the grounds that: (1) the NYPD is not a suable entity; and (2) plaintiff failed to meet

his burden to establish liability against the City of New York. As such, City defendants

respectfully submit that summary judgment is appropriate in this action.

STATEMENT OF THE FACTS

For a statement of relevant facts, the Court is respectfully referred to Defendants

City of New York and New York City Police Department's Local Civil Rule 56.1 Statement of

Undisputed Facts, dated April 1, 2005 and submitted concurrently herewith.

Case 1:04-cv-02944-BSJ-HBP Document 55 Filed 04/01/05 Page 8 of 16
STANDARD OF REVIEW Summary judgment is designed to expedite civil cases by eliminating from the trial calendar those claims that can properly be resolved as a matter of law. Under Rule 56(c), summary judgment is warranted when, viewing the evidence in a light most favorable to the nonmovant, the Court determines that there is no genuine issue of material fact and the movant is entitled to a judgment as a matter of law. Fed.R.Civ.P. 56; Eastman Kodak Co. v. Image Technical Servs., Inc., 504 U.S. 451, 457 (1992). A motion for summary judgment requires the party with the burden of proof at trial to come forward with proper evidence and "make a showing sufficient to establish the existence of[each] element to that party's case ... since a complete failure ofproofconceming an essential element of ... [the] case necessarily renders all other facts immaterial." Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). "Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is 'no genuine issue for trial."' Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). The Second Circuit stated:
[T]he moving party may obtain summary judgment by showing that little or no evidence may be found in support of the nonmoving party's case. When no rational jury could find in favor of the nonmoving party because the evidence to support its case is so slight, there is no genuine issue of material fact and a grant of summary judgment is proper. Gallo v. Prudential Residential Servs., Ltd. Partnership, 22 F.3d 1219, 1223-24 (2d Cir. 1994) (citations omitted). The non-moving party must produce evidence in the record and "may not rely simply on conclusory statements or on contentions that the affidavits supporting the motion are not credible." Ying Jing Gan v. City of New York, 996 F.2d 522, 532 (2d Cir. 1993); see Scotto v. Almenas, 143 F.3d 105, 114-15 (2d Cir. 1998) (citations omitted); Wyler v. United States, 725 F.2d 156, 160 (2d Cir. 1983). "The mere existence of some alleged factual dispute
2

Case 1:04-cv-02944-BSJ-HBP Document 55 Filed 04/01/05 Page 9 of 16 between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genume issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1996).
For the reasons set forth herein, summary judgment should be granted in favor of the City defendants.
3

Case 1:04-cv-02944-BSJ-HBP Document 55 Filed 04/01/05 Page 10 of 16 ARGUMENT
POINT I THE NYPD IS NOT A SUABLE ENTITY. Plaintiff brings claims against the New York City Police Department. However, it is well established under the Charter of the City of New York, the NYPD can only be sued in the name of the City of New York. Gonzalez v. City of New York, 98 Civ. 6081 (MBM), 2002 U.S. Dist. LEXIS 2749 (S.D.N.Y. Feb. 21, 2002). To name only the New York City Police Department as a defendant in a federal claim is fatal to those claims against the NYPD. Id. Accordingly, all of plaintiffs claims against defendant NYPD must be dismissed.
POINT II THE CLAIMS AGAINST THE CITY OF NEW YORK SHOULD BE DISMISSED BECAUSE PLAINTIFF HAS FAILED TO ESTABLISH MONELL LIABILITY. Plaintiff has failed to establish Monell liability and, therefore, the claims against the City ofNew York must be dismissed. In this regard, in order to prevail on a §1983 claim against the City of New York, plaintiff must show that a municipal policy or custom caused the deprivation of his constitutional rights. Monell v. Department of Social Services, 436 U.S. 658, 690-91, 98 S. Ct. 2018, 2036 (1978); Sarus v. Rotundo, 831 F.2d 397, 400 (2d Cir. 1987); City of Canton v. Han·is, 489 U.S. 378, 109 S.Ct. 1197 (1989). Under §1983, a municipality may not be held liable solely on the basis of respondeat superior. Monell, 436 U.S. at 694-95; Ricciuti v. N.Y.C. Transit Authority, 941 F.2d 119, 122 (2d Cir. 1991). Rather, a plaintiff must show "a direct causal link between a municipal policy or custom, and the alleged constitutional deprivation." City of Canton, 489 U.S.
4

Case 1:04-cv-02944-BSJ-HBP Document 55 Filed 04/01/05 Page 11 of 16 at 385. In Batista v. Rodriguez the Court stated, "to hold a city liable under §1983 for the unconstitutional actions of its employees, a plaintiff is required to plead and prove three elements: (1) an official policy or custom that (2) causes the plaintiff to be subjected to (3) a denial of a constitutional right." Batista v. Rodriguez, 702 F.2d 393, 397 (2d Cir. 1983).
A. There was Probable Cause for Plaintifrs Arrest. At the outset, plaintiff must prove that he was denied a constitutional right.
Probable cause to arrest is a complete defense to actions for false arrest and false imprisonment, whether the action is brought under state law or Section 1983. Singer v. Fulton County Sheriff, et al., 63 F.3d 110, 118 (2d Cir. 1995); Bernard v. United States, 25 F.3d 98, 102-104 (2d Cir. 1994); Mistretta v. Prokeseh, 5 F. Supp. 2d 128, 133 (E.D.N.Y. 1998). Probable cause exists when the police officer has "knowledge or reasonably trustworthy information of facts and circumstances that are sufficient in themselves to warrant a person of reasonable caution in the belief that (1) an offense has been or is being committed (2) by the person to be arrested." U.S. v. Ceballos, 812 F.2d 42, 50 (2d Cir. 1987) (quoting U.S. v. Fisher, 702 F.2d 372, 375 (2d Cir. 1983)).
In evaluating probable cause, the Court should consider the facts available to the officer at the time of arrest. Ricciuti v. New York City Transit Authority, 124 F.3d 123, 128 (2d Cir. 1997) (account of complaining witness and officers' personal observations sufficient to establish probable cause); Velaire v. City of Schenectady, 862 F. Supp. 774 (N.D.N.Y. 1994) (account of nursing assistant that plaintiff was observed choking her mother, a patient in bed at the hospital, as well as officers' observation of red marks on patient's neck, sufficient to establish probable cause). The standard of evaluating the existence of probable cause is an objective one. Lindsey v. Loughlin, 616 F. Supp. 449, 451 (E.D.N.Y. 1985). The factors to be considered are factual and practical ones of everyday life on which reasonable and prudent
5

Case 1:04-cv-02944-BSJ-HBP Document 55 Filed 04/01/05 Page 12 of 16

persons, not legal technicians, act.

U.S.

v.

Tarango-Hinojos,

791

F.2d

1174

(5

1
h

Cir.

1986).

The

crucial issue, therefore, is whether the facts in the possession of the officers at the time plaintiff

was arrested were sufficient to establish probable cause for the arrest.

Plaintiff alleges that his arrest was the result of unconstitutional acts of the police

officers. However, officers have probable cause to arrest if they receive "information from some

person -- normally the putative victim or eyewitness who it seems reasonable to believe is

telling the truth." Daniels v. United States, 393 F.2d 359, 361 (D.C. Cir. 1968). Even if the infom1ation provided later turns out to have been false, the test is whether the arresting officers

were reasonable in relying upon the information at the time of the arrest. See Bernard, 25 F.3d at 103.

The police responded to a complaint that was lodged by Macy's. See City

Defendants' 56.1 Statement, ,1,19, 12. Macy's security verbally inforn1ed the police that plaintiff

had unlawfully taken unpaid merchandise from Macy's and was in possession of marijuana. See

City Defendants' 56.1 Statement, ,1,113, 14. Furthermore, Macy's provided the police with the

results of their investigation that included a "Report of Investigation" setting forth Macy's allegations against plaintiff and signed by Macy' s personnel, an Associate Data Sheet, a written statement by Michael Green, and a Property Clerk's Invoice drafted by Macy's detailing what items were alleged to have been stolen by plaintiff. See City Defendants' 56.1 Statement, ,116.

Based on the foregoing, the officer certainly had sufficient facts to establish the requisite probable cause needed to effect plaintiff's arrest for grand larceny and criminal possession of stolen property.

In light of the undisputed facts and circumstances confronting the police officers, plaintiff's claims should be dismissed as a matter of law.

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B. Plaintiff Fails to State a Claim for Malicious Prosecution Again, plaintiff cannot prove that he was denied a constitutional right. In order to
state a claim for malicious prosecution, a plaintiff must show "(1) the initiation or continuation of a criminal proceeding against plaintiff; (2) termination of the proceeding in plaintiffs favor; (3) lack of probable cause for commencing the proceeding; and (4) actual malice as a motivation for defendant's actions." Russell v. Smith, 68 F.3d 33, 36 (2d Cir. 1995); see Broughton v. State, 37 N.Y.2d 451, 458, cert. denied, 423 U.S. 929 (1975). Therefore, it is plaintiffs burden to prove all four essential elements of a malicious prosecution claim.
Here, plaintiff fails to state a claim for malicious prosecution as he cannot satisfy each and every element under Russell. In this regard, the existence of probable cause is a complete defense against plaintiffs malicious prosecution claim. See,~ Bernard v. United States, 25 F.3d 98, 104 (2d Cir. 1994); Dukes v. The City ofNew York, 879 F. Supp. 335, 341342 (S.D.N.Y. 1995). As discussed supra at Point II (A), there is sufficient evidence to show that the officers had probable cause to arrest plaintiff.
Moreover, a grand jury indictment creates a "strong presumption of probable cause that defeats a claim for malicious prosecution pursuant to§ 1983." Cwmy v. City ofNew York, 99-CV-4634 (VM), 2001 U.S. Dist. LEXIS 10806, at *14 (S.D.N.Y. July 31, 2001). This preswnption "may be overcome only by showing 'that the indictment was produced by fraud, perjury, the suppression of evidence, or other police conduct undertaken in bad faith."' Bernard, 25 F.3d at 104 (quoting Colon v. New York, 60 N.Y.2d 78, 83 (1983))(emphasis added); see also Brogdon v. City ofNew Rochelle, 200 F. Supp. 2d 411, 421 (S.D.N.Y. 2002). This misconduct must occur in the Grand Jury proceedings. Rothstein v. Carriere, 373 F.3d 275 (2d Cir. 2004). The mere fact that the charges were dismissed against plaintiff is insufficient to rebut the presumption of probable cause created by the grand jury indictment. See Colon v. City of New York, 60
7

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N.Y.2d 78, 83 (1983). The plaintiffbears the burden of proof in rebutting the presumption of probable cause that arises from an indictment. Savino v. City ofNew York, 331 F.3d 63, 73 (2d Cir. 2003).
In the case at hand, a Grand Jury in the Supreme Court of the State ofNew York, County of New York indicted plaintiff on two counts, namely grand larceny in the fourth degree and criminal possession of stolen property in the fourth degree. See City Defendants' 56.1 Statement, ,]20. Plaintiff has not submitted any evidence to rebut the presumption of probable cause that arises from the indictment. Plaintiff merely makes broad, conclusory assertions of misconduct, which are insufficient as a matter of law and must fail. Walker v. New York City Police Dep't, No. 94 CV 3608 (SJ), 1996 U.S. Dist. LEXIS 22608, at *11-12 (E.D.N.Y. July 12, 1996); Jenkins v. City ofNew York, No. 98 CV 7170 (JGK), No. 98 CV 7338 (JGK), 1999 U.S. Dist. LEXIS 15353, at *24-25 (S.N.D.Y. Sept. 29, 1999). Indeed, as well, plaintiff has not and cannot adduce any evidence that the City defendants acted in bad faith or with malice. Thus, plaintiff's claim for malicious prosecution must be dismissed because plaintiff cannot overcome the presumption of probable cause created by the grand jury indictment, let alone satisfy every element of a malicious prosecution claim.
C. Plaintiff has Failed to Establish a Policy or Practice of the City of New York. Even if, arguendo, plaintiff had sufficiently asserted a violation of his
constitutional rights, proof of a single incident of unconstitutional activity would not be not sufficient to impose liability under Monell, unless proof of the incident included proof that it was caused by an existing, unconstitutional municipal policy. Where a purported policy itself is not unconstitutional, more proof than a single incident will be necessary to establish municipal liability. City of Oklahoma City v. Tuttle, 471 U.S. 808, 823-24, 105 S.Ct. 2427,2436 (1985). see also Sarus v. Rotundo, 831 F.2d at 402 (2d Cir. 1987) ("a policy may not ordinarily be inferred from a single incident of illegality").
8

Case 1:04-cv-02944-BSJ-HBP Document 55 Filed 04/01/05 Page 15 of 16 Accordingly, all federal claims against the City of New York must be dismissed
for plaintiffs failure to establish a constitutional violation or in the alternative, for failure to prove an unconstitutional policy.
POINT III PLAINTIFF'S STATE LAW CLAIMS SHOULD BE
DISMISSED.
All of plaintiffs state law claims must be dismissed for plaintiffs failure to file a timely notice of claim. See City Defendants' 56.1 Statement, ,[6. Under New York law, a notice of claim is a condition precedent to bringing a tort action against a municipality or any of its officers, agents or employees. N.Y. Gen. Mun. Law §§50-e and 50-i. Moreover, Gen. Mun. Law §50-e requires that a notice of claim be filed within ninety days of the accrual of the cause of action. These provisions have been strictly construed by both state and federal courts. Baez v. New York City Health and Hosp. Corp., 80 N.Y.2d 571, 576; 592 N.Y.S. 2d 640 (1992); Shakur v. McGrath, 517 F.2d 983, 985 (2d. Cir. 1975). A plaintiffs failure to timely file a notice of claim requires dismissal of pendent state tort claims against the City or its employees in a federal civil rights action. Robinson v. Matos, 97 CV 7144 (TPG), 1999 U.S. Dist. LEXIS 5447 (S.D.N.Y. Apr. 16, 1999) (citing Felder v. Casey, 487 U.S. 131, 151 (1988)). Specifically, failure to comply with these requirements requires a dismissal for failure to state a cause of action. Brown v. Metropolitan Transportation Authority, 717 F. Supp. 257, 259 (S.D.N.Y. 1989). Since plaintiff has not filed a notice of claim in this case, let alone a timely notice of claim, his state law claims should be dismissed as against the City defendants.
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CONCLUSION For the foregoing reasons, City defendants' motion for summary judgment must be granted and plaintiff's complaint dismissed as against it and other such relief as the Court may deem appropriate.

Dated:

April 1, 2005 New York, New York

MICHAEL A. CARDOZO Corporation Counsel of the City ofNew York Attorney for Defendants NYPD and City ofNew York I00 Church Street New York, New York I 0007 (212) 788-9391
By: Alison Gugel (AG3698) Assistant Corporation Counsel

To: Ian Wallace, Esq. Attorneyfor Plaintiff 225 Broadway, Suite 2512 New York, NY I0007 2I2-227-0300
Diane Saunders, Esq. Morgan, Brown & Joy, LLP Boston, MA 02108
Mercedes Colwin, Esq. L' Abbate, Balkan, Colavita & Contini, LLP I Battery Park Plaza New York, NY 10004

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 Case 1:04-cv-02944-BSJ-HBP Document 61 Filed 04/01/05 Page 1 of 28

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

________________________________________________

HAROLD BAERGAS, on Behalf of Himself and

)

Others Similarly Situated,

)

Plaintiff,

)

)

-against-

)

)

THE CITY OF NEW YORK, NEW YORK CITY

)

POLICE DEPARTMENT, FEDERATED LOGISTICS, )

FEDERATED DEPARTMENT STORES, INC., MACY’S )

EAST, THE FRICK COMPANY, and SCOTT CHESTER, )

CHRIS DE SANTIS, MICHAEL GREENE,

)

JOHN DOES 1-5, individually,

)

Defendants

)

________________________________________________)

04 CV 02944 (BSJ/HGP)

THE MACY’S DEFENDANTS’ MEMORANDUM OF LAW IN SUPPORT OF THEIR MOTION FOR SUMMARY JUDGMENT

Case 1:04-cv-02944-BSJ-HBP Document 61 Filed 04/01/05 Page 2 of 28
PRELIMINARY STATEMENT Plaintiff Harold Baergas, a former employee at Macy’s East, Inc.’s (“Macy’s”) Herald Square store, instituted this suit against Federated Logistics, Federated Department Stores, Inc., Macy’s East, Inc., and Chris DeSantis (collectively, the “Macy’s defendants”), as well as a host of numerous other defendants.1 Plaintiff, who is Puerto Rican and identifies himself as half black and half Hispanic, asserts a myriad of statutory and common law claims arising out of: his employment at Macy’s; his termination on March 6, 2002 for dishonesty; and, his arrest and criminal prosecution thereafter for theft of Macy’s property. Specifically, plaintiff asserts claims against the Macy’s defendants of: harassment and disparate treatment based on race and national origin under the New York State Human Rights Law, N.Y. Exec. L. §§ 290 et seq. (“State HRL”) and the New York City Human Rights Law, N.Y. City Admin. Code §§ 8-101 et seq. (“City HRL”), and retaliation under those laws as well; common law false arrest and imprisonment; common law malicious prosecution; intentional infliction of emotional distress; and, defamation. Finally, he alleges a 42 U.S.C. section 1983 claim against the City of New York and New York City Police Department (“City defendants”) and appears to claim that all defendants conspired to deprive plaintiff of his civil rights in violation of 42 U.S.C. section 1985. Notwithstanding the plethora of claims and parties in this case, plaintiff has failed to create a triable issue of material fact on any of his claims against the Macy’s defendants. Accordingly, the Macy’s defendants are entitled to summary judgment pursuant to Fed. R. Civ. P. 56.
1 In addition to the Macy’s defendants, plaintiff has also names the following additional parties as defendants: Scott Chester, Jr. (plaintiff’s former supervisor at Macy’s), Michael Green (a former co-worker of plaintiff at Macy’s), the City of New York, the New York City Police Department, and the Frick Company.
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STATEMENT OF FACTS For a complete statement of the facts that are material to this motion, the Court is respectfully referred to the Macy’s defendants’ Statement of Undisputed Facts Pursuant to Local Rule 56.1, dated April 1, 2005 (“R. 56.1 Statement”). All exhibits referenced herein are annexed to the Declaration of Diane Saunders, dated April 1, 2005, and submitted in support of the instant motion.
PROCEDURAL BACKGROUND Plaintiff filed the instant action against the City defendants, the Macy’s defendants, Chester, the Frick Company, and Green on April 16, 2004. The Macy’s defendants, Chester, and the City defendants subsequently filed their Answers and the parties proceeded to exchange discovery. Neither Green nor Frick has appeared in the action. (R. 56.1 Statement ¶¶ 7-8.) On September 2, 2004, the Macy’s defendants filed a motion to sever plaintiff’s discrimination claims from those claims relating to his apprehension and prosecution for theft of Macy’s property. On October 6, 2004, plaintiff opposed this motion and cross-moved to amend the Complaint to add a claim under 42 U.S.C. section 1981. The Macy’s defendants’ motion to sever was fully briefed as of October 15, 2004, and Chester joined in that motion on December 6, 2004. Plaintiff’s motion to amend was fully submitted by October 26, 2004. Both motions are currently sub judice before this Court. Discovery closed on December 15, 2004, except for three depositions which were conducted after that date pursuant to agreement of the parties or Court Order. After several extensions of time permitted by the Court, plaintiff filed a motion for class certification and to amend the Complaint on February 22, 2005. That motion is currently being briefed by the parties, and is scheduled to be fully submitted to the Court on April 25, 2005.
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ARGUMENT Summary judgment should be granted 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.” Fed. R. Civ. P. 56(c). The moving party has the burden to show the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Once the moving party has met this burden, the non-moving party “must set forth specific facts showing that there is a genuine issue for trial.” Fed. R. Civ. P. 56(e); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). “Statements that are devoid of any specifics, but replete with conclusions, are insufficient to defeat a properly supported motion for summary judgment.” Bickerstaff v. Vassar College, 196 F.3d 435, 452 (2d Cir. 1999), cert. denied, 530 U.S. 1242 (2000); see also Hogan v. 50 Sutton Place S. Owners, Inc., 919 F. Supp. 738, 742 (S.D.N.Y.1996) (“Speculative and conclusory allegations are insufficient to meet this burden.”) (citing Allen v. Coughlin, 64 F.3d 77, 80 (2d Cir.1995)). Further, “[s]ummary judgment is warranted when the nonmovant has no evidentiary support for an essential element on which it bears the burden of proof.” Williams v. R.H. Donnelley Inc., 199 F. Supp. 2d 172, 176 (S.D.N.Y. 2002), aff’d, 368 F.3d 123 (2d Cir. 2004).
POINT I PLAINTIFF CANNOT PROVE THE ESSENTIAL ELEMENTS OF HIS DISPARATE TREATMENT AND RETALIATION CLAIMS In this case, plaintiff claims that he was discriminated against in a variety of ways because of his race and national origin in violation of the State and City HRLs. (Ex. A, Count V and VI.) Plaintiff also claims that he was retaliated against in a variety of ways in violation of those laws. (Id.) Plaintiff claims this disparate treatment and retaliation took the following
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forms:2 he was not promoted to Team Leader position in June 2001; Chester, Richard Hansen (“Hansen”) and “others” “spied” on him; he was subject to “hyper scrutiny” by Macy’s Security Department personnel; he was suspended without pay in February 2002; he was given unfavorable work assignments and desk relocations; he was given a poor 2001 review, which was delivered to him in March 2002; he experienced a decrease in overtime; he was unfairly criticized for his baggy clothes; he was subjected to unsafe and unsanitary working conditions; and, ultimately, he was terminated in March 2002. (R. 56.1 Statement ¶¶ 58-141.)
Other than the June 2001 promotion he claims he was denied, his suspension in February 2002, his poor 2001 performance review, and his termination on March 6, 2002, plaintiff is unable to provide the date, or even year, in which the foregoing events occurred. (Id. ¶ 59.)3 Similarly, plaintiff is unable to provide the date, or even year, in which he allegedly made a complaint of conduct which he reasonably believed constituted discrimination in violation of the State and City HRLs. (Id. ¶ 57.)
As explained in detail below, plaintiff is unable to make out a prima facie case for either his disparate treatment claims or his retaliation claims. The Macy’s defendants have, moreover, articulated legitimate non-discriminatory reasons for all the specific instances of alleged misconduct about which plaintiff complains. Plaintiff, for his part, has not carried his burden of demonstrating pretext. Thus, the Macy’s defendants are entitled to summary judgment on these claims.
2 In his Complaint, plaintiff lumps together his disparate treatment and retaliation claims under the one factual heading “The Hostile Work Environment.” (Ex. A ¶¶ 26-45.) In his deposition, moreover, he also treated as one his disparate treatment and retaliation claims. (Ex. C at 631-33.) Thus, the Macy’s defendants must take the unusual approach in this motion of treating these claims together as well. 3 It is well settled that the statute of limitations for violations of the State and City Human Rights Laws is three years. See C.P.L.R. 214(2); N.Y.C. Admin. Code § 8-502(d); Murphy v. Am. Home Prods., 58 N.Y.2d 293, 461 N.Y.S.2d 232 (1983). Since plaintiff filed the instant action on April 16, 2004, his claims prior to April 16, 2001 are time barred. Since plaintiff cannot provide the date for the majority of these alleged instances of disparate treatment
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A. PLAINTIFF HAS FAILED TO CREATE ANY GENUINE ISSUE OF MATERIAL FACT ON HIS DISPARATE TREATMENT CLAIMS.
To prevail on disparate treatment claims under the State HRL and City HRL,4 an
employee must prove: (1) membership in a protected class; (2) application or qualification for
the position; (3) an adverse employment action; and (4) the action occurred under circumstances
giving rise to an inference of discrimination. McDonnell Douglas Corp. v. Green, 411 U.S. 792,
802 (1973); see Petrosino v. Bell Atl., 385 F.3d 210 (2d Cir. 2004); Bandhan v. Laboratory Corp.
of Am., 234 F. Supp. 2d 313, 319 (S.D.N.Y. 2002). These elements are flexible and must be
tailored, on a case-by-case basis, to differing factual circumstances. McDonnell Douglas, 411 U.S. at 802 n.13.5
Once an employer articulates a legitimate, non-discriminatory reason for the adverse
employment action, any presumption created by a prima facie case “‘completely drops out of the
picture.’” James v. New York Racing Ass’n, 233 F.3d 149, 154 (2d Cir. 2000) (internal citation
omitted). “Thus, once the employer has proffered its non-discriminatory reasons, the employer
will be entitled to summary judgment . . . unless the plaintiff can point to evidence that
reasonably supports a finding of prohibited discrimination.” Id. “The ultimate burden of
persuading the trier of fact that the defendant intentionally discriminated . . . remains at all times
with the plaintiff.” McGuinness v. Lincoln Hall, 263 F.3d 49, 55 (2d Cir. 2001) (citations to
and retaliation, the Macy’s defendants submit that they are all time barred. 4 Discrimination claims brought under the State HRL and City HRL are analyzed like Title VII claims. See Farias v. Instructional Sys., Inc., 259 F.3d 91, 98 (2d Cir. 2001) (state law claims under the State HRL and City HRL are analyzed like Title VII claims); Miller Brewing Co. v. State Div. of Human Rights, 66 N.Y.2d 937, 489 N.E.2d 745, 498 N.Y.S.2d 776 (1985) (analyzing state law discrimination claim under Title VII framework); Landwehr v. Grey Adver., Inc., 211 A.D.2d 583, 622 N.Y.S.2d 17 (1st Dep’t 1995) (analyzing city law discrimination claim under Title VII framework). 5 For example, in a termination case, the plaintiff must demonstrate that he was performing his duties satisfactorily and was discharged under circumstances giving rise to an inference of discrimination. See Graham v. Long Island R.R., 230 F.3d 34, 38 (2d Cir. 2000).
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internal quotations omitted). Where a plaintiff fails to do so, summary judgment in favor of the defendant is appropriate. See Schnabel v. Abramson, 232 F.3d 83, 91 (2d Cir. 2000).
Once an employer has offered a legitimate non-discriminatory reason for its employment actions, the employee must offer some evidence to demonstrate that the reason(s) offered is a pretext for discrimination. In meeting his burden to demonstrate pretext, a plaintiff must identify specific evidence that would “permit a rational finder of fact to infer that the defendant’s employment decision was more likely than not based in whole or in part on discrimination.” Stern v. Trustees of Columbia Univ., 131 F. 3d 305, 312 (2d Cir. 1997). The assertion of “mere conclusory allegations of discrimination cannot serve to defeat a motion for summary judgment.” Boyd v. Presbyterian Hosp., 160 F. Supp. 2d 522, 535 (S.D.N.Y. 2001). “[I]n [State and City HRL] actions ... summary judgment remains available to reject discrimination claims in cases lacking genuine issues of material fact.” Id. (internal quotations omitted).
Moreover, where a plaintiff alleges that his employer made discriminatory remarks, he must show that those remarks were temporally linked to the adverse employment action(s) he allegedly suffered. Gorley v. Metro-North Commuter R.R., No. 99 Civ. 3240, 2000 WL 1876909 (S.D.N.Y. 2000), aff’d mem., 29 Fed. Appx. 764, 2002 WL 355909 (2d Cir. 2002); accord Grima v. Skidmore College, 180 F. Supp. 2d 326, 339 (N.D.N.Y. 2001) (“stray remarks of a decision-maker, without a more definite connection to the employment decision, are insufficient to prove a claim of employment discrimination.”). “[S]tray remarks of a decisionmaker, without more, cannot prove a claim of employment discrimination.” Abdu-Brisson v. Delta Air Lines, Inc., 239 F.3d 456, 468 (2d Cir.), cert denied, 534 U.S. 993 (2001). When “‘other indicia of discrimination are properly presented, the remarks cannot no longer be deemed ‘stray,’ and the jury has a right to conclude that they bear a more ominous significance.’” Id. at
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468 (internal citation omitted). 1. Plaintiff’s Failure to Promote Claim Must Fail.
On a failure to promote claim, the fourth element of plaintiff’s prima facie case requires a plaintiff to demonstrate the action occurred under circumstances giving rise to an inference of discrimination by showing that the person selected for the position was not a member of the protected class. See Petrosino, 385 F.3d 210; Ali v. Bank of New York, 934 F. Supp. 87, 95 (S.D.N.Y. 1996). Here, the individual selected for the Team Leader position at issue was black. (R. 56.1 Statement ¶ 64.) Thus, plaintiff cannot establish a prima facie case in connection with his failure to promote claim.
The Macy’s defendants, moreover, have articulated a legitimate, non-discriminatory reason for why plaintiff was not selected for the position. Plaintiff was on a disciplinary warning at the time he applied for a promotion and Macy’s policy at the time was that individuals who are on a warning are not eligible for a promotion. (Id.) In addition, the individual selected for the open position was well-qualified for the position and had performed the work duties of a Team Leader well during a week-long trial period. (Id.)
Plaintiff has not proffered any admissible evidence to suggest that this explanation is pretextual. Plaintiff has offered no testimony to the effect that the individuals responsible for this decision (Chester and Hansen) ever made any comments to the effect that he was not selected for this position because of his race or national origin. (R. 56.1 Statement ¶ 65.) Instead, plaintiff claims Chester and Hansen told him he was not selected for the position because of “Security issues.” (Id.)
Plaintiff’s former co-worker, Irving Thorpe (“Thorpe”), who is black and was one of
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plaintiff’s “group,”6 testified that he did not question the individual selected for the promotion because that person was “okay.” (R. 56.1 Statement ¶ 66.) He did not, moreover, believe plaintiff was denied the position because of his race. (Id.)
It is, moreover, undisputed that in addition to the individual who was promoted over plaintiff, Chester appointed another black individual for a Team Leader position and recommended yet another black individual for a different promotion. (Id. ¶ 67.)
2. Plaintiff’s Suspension Without Pay Claim Must Fail. Plaintiff’s suspension without pay claim references a final warning plaintiff received on or about February 26, 2002 in connection with an incident involving Michael Llewellyn (“Llewellyn”), a Macy’s Security employee. (Id. ¶ 122.) In that warning, plaintiff was written up for punching a telephone. (Id.) According to plaintiff, he was suspended for two weeks without pay in connection with this incident. (Id. ¶¶ 128-30.) The Macy’s defendants have demonstrated that plaintiff’s alleged suspension and warning in connection with this incident was appropriate. Llewellyn testified that he saw plaintiff punch the telephone. (Id. ¶ 131.) Plaintiff admits that he cursed and punched the telephone (Id. ¶ 124.) Plaintiff has offered no evidence to demonstrate that either his alleged suspension or the warning was discriminatory, and that the Macy’s defendants’ explanation is pretextual. Plaintiff admitted that he had never met Llewellyn before this incident. (Id. ¶ 132.) He also admitted that he had no evidence that Llewellyn possessed any discriminatory animus and that he was not aware of Llewellyn making any derogatory remarks concerning plaintiff’s race or national
6 Plaintiff associated with approximately nine black individuals who he described as the young, outspoken and “disfavored” group. He essentially described everyone else who worked in the Processing Department, mostly black, Hispanic and Indian employees as the “favored” group. (R. 56.1 Statement ¶¶23-25.)
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origin. (Id. ¶ 133.) 3. Plaintiff’s Discriminatory Discharge Claim Must Fail.
Plaintiff’s discriminatory discharge claim fails for similar reasons. Specifically, plaintiff cannot establish a prima facie case because there is no evidence that the circumstances of the termination of his employment with Macy’s are in any way discriminatory. Plaintiff’s employment was terminated by Macy’s Security on March 6, 2002, after a thorough internal Security investigation indicated that plaintiff was involved in the theft of over $2,445.00 in Macy’s merchandise. (Id. ¶¶ 137, 164, 186.)
Macy’s has submitted a wealth of testimonial and documentary evidence garnered during the Macy’s Security investigation to establish plaintiff’s dishonest behavior. (Id. ¶¶ 142-86.) This evidence includes: videotape evidence obtained through the use of a covert surveillance camera and a detailed written chronology explaining the activity depicted on the tape (Id. ¶¶ 152153); personal observations of two Macy’s Security employees (Id. ¶¶ 142-44, 157); the apprehension of plaintiff with the stolen merchandise, as well as defeated sensor tags and tools used to remove such tags (Id. ¶¶ 162-65); and, a statement from plaintiff’s accomplice, Green, implicating plaintiff in the theft. (Id. ¶ 181.)
Moreover, it is undisputed that when plaintiff was searched by Macy’s Security personnel, they discovered that he was in the possession of several bags of marijuana. (Id. ¶ 175.) Possession of illegal drugs was a violation of Macy’s rules and regulations and was grounds for his immediate dismissal. (Id. ¶ 138).
As a result of the foregoing, plaintiff was charged with criminal possession of marijuana, as well as grand larceny and criminal possession of stolen property. (Id. ¶ 188, 198.) He was then indicted by a grand jury on the latter charges and was criminally prosecuted. (Id. ¶ 198.)
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The case was later dismissed on speedy trial (C.P.L. 30.30) grounds, not based upon the insufficiency of the evidence. (Id. ¶ 201).
Plaintiff cannot show that this explanation is pretextual. Plaintiff has offered no evidence supporting the existence of any discriminatory motivation or basis for his discharge. It is undisputed that Chester did not have anything to do with either the Security investigation, or the termination or plaintiff’s employment. (Id. ¶ 139). Rather, the Security investigation was conducted by Macy’s Security and he was terminated by Macy’s Security as well. (Id. ¶ 137). Plaintiff has no evidence that any of the members of Macy’s Security who were involved in the investigation and his termination possessed discriminatory animus. (Id. ¶ 140). Instead, plaintiff has suggested that his termination occurred because of the telephone incident with Llewellyn on February 11, 2002, as well as a grievance he allegedly submitted with his union about that incident. (Id. ¶ 141.) Plaintiff has not, moreover, offered any evidence that others not in his protected class(es) have been treated differently in similar circumstances.
4. Plaintiff’s Complaints about the Working Conditions Are Not Actionable Under the State and City HRLs.
Plaintiff’s disparate treatment claim appears to encompass allegations concerning the physical working conditions on the 10th floor. Specifically, plaintiff complains that the 10th floor was not air-conditioned, was poorly ventilated, and had inadequate facilities for drinking water. (Id. ¶ 114.) These allegedly harsh conditions, however, are not actionable under the State or City Human Rights Laws.
To prevail on a discrimination claim a plaintiff must establish that the conduct complained of – in this case, the allegedly unsafe and harsh conditions on the 10th floor – constituted discrimination because of his race or national origin. See Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 78 (1998). The State and City Human Rights Laws are not
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intended as a “general civility code” for the workplace. Forrest v. Jewish Guild for the Blind, 3 N.Y.3d 295, 309, 819 N.E.2d 998, 1010, 786 N.Y.S.2d 382, 394 (2004); see Oncale, 523 U.S. at 80. Only discrimination because of membership in a protected class is prohibited by these laws. Oncale, 523 U.S. at 80; Forrest, 3 N.Y.3d at 309, 786 N.Y.S.2d 382. General assertions of poor treatment without any racial connotation or content do not suffice. Oncale, 523 U.S. at 80; see Jennings v. Health and Hosps. Corp., No. 93 Civ. 2345, 1997 WL 139481, at *3 (S.D.N.Y. Mar. 27, 1997) (alleged assignment of “demeaning jobs” and physical impediments to job performance insufficient), aff’d, 162 F.3d 1148 (2d Cir. 1998); see also Narvarte v. Chase Manhattan Bank, N.A., No. 96 Civ. 8133, 2000 WL 547031, at *10 (S.D.N.Y. May 4, 2000) (overzealous monitoring of her performance insufficient).
Here, no evidence exists to connect the working conditions on the 10th floor to plaintiff’s race or national origin. In fact, the evidence shows that all workers on the 10th floor – Caucasians (including Chester and Hansen), blacks, Hispanics, Puerto Ricans, Indians, processing employees and non-processing employees -- were all subject to the same working conditions. (R. 56.1 Statement ¶ 121.) “[A]n environment that is equally harsh for all workers . . . is not actionable under the civil rights statutes.” Forts v. City of New York Dep’t of Corrections, No. 00 Civ. 1716, 2003 WL 21279439, at *4 (S.D.N.Y. June 4, 2003); see also Brennan v. Metropolitan Opera Ass’n, 192 F.3d 310, 318 (2d Cir. 1999) (holding same in sexual harassment context). Because plaintiff here cannot show that only minority workers such as himself were subject to the allegedly harsh, unsafe, and unsanitary working conditions on the 10th floor, he cannot rely on that conduct in support of any of his discrimination claims.
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5. Plaintiff’s Other Disparate Treatment Claims Do Not Allege an Adverse Employment Action
Plaintiff’s assorted claims of “spying” and “hyper scrutiny,” as well as his claims of unfair reviews and discipline, and unfavorable work assignments, are unsupportable as well.7 As explained in more detail below, none of these occurrences constitute an actionable adverse employment action. In the Second Circuit, a plaintiff suffers an adverse employment action if he “endures a ‘materially adverse change’ in the terms and conditions of employment.” Galabya v. New York City Bd. of Educ., 202 F.3d 636, 640 (2d Cir. 2000). To be “materially adverse” a change in working conditions must be “more disruptive than a mere inconvenience or an alteration of job responsibilities.” Honey v. County of Rockland, 200 F. Supp. 2d 311, 319 (S.D.N.Y. 2002) (quotation and citation omitted). Rather, a material adverse change exists where there is a “termination of employment, a demotion evidenced by a decrease in wages or salary, a less distinguished title, a material loss of benefits, significantly diminished material responsibilities, or other indices unique to a particular situation.” Id. (quotation and citation omitted).
Moreover, the Macy’s defendants have articulated legitimate, non-discriminatory explanations for each of these remaining allegations of disparate treatment. Plaintiff has not offered a shred of evidence to suggest that the Macy’s defendants’ proffered reasons are pretextual and that the real reason(s) for the alleged misconduct is discrimination. Plaintiff’s disparate treatment claims on these remaining allegations must, therefore, be dismissed.
a. Plaintiff’s Claim of “Spying” and “Hyper Scrutiny” Must Fail. Plaintiff claims that Chester, Hansen and members of Macy’s Security Department subjected him to “hyper scrutiny” and “spying” in the form of: Chester peeking through clothes
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at plaintiff on one occasion; Chester using Team Leader Stanley Pheeko (“Pheeko”) to “spy” on plaintiff; the installation of increased surveillance cameras on the 10th floor; Chester asking Security to focus on plaintiff; Security checking plaintiff’s bags more than others; Security planting “spies”; and, Security’s use of the Macy’s confidential tip policy to somehow focus on plaintiff. (R. 56.1 Statement ¶¶ 68-95.) These allegations do not, however state a prima facie case of disparate treatment.8
It is well-settled in this district that “excessive scrutiny” does not constitute an adverse employment action. Bennett v. Watson Wyatt & Co., 136 F. Supp. 2d 236, 247 (S.D.N.Y. 2001); see Scafidi v. Baldwin Union Free Sch. Dist., 295 F. Supp. 2d 235, 239 (E.D.N.Y. 2003). While “close monitoring may cause an employee embarrassment or anxiety, such intangible consequences are not materially adverse conditions.” Castro v. New York City Bd. of Educ. Personnel, No. 96 Civ. 6314, 1998 WL 108004, at *7 (S.D.N.Y. Mar. 12, 1998).
Here, plaintiff cannot point to any evidence that shows that the alleged excessive scrutiny by Security, Chester, or Hansen resulted in any negative repercussions. Indeed, the only “adverse employment action” in evidence is the termination of plaintiff’s employment, which, as set forth above, is well-supported by information and evidence obtained in the Security investigation. See supra pp. 10-11. Accordingly, because the alleged “spying” and “hyper scrutiny” do not amount to an adverse employment action, plaintiff cannot show disparate treatment on this basis, and the Court should dismiss the claim.
The Macy’s defendants have, moreover, offered legitimate, nondiscriminatory explanations to rebut plaintiff’s unfounded and unreasonable belief that Chester, Hansen and
7 These assorted remaining claims are addressed in sections VIII (B) & (C) of the Rule 56.1 Statement. 8 Although plaintiff claims in his Complaint that Hansen would “spy” on him (Ex. A ¶ 72), plaintiff has offered no evidence that Hansen ever spied on him, or treated him differently for that matter. (R. 56.1 Statement ¶¶ 72-73.)
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members of Macy’s Security Department were “spying” on him and subjecting him to “hyper scrutiny.” With regard to the claim that Chester himself, and through others, “spied” on plaintiff, Chester states in his Declaration that he was required to monitor all employees, not just plaintiff, and that the individual whom Chester allegedly used as a “spy,” Pheeko, was also required to monitor employee activity as part of his duties as a Team Leader. (R. 56.1 Statement ¶¶ 70-71.)
With regard to plaintiff’s claim about increased cameras, the Macy’s defendants have established that Chester played no role in the installation of any cameras. (Id. ¶ 76.) Moreover, the number of cameras installed on the 10th floor pales in comparison to the number installed in an area the fraction of the size of the Processing Department, the Men’s Store. (Id. ¶ 77.) With regard to plaintiff’s claim that Chester asked Macy’s Security to focus on plaintiff, the Macy’s defendants have explained that Chester was required to interact regularly with Security as part of the normal course of his job. (Id. ¶ 79.) Plaintiff even described the 10th floor as a “hot spot” for Security because of the fact that the 10th floor is the location where sensor tags are placed on the merchandise. (Id. ¶ 81.) Plaintiff has offered no admissible evidence to establish that any conversations Chester may have had with Security concerned him; he even acknowledges that Chester needed to deal with Security frequently about legitimate issues. (Id. ¶ 79, 82.)
With regard to plaintiff’s incomprehensible claim that Macy’s Security has somehow used the confidential tip policy to “propagate and justify their discriminatory hyper scrutiny of minority employees within Macy’s” (Ex. A ¶ 31.), the Macy’s defendants have established that employees do not receive money for false tips, and that false or unsubstantiated tips are not a problem because an investigation is conducted every time a tip is received. (R. 56.1 Statement ¶ 95.) Plaintiff has failed to offer any coherent explanation of how he believes the tip policy was misused generally, or in any specific instance, in a way that was discriminatory.
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Finally, with regard to plaintiff’s claim that his bag was checked more than others, plaintiff himself admits that it was the job of the Security guards posted at the 10th floor to check employee’s bags. (Id. ¶ 84.) Plaintiff also admits that he is basing his claim on his own personal observations that the Security guards did not dig as deeply into the bags of other employees. (Id. ¶ 86.) Similarly, with regard to the claim that Security planted “spies,” it is clear that plaintiff’s claim in that regard is based solely on his own unfounded and unreasonable suspicions about new people being assigned to his table and not based on any admissible evidence of discriminatory intent. (Id. ¶ 90.)
Plaintiff has not, and cannot, offer any evidence of any type to demonstrate that any of these explanations are pretextual. At deposition, plaintiff failed to identify any other non-black, non-Hispanic, non-Puerto Rican employee who was treated better than him by Chester and/or Hansen. (Id. ¶ 59.) Plaintiff’s point of comparison for his disparate treatment claims, is the treatment of himself and his “group” in comparison to all the other minorities in the Processing Department, many of whom were black and/or Hispanic. (Id.) Plaintiff also failed to offer any evidence that any discriminatory comments were made by Chester, Hansen, members of Macy’s Security, or anyone else that were temporally or causally related to any of these events. Indeed, plaintiff admitted he had never heard any discriminatory comments of any nature at any time made by Hansen or any members of Macy’s Security. (Id.)
b. Plaintiff’s Claim Regarding His Poor Performance Review Must Fail.
Plaintiff complains that he received a poor review from Hansen. (R. 56.1 Statement ¶ 105.) Negative evaluations standing alone without any accompanying adverse consequences, are not adverse employment actions. Scafidi, 295 F. Supp. 2d at 239; Bennett, 136 F. Supp.2d at 247; Valentine v. Standard & Poor’s, 50 F. Supp. 2d 262, 284 (S.D.N.Y. 1999), aff’d, 205 F.3d
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1327 (2d Cir. 2000) (“Given that plaintiff’s negative reviews did not lead to any immediate tangible harm or consequences, they do not constitute adverse actions materially altering the conditions of his employment.”). Here, plaintiff does not allege – nor can he prove – a demotion, wage decrease, loss of benefits, or any other materially adverse change in the terms and conditions of his employment as a result of this poor performance review. Thus, a disparate treatment claim based on these reviews necessarily fails, and the Court should grant summary judgment and dismiss the claim.
The Macy’s defendants have, moreover, offered a legitimate, non-discriminatory explanation for the review in question. The review was based upon legitimate criteria and a legitimate assessment of his performance. (R. 56.1 Statement ¶ 106.) Plaintiff’s race and national origin played no part in the assessments contained in the review. (Id.)
Again, plaintiff has offered no evidence to demonstrate that this explanation is pretextual. At deposition, plaintiff failed to identify any other non-black, non-Hispanic, non-Puerto Rican employee who was treated better than him. (Id. ¶ 59) Again, plaintiff’s point of comparison for his disparate treatment and retaliation claims, is the treatment of himself and his “group” in comparison to all the other minorities in the Processing Department, many of whom were black and/or Hispanic. (Id.) Plaintiff also failed to offer any evidence that any discriminatory comments were made by Chester, Hansen, or anyone else that were temporally or causally related to his review. Indeed, plaintiff admitted he had never heard any discriminatory comments of any nature at any time made by Hansen. (Id.)
c. Plaintiff’s Other Complaints About the Reassignment of His Duties and/or Work Station(s), Overtime and Criticism for Wearing Baggy Jeans Must Fail
Finally, plaintiff claims he was disparately treated because: his desk was relocated to a
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location right next to Chester’s desk; he was assigned to garbage duty; removed from elevator duties, and reassigned from processing leather jackets; he experienced a decrease in overtime hours; and, he was unfairly criticized for wearing baggy jeans. (Id. ¶¶ 97-104, 109-112.) As with his claims of excessive scrutiny and poor reviews, plaintiff cannot show that any one of these changes constitutes an adverse employment action. He cannot, therefore, make out a prima facie case of disparate treatment based upon these allegations.
An adverse employment action must be “more disruptive than a mere inconvenience or an alteration of job responsibilities.” Galabaya, 202 F.3d at 640. Thus, Courts have found that simple changes in job duties or job stations, without any accompanying significant change in employment status (like termination of employment, failure to promote, reduction in pay or benefits, etc.) are insufficient to establish a prima facie of disparate treatment. See, e.g., Chandler v. AMR Am. Eagle Airline, 251 F. Supp. 2d 1173, 1183-84 (E.D.N.Y. 2003) (change in job duties and reassignment do not constitute adverse employment actions in the absence of showing that pay, hours, or position was affected); Staff v. Pall Corp., 233 F. Supp. 2d 516, 53234 (S.D.N.Y. 2002) (inter-department transfer is not an adverse employment action), aff’d, 76 Fed Appx. 366 (2d Cir. 2003). None of these assorted complaints of plaintiff’s amount to anything more than annoyances to plaintiff.
Moreover, the Macy’s defendants have offered legitimate, non-discriminatory explanations for each of these allegations. With regard to plaintiff’s complaint about the relocation of his desk and his changed duties, the Macy’s defendants have established that work assignments and locations in the Processing Department were changed to enhance productivity. (R. 56.1 Statement ¶ 99.) Plaintiff himself acknowledges that Chester would reassign tables when he believed processors weren’t working hard enough. (Id. ¶ 100.) Garbage duty was,
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moreover, the responsibility of all processors. (Id. ¶ 102.) With regard to his claim that he was denied overtime, the Macy’s defendants have
established that overtime was assigned pursuant to a uniformly applied policy of assigning overtime on a seniority basis. (Id. ¶ 111.) Macy’s also had a uniformly applied dress code policy that disallowed baggy jeans. (Id. ¶ 112.)
As with his other claims, plaintiff has offered no evidence to demonstrate that these explanations are pretextual. At deposition, plaintiff failed to identify any other non-black, nonHispanic, non-Puerto Rican employee who was treated better than him. (Id. ¶ 59.) Again, plaintiff’s point of comparison for his disparate treatment and retaliation claims, is the treatment of himself and his “group” in comparison to all the other minorities in the Processing Department, many of whom were black and/or Hispanic. (Id.) Plaintiff also failed to offer any evidence that any discriminatory comments were made by Chester, Hansen, or anyone else that were temporally or causally related to his review. Indeed, plaintiff admitted he had never heard any discriminatory comments of any nature at any time made by Hansen. (Id.)
The Macy’s defendants have, moreover, offered evidence to demonstrate that these events were not discriminatory. For example, they have established that other elevator operators during Chester’s tenure were minorities and that Chester removed a non-minority operator from elevator duty for poor performance. (Id. ¶ 100.) They have also established that members of all racial groups were required to perform garbage duty. (Id. ¶ 102.) Plaintiff’s co-workers during their depositions also confirmed this fact. (Id. ¶ 104.)
B. PLAINTIFF HAS FAILED TO CREATE ANY GENUINE ISSUE OF MATERIAL OF FACT ON HIS RETALIATION CLAIMS.
Plaintiff also asserts State and City HRL retaliation claims against the Macy’s defendants based upon the same allegations as those alleged on his disparate treatment claims. See supra pp.
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4-6. Plaintiff is, however, unable to make out a prima facie case for his retaliation claims, and accordingly, these claims should be dismissed on this motion.
The standards for retaliation claims under the State HRL and City HRL are also governed by the McDonnell Douglas framework: to establish a prima facie case of retaliation a plaintiff must prove (1) he was engaged in a protected activity; (2) the defendant was aware of this activity; (3) the defendant took adverse action against the plaintiff; and (4) a causal connection exists between the protected activity and adverse action. Distasio v. Perkin Elmer Corp., 157 F.3d 55, 66 (2d Cir. 1998); Hill v. Citibank Corp., 312 F. Supp. 2d 464, 477-78 (S.D.N.Y. 2004). Plaintiff here has failed to make out the required elements of a prima facie retaliation claim for a number of reasons.
1. Plaintiff has not proven that he engaged in any protected activity of which the Macy’s defendants were aware.
The term “protected activity” refers to action taken to protect or oppose statutorily prohibited discrimination. N.Y. Exec. L. § 296(1)(g); N.Y. City Admin. Code § 8-107(7); see Sumner v. United States Postal Serv., 899 F.2d 203, 209 (2d Cir. 1990). Here, plaintiff cannot show that he was engaged in any protected activity that was known to Macy’s.
Plaintiff admitted during his deposition that he never complained about any harassment of him to Macy’s Human Resources department or to the confidential hotline number. (R. 56.1 Statement ¶ 47.) He further testified that he did not complain to anyone in a supervisory position within Macy’s management higher than Chester, for example Chester’s supervisor, Tom Grady, about any harassment of him. (Id. ¶ 48-49.) Instead, plaintiff maintains that he complained in the form of written Union grievances. (Id. ¶ 49.)
However, discovery in this case has revealed no evidence that any such union grievances were ever submitted by plaintiff to his Union, or that any such grievances were ever
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communicated to Macy’s. (Id. ¶ 53.) Neither plaintiff nor the Union, in response to the Macy’s defendants’ subpoena, produced any written grievances from plaintiff regarding any alleged discrimination or harassment. (Id.) Even if the Court were to assume that such grievances were submitted, moreover, plaintiff has still failed to ever proffer the dates when these grievances were allegedly submitted or substance of the alleged grievances he submitted to his Union that he believes constitute protected activity. (Id. ¶ 54.) Thus, plaintiff cannot prove the first two elements of the required prima facie case.
Plaintiff’s vague testimony about alleged complaints to Chester and Hansen cannot assist plaintiff in making out his prima facie case. Plaintiff claims he complained to Hansen about a razor blade comment made by Chester and the fact that all employees in the Processing Department were required to wear tight jeans. (Id. ¶ 55.) The Macy’s defendants submit that the substance of these complaints do not constitute protected activity. The razor blade comment was an isolated incident and the jeans reference was, on its face, to a uniformly applied policy. Nevertheless, even if this alleged complaint were viewed as protected activity, it would nonetheless be insufficient to make out a prima facie case here because plaintiff has no idea when this alleged complaint was made. (Id. ¶ 57.) He cannot, moreover, provide any exact time frame for when the majority of the alleged adverse employment actions took place. (Id. ¶ 59.) Thus, he cannot establish that he was subjected to an adverse employment action after he allegedly complained to Hansen.
The same is true with regard to his ambiguous alleged complaint to Chester himself -- “I don’t appreciate the comment you made to him [a co-worker]. Or what you talking about as far as black people and clothes they wear. . . . Do you have a problem with Mexican people as far as my wife is Mexican. You want to rephrase what you said.” (Id. ¶ 56.) The Macy’s defendants
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submit that plaintiff’s statement to Chester is simply too ambiguous to constitute protected activity. Moreover, as with the alleged complaint to Hansen, plaintiff has no idea when he supposedly said this to Chester. (Id. ¶ 57.) He cannot, moreover, provide any exact time frame for when the majority of the alleged adverse employment actions took place. (Id. ¶ 59.) Thus, he cannot establish that he was subjected to an adverse employment action after he allegedly complained to Chester.
Finally, it is important to note that plaintiff has not demonstrated that anyone within Macy’s Security was aware of his alleged protected complaints. (Id. ¶ 88.) Thus, plaintiff cannot demonstrate that they had any notice of his alleged complaints prior to engaging in the actions which plaintiff claims were retaliatory, particularly his termination.
2. Plaintiff has not shown that he suffered adverse employment actions.
As set forth above, supra p. 13, only a material adverse change such as “termination of employment, a demotion evidenced by a decrease in wages or salary, a less distinguished title, a material loss of benefits, significantly diminished material responsibilities, or other indices unique to a particular situation” establishes an adverse employment action. Honey, 200 F. Supp. 2d at 319 (quotation and citation omitted). And, as explained fully above, supra pp. 8-19, the majority of the actions about which plaintiff complains do not constitute adverse employment actions for the purpose of establishing a prima facie case of discrimination or retaliation. Accordingly, plaintiff cannot prove a prima facie of retaliation, and the claim should be dismissed.
3. Plaintiff has failed to establish a causal connection. Plaintiff has failed to establish that a causal connection exists between any protected activity in which plaintiff allegedly engaged and the alleged adverse employment actions taken
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against him by the Macy’s defendants. To establish the requisite causal connection, a plaintiff must provide either: (1) direct evidence of “retaliatory animus directed against . . . plaintiff by the defendant;” or (2) indirect circumstantial evidence “showing that the protected activity was followed closely by the discriminatory treatment,” or other evidence “such as disparate treatment of fellow employees who engaged in similar conduct.” DeCintio v. Westchester County Med. Ctr., 821 F.2d 111, 115 (2d Cir.), cert. denied 484 U.S. 965 (1987). While a plaintiff’s burden of establishing a causal connection is, generally, a light one, plaintiffs have failed to establish such a connection in cases where, as here, they have provided no evidence whatsoever of retaliatory motive. See Ponniah Das v. Our Lady of Mercy Med. Ctr.¸ No. 00 CIV. 2574(JSM), 2002 WL 826877, at *12 (S.D.N.Y. Apr. 30, 2002) (granting summary judgment in favor of defendant on plaintiff’s New York state law retaliation claims where plaintiff “presented no admissible evidence, other than temporal proximity, to support the claim that his dismissal from his employment was retaliatory”); Cook v. CBS, Inc., No. 99 CIV. 2897, 2001 WL 897181, at *6 (S.D.N.Y. Aug. 9, 2001) (granting summary judgment in favor of defendant on plaintiff’s Title VII retaliation claim where there was a “complete absence of evidence of retaliatory motive”). Compare DeCintio, 821 F.2d at 116 (finding that plaintiff established a causal connection where adverse employment action occurred within one year of protected activity and plaintiff provided evidence that fellow employees were not disciplined for engaging in identical behavior).
In the instant case, and as noted above, plaintiff cannot demonstrate that there exists any temporal proximity between any protected activity and the alleged adverse employment actions to which he was allegedly subjected. See supra pp. 8-19. Plaintiff has no idea when he complained or when most of the alleged adverse employment actions took place. (R. 56.1 Statement ¶¶ 57 & 59.) He also has no evidence of retaliatory animus or disparate comparative
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treatment either. (Id. ¶ 59.) Accordingly, plaintiff cannot establish the requisite causal connection, and thus he fails to establish a prima facie case of retaliation.
4. The Macy’s Defendants have offered legitimate explanations for all their challenged actions.
Even assuming arguendo that this Court should find that plaintiff has satisfied the elements of the prima facie case for retaliation, plaintiff’s retaliation claim still must fail as a matter of law as the Macy’s defendants have provided legitimate, non-discriminatory reasons for all their challenged actions. Ordinarily, once a plaintiff establishes a prima facie case of retaliation, the burden shifts to the defendant to articulate some legitimate, non-discriminatory reason for its actions. Sumner, 899 F.2d at 209 (citing Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248 (1981)). If the defendant is able to do so, the burden then shifts back to the plaintiff “‘to demonstrate that the proffered reason was not the true reason’ for the decision, i.e. that the articulated reason is a pretext.” Id.
Here, the Macy’s defendants have provided legitimate, non-discriminatory reasons for all their challenged actions as discussed above, supra pp. 8-19.
5. Plaintiff has not shown pretext. Finally, as with his disparate treatment claims, plaintiff fails to provide any evidence that the Macy’s defendants’ legitimate, nondiscriminatory explanations are pretextual. See Alston v. New York City Transit Auth., 14 F. Supp. 2d 308, 314 (S.D.N.Y. 1998) (finding that plaintiff failed to establish pretext where plaintiff presented no evidence of disparate treatment). Plaintiff has presented no evidence that any employees who did not complain were treated better than him. He has also presented no evidence that any retaliatory remarks were ever made by Chester, Hansen, Macy’s Security personnel or anyone else at any time. Accordingly, for all these reasons, plaintiff’s retaliation claims must be dismissed.
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POINT II PLAINTIFF CANNOT ESTABLISH A BASIS FOR IMPUTING LIABILITY FOR CHESTER’S ALLEGED HARASSMENT TO MACY’S While it is well-settled that the State and City HRLs follow Title VII in determining what circumstances constitute actionable sexual harassment, the standards for employer liability under the State and City HRLs are both different from, and stricter than, the Title VII standards. Under the State and City HRLs, an “employer cannot be held liable . . . for any employee’s discriminatory act unless the employer became a party to it by encouraging, condoning, or approving it.” State Div. of Human Rights ex rel. Greene v. St. Elizabeth’s Hosp., 66 N.Y.2d 684, 687, 47 N.E.2d 268, 687 N.Y.S.2d 411, 412 (1985); accord, e.g., Franklin v. City of N.Y., 01 Civ. 10574, 2003 WL 21511932 at *8 (S.D.N.Y. July 1, 2003), aff'd, 99 Fed. Appx. 315 (2d Cir. 2004); Jordan v. Cayuga County, No. 5:01 CV 1037, 2004 WL 437459 at *4 (N.D.N.Y. Feb. 9, 2004); DeWitt v. Lieberman, 48 F. Supp. 2d 280, 293 & n.10 (S.D.N.Y. 1999); Forrest v. Jewish Guild for the Blind, 3 N.Y.3d 295, 311, 786 N.Y.S.2d 386, 395 (2004). Such condonation or approval “contemplates a knowing, after-the-fact forgiveness of an offense.” St. Elizabeth’s Hosp., 66 N.Y.2d at 687, 687 N.Y.S.2d at 412. Under the State and City HRLs, a plaintiff cannot show employer condonation unless the employer had actual notice of the offense and failed to investigate and/or take corrective action. Sowemimo v. D.A.O.R. Security, Inc., 43 F. Supp. 2d 477, 486 (S.D.N.Y. 1999) (emphasis added) (quotation and citation omitted). A. MACY’S PREVENTATIVE EFFORTS Macy’s has long had a policy that forbids harassment based on, inter alia, race and national origin. (R. 56.1 Statement ¶ 27.) This policy was posted in a conspicuous place both on the 10th floor and outside of the Human Resources office at Macy’s Herald Square and distributed to associates and executives throughout the company. (Id. ¶¶ 28-31.) In addition,
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Macy’s had made numerous other efforts to educate its workforce about its harassment policy, including training and classes on discrimination and harassment. (Id. ¶ 34.) Indeed, it is undisputed that Macy’s had conducted extensive anti-harassment training of its managers, including Chester, in a further effort to prevent harassment. (Id.)
Plaintiff was well aware that Macy’s prohibited discrimination and that it had a procedure for receiving complaints of discrimination and harassment. First, plaintiff signed an acknowledgment form confirming that he had read and understood the company Standards of Conduct. (Id. ¶ 32.) The Standards of Conduct includes a statement informing employees that discrimination or harassment based on, inter alia, race or national origin would subject an employee to immediate discharge. (Id.) Second, plaintiff testified that he knew that at least one other Macy’s employees had complained of harassment to Human Resources. (Id. ¶ 36.) Third, plaintiff recalled attending sessions conducted by representatives of Macy’s Human Resources department about harassment. (Id.) His co-workers, including his friends in his “group,” testified that they also recalled participating in harassment training. (Id. ¶ 35.) Fourth, plaintiff testified that his Union also encouraged its members, such as himself, to complain about harassment and the collective bargaining agreement also contained a specific section prohibiting harassment and discrimination based on race or national origin. (Id. ¶ 37.) Last, plaintiff himself had complained both to Human Resources and his manager about sexual harassment while employed by Macy’s in the Éclair Bakery Café in 1992 or 1993. (Id. ¶¶ 38-39.) Thus, not only did Macy’s have an effective anti-harassment policy that was disseminated to its employees and posted in visible locations in the store, but plaintiff was well-aware of the company’s prohibition of discrimination and avenues provided by the company to complain about harassment or discrimination.
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B. PLAINTIFF FAILED TO PROVIDE MACY’S WITH ACTUAL NOTICE OF THE ALLEGED HARASSMENT
Despite Macy’s extensive preventative efforts and its broad dissemination of its harassment policy, plaintiff here did not utilize any of the complaint procedures to complain about the alleged harassment by Chester. He did not complain to Human Resources and he did not call the 1-800 confidential hotline number. (Id. ¶ 47.) Nor did he complain about any raceor national origin-based harassment to any upper-level managers, for example Chester’s supervisor, Tom Grady. (Id. ¶ 48.) While he did speak to Grady about Chester, plaintiff only made “general” complaints about the management structure on the 10th floor and “the way Scott Chester talks.” (Id.) He did not complain of race- or national origin-based harassment. (Id.)
Plaintiff did not complain about harassment to his lower level managers either. His only complaint to Chester was one occasion when he told Chester that he did not “appreciate” a comment made by Chester and advised him to “rephrase” his comment. (Id. ¶ 56.) And although plaintiff claims that he “constantly” complained about Chester’s alleged harassment to Hansen, the only specific items he brought to Hansen’s attention were a comment about Puerto Ricans carrying razor blades and a complaint that all Processing employees (minority and nonminority) were not allowed to wear “tight jeans.” (Id. ¶ 55.) None of these alleged “complaints” to Chester or Hansen concerned harassment, however. Thus, they are insufficient to place Macy’s on notice of the alleged harassment of plaintiff based on his race or national origin. See Heskin v. Insite Adver., Inc., No. 03 Civ. 2598, 2005 WL 407646, at *23 (S.D.N.Y. Feb. 22, 2005) (granting summary judgment to employer dismissing State HRL and City HRL claims because plaintiff failed to complain of harassment, thus employer had no actual notice); DeWitt, 48 F. Supp. 2d at 285, 293-94 (granting summary judgment to employer dismissing State and City HRL claims because, inter alia, plaintiff failed to complain of harassment).
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or the individuals identified by the harassment policy because his “practice” was to submit a grievance to the Union instead. (R. 56.1 Statement ¶ 49.) Plaintiff however, is unable to provide copies of any such grievances and he has not offered any evidence as to the substance of those grievances. (Id. ¶¶ 53-54.) And, even if these grievances did exist, there is no evidence that anyone within Macy’s management above Chester was aware of their existence or their content. Thus, plaintiff’s claimed “complaints” and “grievances” concerning the alleged harassment are also insufficient to provide actual notice of the harassment to Macy’s. Summary judgment dismissing the harassment claims under the State and City HRLs is therefore appropriate.
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 Case 1:04-cv-02944-BSJ-HBP Document 66 Filed 04/01/05 Page 1 of 39

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
----------------------------------------------------------------------)(
HAROLD BAERGAS, on Behalf of Himself and Others Similarly Situated,
Plaintiff,
against-
THE CITY OF NEW YORK, NEW YORK CITY POLICE DEPARTMENT, FEDERATED LOGISTICS, : FEDERATED DEPARTMENT STORES, INC. MACY'S EAST, THE FRICK COMPANY, and SCOTT CHESTER, CHRIS DE SANTIS, MICHAEL GREEN, JOHN DOES 1-5, Individually,
Defendants.
----------------------------------------------------------------------)(

lnde" No.: 04 Civ. 2944 (BSJ) (ECF Case)

BRIEF IN SUPPORT OF DEFENDANT SCOTT CHESTER'S MOTION FOR SUMMARY JUDGMENT

On the Brief: Mercedes Colwin, Esq. Diane Krebs, Esq.

L'ABBATE, BALKAN, COLAVITA & CONTINI, L.L.P. Attorneys at Law A Limited Liability Partnership Formed in the State of New York One Battery Park Plaza New York, New York 10004 (212) 825-6900 Attorneys for Defendant Scott Chester

Case 1:04-cv-02944-BSJ-HBP Document 66 Filed 04/01/05 Page 2 of 39

TABLE OF CONTENTS

TABLE OF AUTHORITIES ...................................................................

v

PRELIMINARY STATEMENT................................................................

1

STATEMENT OF FACTS......................................................................

2

LEGAL ARGUMENT .. .......... .... ... .... ........ .... ...... ............ .. ...... ...... ... ..... .

2

I.

Defendant is Entitled to Summary Judgment ....................... ..

2

II.

Plaintiff Cannot Sustain a Claim of False Arrest

and Imprisonment Against Chester

Because It Is Time Barred And, In any

Event, He Cannot Prove a prima facie case ........................... .

3

A. Plaintiff's Claim is Time Barred ................................... .

3

B. Plaintiff Cannot Demonstrate the Elements

of a False Arrest and Imprisonment Claim

Against Scott Chester ................................................

4

Ill. Plaintiff Cannot Sustain a Malicious Prosecution Claim

Against Chester Because Chester Had No Role in the

Criminal Proceeding Underlying the Claim .. .. .. .... .. .. .. .. .. ... .. .. .. ..

5

IV. Plaintiff's Claim for Defamation is Time-Barred .. .......................

8

V. Plaintiff's Claim for Intentional Infliction of Emotional

Distress is Time Barred, and In Any Event, the

Allegations Fail to Sustain a Claim ... ... ... .. ... .. .. ... .. .. ... .. .. ... .. ....

9

VI. Plaintiff is Unable to Establish Essential Elements

for His Constitutional Claims Pursuant to 42 U.S.C.

§ 1983 and 42 U.S.C. § 1985, and They Must Therefore

Be Dismissed .......... ................... .................. ........ ..............

1 0

VII. Plaintiff's Claims of Race/National Original Disparate

Treatment Discrimination Must Be Dismissed .. ... .. .. .. ...... ... .. .. ...

11

A. The Burden of Proof Is Ultimately on Plaintiff ................. .

11

B. Plaintiff's Failure to Promote Claim Must Fail

Because Plaintiff Cannot Demonstrate He Was

Qualified or That He Was Denied the Promotion

Due to His Protected Status, and He also Cannot

Demonstrate Pretext ...................................................

12

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1. Plaintiff Cannot Demonstrate Any Racial Motivation in the Decision to Give the Promotion to Another ......................................... 12

2.

Plaintiff Was Not Qualified For the Position ...............

12

3.

Chester Has Proferrred a Legitimate, Non-

Discriminatory Reason for the Decision

Which Plaintiff Cannot Demonstrate to

Be Pretext ........................................................ 13

C. Plaintiff's Discriminatory Discharge Claim Must Fail Because Plaintiff Cannot Demonstrate He Was Terminated Due to His Protected Status or That Chester Participated in any Way ................................... .. 14

1. Chester Cannot Be Held Liable for Plaintiff's Termination Because He Did Not Participate
In any Way....................................................... 14

2.

Plaintiff Cannot Establish That His Termination

Was Due to His Protected Status or That

Macy's Explanation is Pretext for Discrimination . ....... . 15

D. Plaintiff's Claim of Discriminatory Denial of Overtime Must Fail Because Plaintiff Cannot Demonstrate That Any Such Denial Was Due to His Protected Status, Nor Can He Demonstrate Prexext ... ... .... .. .. .... .. .. .. ... 15

1. Plaintiff Cannot Demonstrate Any Racial Motivation in the Decision to Give Overtime To Others.......................................................... 15

2.

Chester Has Proferred a Legitimate, Non-

Discriminatory Reason for the Decision

Which Plaintiff Cannot Demonstrate

to be Pretext .. .. ... ... . ....... .... .. .... . ....... .... .... .... .... ... 16

E. Plaintiff's Harsh Working Conditions Claim Must Fail Because Plaintiff Cannot Demonstrate The Conditions Existed Due to His Protected Status or That Chester Was Responsible for Those Conditions ........................... .. 17

1.

Chester Cannot Be Held Liable for the Physical

Working Conditions on the Tenth Floor Because

He Was Not Responsible for Those Conditions ........ . 17

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2.

Plaintiff Cannot Establish That the

Physical Working Conditions on the

Tenth Floor Were in any Way Connected

with His Protected Status ...................................

18

F. Plaintiff's Claim that Chester "Spied" on Him Must Fail

Because the Complained-Of Conduct Does Not

Constitute an Adverse Employment Action, Plaintiff

Cannot Connect Those Events to his Protected

Status, and He Cannot Demonstrate Pretext .................. .

18

1.

"Spying" is Not an Adverse Employment

Action ............................................................

18

2.

Plaintiff Cannot Demonstrate Chester

"Spied" on Him Due to His Protected

Status ............................................................

19

3.

Chester Has Proferred a Legitimate,

Non-Discriminatory Reason for His Close

Supervision Which Plaintiff Cannot

Demonstrate to be Pretext ................................... 19

G. Plaintiff's Claim That He Received One Negative Evaluation Must Fail Because the Complained-Of Conduct Does Not Constitute an Adverse Employment Action, Plaintiff Cannot Connect Those Events to His Protected Status, and He Cannot Demonstrate Pretext ....... 20

1.

Negative Performance Evaluations,

Without More, are Not Adverse

Employment Actions ........................................... 20

2.

Plaintiff Cannot Demonstrate He Received

The Evaluation Due to His Protected Status ........... .. 21

3.

Chester Has Proffered a Legitimate, Non-

Discriminatory Reason for the Evaluation

Which Plaintiff Cannot Demonstrate to

be Pretext .......................................................... 21

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H. Plaintiff's Claim That Chester Changed His Work Assignments and Stations Must Fail Because the Complained-of Conduct Does Not Constitute an Adverse Employment Action, Plaintiff Cannot and He Cannot Demonstrate Pretext .............................. . 22

1.

Changing an Employee's Work Assignment

or Station is Not an Adverse Employment

Action .............................................................. 22

2.

Plaintiff Cannot Demonstrate Chester Altered

His Work or Table Assignment Due to

His Protected Status ........................................... 23

3.

Chester Has Proferred a Legitimate, Non-

Discriminatory Reason for His Work Decisions

Which Plaintiff Cannot Demonstrate to be

Pretext ............................................................. 24

VIII. No Individual Liability for Race/National Origin Hostile work Environment Harassment, Disparate Treatment and Retaliation Claims .... ...... ............. ....... ....... .... .... .... .. .... . ... ... .... 25

IX. Retaliation Claim .. ....... .... ... ..... .... ... ............ ... ... ...... .. ........ .. ... 25

A. Plaintiff Cannot State a Claim Against Chester Regarding Those Actions for Which Chester is Not Responsible ........................................................

B. Plaintiff Can Establish No Adverse Employment Action ........................................................................

C. Plaintiff Can Establish No Causal Connection ....................

D. Plaintiff Cannot Establish Pretext .................................. ..

CONCLUSION ........................................................................................

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TABLE OF AUTHORITIES

Albert v. Loksen, 239 F.3d 256, 266-67 (2d Cir. 2001). ....... .. .......... ........ ........
Bennett v. Watson Wyatt & Co., 136 F.Supp.2d 236, 248 (S.D.N.Y. 2001) ...............................................................................
Boyd v. Presbyterian Hospital in the City of New York, 160 F.Supp.2d 522 (S.D.N.Y. 2001} ...........................................................
Burlington Coat Factory Warehouse Corp. v. Esprit De Corp, 769 F.2d 919, 924 (2d Cir. 1985) ...............................................................
Campbell v. Grayline Air Shuttle, Inc., 930 F. Supp. 794, 802 (E.D.N.Y. 1996) ......................................................................................
Castro v. New York City Bd. of Educ. Pers., 96 Civ. 6314 (MBM), 1998 WL 108004, *7 (S.D.N.Y., Mar. 12, 1998) ...................................
Charnis v. Shohet, 2 A.D.3d 663, 663, 768 N.Y.S.2d 638, 639 (2d Dept. 2003) .. .. .. ... .. ... ... ... ... ..... .. ... .. .. .... .. .. .. ... ... .... .. ... .... ... ... .. .
City Mansharan v. Columbia Univeristy, 842 F.2d 590 (2d Cir. 1988) ....... .. ....... ... .......... ..... ... ............... ...... ......... ... ............ ... ... ..
Colon v. City of New York, 60 N.Y.2d 78, 82, 468 N.Y.S.2d 453, 455 (1983) .. .. ......... ............ ...... ... ............ ....... .....................
Conboy v. AT&T, 241 F.3d 242, 258 (2d Cir. 2001) ..........................................
Curley v. AMR Corp., 153 F.3d 5 (2d Cir. 1998) ...............................................
Curry v. City of Syracuse, 316 F.3d 324 (2d Cir. 2003) .....................................
Dewitt v. Lieberman, 48 F.Supp. 2d 280 (S.D.N.Y. 1999) ..................................
Engel v. CBS, 689 N.Y.S.2d 411 (1999) .........................................................
Ettinger v. State University of New York College of Optometry, 1998 WL 91089 (S.D.N.Y. 1998) ..............................................
Evans v. City of New York, 00 Civ. 4197 (BSJ), 2003 WL 22339468, *9 (S.D.N.Y., Oct. 14, 2003) ..................... ..... .. ............ ....
Farias v. Instructional Sys. Inc., 259 F.3d 91, 98 (2d Cir. 2001} ... .................. ......
Figueroa v. City of New York, 198 F. Supp. 2d 555,568 (S.D.N.Y. 2002) ..............

3
18,21
19,20, 24 3
18
18
3
28
5 9 4 5 27 5
26
23 11 18

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Figueroa v. City of New York, No. 00 Civ. 7559 (SAS), 2002 WL 31163880 (Sept. 27, 2002) ............................................................ 18

Franklin v. The City of New York, 2003 WL 21511932 {S.D.N.Y. 2003) .... .... ....... ........ .. ......... ... ............ ....... ....... ............... ... .. ... 27

Galabya v. New York City Bd. of Educ., 202 F.3d 636, 640 (2d Cir. 2000) .............................................................................

18,22

Gallagher v. Delaney, 139 F.3d 338, 349 (2d Cir. 1998) ...................................

11

Gierlinger v. Gleason, 160 F.3d 858, 872 (2d Cir. 1998) ...................................

10

Gordon v. New York City Bd. of Educ., 01 Civ. 9265 {SAS), 2003 WL 169800 {S.D.N.Y., Jan. 23, 2003) ........ ....... ...................... .............. 23

Greaves v. St. Luke's/Roosevelt Hosp. Ctr, 03 Civ. 7272 {SAS), 2005 WL 627635, *1 n.12 (S.D.N.Y., March 17, 2005) ............................ 3

Gregory v. Daly, 243 F.3d 687,689 (2d Cir. 2001) ............................................ 12,26

Griffin v. Breckenridge, 403 U.S. 88, 102, 91 S. Ct. 1790, 1798 (1971) ................................................................................................................. 10

Howell v. New York Post, 81 N.Y.2d 115, 122, 596 N.Y.S.2d 350, 353 (1993) .... .... .... .... ... .. ..... ..... ... ... .. .......... ...... .... ........ ... ...... ... ... ....... .. ..... 9

ldema v. Wager, 120 F. Supp.2d 361, 370 (S.D.N.Y. 2000) .................................. 9

James v. New York Racing Assn, 233 F.3d 149, 156 (2d Cir. 2000) ...................... 11

Jones v. Hirschfeld, 348 F.Supp.2d 50, 59 (S.D.N.Y. 2004) .... ......... ............. ........ 3

Katzv. Klehammer, 902 F.2d 204,208 (2d Cir.1990) .......................................... 10

Khan v. Abercrombie & Fitch, Inc., 10 Civ. 6163 {WHP), 2003 WL 22149527, *6 (S.D.N.Y., Sept. 17, 2003) ............................................ 21,22

King v. Crossland Savings Bank, 111 F.3d 251, 257 (2d Cir. 1997).. ... ...... ........ ... ....... .. ... ....... ...................... ................... ..... 4

Knoll v. Merrill Corp., 02 Civ. 566 (CSH), 2003 WL 22682271, *3 (S.D.N.Y., Nov. 12, 2003) .... ............... ....... ................... 7

Koster v. Chase Manhattan Bank, 609 F. Supp. 1191, 1198 (S.D.N.Y. 1985) .......................................................................................... 8

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Kurschus v. Paine Webber Inc., 16 F.Supp.2d 386, 392 {S.D.N.Y. 1998) .................................................................................... 5

Lee v. Overseas Shipholding Group, 2002 WL

1929490 {S.D.N.Y. 2002) ....... ... ....... ......... ... .................... ...... .... ...............

27

Lindy v. OOCC, 1999 WL 58676 {S.D.N.Y. 1999) ............................................... 28

Loucar v. Boston Market Corp., 294 F.Supp.2d 472, 481 (S.D.N.Y. 2003) ........... .. ......... .................... ..... .. ............ .......... ............. 22

Louden v. Hayek, 756 F. Supp. 107, 108-09 {S.D.N.Y. 1989) .... ... ... ... . .. ......... ... ........ .... ...... .. ....... ... .... .. ..... ....... ... . ..... ... .. 9

Lugo v. Milford, 956 F. Supp. 1120, 1124 {S.D.N.Y. 1997) ................................... 3

Mariani v. Consolidated Edison Co. of New York, Inc., 982 F. Supp. 267, 273 {S.D.N.Y. 1997) ............................................................ 8

McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04, 93 S. Ct. 1817, 1824-25 (1973) .. ..... .. ... ... ..... .. .... .... ... .... .... .. . ... .. ... .. .. ... ... .. .. .... 11

Meiri v. Dacon, 759 F.2d 989, 995 (2d Cir. 1985) ................................................ 22

Melnyk v. Adria Lab., 799 F. Supp. 301,315 {W.D.N.Y. 1992) ............................... 3

Mohammed v. Marriott lnt'l, Inc., 905 F.Supp. 141 {S.D.N.Y. 1995) .......................................................................................... 27

Murphy v. American Home Products, Corp., 58 N.Y.2d 293, 461 N.Y.S.2d 232 (1983) ............................................................................... 9

Nat1 R.R. Passenger Corp. v. Morgan, 536 U.8.1 01, 122 S. Ct. 2061 {2002) ... ... .... ... ............ ...... .... ........ ... .... ........ ....... ... ..... .. . ...... 20

Nevin v. Citibank, N.A., 107 F. Supp.2d 333, 345 (S.D.N.Y. 2000) ..... ....... .. ......... ...... ..... ....... ........... ... ........ .............. ..... ... ...... 9

Pace v. Ogden Serv. Corp., 257 A.D.2d 101, 692 N.Y.S.2d 220, 223 n.1 {3d Dep't 1999) ..... .. ......... ... .... ..... ... ... .... ..... .......... .. ...... ... .... ............. 11

Peters v. Baldwin Union Free School District, 320 F.3d 164, 169 (2d Cir. 2003) .... ... ...... ... . ........ ... ... . .... .... ... ... . ....... ... . ... .... .... .... ... ... . .. ..... 8

Phillips v. Bowen, 278 F.3d 103, 117 {2d Cir. 2002) ... .. ... .. .. .. .. .. .. ..... ... ... .. .. .. ... .. .. 18

Priore v. The New York Yankees, 307 A.D.2d 67 (2d Dep't 2003) ... . ... ... ... . ... ....... ........ .. ..... .... ... . ..... ... ... ... ... ......... ... .... ........ .. 26

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Preston v. State of New York, 223 F.Supp.2d 452, 466 (S.D.N.Y. 2002) .... ........................ ....... ............ .. ........ ................... ... ....... .... 5 Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 148, 120 S. Ct. 2097, 2109 (2000) ................................................................ 2 Rende/1-Bakerv. Kohn, 457 U.S. 830,838, 102 S. Ct. 2764, 2769 (1982) ····························································································· 10 Santan-Morris v. New York University Medical Center, 96 Civ. 0621 (MGC), 1996 WL 709577, *2 (S.D.N.Y., Dec. 10, 1996) ..................................... 8 Satterfield v. UPS, 00 Civ. 7190 (MHO), 2003 WL 22251314 (S.D.N.Y., Sept. 30, 2003) ........... ....... ............. ....... .............. .... ... ................. 22 Sepulveda v. City of New York, 01 Civ. 3054 (DC), 2003 WL 21673626, *3 (S.D.N.Y., July 17, 2003) ..... ........... .... ..... .......... ............ 3 Shanley v. ITT Corp., 869 F.2d 167, 172 (2d Cir. 1989) ........................................ 7 Sowemimo v. D.A.O.R. Security, Inc., 43 F.Supp.2d 477, 484 (S.D.N.Y. 1999) ..................................................................................... 11 St. Pierre v. Dyer, 208 F.3d 394, 404 (2d Cir. 2000).. ........ ..................... .......... ... 3 State Division of Human Rights v. St. Elizabeth's Hospital, 66 N.Y.2d 684 (1985) ...................................................................... 27 Tomka v. Seiler Corp., 66 F.3d 1295 (2d Cir. 1995) ............................................. 27 United Brotherhood of Carpenters v. Scott, 463 U.S. 825, 829, 103 S. Ct. 3352,3356 (1983) ......................................................................... 10 Valentine v. Standard & Poor's, 50 F.Supp.2d 262, 284 (S.D.N.Y. 1999), affd, 205 F.3d 1327 (2d Cir. 2000) .......................................... 22 Warren v. Byrne, 699 F.2d 95, 97 (2d Cir. 1983) ............................................... 3 Weeks v. New York State, 273 F.3d 76, 86 (2d Cir. 2001) .................................. 20 Weinstock v. Columbia Univ., 224 F.3d 33, 40 (2d Cir. 2000) .............................. 2

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Statutes CPLR §215(3) 42 U.S.C. §§ 1983 and 1985(3) HRL § 296(6) NYC Code§ 8-107(6). New York City Human Rights Law, N.Y. City Admin.
Code§§ 8-101 et seq.
New York State Human Rights Law, N.Y. Exec. L.
§§ 290 et seq.

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PRELIMINARY STATEMENT Defendant Scott Chester ("Chester") submits this memorandum of law in support of his motion for summary judgment. Plaintiff Harold Baergas ("plaintiff") was employed by Macy's East, Inc. ("Macy's") in the Processing Department of its Herald Square store for approximately five years, almost three of which were under the supervision of Chester. He alleges that, under Chester's supervision, he was subjected to a hostile work environment that demonstrated animus based on race and national origin. Surprisingly, at no time during his employment did he lodge any such complaints with the Human Resources Department, the 800 toll-free hotline number, or any Macy's manager. Plaintiff was terminated on March 6, 2002 for non-discriminatory, non-retaliatory reasons. Following an internal investigation revealed his complicity in a scheme to steal merchandise from the store. Plaintiff now brings this action asserting a plethora of claims against numerous parties. Distilled to its essence, however, plaintiff's complaint can be divided into two essential categories. First, he alleges that he and a class of employees he seeks to represent were discriminated against on the basis of race and national origin in the form of harassment, disparate treatment, retaliation and difficult physical working conditions. These claims are
brought under the New York State Human Rights Law, N.Y. Exec. L. §§ 290 et seq. ("State HRL"), and the New York City Human Rights Law, N.Y. City Admin. Code §§ 8-101 et seq. ("NYC Code"). Second, he asserts federal statutory and state tort claims arising out of his apprehension, arrest and prosecution, which he claims were falsely secured. Those causes of action include claims for false arrest and imprisonment, malicious prosecution, defamation, intentional infliction of emotional distress, and federal civil rights claims under 42 U.S.C. §§ 1983 and 1985(3}. Plaintiff's complaint is, at best, inartfully pled, but it appears he is attempting to state all these claims against Chester.
This attempt fails. As more fully explained below, Chester played absolutely no role in plaintiff's apprehension, arrest and prosecution; indeed, Chester was not even aware of the internal investigation into plaintiff's activities. Therefore, all claims based upon those events cannot stand. Moreover, many of the tort claims are in any event untimely.
With regard to plaintiff's State HRL and NYC Code claims, plaintiff's efforts to establish Chester's liability are similarly lacking. First, with regard to plaintiff's claim of harassment,
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Chester as a matter of law does not meet the definition of employer and, moreover, cannot be held responsible as an aider and abettor because there is no primary liability against the entity {Macy's) Chester is alleged to have aided and abetted. Second, plaintiff's allegations of adverse physical working conditions is not actionable under the State HRL and NYC Code, because he cannot demonstrate any connection between those conditions and his protected status.

Finally, plaintiff's disparate treatment and retaliation claims contain a multitude of deficiencies. Most of the alleged adverse employment actions are nothing more than a laundry list of trivial and race-neutral occurrences that did not result in a materially adverse change in his employment. Chester had no involvement in those actions and therefore cannot be held liable. Moreover, Plaintiff has failed to adduce evidence establishing that his protected status or his socalled protected activity was the motivation for any of these incidents. And lastly, even beyond the prima facie case, plaintiff is unable to rebut Chester's legitimate, non-discriminatory and nonretaliatory reasons for these events and prove that these reasons are merely pretext for discrimination or retaliation.

In sum, despite extensive opportunity during discovery, plaintiff has failed to elicit credible, competent evidence to support any of his claims. Accordingly, Chester is entitled to summary judgment and dismissal of the complaint with prejudice.

STATEMENT OF FACTS

For a complete statement of facts that are material to this motion, the Court is respectfully referred to the Macy's Defendants' and Chester's Statement of Undisputed Facts Pursuant to Local Rule 56.1.

LEGAL ARGUMENT

I.

Defendant is Entitled to Summary Judgment.

Summary judgment is "a tool for clearing the calendar of doomed lawsuits

"

Weinstock v. Columbia Univ., 224 F.3d 33, 40 {2d Cir. 2000). Summary judgment is equally

appropriate in discrimination cases as in other litigation because its purpose is the same in all

cases, i.e., "avoiding protracted, expensive and harassing trials." /d. at 41. The United States

Supreme Court expressly has stated, "trial courts should not 'treat discrimination differently from

other ultimate questions of fact." /d. (citing Reeves v. Sanderson Plumbing Products, Inc., 530

U.S. 133, 148, 120 S. Ct. 2097, 2109 {2000)).

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Accordingly, summary judgment may be granted where "there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law." Weinstock, 224 F.3d 33 at41 (citing Fed. R. Civ. P. 56(c)). There is a genuine issue of material fact where "the evidence is such that a reasonable jury could return a verdict for the non-moving party." However, "unsupported allegations do not create a material issue of fact." ld. (citations omitted). Plaintiff may not rely upon "mere conclusory allegations or denials. Rather, Baergas must provide "some affirmative indication that [his] version of the relevant events is not fanciful." Melnyk v. Adria Lab., 799 F. Supp. 301, 315 (W.D.N.Y. 1992) (citation omitted); St. Pierre v. Dyer, 208 F.3d 394, 404 (2d Cir. 2000). Plaintiff also may not rely upon inadmissible hearsay evidence, but rather must rely on factual testimony based upon personal knowledge. See, e.g., Albert v. Loksen, 239 F.3d 256, 266-67 (2d Cir. 2001 ); Burlington Coat Factory Warehouse Corp. v. Esprit De Corp, 769 F.2d 919, 924 (2d Cir. 1985); Greaves v. St. Luke's/Roosevelt Hosp. Ctr, 03 Civ. 7272 (SAS), 2005 WL 627635, *1 n.12 (S.D.N.Y., March 17, 2005). 1 In sum, "[t]here must be more than a scintilla of evidence, .... and more than some metaphysical doubt as to the material facts .... [Plaintiff] cannot escape summary judgment merely by vaguely asserting the existence of some unspecified disputed material facts, ...or defeat the motion through mere speculation or conjecture." Jones v. Hirschfeld, 348 F.Supp.2d 50, 59 (S.D.N.Y. 2004} (citations and internal quotations omitted).
II. Plaintiff Cannot Sustain a Claim of False Arrest and Imprisonment Against Chester Because It is Time Barred and, In Any Event, He Cannot Prove a Prima Facie Case.
A. Plaintiff's Claim is Time Barred
Claims for false arrest and imprisonmenf carry a one year statute of limitations. CPLR §215(3); Lugo v. Milford, 956 F. Supp. 1120, 1124 (S.D.N.Y. 1997). The limitations period begins when the imprisonment terminates. Warren v. Byrne, 699 F.2d 95, 97 (2d Cir. 1983); Charnis v. Shohet, 2 A.D.3d 663, 663, 768 N.Y.S.2d 638, 639 (2d Dept. 2003).
It is undisputed that plaintiff was arrested on the evening of March 6, 2002 and into the early morning hours of March 7, 2002. Furthermore, his imprisonment concluded after approximately one or two days. R. 56.1 St. at 1f196. Therefore, his time to sue expired on or

Copies of all unreported decisions are attached as exhibits to the Declaration of Mercedes Colwin, dated April 1, 2005. They are referred to as "Ex. _." Greaves is Ex. E.

2

Claims of false arrest and false imprisonment are synonymous causes of action. Sepulveda v. City of

New York, 01 Civ. 3054 (DC), 2003 WL 21673626, *3 (S.D.N.Y., July 17, 2003) (Ex. 1).

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about March 8 or 9, 2003, more than a year before he instituted the present lawsuit. The claim must therefore be dismissed.

B. Plaintiff Cannot Demonstrate the Elements of a False Arrest and Imprisonment Claim Against Scott Chester

Even if the false arrest and imprisonment claim were not time-barred, such a claim would nevertheless fail against Chester. The elements of a false arrest and imprisonment claim are:

•

Intentional confinement or detention;

•

Lack of consent by plaintiff; and

•

Without justification or privilege.

Curryv. City of Syracuse, 316 F.3d 324 (2d Cir. 2003); Curleyv. AMR Corp., 153 F.3d 5 {2d Cir. 1998).

The record is lacking in any reference to Chester being a participant in the physical confinement or detention of plaintiff. To the contrary, plaintiff himself has described the circumstances of his apprehension and arrest, and has demonstrated by his description that Chester: was nowhere near the 91h floor locker room when plaintiff was apprehended; did not escort plaintiff to the security office; was not responsible for keeping plaintiff in the security office; did not hand plaintiff over to the police; and certainly did not jail plaintiff. See R. 56.1 St.
at mf 139, 192, 200. See also Point Ill below.

However,

For false imprisonment liability to attach to one who causes or directs an arrest or imprisonment in New York, "(t)he defendant must have affirmatively induced the officer to act, such as taking an active part in the arrest and procuring it to be made or showing active, officious and undue zeal to the point where the officer is not acting of his own volition."

Curley, 153 F.3d at 13-14 (citations omitted). See a/so King v. Crossland Savings Bank, 111 F.3d 251, 257 (2d Cir. 1997) (defendant must have "intended or instigated the confinement of the plaintiff').

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Because Chester was in no way responsible for the confinement and detention that forms the basis for plaintiffs claim, it must be dismissed.3

Ill. Plaintiff Cannot Sustain a Malicious Prosecution Claim Against Chester Because Chester Had No Role in the Criminal Proceeding Underlying the Claim.

To sustain a claim for malicious prosecution, plaintiff must prove:

•

Initiation or continuation of a criminal proceeding;

•

Termination of the proceeding in plaintiffs favor;

•

Lack of probable cause for commencing the proceeding; and

•

Defendant was motivated by actual malice.

Colon v. City of New York, 60 N.Y.2d 78, 82,468 N.Y.S.2d 453,455 (1983}; Preston v. State of New York, 223 F.Supp.2d 452,466 (S.D.N.Y. 2002), aff'd 87 Fed.Appx. 221,2004 WL 303944 (2d Cir. 2004 }. In addition, proof of special injury is required. Engel v. CBS, 689 N.Y.S.2d 411 (1999}, conformed to 182 F.3d 124 (2d Cir. 1999}.

The first element - initiation or continuation of a criminal proceeding - requires the defendant to have either instituted the proceeding or have taken a very active role in pressing its continuation. Preston, 223 F.Supp.2d at 466; Kurschus v. PaineWebber Inc., 16 F.Supp.2d 386, 392 (S.D.N.Y. 1998}. However, the testimony in this litigation uniformly demonstrates that Chester had absolutely no role in (1} the investigation into plaintiff's activities leading to his apprehension, (2} plaintiff's apprehension and arrest, or (3) the prosecution against plaintiff. Those in a position to know clearly testified to this:

1. Chester himself stated unequivocally that he did not did not talk to the ADA or police regarding allegations of theft against plaintiff, his apprehension and arrest, or the prosecution, nor did he provide any information to any Macy's employee leading to plaintiff's detention. R. 56.1 St. at mJ139, 192, 200 [195-96, 290}. Indeed, Chester had no knowledge of any security investigation regarding plaintiff or the 1Olh floor

3

Summary judgment on this claim is also appropriate pursuant to N.Y. Gen. Bus. Law§ 218. In order

to avoid unnecessary duplication, Defendant relies upon the Macy's Defendants' Memorandum of Law in

Support of Their Motion for Summary Judgment for his arguments relating to this basis for summary judgment

as if fully set forth herein.

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in the months before plaintiff's termination, nor did he have any discussions about such an investigation. R. 56.1 St. at~ 139 [291, 293].
2. Michael Grasso, a Regional Investigator at Macy's who was personally involved in the apprehension of plaintiff on March 6, 2002, testified that he never had discussions with Chester about plaintiff and Chester contributed no information leading to plaintiff's arrest. R. 56.1 St. at~ 139 [72, 239-40].
3. Chris DeSantis, a Regional Investigator at Macy's who was personally involved in the investigation into and apprehension of plaintiff, testified he only "vaguely'' knew Chester, met with him "rarely, if ever. Maybe in passing," and stated he never at Herald Square commenced an investigation against an employee based upon a manager's recommendation. R. 56.1 St. at~ 77 [103-04, 120-21].
4. Police officer Thomas Schick, the arresting officer, testified he did not know Chester, never had any contact with him, was not aware if Chester had any involvement with the investigation leading up to plaintiff's arrest, and had no knowledge of whether Chester assisted the ADA prosecuting plaintiff. R. 56.1 St. at~ 192 [130-32].
5. Michael Llewellyn, the Regional Special Investigations Unit Director at Macy's, testified he could recall no discussions between Chester and himself or his security colleagues about plaintiff and, to his knowledge, Chester provided no information or documentation to either Llewellyn or his security department colleagues that led to the investigation into plaintiff or plaintiff's apprehension, nor was Chester involved in any way in plaintiff's apprehension. R. 56.1 St. at~ 139 [102-03, 272-74].
The documentary evidence surrounding plaintiff's apprehension, arrest and prosecution further highlights Chester's lack of involvement. Not a single document produced by the City of New York, which was responsible for shepherding plaintiff's arrest and prosecution, even mentions Chester. Further, a March 8, 2002 memorandum written by DeSantis to Wendy Weiss in the Human Resources department, which outlines how the investigation was initiated and carried out (a merchandise stash found by DeSantis and Llewellyn, followed by covert

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surveillance by the security department), demonstrates Chester was not a participant. R. 56.1 St. at~ 139, Ex. H [M0035-36].

Indeed, plaintiff's own testimony demonstrates he cannot show a connection between Chester and his arrest or criminal prosecution. While Plaintiff holds a personal belief that Chester contributed in some way to these events by speaking with members of the security department about him (see R. 56.1 St. at~ 139 [64-65, 74]), that belief is not based on any credible facts; it is just supposition. Plaintiff had no choice but to admit:

•

he had "no idea what [Chester's] role was" in his arrest and did not "know what

Scott Chester contribute[d) to [his] arrest" R. 56.1 St. at~ 139 [64-65];

•

he did not know "if Scott Chester spoke to the police" R. 56.1 St. at~ 139 [70];

•

he "wouldn't know" if Chester spoke to representatives of the security department

in connection with the events that led up to his arrest R. 56.1 St. at ~ 139 [70];

•

he has "no idea" if Chester spoke with the district attorneys prosecuting his case

R. 56.1 St. at~ 200 [81].

Plaintiff went so far as to testify as follows:

Q: Do you think that Scott Chester ever spoke to Security about you individually?
A: Yes, I believe it. Can I prove it? No, I can't.
R. 56.1 St. at~ 139 [74].

This testimony demonstrates unequivocally that Chester had no involvement, either by initiation or continuation, in the criminal prosecution against plaintiff. Certainly, this evidence falls far short of plaintiff's burden to demonstrate this essential element of a malicious prosecution claim. Summary judgment on this claim is therefore appropriate.4

4

Summary judgment on this claim is also appropriate because plaintiff has not demonstrated a lack of

probable cause or the existence of malice by Chester. (Indeed, it is not possible to find malice by Chester,

considering that he had no role in the apprehension, arrest or prosecution.) In order to avoid unnecessary

duplication, Defendant relies upon the Macy's Defendants' Memorandum of Law in Support ofTheir Motion for

Summary Judgment for their arguments relating to these prongs of a malicious prosecution claim as if fully set

forth herein.

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IV. Plaintiff's Claim for Defamation is Time-Barred.
Defamation is an intentional tort that carries a one year statute of limitations, which runs from the date the statement is published. See CPLR § 215(3); Shanley v. ITT Corp., 869 F.2d 167, 172 (2d Cir. 1989); Knoll v. Merrill Corp., 02 Civ. 566 (CSH), 2003 WL 22682271, *3 (S.D.N.Y., Nov. 12, 2003) (Ex. F). Therefore, to be actionable, plaintiff must allege Chester made defamatory statements about him on or after April16, 2003, one year before he instituted the present lawsuit.5
Plaintiff has failed to elicit any statements regarding him, defamatory or otherwise, made by Chester within the relevant time period. The majority of plaintiff's deposition testimony regarding statements made by Chester pertain to comments during plaintiff's employment, which ended on or about March 6, 2002 when he was apprehended and arrested for theft.6 With regard to statements made by Chester after his termination, plaintiff testified to only one specific statement: approximately one to two months after his termination, plaintiff called Macy's to speak with Eduardo Perez, a former co-worker who was still working on the Tenth Floor. Perez told him Chester asked with whom Perez was speaking, and when Perez stated it was plaintiff, Chester told Perez plaintiff was not supposed to be calling the store because he had been caught stealing. R. 56.1 St. at 1T 230. Without even reaching the substantive evaluation of whether such a statement could constitute defamation, it is clear it was made well outside the appropriate time frame and is therefore not actionable.
Because plaintiff can point to no defamatory statements, or any statements at all, made by Chester about him within the limitations period, plaintiffs claim of defamation against Chester must be dismissed.
V. Plaintiff's Claim for Intentional Infliction of Emotional Distress is Time Barred, and In Any Event the Allegations Fail to Sustain A Claim.
Like all other intentional torts, plaintiffs are barred from bringing claims for intentional infliction of emotional distress ("liED") more than one year after the cause of action accrues. See N.Y. CPLR § 215(3) (McKinney 2002); Mariani v. Consolidated Edison Co. of New York,

5

A defamatory statement is a false statement of fact made to a third party in a situation that constitutes

fault and which results in special harm or defamation per se. See, e.g., Peters v. Baldwin Union Free School

District, 320 F.3d 164, 169 {2d Cir. 2003).

6

Of course, Chester does not believe that any of those statements would be considered defamatory in

any event.

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Inc., 982 F. Supp. 267, 273 (S.D.N.Y. 1997), aff'd without opinion, 172 F.3d 38 {2d Cir. 1998). When applying a statute of limitations requirement to an intentional infliction claim, "[a]ll acts occurring before the limitations period are excluded from consideration." Santan-Morris v. New York University Medical Center, 96 Civ. 0621 (MGC), 1996 WL 709577, *2 (S.D.N.Y., Dec. 10, 1996) (Ex. G) (quoting Koster v. Chase Manhattan Bank, 609 F. Supp. 1191, 1198 (S.O.N.Y. 1985)).
Thus, to sustain a claim, plaintiff must allege that, on or after April 16, 2003, Chester engaged in conduct directed toward plaintiff that meets the standard for liED, i.e., extreme and outrageous conduct intended to cause (or in reckless disregard of the likelihood to cause) severe emotional distress, and that did in fact cause such distress. Conboy v. AT&T, 241 F.3d 242, 258 (2d Cir. 2001 ); Howell v. New York Post, 81 N.Y.2d 115, 122, 596 N.Y.S.2d 350, 353 (1993), affd 82 N.Y.2d 690, 619 N.E.2d 650, 601 N.Y.S.2d 572 {1993). The first element requires conduct "so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized society." /d. Stating such a claim under New York law is "nearly impossible." ldema v. Wager, 120 F. Supp.2d 361, 370 (S.D.N.Y. 2000), affd 29 Fed ..Appx. 676,2002 WL 243119,30 MediaL. Rep. 1439 {2d Cir 2002). Such claims are "highly disfavored under New York law." Nevin v. Citibank, N.A., 107 F. Supp.2d 333, 345 {S.D.N.Y. 2000).
In the present case, plaintiff has alleged almost no conduct directed at him within the limitations period, let alone any conduct that could even remotely qualify as the extreme and outrageous conduct necessary to meet the stringent requirements for such a claim. Indeed, the record is devoid of evidence of any contact between plaintiff and Chester during the relevant time frame or any activities by Chester directed at plaintiff.
The only activity regarding plaintiff subsequent to his arrest that plaintiff alleges about Chester is the alleged statement described in Point IV, supra. However, aside from the fact that the statement is time-barred, it is clear this statement does not meet the standard necessary for an liED claim. Far more egregious conduct has been held by the courts not to be sufficient. See, e.g., Murphy v. American Home Products, Corp., 58 N.Y.2d 293,461 N.Y.S.2d 232 {1983) {no liED claim where plaintiff transferred and demoted for reporting fraud, told he would never advance, and terminated in vicious and insulting manner designed to humiliate); Louden v. Hayek, 756 F. Supp.107, 108-09 (S.O.N.Y.1989) (no liED claim where, inter alia, plaintiff was

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called a "swindler" at a company-wide meeting, libeled in an industry magazine, and black-balled in the industry); see generally Mariani, supra, 982 F. Supp. at 278-79 and cases cited therein.
Accordingly, this cause of action must be dismissed.
VI. Plaintiff is Unable to Establish Essential Elements for His Constitutional Claims Pursuant to 42 U.S.C. § 1983 and 42 U.S.C. § 1985, and They Must Therefore Be
Dismissed.
Under a generous reading of plaintiff's complaint, he appears to attempt to state claims under 42 U.S.C. § 1983 and 42 U.S.C.§ 1985 against Chester. Because plaintiff falls far short of his burden to prove either of these claims, they must be dismissed.
To prevail on a claim under 42 U.S.C. § 1983, plaintiff must demonstrate that Chester, while acting "under color of state law," proximately caused plaintiff to be denied federal statutory rights or constitutional rights or privileges. Gierlinger v. Gleason, 160 F.3d 858, 872 (2d Cir. 1998). Where, as here, the defendant is a private party, the cause of action must fail unless that private individual's actions can be "fairly attributable to the state." Rende/1-Baker v. Kahn, 457 U.S. 830, 838, 102 S. Ct. 2764, 2769 (1982) (citations omitted). Clearly, plaintiff has not met this standard. Chester, a private individual employed by a non-governmental entity, has engaged in no action that could conceivably be viewed as "under color of state law." Plaintiff has failed to demonstrate any connection between Chester and the government such that any of his actions can be viewed as actually having been taken by the state. Accordingly, this claim must be dismissed.
The same holds true for plaintiff's claim against Chester under42 U.S.C. § 1985(3). The elements of such a claim are (1) a conspiracy; (2) with the purpose of depriving plaintiff equal protection, privileges and/or immunities under the law; (3) an overt act in furtherance of the conspiracy; and (4) proximate injury. United Brotherhood of Carpenters v. Scott, 463 U.S. 825, 829, 103 S. Ct. 3352, 3356 (1983). Moreover, plaintiff must demonstrate "some racial, or perhaps otherwise class-based, invidious discriminatory animus behind the conspirators' action." Katz v. Klehammer, 902 F.2d 204, 208 (2d Cir.1990) (quoting Griffin v. Breckenridge, 403U.S.88, 102,91 S.Ct.1790, 1798(1971)). Plaintiffhasnotmetthisstandard. Noticeably absent from the record is any evidence that Chester participated in a conspiracy to deprive plaintiff of his equal protection rights. Indeed, there is no allegation or evidence that Chester deprived plaintiff of any equal protection rights covered by this statute, whether as part of a conspiracy or otherwise. Plaintiff has not even alleged in his complaint (or otherwise) what this

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alleged conspiracy was, the equal protection rights implicated, or any overt act in furtherance of the conspiracy. Thus, this claim must be dismissed.
VII. Plaintiff's Claims of Race/National Origin Disparate Treatment Discrimination Must Be Dismissed. A. The Burden of Proof Is Ultimately on Plaintiff
Discriminatory discharge and other disparate treatment claims are analyzed at the outset under the standard set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792,802-04,93 S. Ct. 1817, 1824-25 (1973). 7 Plaintiff first must make out the elements of a prima facie case. If he does so, the burden shifts to Chester to present a legitimate, non-retaliatory or nondiscriminatory reason for the adverse employment action. Once Chester offers a legitimate reason for his action, then all presumptions drop out of the case, and plaintiff again bears the burden of coming forward with evidence that the proffered reason is merely a pretext for retaliation or discrimination. Gallagher v. Delaney, 139 F.3d 338, 349 (2d Cir. 1998) (citations omitted).
At the pretext stage, plaintiff "must produce not simply some evidence, but sufficient evidence to support a rational finding that the legitimate, non-discriminatory reasons proffered by [defendant] were false, and that more likely than not [discrimination] was the real reason for the [employment action]." Weinstock, 224 F.3d at 42 (citations and internal quotations omitted). "It is not enough to disbelieve the employer; the factfinder must believe the plaintiff's explanation of intentional discrimination." James v. New York Racing Assn, 233 F.3d 149, 156 (2d Cir. 2000) (citations omitted).
Plaintiff asserts that, on several occasions, he was treated in a discriminatory fashion, based on his race and/or national origin. Specifically, as it pertains to Chester and viewing his claims expansively in that regard, he alleges disparate treatment in the following actions: his failure to receive the promotion to Team Leader; being the subject of "spying" or "hyper-scrutiny"

7

Although plaintiff's claims are brought under the New York City and State Human Rights Laws, as

opposed to Title VII, in determining whether the conduct alleged states a claim New York courts apply the

same standards as required in Title VII cases because "the language of the two statutory provisions is almost

identical." Pace v. Ogden Serv. Corp., 257 A.D.2d 101, 692 N.Y.S.2d 220, 223 n.1 (3d Dep't 1999)

(discussing Title VII and NYSHRL). See a/so Farias v. Instructional Sys. Inc., 259 F.3d 91,98 (2d Cir. 2001)

(applying Title VII standards to claims under NYSHRL and NYCHRL); Sowemimo v. D.A.O.R. Security, Inc.,

43 F.Supp.2d 477, 484 (S.D.N.Y. 1999) (same). Accordingly, both state and federal law are applicable.

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by Chester;8 receiving poor performance evaluations; receiving less favorable work assignments or stations (i.e., the table to which he was assigned); receiving less overtime, being terminated; and being subjected to the "harsh working conditions" on the Tenth Floor.
To state a prima facie case for discrimination, plaintiff must demonstrate: (1) membership in a protected class; (2) he was qualified for his position; {3) he experienced an adverse employment action; and (4) circumstances surrounding the adverse employment decision that give rise to an inference of discrimination. Gregory v. Daly, 243 F.3d 687, 689 (2d Cir. 2001 ). Plaintiff's claims all fail due to lack of admissible evidence regarding the second, third and/or fourth elements. Plaintiff's claims also fail at the third stage of the McDonnell Douglas standard.
B. Plaintiffs Failure to Promote Claim Must Fail Because Plaintiff Cannot Demonstrate He Was Qualified or That He Was Denied the Promotion Due to His Protected Status, and He Also Cannot Demonstrate Pretext
Plaintiff claims he was treated in a discriminatory fashion when he was not given the promotion to team leader. However, there can be no inference of discrimination in the decision, as the position went to another minority. Plaintiff also cannot demonstrate he was qualified for the position, or that the reason behind Chester's decision was pretext for discrimination. Accordingly, this claim must be dismissed.
1. Plaintiff Cannot Demonstrate Any Racial Motivation in the Decision to Give the Promotion to Another.
One essential element of a disparate treatment claim is that plaintiff must demonstrate circumstances surrounding the failure to promote that gives rise to an inference of discrimination, i.e., that indicates plaintiff's protected status was the reason he failed to receive the position. See Point VILA, supra. However, the record is completely devoid of any such evidence. To the contrary, the record demonstrates Chester ultimately gave the position to Richard Brooks, a black male. Indeed, plaintiff testified that Chester sought out and encouraged Brooks to apply for the position (although he incorrectly referred to him as Richard "Harris" in his deposition). Chester confirmed he sought out Brooks upon the recommendation of Chester's junior manager, Richard Hansen, as well as his own personal observations of Brooks' work performance. Moreover, Chester on another occasion sought out and selected Sidney Charles for a team leader promotion. Charles was also African-American. R. 56.1 St. at 111162, 63, 67.

8

Plaintiff also alleges excess scrutiny by the Security Department at Macy's. Because Chester was not

a security employee, we presume that claim is not alleged against him.

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A lack of racial motivation is further demonstrated by Chester's explanation for his failure to select plaintiff for the position. Chester had been informed by two members of the Human Resources department that it was Macy's policy not to permit promotions for any employee on warning. In reliance upon that understanding, Chester believed plaintiff to be ineligible for the promotion. R. 56.1 St. at~ 64.
Plaintiff is unable to dispute either Chester's conduct in selecting two minority employees for the team leader position or Chester's understanding regarding plaintiff's ineligibility for the promotion. He therefore cannot sustain even a prima facie case of a discriminatory failure to promote and the claim must be dismissed.
2. Plaintiff Was Not Qualified For the Position.
Another essential element of a discriminatory failure to promote claim is that the plaintiff must demonstrate he was qualified for the position. However, as described further above, he was not. It was Macy's policy that an employee on warning was not entitled to receive a promotion. This was a uniform policy that had existed before the team leader position became available. At the time plaintiff expressed an interest in filling the team leader vacancy, he was on an open-ended warning. Therefore, he was ineligible for the position. R. 56.1 St. at~~ 64.
Because plaintiff cannot demonstrate he was qualified for the position, his claim for failure to promote must be dismissed.
3. Chester Has Proffered a Legitimate, Non-Discriminatory Reason for the Decision Which Plaintiff Cannot Demonstrate to be Pretext.
As explained above, Chester has offered a legitimate, non-discriminatory reason for his decision not to select plaintiff for the team leader position - Chester's understanding that, according to Macy's policy, plaintiff was ineligible for the promotion. Plaintiff cannot demonstrate that this reason is actually pretext for discrimination. He has produced no evidence to prove this policy did not exist9 or that Chester was considering his race, not this policy, when making the decision not to give plaintiff the team leader position. Indeed, given the fact that Chester eventually offered the position to another minority individual, it is not possible for plaintiff to demonstrate pretext for discrimination. Accordingly, this claim must be dismissed.

9

Indeed, plaintiff's co-worker testified that when a person is on warning, s/he cannot transfer out of

his/her position. R. 56.1 St. 1f 64. Certainly, if a person cannot transfer laterally, they are not eligible for

promotion.

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C. Plaintiff's Discriminatory Discharge Claim Must Fail Because Plaintiff Cannot Demonstrate He Was Terminated Due to His Protected Status or That Chester Participated in any Way
Reading plaintiff's Complaint expansively, he apparently attempts to state a claim for discriminatory discharge against Chester. However, as explained further below, such a claim must fail, because the established and credible record evidence demonstrates Chester was in no way responsible for plaintiff's termination. Moreover, plaintiff cannot demonstrate that his termination was in any way related to his protected status or that Macy's reason for terminating him is pretextual.
1. Chester Cannot Be Held Liable for Plaintiff's Termination Because He Did Not Participate in any Way.
It is axiomatic that, in order to state a claim against a defendant, the individual or entity must have taken the adverse employment action against the plaintiff. In a claim of discriminatory discharge, this translates into the defendant being responsible for the decision to terminate.
However, in the present case, Chester was in no way associated with plaintiff's termination. R. 56.1 St. at 4ff4ff 139. Plaintiff was terminated by Security Department personnel after they determined plaintiff had been attempting to steal Macy's merchandise, and that termination was processed directly through the Human Resources Department. /d. Nor was Chester even involved in any of the activity and investigation leading up to plaintiffs apprehension and termination. R. 56.1 St. at 4ff4ff 139.
As there is no evidence to connect Chester in any way to plaintiff's termination, Chester cannot be held liable for that action. This claim must therefore be dismissed.
2. Plaintiff Cannot Establish That His Termination Was Due to His Protected Status or That Macy's Explanation is Pretext for Discrimination.
Although Chester cannot be held liable for an action he did not take, it is also worth noting that plaintiff cannot establish circumstances giving rise to an inference of discrimination surrounding his termination, nor can he rebut the legitimate, non-discriminatory reason offered by Macy's. In order to avoid unnecessary duplication, Defendant relies upon the Macy's Defendants' Memorandum of Law in Support of Their Motion for Summary Judgment for his arguments relating to these issues as if fully set forth herein.

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D. Plaintiff's Claim of Discriminatory Denial of Overtime Must Fail Because Plaintiff Cannot Demonstrate That Any Such Denial Was Due to His Protected Status. Nor Can He Demonstrate PretexC0
1. Plaintiff Cannot Demonstrate Any Racial Motivation in the Decision to Give Overtime to Others.
It is incumbent upon plaintiff to demonstrate his protected status was the reason he was denied overtime. See Point VILA, supra. However, plaintiff cannot demonstrate this, and in fact, his deposition testimony demonstrates exactly the opposite.
Plaintiff's complaints regarding overtime were not that any denials or reductions were based upon racial animus; rather, he was concerned that overtime hours were being given to other minorities, particularly the Indian employees. Plaintiff submitted a grievance on the agency issue in February 2000, which contained no reference to any racial implications of the
decisions regarding overtime. Rule 56.1 St. at ,-r 110.
With regard to the apportionment of overtime within the group of full-time Processing employees when such time was authorized by management, plaintiff provides no evidence, other than his own subjective belief, that overtime was not divided fairly and evenly. However, conclusory statements, without any support, are not credible evidence that can sustain the denial of summary judgment. See Point I, supra. Moreover, plaintiff's own testimony demonstrates his concern with overtime in this regard was that it was cut for his "group," but not for the rest of the full-time Processing employees. Plaintiff clearly testified that the remaining
employees consisted predominately of minorities as well. R. 56.1 St. at ,-r 110. Thus, even if
plaintiff's "group" received less overtime than other employees in the Processing Department, race could not have been the reason.
Because plaintiff cannot demonstrate race was in any way related to the alleged reduction in his overtime hours, this claim must be dismissed.

10

It should be noted that Chester, for the most part, was not responsible for the actual canvassing of

employees when it came time to distribute overtime; those duties fell to Hansen. R. 56.1 St. at 1J' _. For

those times Chester did not distribute overtime personally, he cannot be held liable for any alleged

discriminatory actions. However, Chester stated he occasionally did the canvassing himself. While plaintiff

has provided no evidence that any alleged instances of a denial or reduction of overtime were due to Chester's

personal actions, Defendant will nevertheless show plaintiff cannot sustain a claim, even if he were deemed to

somehow overcome this causal hurdle.

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2. Chester Has Proffered a Legitimate, Non-Discriminatory Reason for the Decision Which Plaintiff Cannot Demonstrate to be Pretext.
Although the Court need not reach this issue, as plaintiff has failed to establish a prima facie case, plaintiff's claim also must fail because he cannot rebut, as a pretext for discrimination, Chester's explanation regarding the distribution of overtime.
Chester devised a system, together with Hansen, to ensure that overtime was offered in accordance with seniority. They created a list of all Processing employees, in descending order of seniority, which was canvassed in a continuous loop whenever overtime was authorized. While Hansen most often conducted the survey and determined who would work overtime, Chester specified that, to his knowledge, Hansen followed the procedure. Moreover, whenever
Chester engaged in that task, he adhered to the system. R. 56.1 St. at 1f 111. Plaintiff cannot
demonstrate this explanation to be incorrect and pretext for discrimination. As explained supra, plaintiff offers nothing more than his personal, unsupported belief that overtime was not distributed evenly, which cannot rebut the detailed explanation of Chester, an individual with personal knowledge, of how overtime was apportioned. Indeed, plaintiff cannot point to any particular instances of when he failed to receive overtime, let alone who did receive overtime on those particular occasions.
Because Chester has offered a legitimate, non-discriminatory reason for the manner in which extra hours were distributed, which plaintiff cannot demonstrate to be pretext for discrimination, this claim must be dismissed.
E. Plaintiff's Harsh Working Conditions Claim Must Fail Because Plaintiff Cannot Demonstrate The Conditions Existed Due to His Protected Status or That Chester Was Responsible for Those Conditions
It appears plaintiff is attempting to blame Chester, who arrived in the Processing Department after plaintiff did, for the physical working conditions on the Tenth Floor. This attempt is untenable for several reasons. First, Chester was not responsible for those working conditions, and the discrimination laws therefore do not permit plaintiff to hold Chester liable. And second, plaintiff has failed to demonstrate, as he must do, that the Tenth Floor physical working conditions existed as a result of his protected status.

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1. Chester Cannot Be Held Liable for the Physical Working Conditions on the Tenth Floor Because He Was Not Responsible for Those Conditions.
As described supra in Point VII.C.1, an individual or entity cannot be held responsible under the discrimination laws unless they engaged in the adverse employment action at issue. Thus, to hold Chester responsible for the physical working conditions on the Tenth Floor, plaintiff must somehow demonstrate Chester was the individual responsible for creating those conditions.
Plaintiff is unable to make such a demonstration. The working condition issues about
which plaintiff complains (see generally R. 56.1 St. at mi 116) existed prior to Chester's arrival
and were not issues over which Chester had any final control. To the contrary, Chester endured exactly the same conditions as plaintiff and the rest of the Processing Department and assisted in rectifying some of the problems. He requested air conditioning, although that request was denied, participated in the purchase and installation of fans, and made efforts to repair any
broken fans as quickly as possible. R. 56.1 St. at mi 115.
Plaintiff has offered no evidence that Chester was responsible for creating the conditions on the Tenth Floor. This claim must therefore be dismissed.
2. Plaintiff Cannot Establish That the Physical Working Conditions on the Tenth Floor Were in any Way Connected with His Protected Status.
Although Chester cannot be held liable for a condition he did not create, it is also worth noting that plaintiff cannot establish the physical working conditions on the Tenth Floor arose under circumstances giving rise to an inference of discrimination, nor can he rebut the legitimate, non-discriminatory reason offered by Macy's. In order to avoid unnecessary duplication, Defendant relies upon the Macy's Defendants' Memorandum of Law in Support of Their Motion for Summary Judgment for his arguments relating to these issues as if fully set forth herein.
F. Plaintiff's Claim That Chester "Spied" on Him Must Fail Because the ComplainedOf Conduct Does Not Constitute an Adverse Employment Action. Plaintiff Cannot Connect Those Events to His Protected Status, and He Cannot Demonstrate Pretext
Plaintiff alleges as part of his discrimination claim that Chester "spied" on him, either personally or through other individuals, such as Stanley Pheeko. This claim must be dismissed.

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Plaintiff is unable to state a prima facie case, and he also unable to prove that Chester's legitimate, non-discriminatory reasons for his close supervision was a pretext for discrimination.
1. "Spying" is Not an Adverse Employment Action.
An employee suffers an adverse employment action when he sustains a "materially adverse change" in the terms and conditions of his employment. Galabya v. New York City Bd. of Educ., 202 F.3d 636, 640 (2d Cir. 2000). Mere inconveniences or actions making an employee unhappy do not qualify. /d.; Phillips v. Bowen, 278 F.3d 103, 117 (2d Cir. 2002)
(Martin, J. dissenting). To rise to the level of a materially adverse change, the change must have "an attendant negative result, a deprivation of a position or an opportunity." Figueroa v. City of New York, 198 F. Supp. 2d 555, 568 (S.D.N.Y. 2002) (citing Campbell v. Grayline Air Shuttle, Inc., 930 F. Supp. 794, 802 (E.D.N.Y. 1996)), recons. granted by, Figueroa v. City of New York, No. 00 Civ. 7559 (SAS), 2002 WL 31163880 (Sept. 27, 2002) {Ex. C).
Based upon this standards, courts have uniformly held that close, or even excessive, scrutiny does not constitute an adverse employment action. Although "close monitoring may cause an employee embarrassment or anxiety, such intangible consequences or not materially adverse alterations of employment conditions." Castro v. New York City Bd. ofEduc. Pers., 96 Civ. 6314 {MBM), 1998 WL 108004, *7 {S.D.N.Y., Mar. 12, 1998) (Ex. A). See a/so Bennett v. Watson Wyatt & Co., 136 F.Supp.2d 236, 248 (S.D.N.Y. 2001 ), aff'd 51 Fed. Appx. 55, 2002 WL 31628399 (2d Cir. 2002) {"unfair[]" and "excessive scrutiny do not constitute adverse employment actions").
Plaintiffs complaint of "spying" amounts to nothing more than an allegation of intense scrutiny on the part of Chester. As demonstrated by the above cases, this does not amount to an adverse employment action. This claim must therefore be dismissed.
2. Plaintiff Cannot Demonstrate Chester "Spied" on Him Due to His Protected Status.
Plaintiff fails to allege any evidence from which a reasonable juror could conclude the socalled "spying" took place because of plaintiffs race or national origin. This conclusion is clearly based upon several pieces of credible evidence {or the lack thereof). First, it should be noted that plaintiff has alleged no race or national origin-based statements in connection with Chester's spying activity. He thus has no actual evidence to support a relationship between his race or national origin and Chester's conduct.

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Second, in describing the various types of spying, plaintiff explained that the focus of the spying was plaintiff and his "group," as opposed to the remainder of the Processing employees. However, as plaintiff himself testified, the majority of those other employees were minority as well. Therefore, whatever the motivation for the alleged spying may be, it was clearly not race or national origin. R. 56.1 St. at 111121, 90.

Finally, several minority employees engaged in this supervision as well. Chester explained that team leaders were responsible for assisting the managers in ensuring the smooth flow of work on the processing floor. This obligated them, during their normal course of duties, to report any issues on the processing floor regarding productivity, conduct, or absence from a work station that required addressing. Therefore, as part of his duties, Brooks, an African-
American male, would bring to Chester's attentions any such issues. R. 56.1 St. at 111171. This
certainly detracts from the already negligible racial or national origin implications.

Plaintiff is unable to establish his race or national origin had any relationship to Chester's alleged "spying" activity. Accordingly, this claim must be dismissed.

3.

Chester Has Proffered a Legitimate, Non-Discriminatory Reason for His

Close Supervision Which Plaintiff Cannot Demonstrate to be Pretext.

Although plaintiff characterizes Chester's conduct as "spying," his somewhat sparse description of that conduct reveals Chester was doing nothing more than performing his supervisory duties over the Processing employees to ensure the department's operations ran smoothly. It is well-established that "it is the role of a supervisor to ensure that the supervised employees are properly performing their jobs." Boyd v. Presbyterian Hospital in the City ofNew York, 160 F.Supp.2d 522 (S.D.N.Y. 2001).

While this is a function of all management employees, as noted by the court in Boyd, supra, and thus is sufficient by itself to establish a legitimate basis for his conduct, Chester explained that close supervision is especially critical in the Processing Department for several reasons. First, the Processing Department is the gatekeeper of merchandise for the entire floor, and any problems can create a bottleneck, disrupting the flow of merchandise to the selling floor. Second, because the merchandise in the Processing Department is untagged, Chester felt he needed to be especially vigilant to ward off shortages and possible damage to merchandise from improperly secured sensor tags. Chester would ultimately be held responsible for any problems in the Processing Department, and so he felt it was important to monitor all the employees closely. Moreover, team leaders such as Stanley Pheeko were

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expected to advise Chester and Hansen of any employee problems on the processing floor requiring their attention. Brooks, an African-American team leader, engaged in just such
reporting. R. 56.1 St. at mf 69, 70.
Plaintiff cannot demonstrate this reasonable explanation to be pretext for discrimination. Plaintiff can contest neither the central role the Processing Department played in moving merchandise onto the selling floor nor the additional shortage risk created by the untagged nature of the merchandise; indeed, plaintiff himself testified to the latter consideration. R. 56.1
St. ,-r 81. Plaintiff and his co-workers also acknowledged the semi-supervisory position held by team leaders. R. 56.1 St. ,-r _. Accordingly, this claim must be dismissed.
G. Plaintiff's Claim That He Received One Negative Evaluation Must Fail Because the Complained-Of Conduct Does Not Constitute an Adverse Employment Action, Plaintiff Cannot Connect Those Events to His Protected Status, and He Cannot Demonstrate Pretext
Plaintiff alleges as a basis for disparate treatment the fact that he received a negative performance evaluation two days before he was apprehended for theft. As demonstrated below, this ultimately inconsequential document cannot sustain a claim.
1. Negative Performance Evaluations, Without More, are Not Adverse Employment Actions.
Negative performance evaluations, without more (such as suspension, demotion, docking of pay, etc.), do not constitute adverse employment actions. "It hardly needs saying that a criticism of an employee {which is part of training and necessary to allow employees to develop, improve and avoid discipline) is not an adverse employment action." Weeks v. New York State, 273 F.3d 76, 86 (2d Cir. 2001 ), abrogated on othergrounds by Nat1 R.R. Passenger Corp. v. Morgan, 536 U.S.101, 122 S. Ct. 2061 (2002). See also Gordon v. New York City Bd. of Educ., 01 Civ. 9265 (SAS), 2003 WL 169800, *6 (S.D.N.Y., Jan. 23, 2003) (Ex._) ("[i]t is well-settled that negative evaluations alone, without any accompanying adverse consequences, such as a demotion, diminution of wages, or other tangible loss, do not constitute adverse employment actions"); Bennett v. Watson Wyatt & Co., 136 F.Supp.2d 236,248 (S.O.N.Y. 2001) ("negative evaluations, standing alone without any accompanying adverse results, are not cognizable").
Plaintiff alleges he was discriminated against because he received a single poor performance evaluation. However, he has provided no evidence from which to discern any

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tangible, negative consequences flowing from that evaluation. Indeed, the negative performance evaluation was issued on March 4, 2002, only two days before plaintiff was terminated for an entirely separate and unrelated reason. R. 56.1 St.~ 141. There was thus no time in which this evaluation could even have had a detrimental consequence. This performance evaluation is therefore not considered an "adverse employment action," and any discrimination claim based on it cannot stand.
2. Plaintiff Cannot Demonstrate He Received The Evaluation Due to His Protected Status.
Plaintiff has offered no evidence to connect the March 2002 poor evaluation with his race or national origin. To the contrary, plaintiff testified his review scores decreased only after he became a shop steward and began participating in the grievance process. Nothing on the face of the evaluation connects it with plaintiff's protected status. Further, the evaluation was drafted by Hansen, to whom plaintiff has attributed no discriminatory animus or actions. R. 56.1 St.~ 105. While plaintiff may hold a personal belief that his race or national origin motivated the 2002 evaluation, such beliefs are not competent evidence. "An employee's opinion that a performance review was unfair, supported only by [his] own conclusory statements to that effect, cannot bootstrap [his) claims into a [discrimination) claim." Khan v. Abercrombie & Fitch, Inc., 01 Civ. 6163 (WHP), 2003 WL 22149527, *6 (S.D.N.Y., Sept. 17, 2003) (Ex. K) (citations and internal quotation marks omitted). Accordingly, this claim must be dismissed.
3. Chester Has Proffered a Legitimate, Non-Discriminatory Reason for the
Evaluation Which Plaintiff Cannot Demonstrate to be Pretext.
As explained by Chester in his declaration, Hansen, with Chester's approval, gave plaintiff a "below expectations" rating on his 2001 Annual Performance Appraisal. This assessment was based upon plaintiff's failure to meet expectations with regard to his team skills, professional work characteristics, time and attendance. He also required more supervision than should have been necessary. These are legitimate criteria upon which to base an assessment of an employee's performance. Moreover, "courts must refrain from intruding into an employer's policy apparatus or second-guessing a business's decisionmaking process." Meiri v. Dacon, 759 F.2d 989, 995 (2d Cir. 1985).
Having established a legitimate, non-discriminatory basis for the evaluation, Chester must prevail unless plaintiff can demonstrate this explanation to be a pretext for discrimination. This he cannot do. Plaintiff has offered no evidence- statements, objective measurements, etc.

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-to prove Hansen's evaluation was arbitrary or illegitimate. All plaintiff presumably offers is his disagreement with those assessments. However, a plaintiff's "subjective disagreement with [his] reviews is not a viable basis for a discrimination claim." Valentine v. Standard & Poor's, 50 F.Supp.2d 262, 284 (S.D.N.Y. 1999), aff'd, 205 F.3d 1327 (2d Cir. 2000). Because plaintiff can offer nothing more than his own "opinion that a performance review was unfair, supported only by [his] own conclusory statements to that effect," (Khan, supra, 2003 WL 22149527 at *6), his claim must be dismissed.
H. Plaintiff's Claim That Chester Changed His Work Assignments and Stations Must Fail Because the Complained-Of Conduct Does Not Constitute an Adverse Employment Action, Plaintiff Cannot Connect Those Events to His Protected Status, and He Cannot Demonstrate Pretext
Despite the fact that all the tasks were those designated for Processing Department stock persons, plaintiff claims his assignment to certain tasks and removal from others was somehow discriminatory. As demonstrated below, this claim must fail.
1. Changing an Employee's Work Assignment or Station is Not an Adverse Employment Action.
As a general matter, a change in working conditions is not "materially adverse" if it is merely "an alteration of job responsibilities." Galabya, 202 F.3d at 640. Thus, an alteration in job assignment is not an adverse employment action "unless it results 'in a change in responsibilities so significant as to constitute a setback to the plaintiff's career."' Loucar v. Boston Market Corp., 294 F.Supp.2d 472, 481 (S.D.N.Y. 2003) (citing Galabya, 202 F.3d at 641 ). To be materially adverse, "the challenged action must affect employment in a way that is both detrimental and substantial." Satterfield v. UPS, 00 Civ. 7190 (MHO), 2003 WL 22251314, *9 (S.D.N.Y., Sept. 30, 2003) (Ex. H) (citations and internal quotation marks omitted).
Plaintiff can hardly meet this standard with regard to the changes he alleges in his work assignment or location. At all times, plaintiff was performing tasks necessary to the role of the Processing Department and that were performed by other individuals in the department (either simultaneously with plaintiff or at different times). As Chester explained, all these tasks were part of the job of stockperson, and any processing employee could be expected to perform any of those tasks at any time. R. 56.1 St. at~ 20. The fact that plaintiff was not pleased with his various assignment changes and would have preferred to be, for example, operating the elevator or working at a table with his friends, does not make the action adverse. "Not everything that makes an employee unhappy is an actionable adverse action." Gordon v. New

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York City Bd. ofEduc., 01 Civ. 9265 {SAS), 2003 WL 169800 {S.D.N.Y., Jan. 23, 2003) (Ex. D) (citations and internal quotation marks omitted). Plaintiff cannot demonstrate that the minor changes in work assignment or location resulted in an alteration to his job that made it "materially less prestigious, materially less suited to his skills and expertise, or materially less conducive to career advancement." Evans v. City of New York, 00 Civ. 4197 {BSJ), 2003 WL 22339468, *9 {S.D.N.Y., Oct. 14, 2003) {Ex. B) {citations and internal quotation marks omitted). This claim must therefore be dismissed.
2. Plaintiff Cannot Demonstrate Chester Altered His Work or Table Assignment Due to His Protected Status.
Once again, plaintiff is unable to show that any alterations in his particular work assignments or table location had any relationship to his race or national origin. Analysis of the facts offered by plaintiff demonstrates that, for the most part, the job changes about which he complains were isolated instances, that changed depending on the day. For example, he claims on one occasion, he was assigned to lift boxes, and every now and then he was assigned to garbage, or trash, duty. R. 56.1 St.1"f20. This does not show any consistent practice directed at plaintiff.
The record also demonstrates that many of the tasks that plaintiff disdained were performed by individuals of all races. Trash duty was most often performed by Teddy Goldstein and Michael Lovric, who were both Caucasian. Elevator duty was performed by individuals of all races within the Processing Department- Hispanic, African-American, Indian, and Caucasian. Moreover, one of the Caucasian employees was removed from elevator duty for failure to perform in a satisfactory fashion. R. 56.1 St.1"f20. Therefore, there is no evidence that race or national origin had any impact on task assignment.
Furthermore, plaintiff himself testified he believed the reason for his table reassignments were unrelated to race or national origin. Specifically, plaintiff stated he believed Chester would reassign tables if he believed the processors were not working fast enough, and also testified that a few of his relocations were due to plaintiff either being a "Security issue" or to "opening [his] mouth" toward Chester after plaintiff became a shop steward. R. 56.1 St.1J23. The first reason is itself legitimate and non-discriminatory, and none of these offered bases have anything to do with race or national origin.
It is clear plaintiff cannot even sustain a prima facie case of discrimination based upon his work assignments. This cause of action must therefore be dismissed.

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3.

Chester Has Proffered a Legitimate, Non-Discriminatory Reason for His

Work Decisions Which Plaintiff Cannot Demonstrate to be Pretext.

While there is no need for the Court to reach this prong in the analysis, summary judgment is also appropriate on the grounds that Chester has offered a legitimate, nondiscriminatory reason for his work decisions which plaintiff cannot demonstrate to be a pretext for discrimination. Chester explained that, at the outset of his employment, he determined it was necessary for all employees be prepared to perform any of the tasks required of Processing Department stock persons. These duties included placing sensors on merchandise, collecting and disposing of the trash, delivering tagged merchandise to the various selling floors, lifting boxes onto the Processing tables, working with different employees at various tables, and
operating the elevators. R. 56.1 St. ,-r 20. Plaintiff himself testified that duties of this nature were part of a processor's job. R. 56.1 St. ,-r 20.

Chester further testified that changes in work assignments were made in accordance with the needs of the business. Changes might be needed depending upon. for example, the merchandise that had come in, whether there were any absences, if there were personality conflicts at tables that required table-mates to be shuffled, and whether the appropriate personnel were available for certain physically demanding tasks. Adjustments were also warranted if, in the managers' assessment, a particular employee was not performing a task up
to par. R. 56.1 St. ,-r 20. Even plaintiff himself testified to a legitimate, non-discriminatory reason
on Chester's part for changing table assignments- Chester's belief that the employees were not
working fast enough. R. 56.1 St. ,-r 20.

It would seem elementary that a manager's decision to take a certain action because it is in the best interests of the business is a legitimate. non-discriminatory reason. Cf. Boyd, supra, 160 F.Supp.2d at 543 (supervisor's role is to ensure employees properly performing). All the explanations Chester provided regarding his and Hansen's conduct in shifting assignments diversification of employee skills, ensuring a cooperative and productive work environment, coverage of all necessary tasks - clearly and logically aim toward the goal of managing the business properly.

Moreover, plaintiff neither has offered nor can offer any evidence to rebut this explanation and demonstrate it is merely pretext for discrimination. Plaintiff has offered no statements or actions connected with any change in work assignment that would implicate race or national origin. In addition, Chester explained his policy that processing employees be

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prepared to perform all stock person functions applied uniformly to all employees under his supervision. R. 56.1 St.~ 20. While plaintiff (without support) claims otherwise, he has offered no evidence to prove his claim. Moreover, the evidence in the record supports Chester's statement that he applied this policy without regard to race or national origin. See Point VII.H .2, supra.
Because plaintiff cannot rebut Chester's legitimate, non-discriminatory reason for the various work assignment alterations, this claim must be dismissed.
VIII. No Individual Liability for Race/National Origin Hostile Work Environment Harassment, Disparate Treatment and Retaliation Claims.
A. Because Plaintiff Fails to Establish Employer and Accessorial Liability Claims For Harassment, Discrimination and Retaliation Under the State HRL and the NYC Code Must Be Dismissed
Under the local discrimination laws, the State HRL and the NYC Code liability attaches to employers and to co-employees as aiders and abettors. HRL § 296(6); NYC Code§ 8-107(6). The State HRL provides in pertinent part as follows:
It shall be an unlawful discriminatory practice for any person to aid, abet, incite, compel or coerce the doing ofany of the acts forbidden under this
article, or to attempt to do so.
§ 296 (6)
Similarly, the NYC Code provides as follows:
Employment. It shall be an unlawful discriminatory practice: ... For an employer, or an employee, or agent thereof . ..
Aiding and abetting. It shall be an unlawful discriminatory practice for any person to aid, abet, incite, compel or coerce the doing of
any of the acts forbidden under this chapter, or to attempt to do so.
§8-107(6).
B. Employer Liability
The inclusion of the word "employee" in the body of the NYC Code does not create a new category of defendants which allows for a separate cause of action against co-workers or supervisors for their contribution to the hostile environment. Priore v. The New York Yankees, 307 A.D.2d 67 (2d Dep't 2003). This slight difference between the statutes has little meaning as the Courts have held the wording of the statutes is virtually the same and thus they are to be

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interpreted and applied in the same manner. Ettinger v. State University ofNew York College of Optometry, 1998 WL 91089 (S.D.N.Y. 1998); Mohammedv. Marriott Inti, Inc., 905 F.Supp. 141 (S.D.N.Y. 1995) ('The wording of the city ordinance and the manner in which it has been applied show a clear intent to parallel the obligations and remedies provided by the State of New York).
In order to establish employer liability under these statutes, the plaintiff must show the defendant employee has an "ownership" interest in the corporation with the "power to do more than carry out personnel decisions made by others." Lee v. Overseas Shipholding Group, 2002 WL 1929490 (S.D.N.Y. 2002), citing to Tomka v. Seiler Corp., 66 F.3d 1295 (2d Cir. 1995). There must be a showing the employer encouraged, condoned or approved the discriminatory or retaliatory conduct in order for a violation of law to exist. An employer or its agent thereof, must have the authority to change the terms and conditions of the employment including hiring, firing, and paying the employees or administering the benefits within the organization. Franklin v. The City of New York, 2003 WL 21511932 (S.D.N.Y. 2003) aff'd2004 WL 1157729 (2004); Dewitt v. Lieberman, 48 F.Supp. 280 (S.D.N.Y. 1999); State Division of Human Rights v. St. Elizabeth's Hospital, 66 N.Y.2d 684 (1985).
In the present case, plaintiff seeks to render Chester individually liable for claims of retaliation, discrimination and harassment. Under the first criteria, plaintiff cannot establish Chester is an "employer" for purposes of liability. It is undisputed, Chester had no power or authority to engage in any personnel decisions including disciplinary warnings or termination. Indeed, Chester had to refer all of these personnel matters to Macy's Human Resources
Department. Rule 56.1 1f 15. As such, Plaintiff fails to establish employer liability.
C. Accessorial Liability
In order to demonstrate aider and abettor liability, there is "a requirement that liability must first be established as to the employer/principal before accessorial liability can be found as to an alleged aider and abettor." DeWitt v. Lieberman, 48 F.Supp.2d 280, 293 (S.D.N.Y. 1999). If the plaintiff fails to establish the employer became a party to the challenged behavior, the individual co-employee is absolved of liability. Tomka, supra, at 1317. Moreover, since the thrust of individual liability under the aiding and abetting principle rests solely upon the employer's culpability, the focus is on whether the employer engaged in unlawful conduct in the first place.

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Aside from failing to show Chester as an "employer" within the meaning of the statutes, plaintiff cannot establish accessorial liability either. Binding precedent requires the plaintiff to demonstrate Macy's liability first before Chester could be held responsible as aider and abettor. As set forth fully in the Macy's Defendants' memorandum of law concerning employer liability, there is no evidence Macy's encouraged, condoned or approved Chester's purported conduct underlying plaintiff's complaint. Therefore, without a showing of Macy's culpability, Chester cannot be held liable. For these reasons, plaintiff's claims of liability against Chester under the local discrimination laws must be dismissed.
IX. Retaliation Claim.
Retaliation claims utilize the same McDonnell Douglas burden-shifting standard as disparate treatment claims. However, the prima facie case contains different elements. To establish a prima facie case of retaliation, plaintiff must show: (1) participation in a protected activity known to Chester; (2) an adverse employment action; and (3) a causal connection between the two. Gallagher, 139 F.3d at 349 (citations omitted).
Plaintiff claims he endured the following conduct as retaliation for his protected conduct, i.e., for allegedly complaining to Chester about Chester's purported discriminatory treatment: his failure to receive the promotion to Team Leader; being the subject of "Spying" or "hyperscrutiny" by Chester, receiving poor performance evaluations; receiving less than favorable work assignments or stations; receiving less overtime; and being terminated. Plaintiff's retaliation claim must fail because he can establish neither an adverse employment action nor a causal connection between any adverse employment action and his alleged complaints to Chester.11
A. Plaintiff Cannot State a Claim Against Chester Regarding Those Actions for Which Chester is Not Responsible
Plaintiff apparently claims his apprehension and arrest on March 6, 2002, which resulted in his termination, was in retaliation for protected activity. However, as explained supra in Points

11

For purposes of this motion only, Defendant will assume plaintiff can satisfy the protected activity

element. Plaintiff has offered no written evidence to support his claim that he complained to Chester or filed

grievances with Chester regarding claims of discriminatory treatment based on protected status. Further,

plaintiff has not provided any testimony describing the specific complaints he brought to Chester's attention.

However, he did state in his deposition, in response to his own attorney's leading questions, that he

complained verbally to Chester about what he thought were racist and discriminatory actions. While it is

questionable whether plaintiff has satisfied his burden to demonstrate protected activity known to Chester, it is

unnecessary to expend effort on this point, because it is clear there are several other deficiencies on which to

base summary judgment of plaintiff's retaliation claims.

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II, Chester did not participate in any way in plaintiff's apprehension (or the investigation leading up to it), arrest or termination. He therefore cannot be held to have "retaliated" against plaintiff in this manner, since he did not take the action at issue. Logically, Chester can not be held responsible for conduct he did not commit and thus, this retaliation claim against Chester must be dismissed.
B. Plaintiff Can Establish No Adverse Employment Action
The standard for determining whether conduct rises to the level of an adverse employment action is the same whether the cause of action is one for disparate treatment or retaliation. See Gregory v. Daly, 143 F.3d 687, 701 (2d Cir. 2001). The issue of adverse employment action has already been fully briefed in Point VII, supra. As demonstrated in those sections, the alterations in plaintiff's job duties, a negative performance evaluation and any scrutiny of him by Chester do not constitute adverse employment actions. Therefore, those retaliation claims must be dismissed on this basis alone.
C. Plaintiff Can Establish No Causal Connection
The remaining retaliation claims of failure to promote and diminished overtime are equally defective because they have no nexus to any protected activity. In determining if a causal connection occurred between protected activity and an adverse employment action, the Courts generally look for the existence of temporal nexus between the two. Lindy v. OOCC, 1999 WL 58676 (S.D.N.Y. 1999); City Mansharan v. Columbia Univeristy, 842 F.2d 590 (2d Cir. 1988) (causation element established when twelve days passed between protected activity and adverse employment action). Since the plaintiff has only provided a vague recollection of these purported complaints and failed to provide a chronology detailing when they were divulged, his retaliation claims must fail. The first step in the analysis in determining the existence of a causal connection is whether the aggrieved party engaged in protected activity. The instant Plaintiff fails to provide any documentation memorializing his purported complaints to Chester. More importantly, during his deposition, Plaintiff could not recall when these complaints were made to Chester, thus extinguishing any possibility of establishing a time frame within which to create the required temporal nexus. Thus, his retaliation claims must fail.

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D. Plaintiff Cannot Establish Pretext

Since all the legitimate non-pretextual business reasons disputing the retaliation allegations were fully discussed in the disparate treatment section, Point VII supra, they will not be repeated here to avoid duplication. The Court is respectfully referred to Point VII for a full analysis.

CONCLUSION

For all the foregoing reasons, Defendant respectfully requests that the Court grant Defendant's motion for summary judgment, dismiss plaintiff's Complaint in its entirety and grant such other relief and/or remedies as deemed appropriate.

Dated:

New York, New York April 1, 2005

Respectfully submitted,
l'ABBATE, BALKAN, COLAVITA &CONTINI, l.L.P. Attorneys for Defendant Scott Chester

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UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

-----------------------------------------------------------------------------X

HAROLD BAERGAS, on Behalf of Himself and

Others Similarly Situated,

04 Civ. 2944 (BSJ)

(ECF Case)

Plaintiff,

against-

THE CITY OF NEW YORK, NEW YORK CITY POLICE DEPARTMENT, FEDERATED LOGISTICS, FEDERATED DEPARTMENT STORES, INC., MACY’S EAST, THE FRICK COMPANY, and SCOTT CHESTER, CHRIS DE SANTIS, MICHAEL GREEN, JOHN DOES 1 – 5, Individually,
Defendants. -----------------------------------------------------------------------------X
MEMORANDUM OF LAW IN OPPOSITION TO DEFENDANTS’ MOTIONS FOR SUMMARY JUDGMENT
PRELIMINARY STATEMENT
Plaintiff alleges that Defendants discriminated against him based on his national
origin and race (Hispanic), subjected him to a racially hostile work environment, and
retaliated against him for complaining about this discrimination. This retaliation took
many forms but culminated in Plaintiff’s false arrest and malicious prosecution.1
Defendants Macy’s and Chester’s MSJ must be denied as all the material issues of
fact are in dispute.
1 Plaintiff, is a former employee of Macy’s who worked in Macy’s Processing Department of on the Tenth Floor of it’s Herald Square Store (“the Processing Department” or “the Tenth Floor”). This Department was managed at all relevant times by Defendant Chester from July 1999 through December 2004 (“Chester’s tenure.”) The Processing Department in Macy’s processed the merchandise, including adding sensor tags. This Department was composed almost exclusively of minority employees, except for the two Caucasian managers, one of which was Defendant Chester (“the [minority] Processing employees”).
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The racially hostile work environment was created predominantly by Plaintiff’s supervisor, Chester, who throughout his tenure subjected the minority Processing employees on the Tenth Floor to a daily barrage of racist and offensive comments, including calling minority employees “Desert Nigger”, likening Black employees to “apes” and “gorillas”, expressing a belief that Hispanics all carried razor blades, were drug dealers and otherwise engaged in criminal activity and stating that if he ever needed a spare car part, he would get Plaintiff, a Hispanic, to steal it for him. Chester openly criticized and joked about the clothes worn by many minority Processing employees, which were often very baggy and worn in the urban style and even likened the accompanying jewelry worn by many minorities to “dog chains”. Chester would also imply that the minority Processing employees must be engaging in criminal activity to be able to afford the expensive clothing and jewelry that they wore. He would additionally instruct Macy’s Security Department to scrutinize minority employees who wore expensive clothes. Chester would often ask the minority employees how much stolen merchandise “they could stuff” into their baggy jeans, and he actually instituted a policy that required the Processing employees to wear tighter pants and to tuck their shirts in. Employees who arrived to work in pants that were deemed too loose by Chester were sent home.
Chester would constantly make demeaning comments towards the Hispanic seasonal workers on the Tenth Floor, labeled them “slaves” and “midgets”, and would “work them to the ground”, and that the Hispanic workers were “cheaper by the dozen” and if one is hurt “just replace him with another.” Plaintiff and his minority co-workers were very offended by these comments, and complained on numerous occasions to
2

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Macy’s upper management and filed grievances, but these complaints were ignored. The racist comments continued on a constant basis throughout Chester’s tenure on the Tenth Floor, between July 1999 through January 2004.
The minority Processing employees on the Tenth Floor were also constantly subjected to intense security scrutiny from members of the Security Department and Chester, as well as Chester’s Junior Manager, Hansen. The Processing employees, who were required to wear highly reflective orange vests at all times, worked inside a “huge metal cage”, and were spied on and followed into the restroom. At times during Chester’s tenure, the Processing employees could not even use the restroom without being accompanied by either Chester, Hansen or a member of security. Chester would spend hours just parading around the Tenth Floor and staring at the minority Processing employees and would place himself behind rods of clothes and spy on them. In addition, Chester had installed additional camera surveillance, including the installation of a large mobile surveillance tube camera running back and forth, which made it feel like “you were in prison.” This increased scrutiny and security surveillance was the result of Macy’s racial profiling of minorities in accordance with Macy’s and Chester’s discriminatory beliefs that minorities had criminal propensities. This intense racial profiling added to the racially hostile work environment that existed on the Tenth Floor.
The conditions on the Tenth Floor were known as the worst in Macy’s and it was commonly known throughout as the “Tenth Floor prison.” The Tenth Floor was variously described by witnesses during depositions as akin to a “prison sweat shop”, like a “prison lock out”, a “boot camp” and like working in a “plantation.”
The minority employees that work on the Tenth Floor are forced to work under
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intolerable conditions, there is no air conditioning, inadequate ventilation, it is dusty, there are huge cracks in the ceiling, it is unsafe and the exit doors and passageways are routinely blocked by boxes, pallets and merchandise. Numerous Processing employees have been injured due the dangerous conditions. Upon information and belief, Macy’s is in violations of OSHA health and safety regulations and employees have been seriously injured. In the summer, the temperature often surpasses 100 degrees. Despite these conditions, Chester prevented cool off breaks and refused to secure access to clean drinking water. In allowing these conditions to exist, Macy’s was and continues to discriminate against the minority Processing employees. Only the subbasement area in the Herald Square store, which is also staffed almost exclusively by minorities, is the only other area in the store that is lacking air conditioning. Areas within the store with a far more equal racial composition enjoy a cleaner and healthier work environment and air conditioning.
Despite many years of complaints and union grievances, Macy’s has proved resolute in refusing to address the appalling conditions on its Tenth Floor.
During Plaintiff’s employment with Macy’s he was passed over for promotion, denied overtime in favor of Caucasian employees, reassigned to different work units, unfairly disciplined and put on final warning. The main decision maker for all these discriminatory actions was Defendant Chester, the former senior manager of Plaintiff’s Processing Department from July 1999 until January 2004. Plaintiff was also treated disparately because of the hostility and harassment from Chester, and the constant spying and scrutiny. Much of Chester’s actions were retaliatory in motive. Plaintiff brought many discrimination complaints and grievances to the attention of Macy’s managers on
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numerous occasions. Retaliatory action would always closely follow these complaints. Plaintiff alleges that many of the discriminatory actions taken against him by
Chester were in retaliation for Plaintiff’s complaints. Plaintiff, along with three minority co-workers with whom he worked on the same processing tables, were particularly targeted by Chester because of their union grievances and constant complaints to Macy’s upper management regarding Chester’s racism and harassment and the work conditions.
Macy’s did not take any action against Chester whatsoever in response to these complaints. In fact, Macy’s condoned and encouraged the discrimination and knew that Chester was a rampant racist even prior to assigning him the responsibility of managing a floor that was almost exclusively staffed by minority employees. Chester retaliated against the complainants by placing them on final warning and/or demoting them and intensifying his constant scrutiny.
The retaliation against Plaintiff, in which Chester was intimately involved, culminated in Plaintiff’s unlawful false arrest and malicious prosecution for theft of Macy’s merchandise. In August 2003, all charges against Plaintiff were dismissed because Macy’s did not have any proof against Plaintiff implicating him in theft.
Macy’s, through it agents, intentionally procured Plaintiff’s unlawful arrest and malicious prosecution through lies and deceit.
Plaintiff asserts racial discrimination claims under the New York State and City Human Rights laws, as well as the Section 1981.2
Plaintiff has also brought claims for malicious prosecution against Macy’s,
2 In October 2004, Plaintiff filed a motion to amend the complaint to add claims under Section 1981. A decision is pending. Notwithstanding, Plaintiff will address § 1981 liability as legally and factually the analysis is very similar to that of Plaintiff’s other discrimination claims.
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Chester, Green and DeSantis.3 Plaintiff’s also asserts causes of action under 42 U.S.C. § 1983 as against all the
Defendants, including Macy’s, Chester and DeSantis. Plaintiff has adduced evidence that the circumstances surrounding Plaintiff’s arrest and prosecution, when considered in their totality, raise as a triable issue whether Macy’s, albeit a private corporation, was acting as a state actor under the joint participation theory.
Moreover, the City of New York’s liability is premised on the fact that the circumstances of Plaintiff’s arrest and prosecution, which were based solely on statements from Macy’s Security personnel, were misleading and patently obvious lies and inconsistencies by Macy’s, such that there was no probable cause to arrest Plaintiff nor to commence a criminal prosecution. The complete failure on the part of the ADA to interview key witnesses and review key evidence is further evidence that Plaintiff’s was unlawfully prosecuted.
Defendants’ motions for summary judgment4 are based on an incorrect interpretation of the law and a gross mischaracterization of the facts. Principally, Defendants attempt to parse Plaintiff’s claims, including the hostile work environment claims, which involve sustained and multiple acts of discrimination and retaliation over a five year period, into separate and discrete acts. This neglects the fact that Chester’s
3 These claims were timely filed within the one year limitations period from the date of accrual when the criminal charges were dismissed, i.e., August 2003. Plaintiff’s state false arrest claims were filed beyond the one year statutory period, and are hereby withdrawn. 4 FEDERATED LOGISTICS, FEDERATED DEPARTMENT STORES, INC., MACY’S EAST, THE FRICK COMPANY (collectively “Macy’s”), Scott Chester (“Chester”) and THE CITY OF NEW YORK and the NEW YORK CITY POLICE DEPARTMENT (“The City of New York”) have all filed three separate motions for summary judgment, although Macy’s and Chester have jointed filed a Rule 56.1 Statement of Facts. Plaintiff opposes all three motions herein.
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discriminatory acts were so regular and persistent, and that they collectively form a persistent policy and pattern of discrimination by Macy’s and Chester.
Moreover, given the direct evidence of discrimination emanating from the decision maker at the root of the majority of challenged discriminatory acts, namely Chester, a strict application of the McDonnell Douglas burden shifting analysis is not warranted here. Even using this framework, however, Plaintiff establishes a prima face case of discrimination showing that Macy’s so-called non-discriminatory reasons for taking the challenged actions are a mere pretext for discrimination.
Chester is personally liable for his own acts of discrimination and retaliation, which include his intimate involvement in Plaintiff’s unlawful arrest and malicious prosecution. Individual Defendants Christopher DeSantis (“DeSantis”), Michael Green (“Green”), and Michael Llewellyn (“Llewellyn”),5 who provided false oral and written statements to the arresting police officer and the ADA who prosecuted Plaintiff for theft, are also personally liable for procuring Plaintiff’s unlawful arrest and malicious prosecution.
There is such a wealth of evidence in this lawsuit of Defendants Macy’s, DeSantis and Chester’s liability for unlawful discrimination that it is astounding that Defendants’ have filed motions for summary judgment. The vast majority of the key assertions of socalled “undisputed facts” submitted by Defendants Chester and Macy’s in their joint Rule 56.1 statement is completely controverted by evidence to the contrary, including Plaintiff’s testimony and the sworn testimony from five of Plaintiff’s former co-workers
5 A motion to amend the complaint to add Llewellyn as an individual Defendant is pending before this court. For convenience, Plaintiff will address Llewellyn’s personal liability as it largely mirrors that of DeSantis.
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and a declaration by a former union shop steward. See Duncan Declaration, dated June 16, 2005. Macy’s self-serving denials from the key actors implicated in this lawsuit is controverted by the overwhelming testimonial and documentary evidence to the contrary. It is well settled that the party opposing summary judgment may not create a triable issue of fact "merely by submitting an affidavit that disputes his own prior sworn testimony." Rule v. Brine, Inc., 85 F.3d 1002, 1011 (2d Cir. 1996) (citations omitted). Rather, such affidavits are to be disregarded.
Macy’s and Chester have therefore unnecessarily involved this court in a motion that is in most respects entirely futile.
STATEMENT OF FACTS All the relevant facts are fully set forth in Plaintiff’s Counter-Statement Pursuant to Local Civil Rule 56.1 (“Pl’s Stmt”), which is cited to herein6. Macy’s exhibits are referred to in this memorandum they will be cited as “D’s Exh. [Letter]”, Chester’s exhibits are referenced as “Chester Exh. [Letter], and the City of New York’s as “City Exh. [Letter].” Plaintiff will also cite periodically to Macy’s Memorandum of Law in Support of the MSJ (“Macy’s Memo.”), Defendant Chester’s Memorandum of Law in Support of his MSJ (“Chester’s Memo.”), the Defendants the City of New York and the New York City Police Department (“NYC Memo”) and Macy’s and Chester’s Joint Rule 56.1 Statement (“Macy’s Stmt”).

6

Pl’s Stmt makes reference to all the papers submitted herein, including the Affidavit of Ian

Wallace, dated June 17, 2005 (“Wallace Aff.”), the Declaration of O’Neil Duncan, dated June 16,

2005 (“Duncan Decl.”), Plaintiff’s Affidavit, dated June 17, 2005, and Exhibits A through TT

(referred to as “Ex. #”).

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POINT I: SUMMARY JUDGMENT STANDARD The burden is on the party moving for summary judgment to establish the absence
of any genuine issues of material fact, see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256, 106 S. Ct. 2505, 2514, 91 L. Ed. 2d 202 (1986), and any ambiguities must be resolved in favor of the non-movant. See Celotex Corp. v. Catrett, 477 U.S. 317, 330 n.2, 106 S. Ct. 2548, 2556 n.2, 91 L. Ed. 2d 265 (1986).
"The trial court's task at the summary judgment motion stage of litigation is carefully limited to discerning whether there are genuine issues of material fact to be tried, not to deciding them. Its duty, in short, is confined at this point to issue-finding; it does not extend to issue-resolution." Gallo v. Prudential Residential Servs. Ltd. Partnership, 22 F.3d 1219, 1224 (2d Cir. 1994).
The party seeking summary judgment bears the initial burden of "informing the district court of the basis for its motion" and identifying the evidence that "it believes demonstrates the absence of a genuine issue of material fact." Celotex, 477 U.S. at 323, 106 S. Ct. at 2553. If the moving party meets its burden, the burden shifts to the nonmoving party to come forward with "specific facts showing that there is a genuine issue for trial." Fed. R. Civ. P. 56(e).
Courts must be "particularly cautious about granting summary judgment to an employer in a discrimination case when the employer's intent is in question. Because direct evidence of an employer's discriminatory intent will rarely be found, affidavits and depositions must be carefully scrutinized for circumstantial proof which, if believed, would show discrimination." Schwapp v. Town of Avon, 118 F.3d 106, 110 (2d Cir. 1997); see also Gallagher v. Delaney, 139 F.3d 338, 342 (2d Cir. 1998); Ramseur v.
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Chase Manhattan Bank, 865 F.2d 460, 465 (2d Cir. 1989); n7 (It is hornbook law within this court that where the determination of racial animus will hinge on inference and credibility, this court is required to draw all factual inferences in favor of the party against whom summary judgment is sought and that "summary judgment is ordinarily inappropriate where an individual's intent and state of mind are implicated."); See also Montana v. First Federal Savings and Loan Assoc. of Rochester, 869 F.2d 100 (2d Cir. 1989).
In responding to Defendants’ motion for summary judgment, Plaintiff is not required to prove his claim in order to defeat the motion. Plaintiff need only show that there is a material issue of fact as to whether the employer’s purported reason for its personnel action is unworthy of belief and that the personnel action occurred under circumstances that give rise to an inference of discrimination. Ferrante v. American Lung Association, 90 N.Y.2d 623, 630, 665 N.Y.S.2d 25 (1997). Direct evidence is not necessary, as a plaintiff charging discrimination must usually rely on the cumulative weight of circumstantial evidence. See Rosen v. Thornburgh, 928 F.2d 528, 533 (2d Cir. 1991) (“An employer who discriminates is unlikely to leave a ‘smoking gun,’ such as a notation in an employee’s personnel file, attesting to a discriminatory intent”). The Court must be cautious in granting summary judgment to an employer when intent is in issue, and must carefully limit its roles to discerning whether there are any genuine issues of material fact to be tried. Gallo v. Prudential Services, 22 F.3d 1219, 1223-24 (2d Cir. 1995).
In ruling on a motion for summary judgment, the Court must view the evidence in the light most favorable to the party opposing the motion and resolve all ambiguities and
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draw all reasonable inferences in favor of the non-moving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Weyant v. Okst, 101 F.3d 845, 854 (2d Cir. 1996); Romain v. Cigna Life Insurance Company of New York, 2002 U.S. Dist. LEXIS 20068 (S.D.N.Y. 2002); McNulty v. NYC Dept. of Fin., 45 F. Supp. 2d 296, 299 (S.D.N.Y. 1999) (“Summary judgment is a drastic procedural weapon because its prophylactic function, when exercised, cuts off a party’s right to present his case to the jury”), citing Garza v. Marine Transportation Lines, Inc., 861 F.2d 23, 26 (2d Cir. 1988), and quoting Donnelly v. Guion, 467 F.2d 290, 291 (2d Cir. 1972). If there is any evidence in the record from any source from which a reasonable inference could be drawn in favor of the nonmoving party, then summary judgment would be improper. Chambers v. TRM Centers Corp., 43 F.3d 29, 37 (2d Cir. 1994).
If Plaintiff presents a reasonable conflicting interpretation of a material disputed fact, summary judgment must be denied. Schering Corp. v. Home Ons. Co., 712 F.2d 4, 9-10 (2d Cir. 1983) citing New York State Energy Research & Dev. Auth. v. Nuclear Fuel Servs., Inc., 666 F.2d 787, 790 (2d Cir. 1981).
Courts should "include in this analysis not only the assertions made within the four corners of the complaint itself, but also those contained in documents attached to the pleadings or in documents incorporated by reference." Gregory v. Daly, 243 F.3d 687, 691 (2d Cir. 2001). Finally, courts must remain "mindful of the care exercised in this Circuit to avoid hastily dismissing complaints of civil rights violations." Id.
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POINT II: PLAINTIFF HAS ESTABLISHED THAT HE WAS SUBJECTED TO A RACIALLY HOSTILE WORK ENVIRONMENT
A. The Legal Framework. A hostile work environment exists where 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.” Espillat v. Breli Originals, Inc. 227 A.D.2d 266, 267-68, 642 N.Y.S.2d 875, 876-77 (1st Dept. 1996), quoting, Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993). “In determining whether a work environment is sufficiently hostile or abusive...we look at all the circumstances indicating 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 an employee’s work performance.” Bogart v. New York City Law Department, 2001 U.S. Dist. LEXIS 21919 (S.D.N.Y. December 20, 2001) quoting Holtz v. Rockefeller & Co., Inc., 258 F.3d 62, 75 (2d Cir. 2001).
“The fact that the law requires harassment to be severe or pervasive before it can be actionable does not mean that employers are free from liability in all but the most egregious cases.” Terry v. Ashcroft, 336 F.3d 128, 148 (2d Cir. 2003), quoting Whidbee v. Garzarelli Food Specialties, Inc., 223 F.3d 62, 70 (2d Cir. 2000). As the Second Circuit noted:
“While the standard for establishing a hostile work environment is high, we have repeatedly cautioned against setting the bar too high, noting that ‘while a mild, isolated
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incident does not make a work environment hostile, the test is whether ‘the harassment is of such quality or quantity that a reasonable employee would find the conditions of her employment altered for the worse.’” Terry v. Ashcroft, 336 F.3d 128, 148 (2d Cir. 2003) (citations omitted). A hostile work environment exists where “the workplace is permeated with discriminatory intimidation, ridicule, and insult, that is sufficiently severe or pervasive to alter the conditions of the victims environment and create an abusive working environment.” Bogart v. New York City Law Department, 2001 U.S. Dist. LEXIS 21919 (S.D.N.Y. December 20, 2001), quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993)); Fitzgerald v. Henderson, 251 F.3d 345, 358 (2d Cir. 2001).
To establish a hostile work environment, Plaintiff must establish the following five elements:
1) that Plaintiff suffered intentional discrimination because of his protected class membership.
2) the discrimination was pervasive and regular. 3) the discrimination detrimentally affected Plaintiff. 4) the discrimination would have detrimentally affected a reasonable person
of the same protected class in that position. 5) the existence of respondeat superior liability. See West v. Philadelphia Elec. Co., 45 F.3d 744 (3rd Cir. 1995)
This court is required to look at the totality of circumstances. “In determining whether a work environment is sufficiently hostile or abusive...we look at all the circumstances indicating 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 an employee’s work performance.” Bogart v. New York City Law Department, 2001 U.S. Dist. LEXIS 21919 (S.D.N.Y. December 20,
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2001), quoting Holtz v. Rockefeller & Co., Inc., 258 F.3d 62, 75 (2d Cir. 2001). Determining what is sufficiently hostile is a task uniquely fitted to a jury who can evaluate the subtle dynamics of workplace communications. Gallagher v. Delaney, 139 F. 3d 338,342 (2nd Cir. 1998); Schwapp v. Town of Avon, 118 F. 3d 106, 111 (2d Cir. 1997) (When evaluating the “quantity, frequency, and severity” of the incidents, the court must look at the incidents “cumulatively in order to obtain a realistic view of the work environment.”)
“The effect on the employee’s psychological well-being is relevant to determining whether the plaintiff actually found the environment abusive...the fact that the law requires harassment to be severe or pervasive before it can be actionable does not mean that employers are free from liability in all but the most egregious of cases.” Bogart v. New York City Law Department, 2001 U.S. Dist. LEXIS 21919 (S.D.N.Y. December 20, 2001) quoting Fitzgerald v. Henderson, 251 F.3d 345, 358 (2d Cir. 2001). The test is whether 'the harassment is of such quality or quantity that a reasonable employee would find the conditions of her employment altered for the worse.'" (alteration and emphasis in the original).
Terry v. Ashcroft, supra, 336 F.3d 128,148 (2d Cir. 2003) quoting Whidbee v. Garzarelli Food Specialties, Inc., 223 F.3d 62, 70 (2d Cir. 2000). "The environment need not be 'unendurable' or 'intolerable.'" Id. In brief, "the fact that the law requires harassment to be severe or pervasive before it can be actionable does not mean that employers are free from liability in all but the most egregious cases." Id. quoting Whidbee, 223 F.3d at 70 (internal quotation marks omitted)).
In order to be actionable, the incidents of harassment must occur in concert or with a regularity that can reasonably be termed pervasive." Quinn v. Green Tree Credit Corp., 159 F.3d at 768 (citations and internal quotation marks omitted). Factors which the Court should consider include "(1) the frequency of the discriminatory conduct; (2) its
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severity; (3) whether the conduct was physically threatening or humiliating, or a -mere offensive utterance;-- (4) whether the conduct unreasonably interfered with plaintiff's work; and (5) what psychological harm, if any, resulted." Richardson v. New York State Dep't of Correctional Serv., 180 F.3d 426, 437 (2d Cir. 1999).
This court should adopt the “reasonable minority person” test. See e.g. Vaughn v. Pool Offshore Co., 678 F.2d 922, 925 (5th Cir. 1982) (The court noted that “Vaughn’s perception of his environment is a significant factor; whether discrimination exists is, by its very nature, often a subjective inquiry.”) Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993); Meritor Savings Bank v. Vinson, 447 U.S. 57 (1986); and, Tomka v. Seiler Corp., 66 F.3d 1295 (2nd Cir. 1995). See also, Feingold v. State of New York, 366 F. 3d 138 (2d Cir. 2004) (Feingold based his hostile work environment claim upon the fact that antiSemitic remarks (such as the mocking of his name using other "Jewish-sounding" names, and comments about Jewish lawyers) were routine among his fellow ALJ’s. Based upon that, the Court held that Feingold had offered proof sufficient to allow a fact-finder to conclude that he experienced pervasive discriminatory intimidation, ridicule, and insult because he was Jewish).
As the court will see, the racial harassment carried out by Chester on the Tenth Floor was the “standard operating procedure” and a racially biased atmosphere permeated the Processing Department - it was the regular, rather than the unusual practice within Macy’s Processing Department. See Pouncy v. Prudential Insurance Co., 499 F. Supp. 427, 438 (S.D. Tex. 1980), affirmed, 668 F.2d 795 (5th Cir. 1982), citing Teamsters v. United States, supra, at 336. See also, Crocker v. Boeing Co., 662 F. 2d 975 (3rd Cir. 1981).
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Despite numerous complaints and grievances, Chester was never disciplined, and the racially hostile work environment persisted throughout Chester’s tenure. B. The Racist Comments.
Macys and Chester created a racially hostile work environment on the Tenth Floor through racist comments, acts of harassment, and intense security scrutiny and constant surveillance.
Plaintiff and his minority co-workers were subjected to a daily barrage of racist commentary and jokes by Chester. Some of these comments and Chester’s discriminatory behavior have been summarized. See Pl’s Stmt ¶¶ 28-112.
From the inception of Chester’s tenure as the Senior Manager on the Tenth Floor he started his daily racist comments. Many of these comments were overheard by Plaintiff and his co-workers, who all worked within 10-15 feet of Chester’s table. Pl’s Stmt ¶ 36.
The racially hostile work environment was created predominantly by Plaintiff’s supervisor, Chester, who subjected the minority Processing employees on the Tenth Floor to a daily barrage of racist and offensive comments, including calling minority employees “Desert Nigger,” likening Black employees to “apes” and “gorillas” and claiming that the reason black people did not tie their shoe laces was derived from the slave days to prevent them from running away. Pl’s Stmt ¶¶ 89, 91-94. See e.g., Richardson v. New York State Dep't of Correctional Serv., 180 F.3d 426, 439 (2d Cir. 1999) ("Perhaps no single act can more quickly 'alter the conditions of employment and create an abusive working environment' than the use of an unambiguously racial epithet such as 'nigger' by
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a supervisor in the presence of his subordinates."), quoting Rodgers v. Western-Southern Life Ins. Co., 12 F.3d 668, 675 (7th Cir. 1993).
Chester would regularly state that all Hispanics carried razor blades, were drug dealers and otherwise engaged in criminal activity and that if he ever needed a spare car part, he would get Plaintiff, a Hispanic, to steal it for him. Id. ¶¶ 41, 48, 50. Chester cautioned Plaintiff that he was having too many babies and would end up like “a Mexican on welfare.” Id. at ¶87. Chester even made derogatory comments to Plaintiff’s wife about Latinos liking cars, and claiming that Baergas was going to “blow” all his money on “cars and stuff.” Id. at ¶47.
Chester would comment about drugs, and would ask minority employees in a sarcastic tone where they got their neighborhood drugs and that it was Hispanics who were drug peddlers. For example, he asked Plaintiff and certain other minorities on the Tenth Floor “Who’s on the corner, the black people or the Spanish people?” Id. at ¶ 48.
Chester openly criticized and joked about the clothes worn by many minority Processing employees, which were often very baggy and worn in the urban style and likened the accompanying jewelry worn by many minorities to “dog chains”. Id. at 42. Plaintiff’s co-workers also testified that they heard these comments about razor blades and other offensive comments regarding Plaintiff’s and other minority employees’ clothes and jewelry. Chester expressed a dislike for Plaintiff’s clothes, which are worn in the baggy urban style popular among minorities.
Chester in general expressed contempt for the urban lives of minorities, their style of dress, and their way of living. The comments about clothing were clearly racist in nature, since the style being criticized by Chester was the style worn and popularized by
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minorities. The comments about clothing were clearly racist in nature, since the style being criticized by Chester was the style worn and popularized by minorities, and the hip hop music they listened to. Chester called hip hop music “jungle music” and prohibited the playing of radio on the Tenth Floor. Id. at 42-45, 65-66, 71. Chester made comments regarding the clothing store “FUBU” such as: “Yeah, yeah, you black people could keep it. It was meant for you all anyway.” Chester made fun of the large size of the clothing produced by this minority owned clothing company that manufactured clothing for minorities, stating to Baergas: “...Why you gonna wear those clothes? Isn’t that for black people anyway? It’s for them by them.” He even told Plaintiff, Sylvester, and Perez, and others who were present, that the clothing company FUBU, an acronym standing for “For Us, By Us”, in reality stood for “Fucked Up, By Us” and then issued other racist and offensive comments. Id. at 67-68.
Chester would also imply that the minority Processing employees were engaging in criminal activity to be able to afford the expensive clothes and jewelry that they wore and would instruct Macy’s Security Department to scrutinize minority employees who wore expensive clothes. Chester would often ask the minority employees how much stolen merchandise “they could stuff” into their baggy jeans, and actually instituted a policy that required the Processing employees to wear tighter pants and to tuck their shirts in. Employees who arrived to work in pants that were deemed too tight by Chester were sent home. If their shirts were not tucked in, the minority Processing employees would be issued with a warning for insubordination – receiving two insubordinations was grounds for termination. Id. at 56-64, 70. This clothing policy was clearly discriminatory towards minorities, as only minorities tend to wear baggy pants. The three Caucasian
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employees on the Tenth Floor did not wear these clothes and Chester was never heard to make similarly derogatory comments about the Caucasian Processing employees’ clothes and no other departments not on the selling floors were required to wear tight jeans or tuck their shirts in. Id. at 60-63.
In response to requests by minority Processing employees take a day of leave to commemorate Martin Luther King Day, Chester said “Why you going to take the day off? You ain’t celebrating nothing. You’re just going to sleep anyway.” Id. at 103. Similarly, on Good Friday in 2002, Chester told Duncan that the minority Processing emloyees didn’t need the 45 minutes that Macy’s gave to employees store wide to pray because: “Black people don’t go to church—you guys will just go home and sleep or something.” Id. at 111-112.
Prior to Chester, the Processing employees were allowed to go to every storewide rally, which were functions organized by Macy’s for its employees. When Chester became manager he only permitted them to go to the food rallies or to the “Shortage FYI” rallies. At these shortage rallies, which were aimed at preventing stealing in the store, videos were shown of mainly Black and minority people committing theft. Chester would allow the Processing employees to participate in the shortage rallies because he thought without basis that the minorities in that department were stealing. Id. at 106. Sometimes Cuccina’s, a restaurant inside Macy’s, would give free breakfast to all store employees. Chester would not let the Processing employees receive a free breakfast. Id. at ¶ 107. Chester prevented the Processing employees from participating in special employee promotions within Macy’s whereby all employees were given an extra hour to shop. When the Processing employees complained to Grady, he replied: “If Scott
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(Chester) won’t let you go, you can’t go.” Grady would support Chester even though the Processing employees showed Grady a store memo clearly stating that the events in issue were for “All Employees” without limitation. Id. at ¶¶ 108-110.
During a discussion with the minority Processing employees about why Chester Did not want to have children, Chester said that the reason he did not was that he did not want to bring children into a world that was becoming increasingly diverse, a “melting pot.” In support of his argument, Chester quoted census statistics and future projections of minority populations, with which he was very familiar. Chester also discussed his fear that in the future, minorities will be in the majority in the United States. Chester became visibly upset as he relayed this information. Sylvester and other minority co-workers were present during Chester’s tirade on this subject which lasted about fifteen to twenty minutes. The minority Processing employees who were present, including the union shop stewards, were shocked by Chester’s commentary. Id. at ¶ 88.
Chester would make demeaning comments towards the Hispanic seasonal workers on the Tenth Floor, such as labeling them “slaves” and “midgets”, and would “work them to the ground”, and state that the Hispanic workers were “cheaper by the dozen” and if one is hurt “just replace him with another.” Id. at ¶¶ 73-77,84-86. Chester would regularly disparage and make anti-gay comments to certain minority Processing employees that worked with Plaintiff or in his vicinity, inferring that they were effeminate and incapable of hard work. Id. at 96-97.
Contrary to Macy’s claim, evidence of harassment of Blacks and other protected persons is relevant to Plaintiff’s hostile environment claims even though Plaintiff is Hispancic. See e.g., Perry v. Ethan Allen, Inc., 115 F. 3d 143, 150 (2d Cir. 1997)
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(“[E]vidence of harassment of [other members of the protected group], if part of a pervasive or continuing pattern of conduct, [is] surely relevant to show the establish the existence of a hostile work environment.”); Little v. NBC, supra, at 390 (Three offensive incidents within a three time period, all of which were directed at other members of Plaintiff Muro’s class generally or at members of a different class altogether (blacks)7, when viewed collectively, could establish that plaintiff’s environment racially hostile) and at 391 (offensive comments directed at women and Italians could sustain Little’s racially hostile work environment claim, even though Little is black, because these comments directed at other protected classes “contributed to the overall hostility of [Little’s] working environment”), citing Cruz, 202 F.3d at 570. See also Cruz v. Coach Stores, 202 F. 3d 560, 570 (2d Cir. 2000) (“Remarks targeting members of other minorities … may contribute to the overall hostility of the working environment for a minority employee.”); Feingold v. State of New York, 366 F. 3d 138, 151 (2d Cir. 2004) (“Feingold's evidence of a religion-based hostile work environment is enough to state a prima facie case of disparate treatment. And, while Feingold has not alleged sufficient facts to make out a hostile work environment claim based solely on race, his allegations of racial animosity can nevertheless be considered by a trier-of-fact when evaluating Feingold's religion-based claim”), citing Cruz v. Coach Stores, Inc., supra, at 572.
While some of Chester’s racist comments were not directed at Plaintiff or in his presence, a jury “plausibly could find that his persistently offensive conduct created an overall "hostile or abusive environment," Harris, 510 U.S. at 21, which exacerbated the effect of the harassment Cruz experienced individually. Cf. Schwapp, 118 F.3d at 112
7 A noose and Ku Klux Klan robes were displayed at the work place. Id.
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("Whether Schwapp was aware of [harassment directed at others] during his employment, and, more significantly, whether in light of these incidents, the incidents Schwapp experienced more directly 'would reasonable be perceived, and [were] perceived, as hostile or abusive,' are factual issues that should be resolved by a trier of fact."), quoting Harris, 510 U.S. at 22.
Other racially motivated harassment includes the fact that Chester prohibiting the minority Processing employees from playing radios, which in any event were used to play their “jungle music.” Pl’s Stmt ¶¶ 71, 165-166. All other stock departments were allowed the use of radios. Id. Chester would not let the minority Processing employees talk to each other, to make phone calls, or to leave the floor, he would prevent them from taking breaks, even in hot weather, and even prohibited the minority Processing employees, including Union Shop Stewards, to leave the floor without being followed by a manager or security personnel. Id. at ¶¶ 167-169, 262-263.
Other racial harassment by Chester and Hansen included almost daily spying: Chester, Pheeko and Hansen would stand behind the rods, in between clothes and beside the time clocks. This spying happened almost on a daily basis. Chester and Hansen would even follow minority employees into the restroom to spy on them. In addition, Chester and Hansen would just “stand there and stare,” sometimes for 15 minutes at a time, which made it “very uncomfortable.” Chester would spend whole days just patrolling the Tenth Floor. The minority processing employees felt harassed and discriminated against. Id. at ¶¶ 142-147.
Despite constant complaints and union grievances by Plaintiff and his minority co-workers, Chester continued to harass the minority employees and make racist
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offensive comments on a frequent basis throughout his employment. For example, in December 2003, Chester called a Black employee a “gorilla” or an “ape.” Id. at ¶ 367. Macy’s completely ignored the complaints of harassment and discrimination against Chester for over five years from the minority Processing employees and even encouraged Chester. See infra; Pl’s Stmt ¶ 317, 368-369.
On the contrary, the complaints actually resulted in retaliatory action by Chester, of which Plaintiff’s false arrest and malicious prosecution is but one of the more extreme examples. See infra. Id. at ¶369. C. The Minority Processing Employees Including Plaintiff were Racially
Profiled by Security and Subjected to Intense Scrutiny.
Macy’s and Chester subjected the minority Processing employees to hyper scrutiny consistent with the discriminatory belief that minorities were more likely to steal merchandise.
For example, whenever minority Processing employees, including Plaintiff, wore nice or expensive clothes and jewelry, Chester would insinuate that they had stolen them or were engaged in criminal activity to pay for them. Chester would ask the minority employees how much merchandise “they could stuff” into their baggy jeans. Chester then instituted a policy in or about 2001 requiring all employees of the Processing department to wear tight fitted jeans and to tuck their shirts in while on Macy’s property. This policy was applied only to the Processing employees. Employees that arrived for work wearing jeans that Chester deemed too baggy were sent home. According to this policy, if the Processing employees did not tuck in their shirts, they would be written up for insubordination. Two “insubordinations” were grounds for termination.
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This policy was clearly discriminatory against the Tenth Floor minority Processing employees as it was only they who wore the baggy pants and Chester was never seen to make similarly derogatory comments about the Caucasian Processing employees’ clothes. This policy was not implemented in other departments and prompted many complaints. Pl’s Stmt ¶¶53-64.
Chester would instruct security to closely watch minority employees who were seen wearing expensive clothes. Id. at ¶¶ 232-233.
The Tenth Floor was and still is unique among the departments at Macy’s Herald Square in being a focus of intense scrutiny and surveillance from the Security Department. The Tenth Floor along with the subbasement is also unique in that it is staffed almost without exception by minorities. Id. at¶211. While the minority Processing employees were always watched more closely than other employees, the intense security surveillance increased on the Tenth Floor under Chester. Id. at ¶212. Chester personally implemented additional intrusive security measures, such as installing mobile cameras, requiring the wearing of highly reflective orange vests, installing plain clothed security guards and additional managers who were required to just watch the Processing employees for hours at a time. Id. at ¶¶ 234-239. The vests were required solely to increase the minority Processing employees’ visibility to security and no other department was required these orange vests. Id. at ¶ 218.
Chester would constantly interact with security personnel and was often in the camera room used by the security department to watch surveillance footage of the store. There Chester would spy on the Processing employees on the camera surveillance. Id. at ¶ 229.
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Chester worked closely with the security department and would request that they investigate and “watch” certain Processing employees, including Plaintiff. Id.
These intrusive security surveillance was racially motivated as the additional security measures were imposed solely on the Tenth Floor. Id. at ¶¶ 240-242; Ex. B at 194:14-196:5. (“We felt that we were targeted since it was only blacks and Hispanics on the floor.”) Id.
The minority Processing employees are subjected to a higher number of surveillance cameras on the Tenth Floor and more check points and sign-ins, the minority Processing employees’ bags are searched more frequently and more vigorously. In fact, Plaintiff and his co-workers were constantly searched for stolen merchandise on their person and constantly falsely accused of stealing by Macy’s security personnel, in accordance with Macy’s demonstrated practice of stereotyping and racially profiling its minority employees. Id. at ¶¶ 213-215.
In the summer of 2001, Chester even installed a third manager, John Isernia, whose job it was to simply stare at the Processing employees and follow them into the bathroom. Isernia spent a whole month just watching Thorpe’s and Plaintiff’s table. Id. at ¶¶ 145-147.
As stated previously, Chester and Hansen would spy on the Processing employees, including Plaintiff, on a daily basis. Id. at ¶¶ 142-144
The sum effect of this intrusiveness was to render the work environment even more racially hostile. The minority employees felt that they were racially profiled and the measures were degrading. The Security Department considers the Processing employees to be thieves and they are overzealous in their actions towards them. Id. at ¶¶
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213-216; Ex. D at 132:21-135:15. (“We had a beige shirt with Macy’s and later on they had us wearing orange construction vests, which is degrading, and we would go downstairs and people laughed at us, you know, people called it the 10th floor prison. It is dirty. Don’t go up there.”)
The Tenth Floor was commonly known throughout Macy’s as being the very worst and the Tenth Floor was known to Macy’s employees as the “10th Floor prison.” Id. at ¶¶ 255-257. D. The Tenth Floor was Unsanitary, Unhealthy and Unsafe: Only Areas that
are Staffed by Predominantly Minorities Are Bad. The work conditions on the Tenth Floor have always been known as the worst at Macy’s, even among employees of other stores and the physical working conditions on the Tenth Floor are “terrible.” These adverse work conditions include a complete lack of air conditioning, inadequate ventilation, the inadequate fans were often in disrepair, there was no water cooler during most of Chester’s tenure, and the condition of the water fountain was “disgusting”. Pl’s Stmt ¶¶ 255-291. Macy’s discriminates against the minority workforce on the Tenth Floor. Id. at Ex. D at 30:6-22: “We don’t have AC, and they don’t listen to the complaints everybody else has, and we’re one of the hardest working groups, and we don’t have AC and dusty dirty cracks in the floor, people getting injured and all of that. We should be able to work in a comfortable environment, not in a sweat shop like it is like.” Because of the lack of air conditioning and ventilation, the temperature on the Tenth Floor during hot summer days is unbearable and often far exceeds 100 degrees. Despite this, and in the face of many grievances and complaints from the class members,
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Macy’s has refused to install air conditioning or adequate ventilation, and the fans are wholly inadequate, some of which do not even work. Pl’s Stmt ¶¶ 260-261.
During Chester’s employment the problems were exacerbated. Chester prohibited cooling off breaks. All prior managers had allowed these breaks, which prompted union grievances. After many complaints to HR and after a high-level executive verified the extreme heat, Chester was forced to allow 15-minute breaks when it got very hot. Id. at ¶¶ 262-264.
Macy’s installed fans after many complaints during Chester’s management. Only five or six were installed, however, and these were wholly inadequate. Moreover, it was Grady who ordered fans for the Tenth Floor, not Chester. Macy’s only did so because temperatures would reach 120 degrees. These small token gestures did not address the issues. For example, adding fans but failing to take other measures such as repairing cracks in the ceiling, removing the dust and improving the ventilation, meant that the fans just blew hot air and dust, and therefore worsened the conditions instead of improving them. Id. at ¶¶ 263-266.
The drinking facilities on the Tenth Floor have always been inadequate. As of 1997, while there was a drinking fountain, management refused to change the filter, so the water was brown in color and cloudy, and therefore undrinkable. Finally, a water dispenser was installed but Chester refused to distribute water refills to the Tenth Floor, and therefore the dispenser was useless. In the summer of 2001, when Duncan inquired about getting the water dispenser refilled, Hansen said: “No, I’ll just get a hose and run it from the bathroom and you guys can just drink from it.” Id. at ¶¶ 264- 268. Despite the
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heat, Chester eventually removed the water cooler from the Tenth Floor altogether. Id. at ¶ 269.
Then Macy’s installed a beverage vending machine therefore forcing the Processing employees to pay for their water. The corporate and management areas, however, had water delivered to them as needed and had access to free water. Since Chester’s termination, a water cooler has now finally been installed that is operational. Id. at ¶¶ 270-272.
The conditions on the Tenth Floor have since 1997 been hazardous and unhealthy. Duncan Decl. ¶ 279. These conditions remain to date. There were complaints to OSHA regarding the unsafe and unsanitary conditions on the Tenth Floor. Upon information and belief, Macy’s does not cooperate with fire safety regulations and the fire exits are constantly blocked. Duncan Decl. “Rolling rods” (metal racks with wheels used to hang and transport clothing) and “skids” (pallets) with merchandise were always all over the Tenth Floor and would almost always block the fire exits and exit passage ways. There were many safety issues that the Processing employees complained about and raised with Chester, including fire exits being blocked. There were safety issues on a weekly basis which were raised with Chester.
For example, the rolling tracks in the floor, which were used to roll merchandise down the line, were installed in the wrong direction-- perpendicular to the way they were supposed to be installed. Upon information and belief, this is in direct violation of OSHA safety regulations. Duncan Decl. ¶ 284. Macy’s has never corrected the problem with the rolling tracks despite knowing that it was violating OSHA health and safety regulations. Processing employees have been injured on the Tenth Floor due to the
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dangerous conditions and the dangerous placement of the rolling tracks. For example, in 1999 a Tenth Floor Processing employee filed a lawsuit for serious injuries after tripping on a rolling rod and falling. Around the same time, a woman fell on the incorrectly installed rolling tracks and filed an injury suit as well.There is a huge crack in the Tenth Floor ceiling, and employees were worried that the ceiling would fall down. This crack has exposed pipes with hazardous insulation and, upon information and belief, harmful asbestos. Id. at ¶¶ 289-291; Ex. A at 402:20-404; 519:12-15. It has always been extremely dusty on the Tenth Floor. Processing employees have suffered fainting attacks and heat exhaustion and coughing caused by the working conditions. During 2000 or 2001 the Processing employees signed a petition regarding the appalling conditions.
The Processing employees have filed many complaints and grievances for many years about the appalling physical conditions. Id. at ¶¶ 269, 286-288.
Despite these complaints and the union grievances, Macy’s has refused to remedy the appalling work conditions on its Tenth Floor, which remains to this day “like a sweatshop.” This is because the minority Processing employees are considered “nobodies” within Macy’s. Id. at ¶ 269, 273, 289-291. Macy’s discriminates against the minority workforce on the Tenth Floor. See Ex. D at 130:6-22: “We don’t have AC, and they don’t listen to the complaints everybody else has, and we’re one of the hardest working groups, and we don’t have AC and dusty dirty cracks in the floor, people getting injured and all of that. We should be able to work in a comfortable environment, not in a sweat shop like it is like.”
While the working conditions after Chester’s departure are arguably “less stressful”, the working conditions are still horrendous. Id. at ¶¶ 290-291; 391-396.
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E. The Effect of the Racially Hostile Work Environment on Plaintiff and the Other Minority Processing Employees. Chester did not harass the Caucasian Processing employees. Chester treated the
Caucasian employees under his supervision with respect and they never had any occasion to complain. (“[H]e didn’t mess with them.”). All of Chester’s offensive derogatory comments were directed towards or with respect to minorities. Chester never questioned the Caucasian employees about how they funded purchases and Chester did not discipline or write up the Caucasian employees. Id. at ¶¶ 170-174.
The minority Processing employees, including Plaintiff, were humiliated constantly and intimidated by Chester. Working under Chester was a very “stressful experience”, and it was very “unhappy” and “uncomfortable.” The Processing employees were made to suffer stress and anxiety throughout Chester’s tenure on the Tenth Floor. The work environment under Chester on the Tenth Floor was “Terrible.” “Uncomfortable” and “the tension on the tenth floor was hot.” Under Chester, the minority employees felt like that day could be their last and they suffered from a constant feeling of insecurity. The racial profiling and discriminatory constant scrutiny by the Security Department was also demeaning and humiliating. The minority employees all agreed it was very difficult, humiliating and stressful to work under Chester and difficult as well to have to relive those experiences again during deposition. Id. at ¶¶ 113, 567571; Ex. C at 456:20-457 (Q: It was hurtful and hard to work under Chester? A: “I wish I never experienced that and was it hard? Yes, it was hard.”).
The heat, and the unsafe and unsanitary conditions on the Tenth Floor are as bad today as they ever were, and Macy’s continues to racially profile its minority workforce,
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including the minority Processing employees, in its security surveillance practices and
hyper scrutiny. Id. at ¶¶ 387-400, 571.
F. Imputing Liability to Macy’s: Macy’s is Vicariously Liable for the Hostile Work Environment. Because Plaintiff was Subject to Adverse and Tangible Employment Actions, Macy’s cannot avail itself of the Affirmative Defense that it Took Reasonable Steps to Remedy and Prevent the Harassment. The record shows that Macy’s did absolutely nothing to address the harassment, but actually encouraged and condoned it.
In Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 118 S. Ct. 2257, 141 L. Ed.
2d 633 (1998), the Supreme Court held that:
[A]n employer is subject to vicarious liability to a victimized employee for an actionable hostile environment created by a supervisor with immediate (or successively higher) authority over the employee. When no tangible employment action is taken, a defending employer may raise an affirmative defense to liability or damages, subject to proof by a preponderance of the evidence. The defense comprises two necessary elements: (a) that the employer exercised reasonable care to prevent and correct promptly any . . . harassing behavior, and (b) that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.
Id., 118 S. Ct. at 2270 (citation omitted); see also Faragher v. City of Boca Raton, 524 U.S. 775, 141 L. Ed. 2d 662, 118 S. Ct. 2275 (1998)8; Bartniak v. Cushman & Wakefield, Inc., 223 F. Supp.2d, 528-29, citing Faragher v. City of Boca Raton, 524 U.S. 775, 807, 118 S. Ct. 2275, 141 L. Ed. 2d 662 (1998) and Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 760-61, 118 S. Ct. 2257, 141 L. Ed. 2d 633 (1998); quoting Ellerth, 524 U.S. at 765, 118 S. Ct. 2257) (internal quotation marks omitted).
Because it is beyond dispute that the actions alleged were all taken by Chester and
Hansen, either directly or at their instigation, including prompting the security
surveillance and investigations, the only issues before this court are firstly, whether
Plaintiff was subjected to the tangible adverse employment actions. See supra.
8 This test is also applicable under the New York City and State Human Rights laws. See e.g.,
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a. Plaintiff Suffered Adverse Tangible Employment Actions. Macy’s is strictly vicariously liable for the actions of its supervisors Chester and
Hansen, as the harassment accompanied tangible adverse actions. Fitzgerald v. Henderson, 251 F. 3d 345, 357 (2d Cir. 2001) (When the perpetrator of the hostile work environment was Plaintiff’s supervisor, there is a presumption that the employer is liable).
As outlined below, Plaintiff was subjected to the following adverse discriminatory and retaliatory actions: 1) Plaintiff was routinely denied overtime in favor of the Caucasian Processing employees. 2) Plaintiff was placed on final warning; 3) passed over for promotion by Chester in 2001 and 2002 to the position of Team Leader; 4) demoted from the elevator position shortly before his arrest in March 2002; and 5) reassigned to work by himself on a small table located adjacent to Chester. These are clearly tangible actions and all were actions taken by Chester. (See POINT V(A) “The Challenged Actions” Infra.)
Notwithstanding, even if this court decides that none of the foregoing were tangible employment actions, Macy’s took no disciplinary action against Chester and thus cannot avail themselves of the affirmative defense. Infra. b. Macy’s Did Nothing to Promptly Address and Remedy the Harassment.
Contrary to Macy’s claims, upper management had notice of all the complaints about Chester’s harassment and discrimination, including the hyper scrutiny and the harsh work conditions. Plaintiff and his co-workers testified that he and his co-workers complained several times to Chester’s supervisor, Tom Grady (“Grady”) about the harassment and about the conditions on the Tenth Floor generally. Pl’s Stmt. ¶¶ 306-317.
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Despite these complaints, Grady did not take any action against Chester, did not write up anything in his personnel file, and in fact stated during these meetings that he supported Chester. Id at ¶¶ 316-319.
The Processing employees also met with HR personnel to complain about the issues on the Tenth Floor. Id. at ¶¶ 322-323.
Moreover, the Processing employees, including Plaintiff, filed voluminous grievances. Given that Chester would always be first given a copy of a grievance, and then Macy’s HR Department would instruct Chester on how to respond, Macy’s management had notice of every grievance.9 Id. at ¶¶ 329-331. Moreover, the next steps in the grievance process would include Macy’s Labor and Employee Relations Department. Id.
The grievances produced during discovery, which number in excess of 50, often mention Chester and his harassing or discriminatory conduct. Id. at ¶¶ 331-338. See e.g., Exs. W, Y, AA, BB, EE, KK, LL, MM and RR (Copies of the grievances produced in this lawsuit).
For example, Sylvester filed a grievance, dated May 24, 2000, regarding Chester’s racial discrimination: “I was given an unfair final warning by Mr. Scott Chester…Mr. Chester seems to have an agenda which is fueled by racial motive to quickly terminate and jeopardize the job of minority employees that he supervises…I’ve been placed on his straight to final casuality list along with several other minority employees.”) Ex. V. Despite the serious nature of these allegations, and the fact that
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Macy’s had notice, at no time was Sylvester ever interviewed by Macy’s HR in connection with the allegations. Pl’s Stmt ¶¶195-197.
Thorpe filed a grievance entitled “Harassment” on February 8, 2001, regarding the following comments that Chester made to Thorpe. Chester told Thorpe that he was brought to the Tenth Floor because previous managers did not “know how to deal with” the Processing employees. Chester also claimed that Macy’s assigned Chester to the Tenth Floor to put “people on warning and to get people off the 10th Floor (fired).” All prior managers were Black.
In response, Grady wrote on the grievance that he agreed with Chester and that Chester did not make these statements. Grady wrote this despite the fact that Grady was not even present when Chester made these remarks. Id. at ¶¶ 132-134; Ex. U (Copy of Grievance).
Also grieved on numerous occasions were the harsh physical conditions on the Tenth Floor. For example, a common grievance was filed by the Processing employees as a whole, dated August 15, 2002, regarding the heat and that Macy’s was discriminating against them in failing to provide air conditioning: “The conditions on the 10th Floor are to (sic) HOT in the summertime. It can rise as high as 100 degress (sic) or better on the 10th Floor, this can cause serious health problems during the course of the day. We are being discriminating (sic) against because we don’t work on the selling floor which have air conditioners.” Ex. EE.
While most of the grievances filed by Plaintiff during Chester’s tenure are missing from his file, a few were produced. See Pl’s Stmt at ¶¶ 295, 328, 334; Ex. Z.
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In addition, the minority Processing employees complained informally to Macy’s managers about Chester, who counseled them to be “careful”. These high level managers intimated that they were surprised that Macy’s had not taken action against Chester. Id. at ¶¶ 364-365. More evidence that Chester’s harassing conduct and racist attitudes were notorious throughout Macy’s can be derived from the fact that Chester had problems with minorities under his supervision even before being transferred to the Tenth Floor and was the subject of many complaints from minorities. Chester was commonly rumored to be a member of a White Supremacist Organization. Id. at ¶¶ 116-131, 135.
Plaintiff may also prove that Macy’s had notice of Chester’s harassment of the minority Processing employees because the conduct was so notorious and well known. Macy’s liability is derived from this separate and apart. See e.g., Rivera v. Puerto Rican Home Attendant Services, 930 F. Supp. 124 (S.D.N.Y. 1996), citing McKenny v. New York City Off-Track Betting Corp., 903 F. Supp. 619, 621 (S.D.N.Y. 1995) (“open and notorious sexually based verbal abuse may be chargeable to the employer.”)
Thus, given the foregoing, there is strong evidence that not only did Macy’s condone and foster this racially hostile environment by remaining inactive in the face of many complaints, they actually instigated it since they installed a known racist, Chester, to manage a department that was composed almost entirely of minorities. Id.
Despite these voluminous union grievances and complaints, Chester was never once disciplined in response to either complaints or grievances, and Macy’s did absolutely nothing to remedy and correct the hostile work environment. There is
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absolutely nothing in Chester’s file regarding the complaints from Plaintiff and his coworkers and any disciplinary action that was taken against him in response. Id. at ¶¶ 352353.
Unsurprisingly, because Macy’s took no action against Chester, he was nonchalant about his conduct and felt sure that Macy’s would support him. When confronted with complaints, Chester would sarcastically state things such as: “Why don’t you go see Johnnie Cochran.” Id. at ¶¶ 353-361.
Therefore, Macy’s did not have an effective complaints mechanism. Moreover, Macy’s did not adequately disseminate and train its employees on its complaints procedures as they related to racial discrimination and racial harassment. Plaintiff and the co-workers all testified that they did not know what the policies were and were never trained or instructed on how to make racial harassment and discrimination complaints. Macy’s did instruct them on preventing sexual harassment, but race was not mentioned and this was in response to allegations surrounding Hansen and a female co-worker and occurred shortly after Hansen’s transfer to another department. Pl’s Stmt. ¶¶ 370-372; 375-386. In fact, the first time Macy’s conducted any type of training that even mentioned race was after this lawsuit was filed during which they were shown a video. Yet even then, however, Macy’s refrained from instructing the minority Processing employees on the complaints procedure. Id. at ¶¶ 373374. Macy’s actively discouraged the Processing employees from using the internal complaints mechanism. Chester, Hansen and Grady actually instructed Plaintiff and the Processing employees to file union grievances regarding race or national origin
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harassment instead of complaining directly to Macy’s Human Resources or Grady or other members of management. Id. at ¶¶ 320-321.
The Processing employees were afraid to complain to Chester and to Macy’s HR because they knew that it would not result in any remedial action and because Chester would retaliate. Id. at ¶¶ 324-327. Processing employees who were deposed stated that in their experience, HR never listened to complaints from minority employees and their complaints would be simply swept under the carpet. Id. at ¶ 325. The minority Processing employees were also fearful of retaliation. Id. at ¶¶ 324-327. Unsurprisingly, the minority Processing employees preferred to file union grievances. Id. at ¶¶ 326-328.
Macy’s and Chester both claim misguidedly that to hold an employer liable for harassment under the New York State Human Rights Law a Plaintiff must prove that the employer "'became a party to [the discrimination] by encouraging, condoning, or approving it." (See D’s Memo at p. 25.) However, this test is only pertinent to harassment by co-workers and not supervisors. See e.g., Rivera v. Prudential Insurance Company of America, 1996 U.S. Dist. LEXIS 16337, 1996 WL 637555, at *12, quoting Totem Taxi, Inc. v. New York State Human Rights Appeal Bd., 65 N.Y.2d 300, 480 N.E.2d 1075, 491 N.Y.S.2d 293, 295 (1985) (other citation omitted). Even if this test were applied to the present case, it is clear that Macy’s did actually condone and encourage the harassment by Chester. See e.g., Pl’s Stmt ¶¶ 116-136, 151-155, 308, 316, 364-365.
Even if Plaintiff and his co-workers had failed to make one single complaint to Chester himself, or to Chester’s supervisor, Tom Grady, or to HR Department, and even if they had failed to file one single complaint or grievance, the fact is that Macy’s
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complaints mechanism was completely ineffective. See e.g., Distasio v. Perkin Elmer Corp., the Second Circuit held that:
“While the fact that a complaint was unreported may be relevant in considering whether an employer had knowledge of the alleged conduct, an employer is not necessarily insulated from ... liability simply because a plaintiff does not invoke her employer's internal grievance procedure if the failure to report is attributable to the conduct of the employer or its agent.” Id., 157 F.3d 55, 64 (2d Cir. 1998) (Citations omitted).
Moreover, Macy’s is not shielded by the mere existence of an antiharassment policy with a complaints procedure. The mere existence of a policy is not dispositive on the first prong of the Faragher/Ellereth defense. O’Dell v. Trans World Entertainment Corp, 153 F. Supp. 2d 378, 388 (S.D.N.Y. 2001). This evidence may be rebutted by proof that the policy was ineffective. See Id., citing Caridad v. Metro-North Commuter R.R., 191 F. 3d 283, 295 (2d Cir. 1999), cert. denied, 529 U.S. 1107, 146 L. Ed. 2d 791, 120 S. Ct. 1959 (2000); Franklin v. Consolidated Edison Co. of New York, Inc., 1999 U.S. Dist. LEXIS 15582, at *8 (S.D.N.Y. 1999). In Little v. NBC, the court held that there were disputed issues of material fact with regard to NBC’s vicarious liability for the harassment by its supervisors. Even though NBC responded to Plaintiffs’ formal complaints by meeting with them and promising to conduct an investigation, there is “evidence that plaintiffs’ supervisors routinely dismissed or mocked their informal complaints, that the NBC Ombudsperson told a plaintiff that “she was there to defend NBC.” Finally, NBC took no action in response to the complaints.10 Id., 210 F. Supp at 393.
10 In addition, the court relied solely on the deposition testimony of Plaintiffs. Id.
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Similarly, in the present lawsuit, Macy’s cannot shield it’s complete inaction by referring merely to the existence of an anti-discrimination policy and complaint procedure, as this policy was completely ineffective and was not enforced.
Clearly, Macy’s did absolutely nothing in the face of the constant complaint and therefore Macy’s complaints mechanism was a total sham. Finally, this case is on a different footing to Little v. NBC, as there at least NBC had mandatory anti-discrimination and harassment seminars and training, and the policy itself was distributed and posted, it was undisputed that plaintiffs had seen the policy, and plaintiffs attended mandatory diversity and harassment prevention training. See Little v. NBC, supra, at 393. Here Plaintiff and the other class members testified that they had not in fact read the policy and procedure, did not see it posted anywhere, and were never required to attend diversity seminars and were not instructed at all as to the anti-discrimination and harassment policies and complaints procedure. Supra.
Accordingly, there are triable issues of fact as to whether or not Defendant either provided no reasonable avenue of complaint or knew of the harassment but did nothing about it. POINT III: PLAINTIFF’S PRIMA FACIE SHOWING OF DISPARATE
TREATMENT. A. Legal Standard.
The New York Human Rights Law Executive Law § 296 ("NYHRL") provides that:
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it shall be an unlawful discriminatory practice ... for an employer ... because of the ... race ... of any individual, to refuse to hire or employ or to bar or to discharge from employment such individual or to discriminate against such individual in compensation or in terms, conditions or privileges of employment. Plaintiff’s claims pursuant to the New York State and City Human Rights laws are analogous and subject to the same analysis as to claims pursuant to Title VII, including the shifting burden analysis enunciated in McDonnell Douglas v. Green. Infra. See also Ferrante v. American Lung Association , 90 N.Y.2d 623, 665 N.Y.S.2d 25 (1997); Cruz v. Coach Stores, Inc., 202 F.3d 560, 565 n.1 (2d Cir. 2000) (Citations omitted); Tappe v. Alliance Capital Management, LLP., 198 F. Supp. 2d 368, 372 (S.D.N.Y. 2001)11; Leopold v. Baccarat, Inc., 174 F.3d 261, 264 n.1 (2d Cir. 1999) (New York state law); Landwehr v. Grey Adver. Inc., 211 A.D.2d 583, 622 N.Y.S.2d 17, 18 (1st Dep't 1995) (New York City law). Plaintiff’s Section 1981 claims are analyzed analogously under the same burden shifting analysis. See Adames v. Mitsubishi Bank, 751 F. Supp. 1548, 1555 (E.D.N.Y. 1990).12 Title VII has been interpreted to include conduct "requiring people to work in a discriminatorily hostile or abusive environment." Harris v. Forklift Sys., Inc., 510 U.S. 17, 21, 114 S. Ct. 367, 370, 126 L. Ed. 2d 295 (1993).
11 Accordingly, any references below to Title VII are meant to apply equally to the New York State and City Human Rights Laws. 12 42 U.S.C. § 1981 provides, in pertinent part:
"All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens."
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Therefore, subject to the fact that in the present case there is a wealth of direct evidence of discrimination (see e.g., POINT III, infra), one way that the Plaintiff can establish a prima facie claim of discrimination is to show: (1) that he is a member of a protected class; (2) that he suffered an adverse employment action; (3) that he was qualified for the position in which he suffered the adverse employment action; and (4) that the adverse employment action occurred in circumstances that give rise to an inference of discrimination. See McDonnell Douglas Corp v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973); Woroski v. Nashua Corp., 31 F3d 105, 108 (2d Cir. 1994).
The Second Circuit has frequently emphasized that "the burden of establishing this prima facie case in employment discrimination cases is 'minimal.'" McGuinness v. Lincoln Hall, 263 F.3d 49, 53 (2d Cir. 2001); Roge v. NYP Holdings, Inc., 257 F.3d 164, 168 (2nd Cir. 2001); James v. New York Racing Ass'n, 233 F.3d 149, 154 (2d Cir. 2000).
Thus, Plaintiff must show membership in a protected class, qualification for the position, an adverse employment action, and circumstances that give at least minimal support to an inference of discrimination. See Fagan v. New York State Elec. & Gas Corp., 186 F.3d 127, 1999 WL 557016, at *4 (2d Cir. 1999). "The burden that the plaintiff must meet in order to defeat summary judgment at a prima facie stage is de minimus." McNulty v. The New York City Dep't of Finance, 45 F. Supp. 2d 296, 298 (S.D.N.Y. 1999).
Once Plaintiff has established a prima facie case, the Defendants bear the burden of articulating a legitimate nondiscriminatory reason for the adverse employment action. See McDonnell Douglas, 411 U.S. at 802-4. If Defendants meets this burden, then
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Plaintiff must show that the reason offered by the employer is false, and that discrimination was a motivating factor. See McDonnell Douglas, 411 U.S. at 802-4; Hollander v. American Cyanamid Co. 172 F.3d 192, 199 (2d Cir. 1999).

Plaintiff may establish an inference of discrimination by showing that the reasons given by Defendants for the adverse employment action were false. “The fact finder’s disbelief of the reasons put forward by the defendant...may, together with the elements of the prima facie case, suffice to show intentional discrimination. Thus, rejection of the defendant’s proffered reasons will permit the trier of fact to infer the ultimate fact of intentional discrimination.” Ferrante, supra, at 630, quoting St. Mary’s Honor Center v. Hicks, 509 U.S. 502, 507 (1993). To meet his ultimate burden in opposing a motion for summary judgment, Plaintiff may rely upon the same evidence that comprised his prima facie case, without more. Back v. Hastings-on-Hudson Union Free Sch. Dist., 365 F.3d 107, 124 (2d Cir. 2004).

POINT IV:

GIVEN THE THE CLASS-WIDE ACTION CLAIMS AND THE WEALTH OF DIRECT EVIDENCE OF DISCRIMINATION BY CHESTER MACY’S HAS THE BURDEN OF PROOF TO SHOW THAT IT DID NOT DISCRIMINATE AGAINST PLAINTIFF.

A. The Law.
In the present lawsuit, there is direct evidence of discrimination and retaliation – Chester constant abusive and offensive comments. This includes the undeniable fact that Chester, who was the main decision maker, made racist and derogatory comments regarding Plaintiff and the protected class in general throughout his tenure on the Tenth Floor. Direct proof of discrimination shifts the burden of persuasion to the Defendants. See e.g., Miles v. M.N.C. Corp., 750 F.2d 867, 873 (11th Cir. 1985) (Plaintiff claimed that

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she was the victim of racial discrimination when the Defendant Company did not rehire her after a temporary lay off. Court found discrimination based on: (1) the plant manager’s remark (direct evidence) regarding blacks in general; (2) the statistical evidence; (3) the testimony from a witness who testified that no other blacks had worked in Plaintiff’s department the year before Plaintiff was originally hired and testimony from a second witness regarding the paucity of blacks hired by the company.) Id. at 876.
The precise requirements of the prima facie case can vary depending on the context and were “never intended to be rigid, mechanized, or ritualistic.” Swierkiewicz v. Sorema, 534 U.S. 506; 122 S. Ct. 992, 997, 152 L. Ed. 2d 1 (2002) citing Furnco Const. Corp. v. Waters, 438 U.S. 567, 577, 98 S. Ct. 2943, 57 L.Ed. 2d 957 (1978) (“[T]he specification … of the prima facie proof required from respondent is not necessarily applicable in every respect to differing factual situations.”) The Supreme Court further noted that if a plaintiff is able to produce direct evidence of discrimination, s/he might prevail without proving all the elements of a prima facie case. Swierkiewicz v. Sorema, 122 S. Ct. 992, at 997, citing Trans World Airlines, Inc. v. Thurston, 469 U.S.111,121, 105 S.Ct. 613,88 L.Ed. 2d 523 (1985) (“[T]he McDonnell is inapplicable where the plaintiff present direct evidence of discrimination.”); See also, Back v. Hastings on Hudson Union Free School District, 365 F.3d 107, 124 (2d Cir. 2004) (Court held that evidence of discriminatory comments can constitute “direct evidence” and are adequate to make out a prima facie case, even where uncorroborated. Stereotyped remarks can certainly be evidence that the protected characteristic played a part in the adverse employment decision.) Id. at 119.
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Once a connection has been established between Chester and any decision/act that is being challenged as being discriminatory, then Chester’s racial bias can be attributed to Macy’s. As outlined below, Plaintiff has also produced evidence that Macy’s supported and condoned the racial discrimination perpetrated by Chester.
A rigid McDonnell v. Douglas approach is similarly misplaced where Plaintiff alleges, as here, numerous examples of unlawful employment decisions against other members of the protected group, giving rise to a pattern and practice of discrimination. The McDonnell Douglas test is misplaced because the factual matrix of this lawsuit is one akin to a class action suit. A decision on class certification is pending.13 See e.g., Swierkiewicz v. Sorema, N.A., 534 U.S. 506, 122 S.Ct. 992, 997, 152 L.Ed.2d 1 (2002), citing McDonnell Douglas, 411 U.S. supra, at 800.
Accordingly, in this lawsuit, the applicable test is whether Plaintiff has established “by a preponderance of the evidence that racial discrimination was the company standard operating procedure – the regular rather than the unusual practice.” International Brother of Teamsters v. U.S., 431 U.S. 324, 335-36, 97 S. Ct. 1843, 52 L.Ed. 2d 396 (1977); See also, Robinson v. Metro North, 267 F. 3d 147, 158-160 (2d Cir. 2001) (In a disparate treatment action in a class action context, intentional discrimination must be proven by a pattern or practice of widespread acts of discrimination).
13 Plaintiff moved for class certification pursuant to Rule 23 on April 22, 2005, which is pending before this court. While as of this date, the court has not certified the class, the factual make up of this lawsuit is one akin to class actions given the pattern and practice of disparate treatment against the class as a whole. The class being minority employees of Macy’s Processing Department. Contrary to Defendants’ arguments, the disparate treatment alleged in this case is so widespread and continuous, involving a multitude of on-going repeated acts of discrimination, that it is very difficult to parse each individual allegation under the traditional analysis.
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As outlined below, Plaintiff has shown that the challenged discriminatory actions are more than mere “isolated or ‘accidental’ or ‘sporadic’ discriminatory acts” but the standard operating procedure. International Brother of Teamsters v. U.S., supra 431 U.S. at 336; Coser v. Moore, 739 F.2d 746, 749 (2d Cir. 1984); Ottaviani v. State University of New York at New Paltz, 679 F. Supp. 288, 297 (S.D.N.Y. 1988).
B. The Direct Evidence. The direct evidence of discrimination includes Chester almost daily barrage of racist and offensive comments directed either at Plaintiff and/or his co-workers personally, or with respect to other members of the protected class, i.e., Black and Hispanic persons. The many racist comments that Chester said throughout his tenure on the Tenth Floor from July 1999 until January 2004, many of which were directed at Plaintiff personally and/or that were overheard by Plaintiff are outlined herein. See POINT II, supra. (Racially Hostile Work Environment). Indeed, Defendants have an onerous task in rebutting the presumption that in taking the various adverse employment decisions, Chester was not motivated by discriminatory and retaliatory animus. POINT V: PLAINTIFF HAS PRESENTED A PRIMA FACIE CASE OF
DISCRIMINATION.
The wealth of evidence establishes that Plaintiff was subjected to discrimination by Defendants. Throughout his employment at Macy’s, Plaintiff was denied the same terms and conditions of work as the other Caucasian employees of Macy’s and suffered materially adverse employment actions, including demotions, unjustified and retaliatory disciplinary write ups, reassignments to less desirable working space, and other actions.
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Plaintiff alleges that he suffered these employment actions because of his race, national origin and because he opposed the discrimination.
In this action, Plaintiff has demonstrated a prima facie case of discrimination on the basis of his national origin, race and color. Moreover, Plaintiff alleges that he was the victim of Macy’s pattern and practice of discrimination against him and his fellow coworkers, all of whom worked on the Tenth Floor and/or under the direction and supervision of Defendant Chester during the relevant period
Firstly, Defendants do not dispute that Plaintiff is a member of a protected class. Secondly, the fact that Plaintiff satisfactorily performed his duties and responsibilities as a Processing associate is beyond dispute. Plaintiff was nominated for the position of Team Leader because of his hard work. Pl’s Stmt ¶ 178. Turning to each of the adverse employment decisions that Plaintiff suffered while employed by Macy’s, Plaintiff has sustained his burden of establishing a prima facie case with respect to each. A. The Challenged Actions. • Plaintiff was passed over for promotion in 1999 and 2001. Plaintiff has sustained his burden that he was qualified for the position of Team Leader. Irving Thorpe (“Thorpe”), a Union Shop Stewards in the Processing Department and a former co-worker of Plaintiff, testified that Plaintiff was one of the most qualified for the position and his name was put forward in 1999 and then again in 2001. Plaintiff’s name was one of the top of on the list. Plaintiff was nominated by Thorpe and the minority Processing employees for the position of Team Leader because he was a hard
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worker, was well liked and did everything that was asked of him by his manager, including much of the heavy lifting. On each occasion, Chester passed Plaintiff over for promotion, in favor of employees from other floors, thus circumventing the established practice of prior managers who always appointed Processing employees to the position. Pl’s Stmt ¶¶ 178-179. Thorpe, who stated that Plaintiff was passed over three times for the Team Leader position, testified that Chester denied Plaintiff the position for racist reasons: “Harold was more hip than the team leaders than [sic] Scott wanted. In other words, Harold wore his clothes a certain way, Harold talked a certain way, Harold did things his way...” Id. at ¶¶ 180-183. Therefore, Chester was stereotyping Plaintiff because of his clothes. The Processing employees were angry that Chester did not promote Plaintiff and those that Chester did promote to the position were “terrible” and not as qualified as Plaintiff. Id. at ¶ 183.
Plaintiff was passed over for promotion because apparently he was under investigation by the security department. Chester instigated this investigation, however, for discriminatory and retaliatory reasons. Id. at ¶¶ 401-408. • Plaintiff was routinely denied overtime in favor of the Caucasian Processing
employees.
Plaintiff and his co-workers were routinely denied overtime. Chester would discriminatorily assign overtime to the three Caucasian Processing employees. In assigning overtime Chester would violate union seniority rules. The minority employees, including Plaintiff, were thus prejudiced and earned salaries far lower than the Caucasian employees. Plaintiff filed union grievances on this issue as did his co-workers. Id. at ¶¶ 157-164, 334-335.
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• Chester Demoted Plaintiff in 2002. Plaintiff was demoted from the elevator position shortly before his arrest in March
2002. Plaintiff was also taken off the duty of Processing leather coats. This position change entailed less pay and therefore was a demotion. Plaintiff was told that he was being demoted because he was a focus of security. Upon information and belief, Chester was behind the security investigation. Id. at ¶¶ 179; 405-406. • Chester Reassigned Plaintiff to another work table.
Chester also reassigned Plaintiff to a small work table directly adjacent to Chester’s desk. This happened during 2002, in the months leading up to Plaintiff’s arrest and also during 2000 or 2001. Id. at ¶¶ 179, 202. In fact, Chester would often reassign Plaintiff and his co-workers to other tables in retaliation and place them directly under cameras. Id. at ¶ 140. • Chester Would Target Plaintiff for Particularly Intense Harassment
including Spying and Instigating Additional Security Surveillance and Would Issue Negative Performance Evaluations.
Plaintiff was targeted by Chester and security personnel, in terms of intense scrutiny from Chester and Hansen, and his clock-in times would be checked regularly. Also after complaining about Chester, security would intensify their spying of Plaintiff and his co-workers and plain-clothed security guards would scrutinize their every move, regularly checking their bags. This would happen on a constant basis, and would always follow complaints and grievances. Chester was always watching Plaintiff, checking him and looking down the elevator shaft. Id. at ¶¶ 243-254.
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Plaintiff was passed over for promotion because apparently he was under investigation by the security department. Chester instigated this investigation by asking security to “watch” Plaintiff. Chester did so for discriminatory and retaliatory reasons because of Plaintiff’s complaints and because Plaintiff was outspoken about the harassment and discrimination. Id. at ¶¶ 401-409. Chester would also target Plaintiff for the harassment and offensive comments and many of Chester’s racist comments would be directed at Plaintiff personally. Id. at ¶¶ 42, 46-48, 50-52, 243, 249. • Plaintiff’s False Arrest and Malicious Prosecution.
The retaliation culminated in Plaintiff’s false arrest and malicious prosecution. There is strong evidence that Chester, in collusion with Llewellyn and DeSantis, was heavily involved in Plaintiff’s arrest. See e.g., ¶¶ 81-82, 401-411; 572-575 (Confidential Portions); See infra. B. The Challenged Actions Materially Altered Plaintiff’s Work Environment.
Defendants cannot credibly dispute the fact that Chester’s refusal to promote Plaintiff to the Team Leader position and his demotions in the months leading up to Plaintiff’s arrest were materially adverse since both involved an adverse pecuniary action. However, adverse employment actions are not limited to cases involving only pecuniary harm. See Treglia v. Town of Manlius, 313 F.3d 713, 720 (2d. Cir. 2002).
The remaining challenged actions that were taken against Plaintiff by Chester are clearly materially adverse for the purposes of establishing a prima facie case, including Plaintiff’s relocation to another processing table and the performance warnings. Office relocations and negative performance evaluations have also specifically been considered as ‘adverse’ for the purposes of establishing a prima facie case. See Bernheim v. Litt, 79
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F.3d 318, 324-326 (2d. Cir. 1996) (adverse employment actions may include negative evaluation letters); Mandell v. County of Suffolk, 316 F.3d 368, 382 (2d Cir. 2003) (negative evaluation letters placed in employee’s personnel file could have a negative impact on future career); Monica v. New York City Off-Track Betting Corp., 1995 U.S. Dist. LEXIS 3350 (S.D.N.Y. March 17, 1995) (“Three examples of employment actions found by the courts to be adverse, but which did not involve reductions in salary or benefits, were an employer’s moving an employee’s office to an undesirable location, transferring an employee to an isolated corner of the workplace, and requiring an employee to relocate her personal files while forbidding her to use the firm’s stationary and support services.” (internal quotations omitted), citing Collins v. State of Illnois, 830 F.2d 692, 703 (7th Cir. 1987).
The Courts have determined negative evaluations not to be ‘adverse’ in cases where the individual was unable to show that the negative evaluation had any effect on the terms and conditions of employment. See Sanders v. New York City Human Resources Administration, 361 F.3d 749, 756 (2d. Cir. 2004).
In addition, Chester requesting that the security department scrutinize Plaintiff and his co-workers clearly had adverse consequences, including increasing the hostile work environment, and jeopardizing their positions.
Adverse employment actions are not defined “solely in terms of job termination or reduced wages and benefits...less flagrant reprisals by employers may indeed be adverse.” There is no “bright-line rule” for determining whether an employment action is an adverse employment action. Wanamaker v. Columbian Rope Co., 108 F.3d 462, 466 (2d Cir. 1997); Brown v. Snow, 2003 U.S. Dist. LEXIS 6563 (S.D.N.Y. April 17, 2003);
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Alston v. New York City Transit Authority, 14 F.Supp.2d 308 (S.D.N.Y., April 2, 1998). The determination of whether an adverse employment action exists is usually factsensitive and within the purview of the fact finder. In Phillips v. Bowen, 278 F.3d 103 (2d Cir. 2002), for example, the Second Circuit affirmed a plaintiff’s verdict after holding that while “defendant’s failure to provide [plaintiff] with an adequate bullet-proof vest or proper instruction regarding the transfer of a prisoner, or defendants’ humiliating instruction to plaintiff about use of a time clock - may seem minor when viewed in isolation, a finder of fact looking at them collectively over a period of several years could reasonably find that they rise to the level of actionable harm”). Phillips at 110. See also, Fowler v. New York Transit Authority, 2001 U.S. Dist. LEXIS 762 (January 31, 2001) (“The jury was entitled to weigh the credibility of the witnesses and could reasonably have determined that in this case removing plaintiff’s desk and relegating her to the position of an itinerant supervisor working out of a bag was an effort to humiliate her, adversely affected the plaintiff’s ability to perform her job and was a materially adverse change in the conditions of her employment”); Galabya v. New York City Board of Education, 202 F.3d 636, 641 (2d Cir. 2000) (employment action resulting in assignments “materially less conducive to career advancement” is considered to be an adverse employment action); Brown v. Snow, 2003 U.S. Dist. LEXIS 6563 (S.D.N.Y. April 17, 2003) (the assignment of inferior work, which may adversely affect promotional opportunities, is an adverse employment action); Little v. National Broadcasting Co., Inc., 210 F. Supp.2d 330, 381 (S.D.N.Y. April 22, 2002) (the denial of training that would have resulted in greater job security constitutes an adverse employment action); Bogart v. New York City Law Department, 2001 U.S. Dist. LEXIS
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8849 (S.D.N.Y. 2001) (diminishing the responsibilities of an employee may constitute an adverse employment action); Alston v. New York City Transit Authority, 14 F.Supp.2d 308 (S.D.N.Y. April 2, 1998) (being sent to retraining, placed on the 100 worst drivers list, subjected to random drug tests, and threatened with disciplinary action, when viewed in the aggregate, were adverse employment actions).
In addition, “the accumulation of small reprisals may be aggregated so as to permit consideration of their impact in their totality and to support their being deemed sufficient to constitute adverse employment action...” Fowler, supra, at 21, quoting Gonzalez v. Police Commissioner William Bratton, 2000 U.S. Dist. LEXIS 12002 (S.D.N.Y. 2000); Bigelow v. New York State Department of Corrections, 1997 U.S. Dist. LEXIS 18133 (S.D.N.Y. 1997).
Therefore, each and every action cannot be taken in isolation but must be taken in the aggregate within the context of years of abuse and neglect by Macy’s and the sustained harassment by Chester. C. The Circumstances Under Which These Challenged Actions That Were
Taken Against Plaintiff Give Rise to An Inference of Discrimation.
The fact that Chester engaged in mocking and racially offensive conduct throughout his tenure on the Tenth Floor as Plaintiff’s supervisor clearly supports supports the inference of discrimination and retaliation with regard to all these actions. There is direct evidence that Chester was motivated by racial and retaliatory bias. See Little v. NBC, 210 F. Supp. 2d 330, 377 (“[D]iscriminatory intent may be inferred from criticism of plaintiff’s performance in individious (sic) or ethnically degrading terms, individious (sic) comments about others in plaintiff’s protected group, or the sequence of
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events leading to the negative employment action”), citing Pimentel v. City of New York., 2001 U.S. Dist. LEXIS 20426 (S.D.N.Y. 2001); and Chambers v. TRM Copy Center Corp., 43 F. 3d 29, 37-38 (2d Cir. 1994) (“Actions taken by an employer that disadvantage an employee for no logical reason” may also constitute “strong evidence of intent to discriminate.”)
Chester was the sole decision maker with respect to most of the foregoing challenged and discriminatory actions, except for the false arrest and malicious prosecution, where it is asserted that Chester was heavily involved. See Mullen v. Princess Anne Volunteer Fire Co., 853 F. 2d 1130, 1133 (4th Cir. 1988) (“Use of racial aspersions obviously provides an indication that the speaker might be more likely to take race into account in making a hiring or membership decision.”) The direct evidence of the racist comments are relevant, even if it was just one isolated incident, where the same actor is involved in the challenged decisions. See e.g., Leonard v. City of Frankfort Elec. and Water Plant Bd., 752 F.2d 189 (6th Cir. 1985); Miles v. M.N.C. Corp., 750 F.2d 867 (11th Cir. 1985) (Evidence of racial slur can prove evidence of disparate treatment).
Moreover, the fact that Chester and Macy’s management ignored Plaintiff’s and his minority co-workers complaints of discrimination suggests a discriminatory motivation. See Cornwell, supra, 23 F. 3d at 707 (“Trial court’s finding of employer’s discriminatory treatment not clearly erroneous where plaintiff produced evidence that her superiors failed to respond to her complaints of harassing conduct.”)
Many of the challenged actions were in retaliation for Plaintiff’s complaints and grievances. (See POINT VII, infra.)
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Defendants claim misguidedly that Plaintiff is required to show that similarly situated Caucasian employees were treated favorably, presumably in order to sustain the fourth prong of the prima facie case. However, a pretext case only requires that the "adverse employment action occurred under circumstances giving rise to an inference of discrimination on the basis of plaintiff's membership in that class." Farias v. Instructional Systems, Inc., 259 F.3d 91, 98 (2d Cir. 2001); Holtz v. Rockefeller, 258 F.3d 62, 82 (2d Cir. 2001); Roge v. NYP Holdings, Inc., 257 F.3d 164, 168 (2d Cir. 2001); Zimmermann v. Associates First Capital Corp., 251 F.3d 376, 381 (2d Cir. 2001); Abdu-Brisson v. Delta Air Lines, Inc., 239 F. 3d 456, 467 (2d Cir. 2001) (rejecting “the notion that the only way a plaintiff can make out an inference of discrimination is to demonstrate that he was treated differently from other similarly situated employees.”). Of course, the similarly situated test may play a role in this analysis. See McGuinness v. Lincoln Hall, 263 F.3d 49,at 53 (2d Cir. 2001); Shumway v. United Parcel Service, Inc., 118 F.3d 60 (2d Cir. 1997); Tappe v. Alliance Capital Mgmt., L.P, 177 F. Supp. 2d 176, 195 (S.D.N.Y. 2001)
In this regard, it is beyond doubt that the Caucasian Processing employees were treated far more favorably by Chester than Plaintiff and his minority co-workers, in the general preferential treatment that they enjoyed, including in the assignment of overtime. Pl’s Stmt ¶¶ 170-176.
An inference of discrimination can also be found if Defendants’ proffered reasons for the adverse employment actions are not “worthy of belief.” See Windham v. Time Warner, Inc., 275 F. 3d 179, 180 (2d Cir. 2001) (“In appropriate circumstances, the trier of fact can reasonably infer from the falsity of the explanation that the employer is
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dissembling to cover up a discriminatory purpose” (citations omitted), quoting Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000). The record is replete with evidence demonstrating that Defendants’ motivations for their personnel actions are pretextual, including the fact that in rebutting the inference of discrimination raised by Chester’s racial animosity, Macy’s merely relies on Chester’s own self-serving justifications. See Ferrante, supra, at 630, quoting St. Mary’s Honor Center v. Hicks, 509 U.S. 502, 507 (1993).) (“The factfinder’s disbelief of the reasons put forward by the defendant...may, together with the elements of the prima facie case, suffice to show intentional discrimination. Thus, rejection of the defendant’s proffered reasons will permit the trier of fact to infer the ultimate fact of intentional discrimination.”
To meet his ultimate burden in opposing a motion for summary judgment, Plaintiff may rely upon the same evidence that comprised his prima facie case, without more. Back v. Hastings-on-Hudson Union Free Sch. Dist., 365 F.3d 107, 124 (2d Cir. 2004).
It is not necessary for Plaintiff to show that “the discriminatory animus was the sole, or even the principal reason for the adverse employment action- only that it was a motivating factor.” See Jamieson v. Poughkeepsie 195 F.Supp. 2d 457, 474 (S.D.N.Y. March 20, 2002) citing Cartagena v. Ogden Serv. Corp., 995 F.Supp. 459, 462 (S.D.N.Y. March 12, 1998); Raskin v. Wyatt Co., 125 F.3d 55, 55 (2d Cir. 1997).
Plaintiff has presented material facts which would allow a reasonable fact-finder to infer that the stated reasons for the adverse employment actions to which plaintiff was subjected were not the true reasons for the employment decisions, but a pretext for
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discrimination on the basis of plaintiff’s national origin, race and color and were also retaliatory.
Defendants’ motion for summary judgment in this action should therefore be denied. See Schering Corp. v. Home Ons. Co., 712 F.2d 4, 9-10 (2d Cir. 1983); Ferrante v. American Lung Association, 90 N.Y.2d 623, 630, 665 N.Y.S.2d 25 (1997); St. Mary’s Honor Center v. Hicks, 509 U.S. 502, 507 (1993); Visco v. Community Health Plan, 957 F. Supp. 381 (N.D.N.Y. 1997).
Because Plaintiff has presented evidence of direct discrimination, namely the racist derogatory comments from Chester, the more liberal mixed theory Price Waterhouse Test is applicable. See Price Waterhouse v. Hopkins, 490 U.S. 228, 241-242 (1989); Tappe v. Alliance Capital Management, 198 F. Supp. 2d 368 (S.D.N.Y. 2001).
Under the mixed motive approach, Plaintiff must first produce direct (as opposed to indirect or circumstantial) evidence that the employer's action was motivated by a protected characteristic such as Plaintiff's race or national origin. Because such evidence proves that a prohibited factor "played a motivating part" in the employer's decision, the burden of persuasion then shifts to the employer. Price Waterhouse v. Hopkins, supra, at 258. The employer is therefore liable unless it can prove by a preponderance of the evidence that it would have made the same decision even if the prohibited characteristic had not played a role in its decision. Id. at 242, 244. Once Plaintiff establishes direct evidence of discrimination, the burden shifts to the employer, and “remains there.” Tappe v. Alliance Capital Management, 198 F. Supp. 2d 368 supra, at 374.
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POINT VI: PLAINTIFF’S CLAIMS PURSUANT TO SECTION 1981. Plaintiff’s race discrimination claims, including his failure to promote claims are
actionable under Section 1981. Patterson v. MacLean Credit Union, 491 U.S. 164, 109 S. Ct. 2363, 2377 105 L. Ed. 2d 132 (1989). The Supreme Court ruled that as a plaintiff can prove that he was subjected to intentional discrimination based on his race, ethnic characteristics or ancestry, "rather than solely on the place or nation of his origin," he has an actionable claim under § 1981. Saint Francis College v. Al-Khazraji, 481 U.S. 604, 613, 95 L. Ed. 2d 582, 107 S. Ct. 2022 (1987). As stated previously, Plaintiff’s § 1981 claims are premised on the same factual framework as his claims for discrimination under the New York City and State Human Rights laws. POINT VII: PLAINTIFF HAS ESTABLISHED THAT HE WAS RETALIATED
AGAINST, INCLUDING HIS FALSE ARREST AND MALICIOUS PROSECUTION.
Under New York law, it is unlawful for any employer "to discharge, expel or otherwise discriminate against any person because he or she has opposed any [unlawful discriminatory practice] or because he or she has filed a complaint, testified or assisted in any proceeding" relating to an unlawful discriminatory practice. N.Y. Exec. Law. § 296(1)(f).
Courts examine retaliation claims under the New York State and City Human Rights Law in the same manner as Title VII claims. See McDonald v. B.E. Windows Corp., No. 01 Civ. 6707, 2003 U.S. Dist. LEXIS 7472, *6 n.1 (S.D.N.Y. 2003) (citation omitted); Reed v. A.W. Lawrence & Co, Inc., 95 F. 3d 1170, 1177 (2d Cir. 1996).
To state a claim of retaliation under Title VII, a Plaintiff must show that s/he engaged in a protected participation or opposition under Title VII, that the employer was
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aware of the protected activity, that the employer took adverse action against the plaintiff, and that a causal connection exists between the protected activity and the adverse employment action, i.e. that a retaliatory motive played a part in the adverse employment action. See Sumner v. United States Postal Service, 899 F. 2d 203, 208 (2nd Cir. 1990); Raniola v. Bratton, 243 F.3d 610, 624 (2d Cir. 2001); McMenemy v. City of Rochester, 241 F.3d 279, 282-283 (2d Cir. 2001).
The primary purpose of the Title VII and New York State and City Human Rights anti-retaliation provisions is to prohibit employers from retaliating against employees because they complain of prohibited workplace discrimination. See Pimentel v. City of New York., 2001 U.S. Dist. LEXIS 20426, *16 (S.D.N.Y. 2001).
Plaintiff and his minority co-workers have complained for many years of the disparate treatment, harassment by Chester, the harsh physical conditions on the Tenth Floor and intense and constant scrutiny by Chester and the Security Department and have filed union grievances. See e.g., Pl’s Stmt. ¶¶ 21,38,49,52,57,63 64,90,92, 102,108,134, 144,159,165,217,287-288,292-369. Plaintiff himself complained to Chester, Hansen, Grady and filed union grievances either on his own behalf or on behalf of his minority co-workers in the capacity of union representative. Id. at ¶¶ 44,160,246-247,292294,306,363,406,557. Plaintiff was disliked by Chester because he was not intimidated by him and was vocal in complaining about the harassment and discrimination that Chester was perpetrating. Id. at 249.
Contrary to Defendants claim, the extensive oral complaints to Grady, Hansen as well as to Chester himself, the meetings with Macy’s HR Department, and the complaints to the counselor’s, and the union grievances, constitute protected activity that invokes the
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protections of the anti-retaliation provisions. See Kotcher v. Rosa and Sullivan Appliance Center, 957 F.2d 59, 65 (2d Cir. 1992) (Protected activity “may take the form of less formal protests, such as making complaints to management, writing critical letters to customers, or expressing support of co-workers who have filed charges.”); See also, Cruz v. Coach Stores, 202 F.3d 560, 566 (2d Cir. 2000). In addition, protected activity includes refusing to participate in a supervisor’s discriminatory activity because “it is means of opposing such unlawful conduct.” Black v. City of Honolulu, 112 F. Supp. 2d 1041 (D.Haiwaii, 2000); Fleming v. South Carolina Department of Corrections, 952 F. Supp. 283, 288 (D.S.C, 1996); Little v. NBC, supra, at 387. See also, Legrand v. New York Restaurant School, 2004 U.S. Dist. LEXIS 12893 (2002), citing Barcher v. New York University School of Law, 993 F. Supp. 177, 184 (S.D.N.Y. 1998), affirmed 172 F. 3d 37 (2d Cir. 1998) (Protected activities include simply complaints to management or even a “simple objection voiced to the employer.”); Bright v. Le Moyne College, 306 F. Supp. 2d 244, 254-55 (N.D.N.Y. 2004) (Union grievance constituted protected activity); Ashok v. Barnhart, 289 F. Supp. 2d 305 (E.D.N.Y. 2003) (Undisputed that filing a union grievance is a protected activity).
Moreover, the employment practice that is being complained about need not in itself violate Title VII to invoke anti-retaliation protection. The complainant need only have a reasonable belief that s/he was opposing an unlawful employment practice. See e.g., McMenemy v. City of Rochester, 241 F. 3d 279, 283 (2d Cir. 2001), citing Manorahan v. Columbia University College of Physicians, 842 F. 2d 590, 593 (2d Cir. 1988).
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Chester retaliated against Plaintiff and his co-workers for his complaints, and in fact, there is direct evidence that many of the materially adverse actions that Plaintiff suffered, including the demotions in the last few months of his employment, were retaliatory. Plaintiff was particularly targeted by Chester and Chester was heavily involved in Plaintiff’s false arrest and termination. Chester told security that Plaintiff “needed to be watched.” Plaintiff, who was never apprehended for theft or any crime while at Macy’s in his ten years of employment, was targeted in retaliation for his many complaints and grievances against Chester and Macy’s. Id. at ¶¶401-403.
In the months leading up to Plaintiff’s arrest, Sylvester’s friends in the Security Department told him that Chester had told the Security Department to keep Plaintiff and his co-workers under close surveillance. Chester instructed security to watch Perez and Plaintiff specifically. These friends also told Sylvester to “be careful” and to “watch his step.” During this time, Plaintiff was demoted from the position of Elevator Operator due to his being a “focus of security." Plaintiff was the focus of security at this time because of Chester, who without justification and for retaliatory reasons asked security to watch him. Id. at ¶¶ 404-405. Plaintiff’s removal from the position of Elevator Operator was a demotion as operating the elevator entailed Level 2 pay, a higher wage than Level 1 pay. The elevator operators are paid more. Id. at ¶406. At this time, Plaintiff was also passed over for promotion for the team leader position because of the security surveillance, that was prompted by Chester, despite his seniority rights under the union contract and the fact that Thorpe and his minority co-workers all recommended Plaintiff’s promotion. Id. at ¶ 408.
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Plaintiff testified that his race motivated the employment discrimination he suffered and the false arrest:
Q: Do you think that you were apprehended because of your race ...? A: I believe that played as part of it. I believe it was played as part of it. There was a lot of racial activity. Racial tension on the 10th floor. We’re profiled all the time. I didn’t see certain other individuals profile...” Id. at ¶ 409. Plaintiff was particularly targeted by Chester for retaliation, and many of the offensive remarks were directed solely at Plaintiff. Chester specifically targeted Plaintiff because Plaintiff stood up to him and complained of the harassment and abusive treatment. Moreover, Chester did not like the fact that he did not intimidate Plaintiff. Id. at ¶¶ 249-250. See supra. Therefore Plaintiff has established a causal connection “directly” using “evidence of retaliatory animus directed against plaintiff by the defendant.” See e.g, Little v. NBC, supra, the court found that the supervisor in question “ignored [plaintiff’s] earlier complaints and continued to mock and intentionally mispronounce his name until he filed his EEOC complaint suggest the type of “retaliatory animus” that may establish causation. Id. at 386-87. While Chester equally discriminated against the Black and Hispanic Processing employees under his supervision and all the minority Processing employees were subject to the same racially hostile work environment, Plaintiff and his minority co-workers were subjected to particular hostility and retaliatory actions. They were scrutinized by Security and Chester, who thought they were “trouble makers.” Plaintiff and the minority co-workers with whom he worked most were specifically targeted by Chester.
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Plaintiff’s “group” comprised all of the four union shop stewards on the Tenth Floor, namely Plaintiff himself, Duncan, Thorpe, Perez, Celois Brown, Gary Keith and Rodney Whitaker. This group were the most opinionated because that was their job. Thus, Plaintiff and his fellow union shop stewards minority co-workers were targeted because they were the most vocal in complaining about the discrimination and harsh work conditions and for having filed grievances against Chester. Id. at 243-247; Ex. C at 8990: “Scott didn’t like the fact we brought issues up to him”, including the heat, the unfair assignment of overtime, safety issues, and the reassignment of the tables.
Plaintiff and his co-workers testified that the retaliation that Chester took varied in form, but would often result in increased scrutiny, surveillance, spying, reassignment of processing tables, and the issuance of final warnings and job performance warnings. This retaliatory action would always closely follow the complaints. Id. at ¶¶ 247; 251.
Plaintiff has thus shown causation indirectly through evidence such as disparate treatment of fellow employees who engaged in similar treatment, making inappropriate and insulting comments about minorities, and intentionally being tougher on minorities in terms of discipline. These acts all suggest the type of retaliatory animus to establish the requisite causation. See e.g., Rodriguez, supra, at 173 F. Supp. 2d, at 150; Little v. NBC, supra, at 387.
The retaliatory action would closely follow complaints and grievances. Pl’s Stmt ¶ 251. Rodriguez v. Beechmont Bus Services, Inc., 173 F. Supp. 2d 139, 150 (S.D.N.Y. 2001), citing DeCintio v. Westchester County Medical Center, 821 F. 2d 111, 115 (2d Cir. 1987) (A plaintiff may establish a causal connection indirectly by showing that “the protected activity was followed closely by discriminatory treatment.”) An assignment to
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an undesirable shift two months after filing a internal complaint at NBC, was held to raise a genuine issue of fact as to whether this was retaliation. Little v. NBC, supra, at 386. POINT VIII: THE CONTINUING NATURE OF THE DISCRIMINATORY
ACTIONS RENDER ALL OF PLAINTIFF’S DISPARATE TREATMENT CLAIMS, INCLUDING HIS HOSTILE WORK ENVIRONMENT CLAIMS, ACTIONABLE.
The racial hostile work environment claims perpetrated by Chester from 1999 through 2004 are also actionable given that they were continuing in nature. The hostile work environment perpetrated largely by Defendant Chester with his comments, scrutiny and other insidious acts, were continuous and repeated until his termination in January 2004. See supra.
Under the continuing violation doctrine, "if a plaintiff has experienced a continuous practice and policy of discrimination, the commencement of the statute of limitations period may be delayed until the last discriminatory act in furtherance of it." Fitzgerald v. Henderson, 251 F.3d 345, 359 (2d Cir. 2001) (citations and internal quotation marks omitted).
The string of indignities that Plaintiff and the minority Processing employees were subjected to are eminently suitable under this the continuing violation theory. The discriminatory acts complained of were of a consistent policy of systematic discrimination against Plaintiff. The disparate claims are based on the cumulative effect of individual acts. See National Railroad Passenger Corp. v. Morgan, 536 U.S. 101; 122 S. Ct. 2061; 153 L. Ed. 2d 106 (2002).
Plaintiff’s hostile work environment was comprised and created by a series of separate acts that collectively constitute one “unlawful employment practice.” See
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National Railroad Passenger Corp. v. Morgan, supra, at 2074. In National R.R. Passenger Corp. v. Morgan, the Supreme Court reasoned that "hostile environment claims are different in kind from discrete acts." 536 U.S. 101, 115, 153 L. Ed. 2d 106, 122 S. Ct. 2061 (2002) (citation omitted). Unlike harassment cases based on discrete acts, the very nature of a hostile work environment claim necessarily involves repeated conduct. Therefore, where a single act contributing to the hostile environment occurs within 300 days of the filing of the charge, the court may consider all acts which contributed to the hostile environment, even where some of the acts occurred more than 300 days before the filing of the charge. See id. at 117; see also Elmenayer v. ABF Freight Sys. Inc., 318 F.3d 130, 134 (2d Cir. 2003) (quotation omitted); Jordan v. Cayuga County, 2004 U.S. Dist. LEXIS 1666 (N.D.N.Y. 2004) (Court held that since “Plaintiff complained of several instances in which she alleged that Defendant Lawford sexually harassed her by striking her and calling her names during the year 2000, her hostile work environment claim is timely.”) Id. at *5.
In AMTRAK v. Morgan, 536 U.S. 101, 153 L. Ed. 2d 106, 122 S. Ct. 2061, 2074 (2002), the Supreme Court held that "[a] hostile work environment claim is comprised of a series of separate acts that collectively constitute one unlawful employment practice." so that, "provided that an act contributing to the claim occurs within the filing period, the entire time period of the hostile environment may be considered by a court for the purposes of determining liability." Accordingly, "in order for the [hostile environment can] to be timely, the employee need only file a charge within [three years] of any act that is part of the hostile work environment."Id. at 2075. Examples of "discrete acts" include termination, failure to hire, failure to promote, and denial of a transfer. Id. at 2073; See
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also, Costanzo v. United States Postal Serv., 2003 U.S. Dist. LEXIS 4911, No. 00 Civ. 5044 (NRB), 2003 WL 1701998 at *5 (S.D.N.Y. Mar. 31, 2003). In the present case, most of the challenged discrete discriminatory actions are timely as occurring within the three years statute of limitations. Chester demoted Plaintiff, reassigned his table and passed him over for promotion in the months leading up to Plaintiff’s arrest in March 2002.14 Id. at ¶¶ 404-409.
Macy’s actions constitute a continuing violation especially where Plaintiff’s disparate treatment claims mostly relate to and emanate from the actions of the same supervisors, Defendant Chester and Hansen, and one department, and occurred on a class wide basis throughout 1999 to 2004. See Draeger v. Bronx Lebanon Hospital Center, 1999 U.S. Dist. LEXIS 11741 (S.D.N.Y. 1999), at 4 (Court held that the Defendant Company’s actions amount to a continuing violation because Plaintiff alleged that a single supervisory subjected her to a “campaign of inappropriate comments and sexual harassment, as well as unwanted groping and grabbing” over an approximately seven year period. Therefore, because plaintiff’s time barred allegations and her timely allegations “all involved the same type of discrimination” that “continued on a regular, almost daily basis” over the seven year period15.
14 This action was filed on April 16, 2004. See Macy’s Ex. A (Copy of the Complaint). 15 Contrast: Little v. NBC, 210 F. Supp. 2d 330 (S.D.N.Y. 2002), applying Draeger v. Bronx Lebanon Hospital Center, supra, the court held that plaintiff had not established a continuing violation because the plaintiff’s racially hostile work environment allegations involved different co-workers and supervisors, in vastly different time periods and on different shows (Hogan, one of the multiple Plaintiffs, and a television producer at NBC, failed to establish a continuing violation where during the period that she alleged disparate treatment, 1987 through to 2002, Hogan had been supervised by nine different managers, on five different television shows, while working in five different capacities, in two different facilities. The court held that these facts alone “establishes that NBC’s
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The retaliation was also of a continuing nature as they were “part of a continuous
practice or policy of discrimination.” See Little v. NBC, supra, at 368-370 (held that one
of the plaintiffs, Perez, had established a continuing violation in terms of the retaliatory
actions on the following basis: a) that the time-barred claims included some of the same
types of actions as the timely ones, namely threat from Scott and unfair disciplinary
warnings; b) the alleged retaliation occurred rather frequently (there were three separate
retaliatory acts during 1995 by Scott, Scott’s physically menacing behavior in June 1996
and again in November 1996, and an incident in 1996); and c) the time-barred acts of
alleged retaliation allegedly perpetrated by Scott were not so severe that one would
necessarily have expected Rivera “to assert [his] rights” at that time), citing Berry v. Board of Supervisors of LSU, 715 F. 2d 971,981 (5th Cir. 1983).16
POINT IX: CHESTER’S INDIVIDUAL LIABILITY UNDER THE STATE HUMAN RIGHTS LAW.
Chester is individually liable for creating the racially hostile work environment
and for the discrimination against Plaintiff. The NYSHRL makes it unlawful for an
employer to discriminate on the basis of, inter alia, race, creed, color, or sexual
decisions concerning Hogan’s career have been made independently by various supervisors from many departments.”) Id. at 368. 16 Moreover, the court in Little v. NBC, supra, held that the retaliatory acts were alleged to have been committed by or at the instigation of one supervisor/manager, Scott. Id. at 370. Court also found that Perez had established a continuing violation regarding the hostile acts of one supervisor, given that the “time-barred and timely acts were recurring in nature and involved similar types of harassment, such as physical intimidation, comments of a sexual nature, and general hostility towards Perez’s authority.” Id. at 371. The court added that although the supervisor’s acts were of a continuing nature, they “were not so severe or permanent that one would have expected Perez to assert her rights on an earlier occasion.” Id. See also, Reidinger v. D’Amicantino, 974 F. Supp. 322, 326 (S.D.N.Y. 1997), which was cited with approval by the Little v. NBC court, which held that hostile work environment harassment “will not have the same degree of permanence as a single incident, such as termination or the loss of a promotion, which should trigger an employee’s duty to assert her rights.”
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orientation. See N.Y. Exec. Law § 296. A supervisor is an "employer" for purposes of establishing liability under the NYSHRL if that supervisor "actually participates in the conduct giving rise to [the] discrimination." Tomka, 66 F.3d at 1317. Chester was Plaintiff’s supervisor and thus is individually liable for his discriminatory actions.
As Chester actually participated in the discriminatory practice, he is also individually liable under Section 296(6), which prohibits anyone from aiding and abetting discriminatory practices. See Tomka, 66 F.3d at 1317 (collecting cases) (citations omitted). Arena v. Agip U.S.A., 2000 U.S. Dist. LEXIS 2578 (S.D.N.Y. 2000). A plaintiff may only recover under Section 296(6), however, where she can show that the defendant '"aided or abetted "a primary violation of the [NY]HRL committed by another employee or the business itself." Bennett, 225 F. Supp. 2d at 213 (quotation omitted). In Tomka, the Second Circuit found that this language allowed a co-worker who "actually participates in the conduct giving rise to a discrimination claim" to be held liable under the NYSHRL even though that co-worker lacked the authority to either hire or fire the plaintiff. Tomka, 66 F.3d at 1317. n19 (Like the defendants in the case at hand, the coworker in Tomka, while above the plaintiff in the office hierarchy, merely had the ability to review and comment on the plaintiff's performance, and while he did make termination decisions, he was limited in his ability to do so because of the union contract. See supra.
Chester’s liability is premised on the fact that he aided and abetted Hansen and Pheeko’s discrimination of the Processing employees, and the racist taunt, spying and scrutiny. In addition, he aided and abetted the intense scrutiny of the Processing employees by the Security personnel at Macy’s and the main instigator of the surveillance. Supra.
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POINT X: CHESTER’S INDIVIDUAL LIABILITY UNDER THE NEW YORK CITY HUMAN RIGHTS LAW.
Chester is individually liable as an agent of Macy’s for perpetrated the harassment, under the City Human Rights law, New York City Human Rights law which provides that: “It shall be an unlawful discriminatory practice for an employer or an employee of agent thereof...to discriminate...” New York City Administrative Code § 8107(1)(a). The individually named Defendants are liable under the NYCHRL in their individual capacities. The NYCHRL makes it unlawful "for an employer or an employee or agent thereof, because of the actual or perceived . . . race, color or national origin . . . to refuse to hire or employ or to bar or to discharge from employment such person or to discriminate against such person in compensation or in terms, conditions or privileges of employment." N.Y.C. Admin. Code § 8-107(1)(a). The same standards of analysis used to evaluate aiding and abetting claims under the NYSHRL apply to such claims under the NYCHRL because the language of the two laws is "virtually identical." Dunson v. TriMaintenance & Contractors, Inc., 171 F. Supp. 2d 103, 113-114 (E.D.N.Y. 2001); see also Kato v. Ishihara, 239 F. Supp. 2d 359, 365 (S.D.N.Y. 2002) (finding that an individual may be held liable under the NYCHRL if he or she engaged in "discriminatory acts"); Lamberson v. Six West Retail Acquisition, Inc., 122 F. Supp. 2d 502, 513 (S.D.N.Y. 2000) (applying the aider and abetter standard set forth in Tomka to claims under the NYSHRL and the NYCHRL); Sowemimo v. D.A.O.R. Sec., Inc., 43 F. Supp. 2d 477, 490 (S.D.N.Y. 1999) ("Employees may be held personally liable under the NYSHRL and the NYCHRL" if they participate "in the conduct giving rise to a discrimination claim.").
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The claims against the individually named Defendants may proceed under the NYCHRL for the same reasons that they may under the NYSHRL.

POINT XI:

MACY’S AND THE INDIVIDUAL DEFENDANTS ARE LIABLE FOR MALICIOUSLY PROCURING PLAINTIFF’S CRIMINAL PROSECUTION BY PROVIDING FALSE EVIDENCE AND STATEMENTS TO THE ARRESTING AND PROSECUTING AUTHORITIES.

Under New York law, in order to sustain a claim for malicious prosecution, a plaintiff must demonstrate: (1) that the defendant started a criminal proceeding against the plaintiff; (2) that the proceeding terminated in the plaintiff's favor; (3) that there was no probable cause for the proceeding; and 4) that the proceeding was instituted with malice. Additionally, there must be a post-arraignment seizure for a 42 U.S.C.S. § 1983 malicious prosecution claim. Here, Plaintiff was indicted by a grand jury.
Analysis of the true nature and circumstances surrounding the dismissal of Plaintiff’s charges, and an analysis of the evidence that Macy’s claimed implicated Plaintiff in theft, will reveal that the dismissal was in all respects indicative of Plaintiff’s innocence. See Lazaratos v. Ruiz, 2003 U.S. Dist. LEXIS 17511, 11 (S.D.N.Y. 2003) (The dispositive inquiry is whether the failure to proceed "implies a lack of reasonable grounds for prosecution.") (citing cases).
Macy’s, acting through its security personnel, including it’s former Director of Investigations, Llewellyn and one of it’s Regional Investigator, Defendant DeSantis, who reported to Llewellyn, with the in depth participation of Chester procured Plaintiff’s false arrest and criminal prosecution. Plaintiff has painstakingly marshaled the compelling evidence of Macy’s culpability in his Rule 56.1 Statement. Pl’s Stmt ¶¶ 413-549; See also confidential portions of Pl’s Stmt at ¶¶ 572-576 (regarding the involvement of

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Chester in Plaintiff’s arrest). In essence, however, Macy’s procured Plaintiff’s arrest by providing false oral and documentary evidence implicating Plaintiff in the theft of Macy’s merchandise to the arresting police officer, Officer Thomas Schick (“Officer Schick.”) Included in the plethora of false information that was provided to the police and the ADA was DeSantis claims to Officer Schick that, inter alia, he had actually seen Plaintiff committing the acts of theft for which Plaintiff was subsequently charged and prosecuted. DeSantis falsely claimed to Schick that he had personally observed: 1) Plaintiff place jeans, a jacket and suit into a green bag on the Ninth Floor stockroom at the Herald Square location; 2) Plaintiff open the green bag and put on two jackets and
th
walk out of the 9 Floor stock room with the jackets on; 3) Both Defendant Baergas and Green place the items into their individual lockers; 4) Plaintiff pick up the green bag and give it to Defendant Green. Id. at ¶¶ 450-453. DeSantis falsely claimed that he personally witnessed these events taking place on March 6, 2002 shortly before actually relaying this to Officer Schick. Id. at ¶ 454. DeSantis also claimed that the stolen merchandise was recovered from Plaintiff’s locker. Id. at ¶ 455. All of the foregoing could not have been further from the truth. During DeSantis’ deposition, when confronted with his various conflicting statements, DeSantis conceded under oath that he had actually not seen any of these things. Id. at ¶¶ 456; 459. See Pl’s Stmt ¶¶ 413-549 for a full exposition of the facts surrounding Plaintiff’s arrest.
Officer Schick arrested Plaintiff based on DeSantis’ oral representations and certain documents provided by Macy’s, supplied these to the ADA, and based on Macy’s false representations, compiled the Criminal Court Complaint that initiated the criminal proceedings. Id. at ¶ 457. Also provided to Officer Schick was a handwritten statement
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purporting to Defendant Green that was in actual fact compiled entirely by DeSantis based on complete falsehoods. Id. at ¶¶ 461-463. Macy’s and the Individual Defendants’ liability is premised on this false evidence upon which Plaintiff was twice indicted for theft. 17 Macy’s liability is also premised on the fact that it actively withheld from the Police Officer and the ADA exculpatory evidence regarding Plaintiff, thus securing his false arrest and prosecution.
DeSantis appeared before the Grand Jury who indicted Plaintiff. POINT XII: PLAINTIFF HAS ESTABLISHED A PRIMA FACIE §1983 CLAIM
AS AGAINST THE CITY DEFENDANTS. A 42 U.S.C.S. § 1983 claim to be free from unreasonable seizure is substantially the same as a claim for false arrest under state law, and, therefore, courts apply the relevant state law to such claims. Under New York state law, to prevail on a claim of false arrest a plaintiff must show that: (1) the defendant intended to confine him; (2) the plaintiff was conscious of the confinement; (3) the plaintiff did not consent to the confinement; and (4) the confinement was not otherwise privileged. Jocks v. Tavernier, 316 F.3d 128, 134 (2d Cir. 2003), quoting Broughton v. State, 37 N.Y.2d 451, 456, 373 N.Y.S.2d 87, 335 N.E.2d 310 (1975). To that end, there can be no federal civil rights claim for false arrest where the arresting officer had probable cause to arrest the plaintiff.18
17 Macy’s and the Individual Defendants are liable for false arrest under Section 1983. Infra. 18 Probable cause is established "when the arresting officer has knowledge or reasonably trustworthy information sufficient to warrant a person of reasonable caution in the belief that an offense has been committed by a person to be arrested." O'Neill v. Town of Babylon, 986 F.2d 646, 650 (2d Cir. 1993)
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Probable cause for Plaintiff’s arrest was sorely lacking. Plaintiff’s arrest was procured fraudulently and maliciously by DeSantis and Llewellyn. “An arresting officer advised of a crime by a person who claims to be the victim, and who has signed a complaint or information charging someone with the crime, has probable cause to effect an arrest absent circumstances that raise doubts as to the victim’s veracity.” (Emphasis added). Lee v. Sandburg, 136 F. 3d 94, 103 (2d Cir. 1997), quoting Singer v. Fulton County Sheriff, 63 F.3d 110, at 119 (2d Cir. 1995).
In Hebron v. Touhy, 18 F. 3d 421 (7th Cir. 1994), the court stated that “Sometimes information from or about a person claiming to be the victim of crime would lead a reasonable officer to be suspicious, making further investigation prudent – and, because the “reasonableness” standard of prudent conduct, the officer must do more.”, citing Reardon v. Wroan, 811 F. 2d 1025 (7th Cir. 1987); Moore v. Marketplace Restaurant, Inc., 754 F. 2d 1336, 1344-47 (7th Cir. 1985). In Hebron, police received complaints from two tenants who claimed that they were being deprived utility of services and the washer-dryer. The court found that the police did have probable cause to arrest the landlord, yet in making this ruling stated specifically stated that due to the police officers knowledge that the complainants were being evicted and that therefore there was a significant chance that they had a grudge against the landlord, it would have been unreasonable and thus unconstitutional to arrest the landlord without further investigation. Additionally, citing Illinios v. Gates, 462 U.S. 213 (1983), the court explained that, “having received a report of questionable reliability, the police needed to investigate.”
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As stated above, Macy’s provided Officer Schick with conflicting accounts of Plaintiff’s alleged involvement in the theft of Macy’s merchandise, which material also contained exculpatory evidence. Officer Schick testified that he received and reviewed this material that contained the false contradictory accounts of Plaintiff’s involvement. These accounts were so patently contradictory and false that they negated the probable cause for Plaintiff’s arrest and triggered a positive duty to conduct further investigations, which would have revealed Plaintiff’s innocence. See Pl’s Stmt ¶¶ 413-549 for the facts upon which Officer Schick’s personal liability for Plaintiff’s false arrest and subsequent malicious prosecution19.
Given the exigent circumstances, the arresting officer should have “utilized the means at hand to minimize the risk of error” and thus interviewed Green and conducted subsequent investigations. See BeVier v. Hucal, 806 F.2d 123 (7th Cir. 1986); See also, Gardenshire v. Schubert, 205 F. 3d 303, 318 (6th Cir. 2000) (officer could not ignore exculpatory evidence that he had at the time of arrest; taking it into account, he did not have the probable cause and further investigation was required). In actual fact, Officer Schick did nothing except rely solely on Macy’s conflicting accounts of Plaintiff’s involvement and a false statement written by DeSantis. See e.g., Pl’s Stmt ¶¶466-484.
Plaintiff has presented the Court with sufficient evidence to raise as a triable issue of fact whether Officer Schick had probable cause to effect the arrest of Plaintiff.
19 Officer Schick has yet to be served with a copy of the complaint and therefore has not personally appeared in this action. Plaintiff will serve Schick once this Court renders a ruling on the City Defendants’ Motion for Summary Judgment.
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POINT XIII: PLAINTIFF HAS ESTABLISHED A PRIMA FACIE § 1983 CLAIMS AS AGAINST MACY’S AND THE INDIVIDUAL DEFENDANTS.
Macy’s and the Individual Defendants are liable for Plaintiff’s false arrest and malicious prosecution for their active procurement of both by the rendering of false statements and evidence to the arresting and prosecuting authorities and the active concealment of exculpatory material that would have established Plaintiff’s innocence. See Pl’s Stmt ¶¶ 466-484.
Plaintiff’s claims under §1983 are predicated upon underlying equal protection violations and therefore may be alleged concurrently with his State and City HR claims. See Giano v. Senkowski, 54 F. 3d 1050, 1057 (2nd Cir. 1995); Saulpaugh v. Monroe Community Hosp., 4 F. 3d 134 (2nd Cir. 1993).
"To state a claim under § 1983, a plaintiff must allege the violation of a right secured by the Constitution and laws of the United States, and must show that the alleged deprivation was committed by a person acting under color of state law." West v. Atkins, 487 U.S. 42, 48, 101 L. Ed. 2d 40, 108 S. Ct. 2250 (1988).
Once action under color of state law is established, Plaintiff’s equal protection claim parallels his Title VII claim, and the City and State Human Rights claims. See Leopold v. Baccarat, Inc., 174 F.3d 261, 264 n.1 (2d Cir. 1999) (New York state law); Landwehr v. Grey Adver. Inc., 211 A.D.2d 583, 622 N.Y.S.2d 17, 18 (1st Dep't 1995) (New York City law).The elements of one are generally the same as the elements of the other and the two must stand or fall together. See Annis v. County of Westchester, 136 F.3d 239, 245 (2d Cir. 1998) ("In analyzing whether conduct was unlawfully discriminatory for purposes of § 1983, we borrow the burden-shifting framework of Title
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VII claims."); Jemmott v. Coughlin, 85 F.3d 61, 67 (2d Cir. 1996) (stating that "Title VII law . . . is utilized by courts considering § 1983 Equal Protection claims" and recognizing that "several circuits have held that, when § 1983 is used as a parallel remedy with Title VII in a discrimination suit . . . the elements of the substantive cause of action are the same under both statutes.")20.
A. Macy’s (through its agents) and the Individual Defendants Were Acting Under Color of State Law.
Moreover, Plaintiff will assert that in acting in concert with the police in procuring Plaintiff’s arrest, the Individual Defendants were acting under color of state law, and thus liable pursuant to Section 198321. See Adickes v. S.H. Kress & Co., 398 U.S. 144, 152, 90 S.Ct. 1598, 26 L.Ed. 2d 142 (1970). For a private persons to be deemed to act under “color of law” for the purposes of § 1983 it is not required that the Defendant(s) be officers of the State. It is enough that s/he is a willful participant in the joint activity with the State or its agents. Id. at 152 (quoting Unites States v. Price, 383 U.S. 787, 794 (1966). This joint participation test requires a showing of conspiratorial or other converted action. A conspiracy requires an agreement or meeting of the minds to violate federally protected rights. Although each participant need not know the details of the plan, together they must share a common objective. The joint participation doctrine is not limited to conspiracies, however. Sable Communications v. Pacific Tel. & Tel. Co., 890 F.2d 184, 189 (9th Circ. 1989), quoting Collins v. Womancare, 878 F.2d 1145, 1154 (9th Cir. 1989). Such cooperation exists when a state statute establishes a procedure which when utilized by one private person will violate the constitutional rights of another 20 There is individual liability, however, under Section 1983, and the City and Human Rights Laws, as opposed to Title VII, where individual liability is excluded. 21 The statute of limitations under § 1983 is three years.
75

Case 1:04-cv-02944-BSJ-HBP Document 81 Filed 06/17/05 Page 76 of 81
and the private party ‘invoked the aid of the state officials to take advantage of statecreated . . . procedures.” Id. (quoting Lugar v. Edmonson Oil. Co., 457 U.S. 922, 942 (1982).
Given all the circumstances surrounding Plaintiff’s arrest and the lack of probable cause, including the extent of the patently false and contradictory evidence that was furnished to Officer Schick, and the subsequent utter failure to adequately investigate, this raises a genuine issue of fact whether there was the requisite state action and whether there was a prearranged plan between the police and the store pursuant to which the police agree to arrest anyone identified by the store as a shoplifter without independently evaluating the existence of probably cause. Pl’s Stmt ¶¶ 466-484. See Morgan v. City of DeSoto, 900 F.2d 811, 815 (5th Cir.), cert denied, 498 U.S. 940 (1990); See also, Murray v. Wal-Mart, 874 F.2d 555 (8th Cir. 1989 (store owner and police acting jointly in detaining and prosecuting suspected shoplifter); Auster Oil & Gas Stream, 764 F. 2d 381 (5th Cir. 1985). B. Personal Involvement of the Individual Defendants.
Each of the named individual Defendants is liable in his individual capacity under Section 1983 for violating Plaintiff’s constitutional right to Equal Protection. A finding of "personal involvement of [the individual] defendants" in an alleged constitutional deprivation is a prerequisite to an award of damages under Section 1983. Provost v. City of Newburgh, 262 F.3d 146, 154 (2d Cir. 2001) (internal quotation marks omitted).
“Personal involvement” for purposes of Plaintiff’s § 1983 claim against the individual Defendants has been construed by the Second Circuit to mean “direct participation, or failure to remedy the alleged wrong after learning of it, or creation of a
76

Case 1:04-cv-02944-BSJ-HBP Document 81 Filed 06/17/05 Page 77 of 81
policy or custom under which unconstitutional practices occurred, or gross negligence in managing subordinates.” Black v. Coughlin, 76 F. 3d 72, 74 (2nd Cir. 1996)(citations omitted.) Defendants have not even stated facts which would suggest otherwise. Had they done so, this would be a fact issue of a jury. Williams v. Smith, 781 F.2d 319,323 (2nd Cir. 1986). There is no dispute that Defendants Chester, Llewellyn, and DeSantis, were personally involved in the decisions related to Plaintiff’s termination, or they may be sued in their individual capacities. Moreover, Plaintiff has presented sufficient evidence that these individuals had the requisite discriminatory and retaliatory animus towards Plaintiff and that this animus was a contributing factor that led to his false arrest and malicious prosecution.
C. The Individual Defendants Are Not Entitled To Qualified Immunity The individual defendants in this case are not entitled to qualified immunity. That
defense is only applicable where these individuals can prove that their conduct did not violate “clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).
Plaintiff’s right to be free from discrimination in the workplace on the basis of his race, national origin, and color is so well established that certainly any “reasonable person” would know that such acts violate both the State and City Human Rights laws as well as equal protection provisions under the constitution. POINT XIV: PLAINTIFF HAS ESTABLISHED A PRIMA FACIE § 1985
CLAIMS AS AGAINST MACY’S AND THE INDIVIDUAL DEFENDANTS. Macy’s and the Individual Defendants jointly conspired to deprive Plaintiff’s of his constitutionally protected rights and are thus liable to Plaintiff under § 1985.
77

Case 1:04-cv-02944-BSJ-HBP Document 81 Filed 06/17/05 Page 78 of 81
The Supreme Court, in Griffin v. Breckenridge, 403 U.S. 88, 104, 29 L. Ed. 2d 338, 91 S. Ct. 1790 (1971), held that § 1985(3) reached certain private conspiracies to deprive others of their legal rights. A legally sufficient § 1985(3) complaint must aver a conspiracy between two or more persons intended to deprive any person or class of persons of the equal protection of the laws or of equal privileges and immunities under the law and an act by one of the conspirators in furtherance of the conspiracy which injured another person or deprived him of exercising any right or privilege of a citizen of the United States. See Griffin v. Breckinridge, supra, 403 U.S. at 102-103; Cameron v. Brock, 473 F.2d 608, 610 (6 Cir. 1973).
A conspiracy "need not be shown by proof of an explicit agreement but can be established by showing that the 'parties have a tacit understanding to carry out the prohibited conduct.'" LeBlanc-Sternberg v. Fletcher, 67 F.3d 412, 427 (2d Cir. 1995), quoting United States v. Rubin, 844 F.2d 979, 984 (2d Cir. 1988). Furthermore, the conspiracy must also be motivated by "some racial or perhaps otherwise class-based, invidious discriminatory animus behind the conspirators' action." Mian v. Donaldson, Lufkin & Jenrette Sec. Corp., 7 F.3d 1085, 1088 (2d Cir. 1993), quoting United Bhd. of Carpenters, Local 610 v. Scott, 463 U.S. 825, 829, 77 L. Ed. 2d 1049, 103 S. Ct. 3352 (1983).
Accepting Plaintiff's allegations as true, this court should find that plaintiff failed to allege facts sufficient to constitute a conspiracy within the meaning of § 1985(3). The allegations in the complaint and the evidentiary record satisfies the threshold requirement of a conspiracy between two or more persons. Plaintiff has charged both a corporate defendant, Macy’s, and the individual defendants with conspiring to deprive him of his
78

Case 1:04-cv-02944-BSJ-HBP Document 81 Filed 06/17/05 Page 79 of 81
civil rights because of his race and national origin. In addition, the requirements that the conspirators act in furtherance of the conspiracy is met as Plaintiff claims that as part of the conspiracy, Defendant Chester, DeSantis and Llewellyn harassed Plaintiff by retaliating against him, which culminated in his false arrest and malicious criminal prosecution. Moreover, the record is replete with facts to show that race played a significant and “invidious” part in the challenged actions. See e.g., Gleason v. McBride, 869 F. 2d 694-95 (2d Cir. 1989). See supra.
In Rackin v. University of Pennsylvania, 386 F. Supp. 992 (E.D. Pa., 1974), Plaintiff alleged sex discrimination by the University, its officers, and certain tenured faculty members. The district court found the Dombrowski rationale inapplicable to the facts of the case because of the continuing and varied instances of discrimination and harassment: not only was plaintiff given tenure in a department other than the one in which it was earned, a decision clearly contrary to normal university policy, but subsequently she had been assigned only freshmen courses outside her area of specialty. The court found that these actions, more than a single decision by one business entity, supported a conspiracy allegation). Id. at 386 F. Supp. at 1005. Similarly, in the present case, Plaintiff alleges a conspiracy between two discrete departments at Macy’s, the Processing Department and the Security Departments, each headed by Chester and Llewellyn respectively, each with it’s own disparate responsibilities and functions so that the actions complained of by the plaintiff were clearly not actions of only one policymaking body but of several bodies. This mere fact supports Plaintiff’s contentions that they conspired to violate Plaintiff’s constitutional rights. Thus the Dombrowski
79

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rationale does not apply. See also, Girard v. 94th Street and Fifth Avenue Corp., supra, 396 F. Supp. at 455.
Likewise, in Griffin v. Beckenridge, 403 U.S. 88, 103 (1971), the Supreme Court held that the complaint had established the requisite element of a conspiracy under Section 1985, on the basis that it asserted that the multiple respondents had as "their purpose” …”to prevent [the] plaintiffs and other Negro-Americans, through . . . force, violence and intimidation, from seeking the equal protection of the laws and from enjoying the equal rights, privileges and immunities of citizens under the laws of the United States and the State of Mississippi," including a long list of enumerated rights such as free speech, assembly, association, and movement.” The court further noted that the complaint alleged that the respondents were "acting under a mistaken belief that R. G. Grady was a worker for Civil Rights for Negroes." Moreover, the claims of detention, threats, and battery amply satisfy the requirement of acts done in furtherance of the conspiracy. Id.
In the present case, DeSantis, Llewellyn and Chester all acted pursuant to joint conspiratorial scheme to deprive Plaintiff of his constitutional rights. Pl’s Stmt ¶¶ 466484.
XV. CONCLUSION Based upon the foregoing, and other than the Plaintiff’s common law false arrest claims, which are hereby withdrawn, Plaintiff respectfully requests that this Court deny Defendant’s motion for summary judgment in its entirety and provide Plaintiff with the relief that it deems just and appropriate under the circumstances.
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Dated:

New York, New York June 17, 2005

MICHAEL SHEN & ASSOCIATES, P.C.
/s/
By: ____________________________________ IAN WALLACE (IW: 3100) 225 Broadway, Suite 2515 New York, New York 10007 Attorneys for Plaintiff

81

 
 Case 1:04-cv-02944-BSJ-HBP Document 100 Filed 09/26/05 Page 1 of 25

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
-----------------------------------X
HAROLD BAERGAS,

USDCSDNY DOCUMENT ELECfRONICALLY FILED
DDAOTCE#F: I_LE_D_:_~ Uj •~ Jl,~ - 0~ 'f

Plaintiff,

04 Civ. 2944 (BSJ) (HBP)

-againstCITY OF NEW YORK, et al.

OPINION AND ORDER

Defendants.

-----------------------------------X

PITMAN, United States Magistrate Judge:

I. Introduction

This is an employment discrimination and civil rights case arising from the termination of plaintiff's employment and his simultaneous arrest and prosecution for theft from his employer. Defendants move for an Order, pursuant to Rule 21 of the Federal Rules of Civil Procedure, severing plaintiff's putative class action retaliation and employment discrimination claims from his federal and state claims for false arrest, false imprisonment, malicious prosecution, intentional infliction of emotional distress and a Monell claim for municipal liability. With the exception of the Monell claim, plaintiff appears to have filed all of his claims against all of the defendants whether they are affiliated with his former employer-- Macy's (the

Case 1:04-cv-02944-BSJ-HBP Document 100 Filed 09/26/05 Page 2 of 25
"Macy's Defendants")'-- or the City of New York (the "City Defendants") 2 • Plaintiff cross-moves to amend the putative class action complaint, pursuant to Rule 15(a) of the Federal Rules of Civil Procedure, to add an employment discrimination claim under 42 U.S.C. § 1981. For the reasons set forth below, both motions are denied.
II. Facts
A. Facts Underlying Plaintiff's Employment and Civil Rights Claims
Plaintiff, a Hispanic male of Puerto Rican origin, worked for Macy's East, Incorporated's ("Macy's") Herald Square location for approximately ten years (Complaint ~~ 3, 12). Plaintiff worked for Macy's as a stock person in its Handling Department on the tenth floor (Complaint ~ 13) . Plaintiff's supervisors in the Handling Department were Scott Chester and Richard Harris, both Caucasian males (Complaint ~~ 5-6, 15). Plaintiff alleges that Chester and Harris harbored discriminatory
1The Macy's Defendants include Macy's East, Inc., Federated Department Stores, Inc., the Frick Company, Federal Logistics, Christopher De Santis, Scott Chester, Junior, and Michael Green (Complaint ~~ 4-7). The parties have spelled defendant De Santis's name inconsistently. I use the spelling that is consistent with the spelling on the docket sheet in this matter.
2The City Defendants include the City of New York, the New York City Police Department and five "John Doe" police officers (Complaint ~~ 4, 8-10).
2

Case 1:04-cv-02944-BSJ-HBP Document 100 Filed 09/26/05 Page 3 of 25
animus towards plaintiff and other minorities and regularly made derogatory comments towards minorities including Hispanics (Complaint ~~ 21, 37).
Beginning in 2001, plaintiff alleges that Chester and Harris passed him over for a promotion on two occasions despite his continued employment with Macy's over a ten-year period and his excellent performance record (Complaint~~ 13-14, 17, 19). Plaintiff alleges that he was not promoted due to Chester and Harris's racial discrimination (Complaint~ 17). Plaintiff further alleges that Macy's instituted a new security policy called "Shortage Awareness," which was intended to encourage Macy's employees to report theft by co-workers by paying the reporting employee $500 for the apprehension of any alleged perpetrator (Complaint ~~ 28-29) . Plaintiff alleges that the Macy's Defendants used Shortage Awareness to justify close monitoring of minority employees while Caucasian employees were not scrutinized at all (Complaint ~ 32). Plaintiff further alleges that as a result of the Shortage Awareness policy, Macy's employees were encouraged by Macy's management to make false allegations against co-workers for monetary compensation (Complaint~ 33). According to plaintiff, the Macy's Defendants' comments and actions created a hostile work environment in which minority employees felt that Macy's management unfairly directed hostility and suspicion towards them (Complaint ~~ 20-35).
3

Case 1:04-cv-02944-BSJ-HBP Document 100 Filed 09/26/05 Page 4 of 25
Plaintiff and other minority employees complained to Macy's management about the unfair and discriminatory treatment that resulted from the policy but Macy's failed to take remedial action (Complaint ~~ 35, 38-39, 43). Plaintiff also complained directly to Chester about discriminatory treatment and filed grievances against him (Complaint ~ 38). The frequency of plaintiff's complaints increased in 2001 when he became union shop steward (Complaint ~~ 40-42). Plaintiff alleges that, as a result of his complaints about discriminatory treatment, the Macy's Defendants retaliated against him by subjecting him to intense scrutiny and suspending him without pay in early 2002 (Complaint ~ 44).
The Macy's Defendants' retaliatory animus towards plaintiff allegedly culminated in his arrest for stealing merchandise on March 6, 2002 and his subsequent termination (Complaint ~ 45). On March 6, 2002, plaintiff was in the employee locker room preparing to leave work for the day when five employees from Macy's internal security department approached him and a co-worker, Michael Green (Complaint ~ 47). The security personnel took plaintiff to a security holding room, where they handcuffed plaintiff, frisked him and detained him for approximately three hours (Complaint ~~ 49-51, 56, 68-69) . Defendant Chris DeSantis, a Regional Investigator in Macy's Security Department, told plaintiff that he had recovered two stolen items
4

Case 1:04-cv-02944-BSJ-HBP Document 100 Filed 09/26/05 Page 5 of 25
from plaintiff's locker; plaintiff denied that he had stolen the items (Complaint ~~ 60-61; Supplemental Declaration in Support of Scott Chester's Motion to Sever, submitted by Diane Krebs, Esq. and sworn to December 6, 2004 ("Krebs Decl. ") at ~ 3). Plaintiff alleges that the Macy's Defendants knew that plaintiff had not stolen any items and that they made up false allegations to retaliate against plaintiff for his complaints about discriminatory treatment (Complaint ~~ 62-67).
After being questioned by Macy's security personnel, New York City police officers arrived, arrested plaintiff and removed him from Macy's in handcuffs (Complaint~ 73). Plaintiff alleges that he requested legal representation after being arrested but that his request was denied (Complaint ~ 74). The police questioned plaintiff for approximately six hours and then placed him in a holding cell for approximately eighteen hours before releasing him (Complaint~~ 75-76). On or about March 7, 2002, the Macy's Defendants terminated plaintiff's employment (Complaint ~ 77).
Plaintiff was arraigned on an unspecified accusatory instrument on April 29, 2002 and charged with two counts of larceny (Complaint~ 79). On May 5, 2003 the case against plaintiff was dismissed for lack of evidence (Complaint ~ 84). On June 27, 2003, plaintiff was arraigned for the second time on the same larceny charges, and on August 13, 2003, the charges
5

Case 1:04-cv-02944-BSJ-HBP Document 100 Filed 09/26/05 Page 6 of 25
were dismissed for a second time for lack of evidence (Complaint ~~ 85, 93). Plaintiff alleges that his arrest and prosecution were based on false, biased and/or misleading testimony by the Macy's Defendants, including Chester and DeSantis (Complaint~~ 94-99). Plaintiff further alleges that the Macy's Defendants acted maliciously and were motivated by discriminatory animus towards plaintiff based upon his race and national origin and in retaliation for plaintiff's previous complaints about discriminatory treatment (Complaint ~ 100-101) . Plaintiff also alleges that his employment was terminated in retaliation for his complaints about discriminatory treatment (Complaint ~ 102) .
B. Procedural History
Plaintiff filed a class action complaint in this matter on April 16, 2004, seeking to represent a putative class on his claims of employment discrimination and retaliation (the "employment claims"), under the New York State Human Rights Law, N.Y. Exec. Law § 290 et ~· (the "NYSHRL") and the New York City Human Rights Law, N.Y.C. Admin. Code § 8-101 et ~· (the "NYCHRL") (Docket Item 1). In the complaint, plaintiff also sought relief under Section 1983, Section 1985 and common law for claims of false arrest, false imprisonment, malicious prosecution, defamation, intentional infliction of emotional distress
6

Case 1:04-cv-02944-BSJ-HBP Document 100 Filed 09/26/05 Page 7 of 25
and a Monell claim (the "civil rights claims"). Plaintiff asserts no employment discrimination claims under Title VII.
Both the Macy's Defendants and the City Defendants have answered the complaint (Docket Items 14, 19, 22). On September 2, 2004, the Macy's Defendants filed the instant motion to sever plaintiff's employment claims from his civil rights claims (Docket Item 20) . 3 On December 21, 2004, plaintiff filed his opposition to the Macy's Defendants' motion to sever and crossmoved to amend the complaint (Docket Item 37).
III. Analysis
A. Motion to Sever Pursuant to Rule 21
The Macy's Defendants argue that severance is appropriate because plaintiff's employment and civil rights claims involve distinct facts that require different witnesses and documentary proof, and, if severance is not permitted, discovery and trial will be confusing and burdensome. The Macy's Defendants further argue that plaintiff has offered no evidence to support his allegation that the Macy's Defendants retaliated against plaintiff by, among other things, falsely accusing him of
30n December 6, 2004, defendant Chester, who is represented by separate counsel than the remaining Macy's Defendants, filed a supplemental declaration in support of the Macy's Defendants motion to sever (Docket Item 35) .
7

Case 1:04-cv-02944-BSJ-HBP Document 100 Filed 09/26/05 Page 8 of 25

stealing merchandise and participating in his arrest, prosecution and termination. Plaintiff argues in opposition that the retaliatory animus alleged in the complaint suffices to inextricably link his employment and civil rights claims, and, therefore,

severance is inappropriate.

Rule 21 permits "[a]ny claim against a party [to] be

severed and proceeded with separately." Fed.R.Civ.P. 21. While

"[t]he decision whether to grant a severance motion is committed

to the sound discretion of the trial court," New York v.

Hendrickson Bros., Inc., 840 F.2d 1065, 1082 (2d Cir. 1988);

accord Deajess Med. Imaging P.C. v. Allstate Ins. Co., 03 Civ.

3920 (RWS), 2004 WL 2729790 at *2 (S.D.N.Y. Nov. 30, 2004); Dawes

v. Pataki, 00 Civ. 2829 (SHS), 2004 WL 1562842 at *1 (S.D.N.Y.

July 13, 2004); In re Worldcom, Inc. Sec. Litig., 02 Civ. 3288

(DLC), 2003 WL 1563412 at *3 (S.D.N.Y. Mar. 25, 2003), "the

Federal courts view severance as a 'procedural device to be

employed only in exceptional circumstances.'" Wausau Bus. Ins.

Co. v. Turner Constr. Co., 99 Civ. 0682 (RWS), 2001 WL 963943 at

*1 (S.D.N.Y. Aug. 23, 2001), quoting Marisol A. v. Guiliani, 929

F. Supp. 662, 693 (S.D.N.Y. 1996); Cramer v. Fedco Auto. Compo-

nents Co., 01-CV-0757(E), 2002 WL 1677694 at *1 (S.D.N.Y. July

18, 2002) ("[S]eparate trials are the exception rather than the

rule

. . "); ~United Mine Workers of Am. v. Gibbs, 383 U.S.

715, 724 (1966) (" [J] oinder of claims, parties and remedies is

8

Case 1:04-cv-02944-BSJ-HBP Document 100 Filed 09/26/05 Page 9 of 25
strongly encouraged" under the Federal Rules of Civil Proce-
dure. ) . In choosing whether to exercise its discretion, the
district court is guided by "considerations of convenience, avoidance of prejudice to the parties, and efficiency." Hecht v. City of New York, 217 F.R.D. 148, 150 (S.D.N.Y. 2003); accord Deajess Med. Imaging, P.C. v. Geico Gen. Ins. Co., 03 Civ. 7388 (DF), 2005 WL 823884 at *2 (S.D.N.Y. Apr. 7, 2005); Dawes v. Pataki, supra, 2004 WL 1562842 at *1. Thus, courts consider the following factors when determining whether severance is appropriate:
(1) whether the claims arise out of the same transaction or occurrence, (2) whether the claims present common questions of fact or law, (3) whether severance would serve judicial economy, (4) prejudice to the parties caused by severance, and (5) whether the claims involve different witnesses. and evidence. Boston Post Road Med. Imaging. P.C. v. Allstate Ins. Co., 03 Civ. 3923 (RCC), 2004 WL 1586429 at *1 (S.D.N.Y. July 15, 2004), citing Preferred Med. Imaging, P.C. v. Allstate Ins. Co., 303 F. Supp.2d 476, 477 (S.D.N.Y. 2004); In re Merrill Lynch & Co .. Research Reports Sees. Litig., 214 F.R.D. 152, 154-55 (S.D.N.Y. 2003); ~also Fed.R.Civ.P. 20(a); Fong v. Rego Park Nursing Home, 95 Civ. 4445 (SJ), 1996 WL 468660 at *2 (E.D.N.Y. Aug. 7, 1996) ("Although Rule 21 is silent about the grounds for misjoinder, courts have held that [claims] are misjoined when they fail to satisfy [the requirements of] Rule 20(a) ."); United States v.
9

Case 1:04-cv-02944-BSJ-HBP Document 100 Filed 09/26/05 Page 10 of 25

Yonkers Bd. of Educ., 518 F. Supp. 191, 195-96 (S.D.N.Y. 1981) (analyzing the appropriateness of severance pursuant to Rule 21 in conjunction with the requirements of Rule 20(a)). An analysis of these factors reveals that severance is not appropriate here.
As stated above, the Macy's Defendants argue that the occurrences underlying plaintiff's employment claims are wholly distinct from those underlying plaintiff's civil rights claims and involve different witnesses and evidence. In considering defendants' motion, I must assume the truth of the allegations in the complaint. In re Vitamins Antitrust Litig., Misc. 99-197 (TFH), 2000 WL 1475705 at *18 (D.D.C. May 9, 2000); ~United States v. Yonkers Bd. of Educ., supra, 518 F. Supp. at 193 (accepting as true the allegations in the complaint when considering a severance motion) . Assuming those allegations to be true, plaintiff's employment and civil rights claims do arise

from the same transaction. In the context of a motion to sever discrimination
claims from civil conspiracy and other non-discrimination claims, federal courts have interpreted Rule 21's reference to a "trans-

actionu expansively:

[A t]ransaction

. may comprehend a series of many

occurrences, depending not so much upon the immediate-

ness of their connection as tionship. Accordingly, all

upon their "logically

logical relarelatedu events

entitling a person to another generally are

institute a regarded as

legal action comprising a

against transac-

tion or occurrence.

10

Case 1:04-cv-02944-BSJ-HBP Document 100 Filed 09/26/05 Page 11 of 25

Barner v. City of Harvery, 95 C 3316 (RAG), 2003 WL 1720027 at *3 (N.D. Ill. Mar. 31, 2003), quoting Mosely v. Gen. Motors Corp., 497 F.2d 1330, 1333 (8th Cir. 1974); accord Puricelli v. CNA Ins. Co., 185 F.R.D. 139, 143 (N.D.N.Y. 1999) (adopting the Mosely "logically related" test) Plaintiff's allegations that the Macy's Defendants retaliated against him for complaints about discriminatory treatment by having him arrested and prosecuted based on false charges are sufficient to establish a "logical relationship" between the employment and civil rights claims.'
In paragraph 45 of his complaint, plaintiff alleges that the Macy's Defendants retaliated against plaintiff for complaining about discriminatory treatment and that the "retaliation culminated in Plaintiff's false arrest and malicious prosecution, and the unlawful termination of Plaintiff's employment" (Complaint ~ 45) . Plaintiff also alleges that his "arrest and prosecution was procured by Macy's on the basis of Defendants' false, biased, and/or misleading testimony, including the testimony of Defendants Chester and DeSantis [sic]" (Complaint~ 94;

'An excerpt of plaintiff's deposition testimony also pAdsculel)a.pfaiepminnoW drtat(ihsnsfietflete'hsGeKtrhdareaesesblplodsoeesgaDpiantoeidtcsoiolinP.tnioosatlenitscitneEtiemxsOtstoh.ifnemfyBiocc, noweyCmri,tphoSlEfcarh)ied,nicsetkpafeet(niscsedttheaectnoKot vnrDheetberriyass rSymDraeneottcstoailt.s,li,aaatnti

Ex. on

issue of material fact exist inappropriate. See Deajess Co., supra, 2004 WL 2729790 sever based, in part, on the

s. Thus, severance remains Med. Imaging P.C. v. Allstate Ins. at *6 (denying defendant's motion to
conflicting evidence in the record).

11

Case 1:04-cv-02944-BSJ-HBP Document 100 Filed 09/26/05 Page 12 of 25

see Complaint ~ 102). These allegations demonstrate that plaintiff's claims arise from the same transaction or occurrence because plaintiff's employment and civil rights claims are all alleged to be grounded on the Macy's Defendants' discriminatory

and retaliatory animus.

In addition, plaintiff's employment and civil rights

claims present common questions of law and fact. See United

States v. Yonkers Bd. of Educ., supra, 518 F. Supp. at 195 n.3

("Although [Rule 21] requires a question of law or fact common to

all defendants, it does not require that the common question be

the basis for an identical claim against each defendant.H). Under

McDonnell Douglas 5, in order to establish a prima facie case on

one of his employment claims

retaliation -- plaintiff must show

that the Macy's Defendants took an adverse action against plain-

tiff as retribution for his complaints about discriminatory

treatment. Prince v. Cablevision Sys. Corp., 04 Civ. 8151 (RWS),

2005 WL 1060373 at *12 (S.D.N.Y. May 6, 2005), citing Gordon v.

New York City Bd. of Educ., 232 F.3d 111, 116 (2d Cir. 2000).

Plaintiff's termination, arrest and criminal prosecution are all

admissible as evidence of adverse actions. See Feingold v. New

York, 366 F. 3d 138, 156-57 (2d Cir. 2004) (holding that termina-

tion constitutes an adverse employment action); Russo v. City of

Hartford, 341 F. Supp.2d 85, 113 (D. Conn. 2004) (holding, in the

5McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). 12

Case 1:04-cv-02944-BSJ-HBP Document 100 Filed 09/26/05 Page 13 of 25
context of a First Amendment retaliation claim, that arrest and prosecution constituted adverse employment actions because they triggered an automatic suspension) . Assuming that plaintiff meets
the -de minimus. burden of establishing a p.rima facie case of
retaliation, Jute v. Hamilton Sundstrand CorP., No. 04-3927-CV, 2005 WL 2008459 at *5 (2d Cir. Aug. 23, 2005); Trealia v. Town of Manlius, 313 F.3d 713, 719 (2d Cir. 2002), the Macy's Defendants will, no doubt, offer plaintiff's arrest for theft of store merchandise as at least part of their legitimate, non-discriminatory reason for plaintiff's termination.
Similarly, if plaintiff establishes a prima facie case of race or national origin discrimination, his arrest for theft of store merchandise will also be relevant to the Macy's Defendants' non-discriminatory reason for terminating plaintiff. See Barner v. City of Harvey, supra, 2003 WL 1720027 at *3 (discussing defendants' need to establish a legitimate, non-discriminatory rationale for the adverse employment action taken against each plaintiff in a multi-plaintiff discrimination case).
In order to prove one of plaintiff's civil rights claims malicious prosecution -- plaintiff must offer evidence that the Macy's Defendants acted with actual malice when they participated in plaintiff's arrest and prosecution. Cook v. Sheldon, 41 F.3d
73, 79 (2d Cir. 1994); Golub v. City of New York, 334 F. Supp.2d
399, 406 (S.D.N.Y. 2004). The likely source of malice evidence
13

Case 1:04-cv-02944-BSJ-HBP Document 100 Filed 09/26/05 Page 14 of 25
will be testimony and documents involving the Macy's Defendants' alleged discriminatory animus towards plaintiff and the alleged retaliatory action taken against him. Hernandez v. City of Rochester, 260 F. Supp.2d 599, 615 (W.D.N.Y. 2003) (stating that actual malice requires evidence of a "wrong or improper motive, something other than a desire to see the ends of justice served") . Thus, severance is inappropriate because plaintiff's employment and civil rights claims are factually and legally intertwined, and the evidence relevant to each claim will overlap. See Puricelli v. CNA Ins. Co., supra, 185 F.R.D. at 143 ("[Severance] does not require the commonality of all questions of law and fact raised in the dispute, rather, the requirement is satisfied if there is any question of law or fact common to all parties.");~ also Epstein v. Kemper Ins. Cos., 210 F. Supp.2d 308, 320 (S.D.N.Y. 2002) (denying severance motion where plaintiffs alleged similar factual and legal questions concerning age discrimination by the same supervisor); Rochlin v. Cincinnati Ins. Co., IP00-1898-CH/K, 2003 WL 21852341 at *14 (S.D. Ind. July 8, 2003) (in putative class action discrimination case, granting plaintiffs' motion for permissive joinder due, in part, to the likelihood of duplicative evidence offered by each plaintiff) .
The Macy's Defendants' argument that plaintiff has not offered evidence to support the allegations of retaliation in the complaint (Corrected Reply Memorandum of Law in Support of the
14

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Macy's Defendants' Motion to Sever and in Opposition to Plaintiff's Cross-Motion to Amend his Complaint, dated October 18, 2004 ("Def. Reply Mem."), at 3-4) ' is immaterial. The factors relevant to the resolution of a motion to sever simply do not include the strength of any party's case. See pages 8-10, supra. If defendants are correct and there is no evidence to support one or more of plaintiff's claims, the appropriate vehicle to assert that argument is a summary judgment motion pursuant to Rule 56. The merits of the claims (or the defenses) have no logical relationship to whether claims should be tried together. See Solomon v. Marty Gutmacher, Inc., 87 Civ. 1230 (JFK), 1989 WL 16588 at *1 (S.D.N.Y. Feb. 23, 1989) (permitting joinder pursuant to Rule 21 over defendants' objection that plaintiffs proffered insufficient evidence of potential liability). Accordingly, the Macy's Defendants' argument fails.
Next, the Macy's Defendants argue that the interests of judicial economy and efficiency will be served by severing plaintiff's claims. Plaintiff argues in response that trying the employment and civil rights claims jointly promotes judicial economy because the evidence relevant to both claims is intertwined. I agree with plaintiff; as explained above, the evidence relevant to plaintiff's claims overlaps substantially and cannot be neatly segregated. This case is easily distinguishable from cases in which severance was found to be appropriate. For in-
15

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stance, in Deajess Med. Imaging, P.C. v. Travelers Indemnity Co., 222 F.R.D. 563, 564 (S.D.N.Y. 2004), thirty-three individuals assigned their no-fault automobile insurance claims to plaintiff in exchange for plaintiff's medical services. Upon plaintiff's subsequent action to collect payment on the insurance claims, the Honorable Louis L. Stanton, United States District Judge, granted defendant's motion to sever because permitting the case to go to trial as pled in the complaint would require a jury to parse through evidence on thirty-three separate, unrelated accidents with totally different facts. Similarly, in a related case involving the same plaintiff, Deajess Med. Imaging, P.C. v. Geico Gen. Ins. Co., supra, 2005 WL 823884 at *2-*5, the Honorable Debra Freeman, United States Magistrate Judge, granted defendant's severance motion where plaintiff sought to collect on forty-nine no-fault insurance claims resulting from forty-nine separate car accidents. In contrast, here, the allegations concerning plaintiff's employment and civil rights claims involve interrelated facts concerning plaintiff's employment during a relatively short period in 2001 and 2002 (see Complaint~~ 17, 41, 44, 46, 77). Thus, judicial economy would not be served by severing plaintiff's claims, and this factor is met.
Last, the Macy's Defendants argue that severance is appropriate because they will be prejudiced if the employment and civil rights claims remain joined. Specifically, the Macy's
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Defendants argue that they will be prejudiced by the unwieldy scope of discovery and confusion to the jury and that the City Defendants will be prejudiced by being forced to defend against a putative class action when none of the employment claims involves them. Plaintiff argues that he will be prejudiced if severance is permitted because his state and city claims for employment discrimination will be remanded to state court for lack of subject matter jurisdiction making discovery more arduous.
The Macy's Defendants have not shown that they will suffer prejudice sufficient to make severance appropriate here. First, discovery in this matter closed on December 15, 2004 (Docket Item 32), and all defendants filed motions for summary judgment on April 1, 2005 (Docket Items 54, 57). Accordingly, the Macy's Defendants' first argument concerning the scope of discovery is moot. Second, the Macy's Defendants' argument with respect to jury confusion is not persuasive. It is not unusual for juries in this District to resolve cases involving multiple claims and multiple defendants, and any risk that the jury may become confused can be addressed by clear jury instructions. Rochlin v. Cincinnati Ins. Co., supra, 2003 WL 21852341 at *14 (~The risk of confusion and possible prejudice to defendant can be minimized with careful jury instructions."); see Lewis v. Triborough Bridge & Tunnel Auth., 97 Civ. 0607 (PKL), 2000 WL 423517 at *5 (S.D.N.Y. Apr. 19, 2000). Finally, the Macy's Defendants' argument concern-
17

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ing the City Defendants also fails. The Macy's Defendants are attempting to ride the coattails of their co-defendants by arguing that the City Defendants would be prejudiced by having to defend against a class certification motion concerning claims that do not involve them. The City Defendants, however, do not appear to be prejudiced at all. In fact, according to the Docket Sheet in this case, the City Defendants have not filed any opposition to plaintiff's class certification motion, and in plaintiff's memorandum in support of its class certification motion, plaintiff does not appear to be addressing his employment claims towards the City Defendants (Docket Item 42 & Attachment 1). Thus, the City Defendants cannot be prejudiced by the possibility of defending against claims which, in reality, are not lodged against them.
Accordingly, the Macy's Defendants have not satisfied their burden of proving that severance is appropriate, and, therefore, the motion to sever plaintiff's employment and civil rights claims is denied. 6
'Because the Macy's Defendants have failed to satisfy their burden of proving that severance is appropriate, I need not address whether plaintiff would be prejudiced if severance were granted.
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B. Motion to Amend the Complaint Pursuant to Rule 15(a)
1. Applicable Standard
The standards applicable to a motion to amend a pleading are well-settled and require only brief review. Leave to amend a pleading should be freely granted when justice so requires. Fed.R.Civ.P. 15(a); Foman v. Davis, 371 U.S. 178, 182 (1962); Jin v. Metro. Life Ins. Co., 310 F.3d 84, 101 (2d Cir. 2002); Dluhos v. The Floating & Abandoned VesseL Known as "New York", 162 F. 3d 63, 69 (2d Cir. 1998); Gumer v. Shearson, Hammill & Co., 516 F.2d 283, 287 (2d Cir. 1974); Koehler v. New York City, 04 Civ. 6929 (RMB), 2005 WL 1123758 at *9 (S.D.N.Y. May 11, 2005). "Nonetheless, the Court may deny leave if the amendment (1) has been delayed unduly, (2) is sought for dilatory purposes or is made in bad faith, (3) the opposing party would be prejudiced, or (4) would be futile." Lee v. Regal Cruises, Ltd., 916 F. Supp. 300, 303 (S.D.N.Y. 1996), aff'd, 116 F.3d 465 (2d Cir. 1997). Accord Am. Home Assur. Co. v. Jacky Maeder (Hong Kong) Ltd., 969 F. Supp. 184, 187-88 (S.D.N.Y. 1997).
A proposed amendment is futile when it fails to state a claim. Health-Chem Corp. v. Baker, 915 F.2d 805, 810 (2d Cir. 1990) ("Although Fed. R. Civ. P. 15(a) provides that leave to amend should be given freely when justice so requires, where, as
19

Case 1:04-cv-02944-BSJ-HBP Document 100 Filed 09/26/05 Page 20 of 25
here, there is no merit in the proposed amendments, leave to amend should be dehied."); Neshewat v. Salem, 365 F. Supp.2d 508, 515-16 (S.D.N.Y. 2005); Bonano v. Southside United Hous. Dev. Corp., 363 F. Supp.2d 559, 562 (S.D.N.Y. 2005); Mina Inv. Holdings Ltd. v. Lefkowitz, 184 F.R.D. 245, 257 (S.D.N. Y. 1999); Parker v. Sony Pictures Entm't, Inc., 19 F. Supp.2d 141, 156 (S.D.N.Y. 1998), aff'd in pertinent part, vacated in part on other grounds sub nom., Parker v. Columbia Pictures Indus., 204 F.3d 326 (2d Cir. 2000); Yaba v. Cadwalader, Wickersham & Taft, 931 F. Supp. 271, 274 (S.D.N.Y. 1996); Prudential Ins. Co. v. BMC Indus., Inc., 655 F. Supp. 710, 711 (S.D.N.Y. 1987) (Although leave to amend should be freely given, uit is inappropriate to grant leave when the amendment would not survive a motion to dismiss."). See aenerally Dluhos v. Floating & Abandoned Vessel known as uNew York", supra, 162 F.3d at 69-70. uThe proposed Amended Complaint may therefore be scrutinized as if defendant's objections to the amendments constituted a motion to dismiss under Fed.R.Civ.P. 12(b) (6) ." Journal Publ'g Co. v. Am. Home Assur. Co., 771 F. Supp. 632, 635 (S.D.N. Y. 1991).
The Court of Appeals has repeatedly noted that the trial court has abroad" discretion in ruling on a motion to amend. Local 802, Associated Musicians v. Parker Meridien Hotel, 145 F.3d 85, 89 (2d Cir. 1998); Krumme v. Westpoint Stevens Inc., 143 F.3d
20

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71, 88 (2d Cir. 1998). See generally Grace v. Rosenstock, supra, 228 F.3d 40, 53-54 (2d Cir. 2000).
Plaintiff seeks to amend the complaint to add a discrimination claim pursuant to 42 U.S.C. § 1981. According to plaintiff, the same facts that support his preexisting employment claims pursuant to the NYSHRL and NYCHRL would support his Section 1981 claim, and all of his employment claims are subject to the same McDonnell Douglas analysis.' Therefore, plaintiff argues, there would be no prejudice to the Macy's Defendants as a result of this amen~~ent. The Macy's Defendants oppose the motion on the grounds of timeliness and futility.
With respect to timeliness, the Macy's Defendants argue that plaintiff's motion to amend should be denied because plaintiff filed the motion after the deadline for amending the pleadings. My July 8, 2004 Scheduling Order in this matter (Docket Item 16) set the deadline for motions to amend the pleadings at August 16, 2004. Plaintiff did not file his motion to amend until October 22, 2004.
Although Rule 15 encourages courts to freely grant motions to amend, Rule 15 must be read in conjunction with Rule 16(b) which requires compliance with scheduling orders. See
7Given the overlap between plaintiff's existing employment claims and his proposed Section 1981 claim, it appears that the only reason for the proposed amendment is to provide a basis for federal jurisdiction in the event the severance motion is granted.
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Fed. R. Civ. P. 16 (b) (Scheduling orders "shall not be modified except upon a showing of good cause.u). Plaintiff's motion to amend in this case was filed more than two months after the deadline that I set. Although plaintiff argues that the amendment will not prejudice defendants, he does not even proffer any explanation for his failure to comply with the scheduling order issued in this matter.
Under these circumstances, denial of plaintiff's motion to amend does not constitute an abuse of discretion. As the Court of Appeals explained in Parker v. Columbia Pictures Indus., supra, 204 F.3d at 340:
Several circuits have ruled that the Rule 16(b) "good causeu standard, rather than the more liberal standard of Rule 15(a), governs a motion to amend filed after the deadline a district court has set for amending the pleadings. As the Eleventh Circuit has noted, "[i]f we considered only Rule 15(a) without regard to Rule 16(b), we would render scheduling orders meaningless and effectively would read Rule 16(b) and its good cause req~irement out of the Federal Rules of Civil Procedur~." Sosa v. Airprint Sys., Inc., 133 F.3d 1417, 1419 (11th Cir. 1998) (per curiam); see also In re Milk Prods. Antitrust Litig., 195 F.3d 430, 437 (8th Cir. 1999) ("When the district court has filed a Rule 16 pretrial scheduling order, it may properly require that good cause be shown for leave to file an amended pleading that is substantially out of time under that order.") ; Johnson v. Mammoth Recreations, Inc., 97 5 F. 2d 604, 610 (9th Cir. 1992) ("Disregard of the [scheduling] order would undermine the court's ability to control its docket, disrupt the agreed-upon course of the litigation, and reward the indolent and the cavalier. Rule 16 was drafted to prevent this situation[,] and its standards may not be short-circuited by an appeal to those of Rule 15."); Riofrio Anda v. Ralston Purina Co., 959 F.2d 1149, 1154-55 (1st Cir. 1992) (relying on Rule 16(bJ in refusing to allow an amendment after the sched-
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uling order deadline despite the lenient standards of Rule 15(a)). Several district courts in our Circuit have adopted this rule as well. See Covington v. Kid, No. 94 Civ. 4234 (WHP), 1999 WL 9835, at *3 (S.D.N.Y. Jan. 7, 1999) (finding that a movant who fails to comply with a scheduling deadline must satisfy "good cause" req'.lirement of Rule 16(b) as well as standards of Rule 15(a)); Carnrite v. Granada Hosp. Group, Inc., 175 F.R.D. 439, 446 (W.D.N.Y. 1997) (same); Mayes v. Local 106, Int'l Union of Operating Eng'rs, No. 86-CV-41, 1992 WL 335964, at *9 (N.D.N.Y. Nov. 12, 1992) (same).
We now join these courts in holding that despite the lenient standard of Rule 15(a), a district court does not abuse its discretion in denying leave to amend the pleadings after the deadline set in the scheduling order where the moving party has failed to establish good cause. Moreover, we agree with these courts that a finding of "good cause" depends on the diligence of the moving party. See In re Milk Prods., 195 F.3d at 437 (fir1ding no good cause where dismissal of the first complaint "should have alerted plaintiffs" to inadequacies in the second complaint); Sosa, 133 F.3d at 1419 (finding no good cause where party failed to discover necessary information and was on notice in advance of the deadline that her complaint was inadequate); Johnson, 975 F.2d at 609 (refusing to find good cause under Rule 16(a) where party received notice long in advance of the deadline that the complaint did not name all necessary parties). See also Grochowski v. Phoenix Constr., 318 F.3d 80, 86 (2d Cir. 2003); Urban Box Office Network, Inc. v. Interfase Managers, L.P., 01 Civ. 8854 (LTS)(THK), 2005 WL 1639333 at *2 (S.D.N.Y. July 12, 2005); In re Wireless Tel. Servs. Antitrust Litig., 02 Civ. 2637 (DLC), 2004 WL 2244502 at *5 (S.D.N. Y. Oct. 6, 2004). Plai~tiff here cannot be said to have acted diligently. At the initial pre-trial conference held in this matter on July 7, 2004, plaintiff clearly indicated that he was contemplating an amendment to the complaint to add a claim under Section 1981
23

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(Untranscribed Recording of Initial Pre-Trial Conference in Docket Number 04 Civ, 2944, dated July 7, 2004). Plaintiff, therefore, cannot now claim to have been unaware of the information that formed the basis for adding the Section 1981 claim. Plaintiff offers no excuse at all for his more-than-two-month delay in moving to amerd the complaint. Thus, plaintiff failed to act diligently and sannot show ngood cause" for his tardy motion. Grochowski v ..?hoenix Constr., §.UPra, 318 F.3d at 86; Credit Suisse First 5oston LLC v. Coeur D'Alene Mines Corp., 03 Civ. 9547 (PKL) (MHD), 2004 WL 2903772 at *6 (S.D.N.Y. Dec. 15, 2004). Accordingly, ~'"-aintiff' s motion to amend the complaint is denied' as untimely.
'Because plaintiff's motio~ to amend fails on the grounds of timeliness, I need not address defendant's al ternati ere argument concerning L;e futility of the amendment.
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IV. Conclusion

Accordingly, for the reasons set forth above, defendant's motion to sever is denied and plaintiff's cross-motion to amend the complaint is also denied.

Dated: New York, New York August 25, 2005

SO ORDERED

Copies transmltted to:

Ian F. Wallace, Esquire Michael Shen & Associates,
225 Broadway
Suite 2515 New York, New York, 10007

P.C.

Diane Saunders, Esquire Morgan, Brown ~ Joy, LLP
One Boston Place
Suite 1616 Boston, Massachusetts 02108-4472

HENRY PIT N United States Magistrate Judge

25

 
 Case 1:04-cv-02944-BSJ-HBP Document 103 Filed 03/15/06 Page 1 of 34

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

----------------------------------------x

HAROLD BAERGAS, on Behalf of Himself :

and Others Similarly Situated

:

:

Plaintiff,

:

:

v.

:

:

THE CITY OF NEW YORK, NEW YORK CITY

:

POLICE DEPARTMENT, FEDERATED LOGISTICS, :

FEDERATED DEPARTMENT STORES, INC.,

:

MACY’S EAST, THE FRICK COMPANY, and

:

SCOTT CHESTER, JR., CHRIS DE SANTIS, :

MICHAEL GREEN, JOHN DOES 1-5,

:

Individually,

:

:

Defendants.

:

----------------------------------------x

BARBARA S. JONES

UNITED STATES DISTRICT JUDGE

04 Civ. 2944 (BSJ) Order

Plaintiff is a Hispanic male of Puerto Rican origin.

Defendants are corporate entities, including Federated

Logistics, Federated Department Stores, Inc., Macy’s East

(“Macy’s”), and the Frick Company (the “Macy’s Defendants”);

private individuals, including Scott Chester (“Chester”), Chris

De Santis (“De Santis”), and Michael Green (“Green”), who at all

relevant times were employed by Macy’s at its Herald Square

location in New York; and municipal entities and employees,

including the City of New York, the New York City Police

Department (“NYPD”) and John Does 1 through 5 (presently unknown

police officers) (collectively, the “City Defendants”).

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Case 1:04-cv-02944-BSJ-HBP Document 103 Filed 03/15/06 Page 2 of 34
Plaintiff’s complaint contains eight counts. The first four counts are common law tort claims, including false arrest, malicious prosecution, defamation, and intentional infliction of emotional distress, stemming from plaintiff’s arrest on March 6, 2002 for larceny. Counts five and six are employment discrimination claims, alleging discrimination and retaliation on the basis of race and national origin under the under the New York State Human Rights Law, N.Y. Exec. Law § 290 et seq. (the “NYHRL”) and the New York City Human Rights Law, N.Y. C. Admin Code § 8-101 et seq (the “NYCHRL”). 1 Count seven alleges “municipal liability” for the acts of John Does 1 through 5 in connection with plaintiff’s arrest, the details surrounding which are described below. Finally, count eight, which contains the only federal claims in the complaint, alleges liability under 42 U.S.C. §§ 1983 and 1985(3).
With the exception of count seven, municipal liability, plaintiff does not specify which of his claims are asserted against which defendants. Although the blanket language of the complaint suggests that these counts are asserted against all defendants, plaintiff’s motion papers indicate otherwise.
Plaintiff’s complaint fails to comply with FED. R. CIV. P. 8(a)(1), which requires “a short and plain statement of grounds upon which the court’s jurisdiction depends.” Diversity
1 Notably, plaintiff does not bring employment discrimination claims under Title VII of the Civil Rights Act.
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jurisdiction is not asserted in plaintiff’s complaint or in plaintiff’s motion papers. The Court concludes that the only possible basis for this Court’s subject matter jurisdiction over this action is federal question jurisdiction under 28 U.S.C. § 1331 arising from plaintiff’s eighth and final cause of action, which alleges liability against the defendants under 42 U.S.C. §§ 1983 and 1985(3).
Pursuant to FED. R. CIV. P. 56, the defendants have moved for summary judgment. Pursuant to FED. R. CIV. P. 15, plaintiff Harold Baergas has moved to amend the complaint. Pursuant to FED. R. CIV. P. 23, plaintiff has also moved for class certification with respect to his claims of employment discrimination and retaliation under the NYHRL and the NYCHRL.2
In his memorandum of law opposing summary judgment dated June 17, 2005, plaintiff withdrew the first count of his complaint, the common law claim for false arrest.
For the reasons set forth below, plaintiff’s motion to amend the complaint is DENIED. The defendants motions for summary judgment are GRANTED. Plaintiff’s motion for class certification is DENIED.
Plaintiff’s Allegations
2 Plaintiff also sought class certification with respect to a claim, not included in his original complaint, under 42 U.S.C. § 1981. Plaintiff filed a motion on October 7, 2004 to amend the complaint to add a claim under § 1981; that motion was denied by Order of Magistrate Judge Pitman, dated August 25, 2005.
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As contained in his Complaint and his Memorandum in Support of his Motion for Class Certification, plaintiff’s allegations are as follows: plaintiff worked as a stock person in the Handling Department (also referred to as “Processing”) on the tenth floor at Macy’s Herald Square location for approximately ten years. According to plaintiff, the Processing Department consists almost exclusively of minority employees. Plaintiff’s supervisors in the Department were Scott Chester and Richard Harris, both Caucasian males.
Plaintiff claims, and defendants dispute, that he was subjected to disparate treatment on account of his race and national origin, a hostile work environment, and retaliation as a result of complaints to his supervisor. With respect to class-wide claims, plaintiff alleges, and defendants dispute, that he and the putative class, consisting of (1) minority employees in the processing department under defendant Chester’s tenure as manager of the department from July 1999 to January 2004 and (2) minority employees who worked on the tenth floor, were subject to racial discrimination in violation of NYHRL and NYCHRL in the following ways: (1) enhanced scrutiny and intrusive surveillance from the Macy’s Security Department; (2) a hostile work environment, in the form of racist jokes and derogatory remarks by plaintiff’s supervisor, Chester; and (3)
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unhealthy, unsafe, and unsanitary conditions in the processing department on the Tenth Floor.
Plaintiff was suspended without pay in February 2002. Plaintiff returned to work, but on March 6, 2002, he was approached by employees from Macy’s internal security department. The security personnel took plaintiff to a security holding room and detained him for approximately three hours, based on their alleged observations of plaintiff’s involvement in the theft of store merchandise. Subsequently, New York City police officers arrived, arrested plaintiff, and removed him from Macy’s. Plaintiff alleges that his arrest was based in part on false statements by Chris DeSantis, an employee in Macy’s Security Department, and co-worker Michael Green,3 who are also named as defendants in this action.
Plaintiff was indicted on charges of Grand Larceny and Criminal Possession of Stolen Property. Plaintiff was arraigned on two occasions – April 29, 2002 and June 27, 2002. Charges were dismissed on speedy trial grounds on August 13, 2003.
Plaintiff’s employment at Macy’s was terminated subsequent to his arrest. Plaintiff alleges, and defendants dispute, that his employment was terminated in retaliation for his complaints regarding discriminatory treatment. Plaintiff also alleges that his arrest and prosecution were based on false, biased, and/or
3 Under plaintiff’s motion for class certification, defendant Green, who is African-American, would also be a member of the putative class.
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misleading testimony by the Macy’s Defendants, who acted maliciously and were motivated by racial animus towards plaintiff based on his race and national origin and in retaliation for plaintiff’s previous complaints about discriminatory treatment. Plaintiff further alleges municipal liability against the City of New York for the conduct of New York City police officers named in the complaint as John Does 1 through 5. Finally, plaintiff also brings claims under 42 U.S.C. §§ 1983 and 1985(3) for deprivation of his constitutionally-protected rights.
Discussion I. Plaintiff’s Motion to Amend On February 25, 2005, plaintiff moved to amend his complaint. Plaintiff seeks to add Macy’s employee Michael Lewellyn as an individual defendant, to change the allegations against defendant DeSantis, and to seek new injunctive relief. Leave to amend a pleading should be granted freely when justice so requires. FED. R. CIV. P. 15(a); Forman v. Davis, 371 U.S. 178, 182 (1962). The Court of Appeals has repeatedly noted that the trial court has “broad” discretion in ruling on a motion to amend. Local 802, Associated. Musicians v. Parker Meridein Hotel, 145 F.3d 85, 89 (2d Cir. 1998); Krumme v. Westpoint Stevens, Inc., 143 F.3d 71, 88 (2d Cir. 1998).
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Plaintiff has previously unsuccessfully sought to amend his complaint. By Order dated August 25, 2005 (Pitman Order), Magistrate Judge Pitman denied plaintiff’s motion to amend the complaint to add a new cause of action under 42 U.S.C. § 1981. See Pitman Order at 19-24. Judge Pitman noted that plaintiff sought to add a claim under 43 U.S.C. § 1981 more than two months after the deadline to amend the pleadings (August 16, 2004) as set forth in the Magistrate Judge’s Scheduling Order dated July 8, 2004. Plaintiff filed the instant motion to amend on February 25, 2005, after the close of discovery, and more than six months after the motion to amend deadline. As with the previous motion, plaintiff offers no satisfactory explanation for his failure to comply with Judge Pitman’s Scheduling Order issued in this matter. Under these circumstances, denial of the motion is not an abuse of discretion. See Parker v. Columbia Pictures Indus., 204 F.3d 326, 340 (2d Cir. 2000).
Accordingly, plaintiff’s motion to amend the complaint is denied.
II. Defendants’ Motions for Summary Judgment A. Legal Standard A court can grant summary judgment only if “the pleadings, depositions, answers to interrogatories, 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
7

Case 1:04-cv-02944-BSJ-HBP Document 103 Filed 03/15/06 Page 8 of 34
is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c). The moving party must “demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548 (1986). If the moving party does so successfully, the non-moving party must present “specific facts showing that there is a genuine issue for trial.” Fed. R. Civ. P. 56(c). The party opposing summary judgment cannot rely on “conclusory statements or on contentions that the affidavits supporting the motion are not credible.” Ying Jang Gan v. City of New York, 996 F.2d 522, 535 (2d Cir. 1993). Nonetheless, the court must draw all reasonable inferences and resolve all ambiguities in favor of the non-movant. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348 (1986).
B. Local Rule 56.1 Under Local Rule 56.1(a), a party moving for summary judgment pursuant to Fed R. Civ. P. 56 must annex to its motion “a short and concise statement, in numbered paragraphs, of the material facts as to which the moving party contends there is no genuine issue to be tried. Failure to submit such a statement may constitute grounds for denial of the motion.” Under Local Rule 56.1(b), a party opposing summary judgment must include a statement with numbered paragraphs corresponding to the movant’s statement, and if necessary, additional paragraphs consisting of
8

Case 1:04-cv-02944-BSJ-HBP Document 103 Filed 03/15/06 Page 9 of 34
“the material facts as to which it is contended that there exists a genuine issue of material fact.”
A non-moving party is not authorized by Local Rule 56.1 to submit its own statement that does not correspond to paragraphs in the moving party’s statement. Furthermore, under Local Rule 56.1(d), any statement submitted under Rule 56 “must be followed by citation to evidence which would be admissible, set forth as required by Federal Rule of Civil Procedure 56(e).
The purpose of Local Rule 56.1 is “to streamline the consideration of summary judgment motions by freeing district courts from the need to hunt through voluminous records without guidance from the parties.” Holtz v. Rockefeller & Co., 258 F.3d 62, 74 (2d Cir. 2001). If a party fails to comply with the requirements under Local Rule 56.1, the Court is “forced to scour the record on its own in a search for evidence which may support that party’s contention that a certain fact is not in dispute.” Archie Comics Publications, Inc. v. Decarlo, 258 F.Supp.2d 315, 317 (S.D.N.Y. 2003) (internal citations omitted).
Here, plaintiff does not contest the City Defendants’ Rule 56 Statement, but refers the Court instead to Plaintiff’s own Statement. With respect to the Macy’s Defendants’ Rule 56 Statement, plaintiff has submitted a Counter-Statement, but this Counter-Statement fails to comply with Local Rule 56.1. Plaintiff’s Counter-Statement to Macy’s Rule 56 Statement does
9

Case 1:04-cv-02944-BSJ-HBP Document 103 Filed 03/15/06 Page 10 of 34
not consist of correspondingly numbered paragraphs, in violation of Local Rule 56.1(b). Accordingly, because plaintiff does not “specifically” controvert the material facts as set forth in the numbered paragraphs of either the City Defendants’ Statement or the Macy’s Defendants’ Statement, those “facts will be deemed to be admitted for the purposes of the motion.” See Local Rule 56.1(c); Minuteman Press Int’l, Inc. v. Matthews, 232 F.Supp.2d 11, 12 (E.D.N.Y. 2002).
As noted above, the plaintiff has appended to his Rule 56 Counter-Statement an additional statement. This Statement of facts contains 579 paragraphs that span over 100 pages. A party’s summary of the facts is no substitute for a proper paragraph-by-paragraph statement under Rule 56.1. Rodriguez v. Schneider, No. 95 Civ. 4083 (RPP), 1999 WL 459813 at *1 n.3 (S.D.N.Y. 1999). The Court will not consider this additional statement, as it is improper under Local Rule 56.1. In violation of Local Rule 56.1(d), the Statement is also rife with hearsay, and speculative and conclusory statements that are not based on personal knowledge. The statement also contains citations to testimony that is not supportive of plaintiff’s statements. Accordingly, in considering the defendants’ motions
10

Case 1:04-cv-02944-BSJ-HBP Document 103 Filed 03/15/06 Page 11 of 34
for summary judgment, the Court will disregard plaintiff’s supplemental Statement.4
C. Plaintiff’s State Law Tort Claims 1. False Arrest As noted above, plaintiff has withdrawn count one of his Complaint, a common law claim for false arrest. 2. Malicious Prosecution Count two of plaintiff’s Complaint is a claim for malicious prosecution. There are four elements of a claim for malicious prosecution: (1) the defendant initiated or continued a criminal proceeding against plaintiff; (2) the proceeding was terminated in plaintiff’s favor; (3) probable cause for commencement of the proceeding was lacking; and (4) the defendant was motivated by actual malice. Colon v. New York, 60 N.Y.2d 78, 82 (1983). Here, there is no issue of material fact with respect to the third element, lack of probable cause. It has been admitted that a Grand Jury in the Supreme Court of the State of New York, County of New York indicted plaintiff on two counts, grand larceny in the fourth degree and criminal possession of stolen property in the fourth degree. City Defs.’ Rule 56 Statement at ¶ 20. A grand jury indictment creates a strong presumption of
4 When dealing with pro se plaintiffs whose submissions violate Local Rule 56, this Court routinely scours such submissions for admissible evidence which could defeat summary judgment. However, plaintiff here is represented by counsel.
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probable cause. Cunny v. City of New York, 99 Civ 04634, 2001 WL 863431 at *4 fn. 3 (S.D.N.Y. July 31, 2001).
This presumption may be overcome by showing “that the indictment was produced by fraud, perjury, the suppression of evidence, or other police conduct undertaken in bad faith.” Bernard, 25 F.3d at 104 (quoting Colon, supra, 60 N.Y.2d 78, 83 (1983). This misconduct must have occurred in Grand Jury proceedings. Rothstein v. Carriere, 373 F.3d 275, 284 (2d Cir. 2004) (“[t]he burden of rebutting the presumption of probable cause requires the plaintiff to establish what occurred in the grand jury, and to further establish that those circumstances warrant a finding of misconduct”). Plaintiff does not dispute the validity of the Grand Jury proceedings leading to his indictment. The mere fact that charges were subsequently dismissed against plaintiff is insufficient to rebut the presumption of probable cause created by the indictment. Colon, supra, 60 N.Y.2d at 93. Accordingly, the presumption of probable cause arising from the indictment is unrefuted.
While the existence of probable cause is sufficient to warrant summary judgment for all defendants on plaintiff’s malicious prosecution claim, the Court also notes that, with respect to individual defendants Green and Chester, there is no evidence that either played a role in the initiation or
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continuation of criminal proceedings against plaintiff.5
Accordingly, summary judgment on plaintiff’s malicious
prosecution claim is granted, and count two as to all defendants
is dismissed.
3. Defamation and Intentional Infliction of Emotional
Distress
The Macy’s Defendants’ move for summary judgment with
respect to plaintiff’s claims for defamation (count three) and
intentional infliction of emotional distress (count four) on a
number of grounds. Plaintiff has not opposed the Macy’s
Defendants’ motion with respect to these two claims, and the
Court agrees with defendants that these claims are time-barred.6
5 Chester has testified unequivocally that he did not provide any information to Macy’s security, the police, or the Assistant District Attorney who plaintiff’s case to the Grand Jury. See Macy’s Defs.’ Rule 56.1 Statement at 139, 192, 200. While in his Opposition Memorandum, plaintiff indicates a belief that Chester was involved in his arrest, plaintiff has conceded that he has no proof to support this belief. Pl.’s Dep. Tr. at 74:7-10. Conclusory statements are insufficient to defeat a defendant’s motion for summary judgment. Ying Jang Gan, 996 F.2d at 535. Moreover, although Green did provide Macy’s security with a written statement, it is uncontroverted that Green’s statement played no role in the initiation or continuation of proceedings against the plaintiff. Green’s statement was not a factor in the arresting officer’s decision to arrest plaintiff. Schick Dep. Tr. at 94. There is also no evidence in the record that either the Grand Jury or the Assistant District Attorney who presented plaintiff’s case to the Grand Jury relied in Green’s statement in any way. 6 Under C.P.L.R. § 215(3), the statute of limitations for both of these claims is one year. A defamation claim accrues on the date of publication of the defamatory statement. Firth v. State, 98 N.Y.2d 365, 369, 747 N.Y.S.2d 69, 70-71 (2002). Similarly, a claim for intentional infliction of emotional distress arises when the plaintiff suffers the alleged emotional distress. Dana v. Oak Park Marina, Inc., 230 A.D.2d 204, 210-11, 660 N.Y.S.2d 906, 91011 (4th Dep’t 1997). Plaintiff claims to have suffered emotional distress as a result of his arrest on March 6, 2002. With respect to defamation, plaintiff alleges that various defendants made defamatory statements on dates including February 11, 2002, March 6, 2002, and “a few days after” March 6, 2002. The statute of limitations for these claims would expire on, or at best several days after, March 6, 2003. This action was filed on April 16,
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Accordingly, counts three and four are dismissed as to all defendants.
4. Municipal Liability Count seven of plaintiff’s Complaint alleges “municipal liability.” While the Complaint is unclear as to under which state law tort claims it alleges liability against the City, all of plaintiff’s state law tort claims have been dismissed. The issue of municipal liability with respect to these claims is therefore moot.7 The Court notes that any claim for municipal liability would fail for the additional reason that it is undisputed that plaintiff has not filed a notice of claim in this case. City Defs. Rule 56 Statement at ¶ 6. Under New York law, a notice of claim is a condition precedent to bringing a tort action against a municipality or any of its officers, agents, or employees. N.Y. Gen. Mun. Law §§50-e and 50-i. Moreover, Gen. Mun. Law § 50-e requires that a notice of claim be filed within ninety days of the accrual of the cause of action. These provisions are strictly construed. Shakur v. McGrath, 517 F.2d 983, 985 (2d Cir. 1975). Plaintiff’s failure to file a timely notice of a claim requires dismissal of his state tort claims against the
2004. Accordingly, plaintiff’s claims for defamation and intentional infliction of emotional distress are untimely and barred by the statute of limitations. 7 Plaintiff also has a claim for municipal liability for violations of the Fourth Amendment under § 1983. That claim is addressed below.
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City or its employees in this federal action. Robinson v. Matos, No. 97 CV 7144, 1999 WL 225938 at *2 (S.D.N.Y. April 19, 1999) (citing Felder v. Casey, 487 U.S. 131, 151 (1988)).
Furthermore, even if plaintiff could establish some claim against the City, the Court notes that plaintiff has no cause of action against the NYPD as such, because the NYPD is not a suable entity. The capacity of an entity to be sued is determined by State law. See Fed. R. Civ. P. 17(b). It is well-established under the Charter of the City of New York that the NYPD can only be sued in the name of the City of New York. Gonzalez v. City of New York, 98 Civ. 6081, 2002 WL 252564 at *2 (S.D.N.Y. Feb. 21, 2002). Plaintiff’s claims with respect to the New York Police Department must be dismissed.
D. Plaintiff’s Federal Claims Count eight of plaintiff’s complaint alleges liability under federal law, specifically, under 42 U.S.C. §§ 1983 and 1985. 1. Plaintiff’s § 1983 Claims A § 1983 claim has two essential elements: (1) the defendant acted under color of state law; and (2) as a result of the defendant's actions, the plaintiff suffered a denial of her federal statutory rights, or her constitutional rights or privileges. See Eagleston v. Guido, 41 F.3d 865, 872 (2d Cir.1994). Although plaintiff’s Complaint is unclear,
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plaintiff’s Opposition Memorandum indicates that, with respect to the second element, plaintiff’s § 1983 claim stems from his arrest and prosecution for larceny and criminal possession of stolen property on March 6, 2002.
In order to establish the deprivation of a right under § 1983, a plaintiff suing for arrest and prosecution must establish the same elements as those that constitute the common law tort claims for false arrest and malicious prosecution. See Raysor v. Port Authority of New York and New Jersey, 768 F.2d 34, 39 (2d Cir. 1985), cert. denied, 475 U.S. 1027, 106 S.Ct. 1227, 89 L.Ed.2d 337 (1986) (malicious prosecution); Singer v. Fulton County Sheriff, 63 F.3d 110, 118 (2d Cir. 1995) (internal quotations and citations omitted) (false arrest). The Court has already dismissed plaintiff’s malicious prosecution claim. Accordingly, The Court will analyze plaintiff’s § 1983 claim as based on a Fourth Amendment violation for false arrest.
Under New York law, the elements of a false arrest claim are: (1) the defendant intended to confine the plaintiff, (2) the plaintiff was conscious of the confinement, (3) the plaintiff did not consent to the confinement, and (4) the confinement was not otherwise privileged. Id.
Plaintiff has no claim for false arrest because there was probable cause for his apprehension and arrest. As with a claim for malicious prosecution, the existence of probable cause is a
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complete defense to a claim for false arrest. Weyant v. Okst, 101 F.3d 845, 852 (2d Cir. 1996). As noted above, the facts of defendants’ Rule 56 Statements have been admitted for purposes of this motion. According to the Macy’s Defendants’ Rule 56 Statement, prior to detaining plaintiff, Macy’s security personnel observed video footage of the plaintiff along with defendant Michael Green in a stockroom on the ninth floor where stolen merchandise had been stored over the course of several days. Macy’s Defs.’ Rule 56 Statement at ¶¶ 142-166. On March 5, 2002, plaintiff was observed carrying a large box and wearing a North Face jacket over a leather jacket. Id. at ¶ 156. This merchandise was then stored in a green duffel bag inside of a large box. Id. at 157. On March 6, 2002, plaintiff and Green were observed on that floor speaking to each other, and several minutes later Green removed the duffel bag from the storeroom. Id. at 159-60. Green was apprehended with the bag; among the items inside were a North Face jacket and a Kenneth Cole leather jacket. Id. at 162-63. Macy’s security then detained plaintiff on the basis of these observations, which the Court finds were sufficient to constitute probable cause for plaintiff’s apprehension. After being searched by security personnel, plaintiff was found to be in possession of six bags of marijuana. Id. at 175.
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Subsequently, as set forth in the City Defendants’ Rule 56 Statement, Police Officer Thomas Schick arrested plaintiff after being informed that plaintiff had stolen merchandise from Macy’s and was in possession of marijuana. City Defs.’ Rule 56 Statement at ¶¶ 13-17. Furthermore, as noted above, a Grand Jury indictment was issued in plaintiff’s case, which creates a strong affirmative presumption of probable cause for plaintiff’s arrest. Cunny, supra, 99 Civ 04634, 2001 WL 863431 at *4 fn. 3. This presumption has not been overcome by any showing of misconduct during Grand Jury proceedings. Rothstein, 373 F.3d at 284. Based on these facts, the Court finds that there was probable cause, both for plaintiff’s apprehension by store security (including defendant DeSantis) and for plaintiff’s arrest by Officer Schick.
However, even if there were no probable cause for plaintiff’s arrest, plaintiff’s § 1983 claim would fail for additional reasons. With respect to the City, a municipality and its supervisory officials may not be held liable under § 1983 for violations of federal rights by a lower-echelon employee solely on the basis of respondeat superior. Monell v. Department of Social Services, 436 U.S. 658, 694, 98 S.Ct. 2018, 2037 (1978). In order to establish liability of a municipality for acts by its employees, a plaintiff must show that the violation of his rights resulted from a municipal custom or
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policy. See, e.g., Pembaur v. City of Cincinnati, 475 U.S. 469, 478-79, 106 S.Ct. 1292, 1297-98 (1986); Monell, 436 U.S. at 690, 694; Fiacco v. City of Rensselaer, 783 F.2d 319, 326 (2d Cir. 1986); Vippolis v. Village of Haverstraw, 768 F.2d 40, 44 (2d Cir. 1985), cert. denied, 480 U.S. 916, 107 S.Ct. 1369, (1987); Turpin v. Mailet, 619 F.2d 196 (2d Cir.), cert. denied,449 U.S. 1016, 101 S.Ct. 577, 66 L.Ed.2d 475 (1980). Though this does not mean that the plaintiff must show that the municipality had an explicitly stated rule or regulation, see Villante v. Department of Corrections, 786 F.2d 516, 519 (2d Cir. 1986), the single incident alleged in plaintiff’s complaint, which involves only actors below the policy-making level, does not suffice to show a municipal policy. See, e.g., City of Canton v. Harris, 489 U.S. 378, 387, 109 S.Ct. 1197, 1203 (1989); Fiacco v. City of Rensselaer, 783 F.2d at 328.8
Finally, plaintiff can have no § 1983 claim against the Individual and Macy’s Defendants because they did not act under the color of law. § 1983 does not apply, except in special circumstances not presented by this case, to private employees
8 An inference that a policy existed for the purpose of municipal liability may be drawn from circumstantial proof, such as evidence that the municipality so failed to train its employees as to display a deliberate indifference to the constitutional rights of those within its jurisdiction, see, e.g., City of Canton, 489 U.S. at 388-92, 109 S.Ct. at 1204-07, or evidence that the municipality had notice of but repeatedly failed to make any meaningful investigation into charges that police officers had violated complainants' civil rights, see, e.g., Fiacco, 783 F.2d at 328. However, while in his Complaint plaintiff suggests that such failures by the City occurred, plaintiff has presented absolutely no evidence on this motion for summary judgment to support this contention.
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including store security guards. The Second Circuit stated in Tancredi v. Metropolitan Life Ins. Co., 316 F.3d 308, 312-13 (2d Cir. 2003), that a “plaintiff pressing a claim of violation of his constitutional rights under § 1983 is required to show state action,” and in “order to satisfy the state action requirement where the defendant is a private entity, the allegedly unconstitutional conduct must be fairly attributable to the state” (citation and quotation marks omitted).
The mere fact that statements from Macy’s employees formed the basis for plaintiff’s arrest by the police does not render the store personnel’s activity “under the color of state law” for § 1983 purposes. See Guiducci v. Kohl's Dept. Stores, 320 F.Supp.2d 35, 37 (E.D.N.Y. 2004); Josey v. Filene's, Inc., 187 F.Supp.2d 9 (D.Conn. 2002). Unless there is some form of joint action, the role of security personnel in such a situation is no different from that of any other civilian witness to a crime. See Guiducci, 320 F.Supp.2d at 38; Johns v. Home Depot, U.S.A., Inc., 221 F.R.D. 400, 405 (S.D.N.Y. 2004). There is no evidence of such joint action here.9
9 Cases cited by plaintiff in this regard are from different Circuits and are inapposite to the matter currently before the court. For instance, in Murray v. Wal-Mart, Inc., 874 F.2d 555 (8th Cir. 1989), a security guard was found to be acting under color of state law because he was also an employee of the local police department and had a close relationship with the prosecuting attorney. Similarly, Auster Oil & Gas, Inc. v. Stream, 764 F.2d 381 (5th Cir. 1985) involved a private security company that “jointly planned and jointly executed” allegedly unconstitutional activities with a State Trooper. While plaintiff contends in his Opposition Memorandum that there was some sort of “prearranged plan” between Macy’s and the NYPD with regard to the
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2. Plaintiff’s § 1985 Claim 42 U.S.C. § 1985(3) creates civil liability for any individual who conspires to deprive any person or class of persons of equal protection of the law, or of equal privileges and immunities under the law. While plaintiff’s complaint implies that plaintiff’s §1985(3) claim is asserted against all defendants, in his motion papers, plaintiff only claims that the Individual and Macy’s defendants were involved in a conspiracy to deny plaintiff of his constitutionally protected rights by engaging in the alleged racially discriminatory adverse employment actions described previously. Pl.’s Mem. Opp. Summ. J. at 77-80. While the Court will address the substance of plaintiff’s employment claims below, plaintiff’s § 1985 claim fails independently as a matter of law. § 1985(3) does not create a private right of action for plaintiff’s employment discrimination claims. The Supreme Court has held that “the deprivation of a right created by Title VII cannot be the basis for a cause of action under § 1985(3).” Great Am. Federal Savings & Loan Ass’n. v. Novotny, 442 U.S. 366, 378 (1999). Although plaintiff raises his employment
treatment of suspected shoplifters (Pl’s Opp. Mem. at 76.), plaintiff has presented no evidence whatsoever to support this contention. A plaintiff “cannot resist a summary judgment motion by alleging a conspiracy without presenting specific factual allegations of conspiracy.” McPartlant v. ABC, Inc., 623 F.Supp. 1334, 1341 (S.D.N.Y. 1985) (citations omitted). Accordingly, even if there were no probable cause for plaintiff’s arrest, plaintiff’s § 1983 claim against the Macy’s and Individual Defendants would still fail.
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claims under the NYHRL and the NYCHRL, the Second Circuit has
ruled that relief is not available under § 1985(3) for claims
based on a “state law version of Title VII.” Traggis v. St.
Barbara’s Greek Orthodox Church, 851 F.2d 584, 591 (2d Cir.
1988). § 1985(3) was designed to create a private right of
action for violations of fundamental rights protected by the
Constitution, not for statutory violations. Novotny, 442 U.S.
at 379 (Powell, J., concurring).10 Plaintiff’s claim of a
conspiracy to discriminate against him by the Macy’s defendants
is not actionable under § 1985(3).11
For the forgoing reasons, defendants are entitled to
summary judgment on count eight of plaintiff’s complaint.
E. Plaintiff’s Employment Claims under the NYHRL and the
NYCHRL
Plaintiff’s sprawling complaint makes a host of employment
discrimination claims, which are explained with varying levels
10 Unlike claims for deprivations of Constitutionally-protected rights, employment discrimination claims pursuant to Title VII or analogous state laws generally require exhaustion of administrative remedies. The use of § 1985(3) as a private right of action in employment disputes is impermissible, as it could be used as a method of bypassing those procedures. Ladson v. Ulltra East Parking Corp., 853 F.Supp. 699, 704 (S.D.N.Y. 1994). 11 Plaintiff’s § 1985(3) fails for an additional reason: the Second Circuit rejects claims of conspiracy within a corporate entity. In his Opposition Memorandum, plaintiff claims that the Macy’s Defendants, along with the Individual Defendants (who were employees of Macy’s), conspired to deny plaintiff of his constitutional rights. However, the “intracorporate conspiracy” doctrine provides that “there can be no actionable conspiracy where the persons alleged to have engaged in the conspiracy are a corporation and one or more of its agents within the scope of their employment.” Crudele v. City of New York Police Dept., 2004 WL 1161174 at *5 (S.D.N.Y. May 24, 2004). See also Girard v. 94th St. & Fifth Ave. Corp., 530 F.2d 66, 70-71 (2d Cir. 1976); Agugliaro v. Brooks Bros., 802 F.Supp. 956, 962 (S.D.N.Y. 1992).
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of clarity and are alleged under counts five and six of the Complaint. These employment claims can be divided into three categories: disparate treatment, hostile work environment, and retaliation.
1. Disparate Treatment Faced with a motion for summary judgment, plaintiff making a claim of disparate treatment must meet the initial burden of submitting evidence establishing a prima facie case, thereby creating a presumption of discrimination which, if unrebutted, would require a verdict in plaintiff's favor. See Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253-54, 101 S.Ct. 1089, 1093-94, 67 L.Ed.2d 207 (1981). The elements of a prima facie case for disparate treatment are that plaintiff (1) belongs to a racial minority or is a member of a protected class, (2) was qualified for the job and/or was satisfying the employer's normal requirements in his or her work, (3) that despite those qualifications or performance, plaintiff suffered an adverse employment action, and (4) that the action occurred under circumstances giving rise to an inference of discrimination. See, e.g., McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668 (1973); Feingold v. New York, 366 F.3d 138, 152 (2d Cir. 2004); Collins v. New York City Transit Auth., 305 F.3d 113, 118 (2d Cir. 2002).
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Plaintiff alleges that he suffered from disparate treatment on account of his race and national origin in three primary ways: that he was passed over for promotion, that he was subjected to heightened and intrusive surveillance, and that minority employees generally are and were subjected to harsh working conditions on the Tenth Floor.
a. Promotion Plaintiff alleges that he was passed over for a promotion in 2001 on account of his race and national origin. This allegation lacks two elements of a claim. First, it is uncontested that plaintiff was not qualified for the promotion he sought. Plaintiff was on disciplinary warning at the time he sought promotion, and Macy’s policy was that employees on disciplinary warning are not eligible for promotion. Macy’s Defs.’ Rule 56.1 Statement at ¶ 64. Second, the circumstances surrounding plaintiff’s failure to obtain a promotion do not give rise to an inference of discrimination. The position plaintiff sought was filled in June 2001 by Richard Brooks, who is black. Id. at ¶¶ 63-64. b. Work Assignments Plaintiff’s work assignments do not give rise to an inference of discrimination. It is uncontested that reassignments to particular tables in the Processing Department were made according to productivity, and that such standards
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applied equally to all employees regardless of race or national origin. Id. at ¶ 100. Furthermore, employees of all races and national origins had tasks such as garbage duty from time to time. Id. at ¶¶ 102, 104.
c. Harsh Working Conditions It is also clear that the allegedly harsh working conditions on the Tenth Floor do not give rise to an inference of discrimination. It is uncontested that all employees on the Tenth Floor, regardless of race or national origin, suffered from the same conditions, including individual defendants Chester and De Santis. Id. at 121. While the Tenth Floor lacked air conditioning, it was not the only place in the store without it. Id. at ¶ 116. Although a water cooler was removed from the Tenth Floor, it was replaced by water fountains. Id. at 119. Plaintiff has not demonstrated that the harsh conditions on the Tenth Floor were related in any way to the race or national origin of the employees who worked there. “[A]n environment that is equally harsh for all workers ... is not actionable under civil rights statutes.” Forts v. City of New York Dep’t of Corrections, No. 00 Civ. 1716, 2003 WL 21279439, at *4 (S.D.N.Y. June 4, 2003). 2. Hostile work environment
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Plaintiff claims that he was subject to a hostile work environment, through intrusive surveillance techniques and racially derogatory remarks and insults from Chester.
a. Standard for a Hostile Work Environment Claim In order to prevail on a claim that racial hostility caused a hostile work environment in violation of Title VII or the NYHRL, a plaintiff must establish two elements. First, plaintiff must show that her workplace was permeated with "discriminatory intimidation, ridicule, and insult ... that [wa]s sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment." Harris v. Forklift Systems, Inc., 510 U.S. 17, 21, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993) (internal citations and punctuation omitted). Second, plaintiff must show that a specific basis exists for imputing the conduct that created the hostile environment to the employer. Mack v. Otis Elevator Co., 326 F.3d 116, 122 (2d Cir. 2003); Alfano v. Costello, 294 F.3d 365, 373 (2d Cir. 2002); Perry v. Ethan Allen, Inc., 115 F.3d 143, 149 (2d Cir. 1997). b. Abusive Work Environment With respect to the first element of a harassment claim, the Court concludes that there does not exist a triable issue of fact with respect to whether or not plaintiff’s workplace was so
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permeated with harassment based on race or national origin so as to create an abusive working environment.
First, even if plaintiff had supported his allegations of heightened surveillance with admissible evidence, their existence, without more, does not establish that plaintiff suffered from a hostile work environment. Moreover, it is uncontested that part of the job of a manager or supervisor in the processing department is to watch employees, monitor productivity, and to speak with store security. Id. at ¶¶ 6970, 82. There were four to five security cameras on the tenth floor, which is actually below average for a department at Macy’s. Id. at ¶ 77. Furthermore, plaintiff does not contest that not all minority employees in Processing were subject to alleged heightened scrutiny, Id. at ¶ 86, which suggests that any additional scrutiny plaintiff may have received was not some form of “discriminatory intimidation.” Finally, Macy’s policy on employment tips to security was race-neutral; no evidence has been submitted that the policy was implemented or enforced in such a manner that non-minority employees were not subject to the exact same treatment. Id. at ¶ 94.
Second, plaintiff has not sufficiently supported his allegations of racially derogatory insults by his supervisor, Chester, to establish the existence of a hostile work environment. The Macy’s Defendants note in their Rule 56
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Statement that the only evidence of such insults is plaintiff’s allegation that Chester made a remark to the effect that all Puerto Ricans carry razor blades. Macy’s Defs’ Rule 56 Statement at ¶ 42. Chester denies making such a remark. Id. at ¶ 43. Regardless, isolated instances of harassment ordinarily do not rise to the level required to establish a hostile work environment. See, e.g., Kotcher v. Rosa & Sullivan Appliance Ctr., Inc., 957 F.2d 59, 62 (2d Cir. 1992). The plaintiff must demonstrate either that a single incident was extraordinarily severe, or that a series of incidents were "sufficiently continuous and concerted" to have altered the conditions of her working environment. Perry v. Ethan Allen, Inc., 115 F.3d 143, 149 (2d Cir. 1997) (quoting Carrero v. New York City Housing Auth., 890 F.2d 569, 577 (2d Cir. 1989)) (internal quotation marks omitted). Plaintiff has not satisfied this standard.
c. Macy’s Liability The Court further notes that, even if, arguendo, plaintiff had demonstrated the existence of an issue of material fact as to whether or not Chester’s alleged harassment rose to the level of creating a hostile work environment, plaintiff would still have no claim against the Macy’s Defendants. Unlike under Title VII, which essentially contains a respondeat superior standard for workplace harassment, under § 296 of the NYHRL and § 8-107 of the NYCHRL an “‘employer cannot be held liable ... for an
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employee's discriminatory act unless the employer became a party to it by encouraging, condoning, or approving it.’” Franklin v. City of New York, 01 Civ. 10574, 2003 WL 21511932 at *8 (S.D.N.Y. July 1, 2003) (quoting State Div. of Human Rights ex rel. Greene v. St. Elizabeth's Hosp., 66 N.Y.2d 684, 687, 496 N.Y.S.2d 411, 412, 487 N.E.2d 268 (1985), aff'd, No. 03-7769, 99 Fed. Appx. 315, 2004 WL 1157729 (2d Cir. May 25, 2004); accord, e.g., Jordan v. Cayuga County, No. 5:01 CV 1037, 2004 WL 437459 at *4 (N.D.N.Y. Feb.9, 2004); DeWitt v. Lieberman, 48 F.Supp.2d 280, 293 & n. 10 (S.D.N.Y.1999); Forrest v. Jewish Guild for the Blind, 3 N.Y.3d 295, 311, 786 N.Y.S.2d 386, 395 (2004). Condonation “contemplates a knowing, after-the-fact forgiveness or acceptance of an offense.” State Div. of Human Rights ex rel. Greene v. St. Elizabeth's Hosp., 66 N.Y.2d at 687, 496 N.Y.2d at 412.
Plaintiff has not established that Macy’s encouraged, condoned, or approved of Chester’s alleged harassment of him. To the contrary, plaintiff has not even demonstrated that Macy’s had actual notice of Chester’s alleged harassment. While plaintiff maintains that he complained to Chester himself, it is uncontested that plaintiff did not report the alleged harassment to anyone in Macy’s Human Resources Department, or call the confidential hotline listed on Macy’s harassment policy. Macy’s Defs.’ Rule 56.1 Statement at ¶ 47. Nor did plaintiff complain
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about alleged discriminatory harassment by Chester either to
Chester’s supervisor, Grady, or to lower level managers. Id. at
¶ 55-56. Instead, as noted by the defendants, plaintiff
testified during his deposition that he made only “general”
complaints to Grady about Chester, but did not make any
complaints about Chester’s alleged harassment based on race or national origin.12 Id. at 48. Similarly, plaintiff’s co-workers
who were deposed also gave testimony that they did not complain
to Macy’s Human Resources about racial or national origin
harassment. Id. at ¶ 164, 298, 321.
Accordingly, because plaintiff has failed to demonstrate
the existence of an issue of material fact with respect to
whether Macy’s encouraged, condoned, or approved of Chester’s
alleged harassment, the Macy’s Defendants are entitled to
summary judgment of plaintiff’s hostile work environment claim.
3. Retaliation
Section 704(a) of the Civil Rights Act of 1964, 42 U.S.C. §
2000e-3(a) (1982), provides that "[i]t shall be an unlawful
12 Moreover, while plaintiff claims that he and others filed union grievances regarding Chester, evidence of grievances alone is insufficient to sustain plaintiff’s claims. Actual notice by the employer, rather than constructive notice, is required under the HRL. Sowemimo v. D.A.O.R. Sec., Inc., 43 F.Supp.2d 477, 486 (S.D.N.Y. 1999); Ponticelli v. Zurich American Ins. Group, 16 F.Supp.2d 414, 433. Furthermore, plaintiff has produced no grievances specifically showing that he complained to his union about harassment or discrimination based on race or national origin by Chester. Id. at 53. A union grievance about general conduct is not in itself sufficient to put an employer on notice of discriminatory harassment. Forrest, supra, 3 N.Y.2d at 309, 819 N.E.2d at 1010. Plaintiff has only produced evidence of a single union grievance by a co-worker relating to Chester’s alleged racial harassment, which is not sufficient to establish condonation, approval, or encouragement by Macy’s.
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employment practice for an employer to discriminate against any of his employees ... because he has opposed any practice made an unlawful employment practice by this subchapter...." The objective of this section is obviously to forbid an employer from retaliating against an employee because of the latter's opposition to an unlawful employment practice. The elements of a prima facie case of retaliation are (1) that plaintiff was engaged in a protected activity, (2) that the employer was aware of that activity, (3) that plaintiff suffered an adverse employment action, and (4) that there was a causal connection between the protected activity and the adverse employment action. Reed v. Lawrence, 95 F.3d 1170, 1178 (2d Cir. 1996).
Plaintiff contends that he suffered retaliation as a result of his complaints to Chester regarding the alleged discriminatory treatment described above. This retaliation allegedly took several forms: negative evaluations, reduction in overtime opportunities, a suspension in early 2002, and plaintiff’s arrest and termination.
a. Negative Evaluations, Reduction in Overtime Plaintiff received negative evaluations and claims that his opportunities for overtime were reduced in retaliation for the complaints he allegedly made to Chester. However, plaintiff has failed to demonstrate a causal connection between these adverse actions and any protected activities. Defendants maintain, and
31

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it is uncontested, that plaintiff’s evaluations and overtime opportunities were not retaliatory in nature, but rather are explainable in terms of ordinary, non-discriminatory practices. Plaintiff’s evaluations were based on legitimate criteria and an assessment of plaintiff’s work performance; his race and national origin played no part in that assessment. Macy’s Defs.’ Rule 56 Statement at 106. With respect to overtime, opportunities were assigned on the basis of seniority and has nothing to do with plaintiff’s race or national origin. Id. at 111.
b. Suspension; Subsequent Arrest and Termination Although plaintiff has alleged that he complained to Chester, he was not suspended or terminated by Chester. As noted above, Chester was not involved in plaintiff’s suspension, arrest, or termination. Plaintiff has not alleged that those individuals responsible for the decisions to suspend and subsequently terminate his employment were aware that he made any complaints about discrimination or workplace harassment. Id. at 47. Plaintiff therefore cannot make out any claim of a causal connection between his alleged complaints to Chester and the adverse employment actions from which he suffered. There is no evidence that any of the individuals involved in his suspension in February 2002 were motivated by discriminatory animus, or that the suspension was retaliatory. Id. at ¶¶ 132-
32

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35. Plaintiff never heard anyone involved in the investigation leading to his arrest and termination make any derogatory remarks or otherwise indicate that the investigation was retaliatory in nature. Id. at ¶ 140. Plaintiff has not sufficiently demonstrated the essential elements of a retaliation claim.
Accordingly, defendants are entitles to summary judgment on counts five and six of the complaint.
III. Class Certification Plaintiff seeks class certification with respect to his employment discrimination claims. As all of plaintiff’s underlying claims have been dismissed, this motion for class certification is moot. See, e.g., Schweizer v. Trans Union Corp., 136 F.3d 233, 239 (2d Cir. 1998) ("The decision to award summary judgment before acting on class certification was well within the discretion of the district court"); Hernandez v. Affiliated Group, Inc., No. 04 CV 4467 (JG), 2006 WL 83474 (E.D.N.Y. Jan. 12, 2006). Conclusion For the reasons forgoing reasons, plaintiff’s motion to amend is DENIED. The City Defendants’ motion for summary judgment is GRANTED. The Macy’s Defendants’ motion for summary judgment is GRANTED. Individual defendant Scott Chester’s motion for summary judgment is GRANTED. For the reasons above,
33

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 Case: 1:04-cv-2944 As of: 09/28/2016 04:34 PM EDT 1 of 14
CLOSED,CASREF,ECF
U.S. District Court Southern District of New York (Foley Square) CIVIL DOCKET FOR CASE #: 1:04−cv−02944−BSJ−HBP

Baergas v. City Of New York et al Assigned to: Judge Barbara S. Jones Referred to: Magistrate Judge Henry B. Pitman Demand: $2,000,000 Cause: 42:1983 Civil Rights Act
Plaintiff
Harold Baergas on behalf of himself and others similarly situated

Date Filed: 04/16/2004 Date Terminated: 11/05/2008 Jury Demand: Both Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question
represented by Ian Francis Wallace Michael Shen &Associates, P.C. 55 West End Avenue Suite S15L New York, NY 10023 (212) 227 0300 Fax: (212) 227 2714 Email: iwallace@employmentlawny−nj.com (Inactive) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michael Shen Michael Shen &Associates, P.C. 55 West End Avenue Suite S15L New York, NY 10023 (212) 227−03000 Fax: (212)−227−2714 Email: mshen@employmentlawny−nj.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

V. Defendant City of New York

represented by Elizabeth M. Daitz New York City Law Department 100 Church Street, Room 4−114 New York, NY 10007 (212) 788−0775 Fax: (212) 788−9776 Email: edaitz@law.nyc.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Seth D. Eichenholtz City of New York Law Department 100 Church Street New York, NY 10007 212−788−8684 Fax: 212−788−9776 Email: seichenh@law.nyc.gov ATTORNEY TO BE NOTICED
Alison Elaine Gugel Jacobs &Burleigh LLP 445 Park Avenue New York, NY 10022 TERMINATED: 04/24/2006

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ATTORNEY TO BE NOTICED

Defendant New York City Police Department

represented by Elizabeth M. Daitz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Seth D. Eichenholtz (See above for address) ATTORNEY TO BE NOTICED

Alison Elaine Gugel (See above for address) TERMINATED: 04/24/2006 ATTORNEY TO BE NOTICED

Defendant Federated Logistics

represented by Laura Mae Raisty Morgan, Brown &Joy, LLP 200 State Street Boston, MA 02109 (617) 523−6666 Fax: (617) 367−3125 Email: lraisty@morganbrown.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Diane Marjorie Saunders Morgan, Brown &Joy, LLP 200 State Street Boston, MA 02109 617−523−6666 Fax: 617−367−3125 Email: diane.saunders@ogletreedeakins.com ATTORNEY TO BE NOTICED

Defendant Federated Department Stores, Inc.

represented by Laura Mae Raisty (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Diane Marjorie Saunders (See above for address) ATTORNEY TO BE NOTICED

Defendant Macy's East

represented by Laura Mae Raisty (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Diane Marjorie Saunders (See above for address) ATTORNEY TO BE NOTICED

Defendant Frick Company

Defendant

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Scott Chester

represented by Diane Krebs Gordon & Rees, LLP(NJ) 89 Headquarters Plaza North 12th Floor Morristown, NJ 10004 (212)201−6777 Fax: (212)201−67782695505 Email: dkrebs@gordonrees.com ATTORNEY TO BE NOTICED

Defendant Chris De Santis

represented by Laura Mae Raisty (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Diane Marjorie Saunders (See above for address) ATTORNEY TO BE NOTICED

Defendant Michael Green

Defendant
John Does 1−5 Individually

Date Filed 04/16/2004
04/16/2004
04/16/2004 04/16/2004 04/29/2004
05/17/2004 05/21/2004
05/21/2004 06/03/2004

# Docket Text
1 COMPLAINT against Scott Chester, City Of New York, Chris De Santis, Federated Department Stores, Inc., Federated Logistics, Frick Company, Michael Green, John Does 1−5, Macy's East, New York City Police Department. (Filing Fee $ 150.00, Receipt Number 506097)Document filed by Harold Baergas.(gf, ) Additional attachment(s) added on 4/19/2004 (gf, ). (Entered: 04/19/2004)
SUMMONS ISSUED as to Scott Chester, City Of New York, Chris De Santis, Federated Department Stores, Inc., Federated Logistics, Frick Company, Michael Green, John Does 1−5, Macy's East, New York City Police Department. (gf, ) (Entered: 04/19/2004)
Magistrate Judge Henry B. Pitman is so designated. (gf, ) (Entered: 04/19/2004)
Case Designated ECF. (gf, ) (Entered: 04/19/2004)
2 ORDER REFERRING CASE TO MAGISTRATE JUDGE. Order that case be referred to the Clerk of Court for assignment to a Magistrate Judge for general pretrial. Referred to Magistrate Judge Henry B. Pitman. (Signed by Judge Barbara S. Jones on 4/26/04) (cd, ) (Entered: 05/13/2004)
3 FIRST MOTION for Extension of Time to File Answer or respond to the complaint. Document filed by City Of New York. (Gugel, Alison) (Entered: 05/17/2004)
4 ENDORSED LETTER addressed to Judge Jones from Alison Gugel dated 5/17/04: granting an enlargement of time for deft City of NY to answer the complaint from 5/18/04 to 7/19/04. (Signed by Judge Henry B. Pitman on 5/17/04) (cd, ) (Entered: 05/24/2004)
Set Answer Due Date purs. to 4 Endorsed Letter as to City Of New York answer due on 7/19/2004. (cd, ) (Entered: 05/24/2004)
5 ENDORSED LETTER addressed to Judge Jones from Diane Saunders dated 5/13/04 re: Granting defendants' request for extension of time in which to answer, move or otherwise respond to the complaint until 6/21/04. (Signed by Judge Henry

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06/03/2004 06/03/2004
06/03/2004 06/03/2004 06/18/2004 06/21/2004
06/23/2004 06/24/2004 06/24/2004 06/24/2004 06/24/2004 06/24/2004 06/24/2004 07/08/2004
07/20/2004

B. Pitman on 5/28/04) (tp, ) (Entered: 06/03/2004)
Set Answer Due Date purs. to 5 Endorsed Letter, as to Chris De Santis answer due on 6/21/2004; Federated Department Stores, Inc. answer due on 6/21/2004; Federated Logistics answer due on 6/21/2004; Macy's East answer due on 6/21/2004. (tp, ) (Entered: 06/03/2004)
6 ENDORSED LETTER addressed to Judge Jones from Alison Gugel dated 5/17/04 re: Granting defendant City of New York's request for extension of time to answer or otherwise respond to the complaint until 7/19/04. Application Granted on Consent. (Signed by Judge Henry B. Pitman on 5/17/04) (tp, ) (Entered: 06/03/2004)
Set Answer Due Date purs. to 6 Endorsed Letter, as to City Of New York answer due on 7/19/2004. (tp, ) (Entered: 06/03/2004)
7 ENDORSED LETTER addressed to Magistrate Judge Pitman from Diane Saunders dated 5/24/04 re: Granting Federated defendants' request for extension of time to answer, move or otherwise respond to the complaint until 6/21/04. (Signed by Judge Henry B. Pitman on 5/24/04) (tp, ) (Entered: 06/03/2004)
Set Answer Due Date purs. to 8 Endorsed Letter, as to Chris De Santis answer due on 6/28/2004; Federated Department Stores, Inc. answer due on 6/28/2004; Federated Logistics answer due on 6/28/2004; Macy's East answer due on 6/28/2004. (tp, ) (Entered: 06/21/2004)
8 ENDORSED LETTER addressed to Magistrate Judge Pitman from Diane Saunders dated 6/17/04 re: Granting defendants Federated Logistics, Federated Dept. Stores,Inc. Macy's East, Inc. and Chris De Santis' request for a 1 week extension of defendants' time to answer, move or otherwise respond to the complaint until 6/28/04. (Signed by Judge Henry B. Pitman on 6/18/04) (tp, ) (Entered: 06/21/2004)
9 FIRST MOTION to Compel the Criminal Records Release. Document filed by City of New York. (Gugel, Alison) (Entered: 06/23/2004)
10 RULE 7.1 DISCLOSURE STATEMENT. Document filed by Federated Department Stores, Inc..(Saunders, Diane) (Entered: 06/24/2004)
11 RULE 7.1 DISCLOSURE STATEMENT. Document filed by Macy's East.(Saunders, Diane) (Entered: 06/24/2004)
12 RULE 7.1 DISCLOSURE STATEMENT. Document filed by Federated Department Stores, Inc..(Saunders, Diane) (Entered: 06/24/2004)
13 RULE 7.1 DISCLOSURE STATEMENT. Document filed by Macy's East.(Saunders, Diane) (Entered: 06/24/2004)
14 ANSWER to Complaint. Document filed by Chris De Santis, Federated Department Stores, Inc., Federated Logistics, Macy's East.(Saunders, Diane) (Entered: 06/24/2004)
15 ENDORSED LETTER addressed to Judge Jones from Alison Gugel dated 6/23/04 re: Counsel, have advised that the discovery dispute has been resolved. The municipal defendants' time to answer or move is extended to 8/31/04. (Signed by Judge Henry B. Pitman on 6/24/04) (tp, ) (Entered: 06/24/2004)
16 SCHEDULING ORDER: Motions to amend the pleadings or to join additional parties due by 8/16/2004. Dispositive motions, if any, shall be served by 12/7/04 Discovery due by 11/8/2004. Settlement Conference set for 8/24/2004 02:00 PM before Magistrate Judge Henry B. Pitman. Proposed Pretrial Order due by 2/7/2005. (Signed by Judge Henry B. Pitman on 7/8/04) copies sent by chambers.(cd, ) (Entered: 07/09/2004)
17 ENDORSED LETTER addressed to Judge Jones from Scott Chester dated 7/14/04: deft Chester's time to answer or move with respect to the complaint is extended to 8/20/04. (Signed by Judge Henry B. Pitman on 7/14/04) (cd, ) (Entered: 07/20/2004)

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07/20/2004 08/09/2004
08/26/2004 09/02/2004 09/02/2004 09/03/2004 10/05/2004 10/07/2004 10/15/2004 10/15/2004 10/18/2004
10/20/2004 10/21/2004
10/22/2004

Set Answer Due Date purs. to 17 Endorsed Letter as to Scott Chester answer due on 8/20/2004. (cd, ) (Entered: 07/20/2004)
18 ENDORSED LETTER addressed to Magistrate Judge Henry B. Pitman from Jan Wallace dated 8/5/04 re: counsel for plaintiff requests an extension of the 120 days deadline for service of the summons and complaint upon an individually named dft Michael Green. Plaintiff's time to complete service is extended by 60 days. (Signed by Judge Henry B. Pitman on 8/5/04) (dle, ) (Entered: 08/09/2004)
19 ANSWER to Complaint. Document filed by Scott Chester.(Krebs, Diane) (Entered: 08/26/2004)
20 MOTION to Sever. Document filed by Chris De Santis, Federated Department Stores, Inc., Federated Logistics, Macy's East. (Attachments: # 1 Affidavit Declaration# 2 Exhibit Exhibit to Declaration)(Saunders, Diane) (Entered: 09/02/2004)
21 MEMORANDUM OF LAW in Support re: 20 MOTION to Sever.. Document filed by Chris De Santis, Federated Department Stores, Inc., Federated Logistics, Macy's East. (Saunders, Diane) (Entered: 09/02/2004)
22 ANSWER to Complaint with JURY DEMAND. Document filed by City of New York, New York City Police Department.(Gugel, Alison) (Entered: 09/03/2004)
***REJECTION OF ATTEMPTED PAPER FILING IN ECF CASE. The following document(s) affidavit of service by Michael Shen, was rejected by the Clerk's Office and must be FILED ELECTRONICALLY on the Court's ECF System. (snu, ) (Entered: 10/06/2004)
23 FIRST MOTION to Amend/Correct 1 Complaint, Cross Motion and Opposition to Defendants' Motion to Sever. Document filed by Harold Baergas. (Attachments: # 1 # 2 # 3 # 4)(Wallace, Ian) (Entered: 10/07/2004)
24 REPLY to Response to Motion re: 20 MOTION to Sever.. Document filed by Chris De Santis, Federated Department Stores, Inc., Federated Logistics, Macy's East. (Saunders, Diane) (Entered: 10/15/2004)
27 ENDORSED LETTER addressed to Judge Pitman from Ian Wallace dated 10/4/04: granting plntf's request to extend time to 10/7/04 to file his opposition papers, and that the deadline for filing the motion for class certification until 11/8/04. (Signed by Judge Henry B. Pitman on 10/7/04) (cd, ) (Entered: 10/20/2004)
25 REPLY to Response to Motion re: 23 FIRST MOTION to Amend/Correct 1 Complaint, Cross Motion and Opposition to Defendants' Motion to Sever. Corrected Reply. Document filed by Chris De Santis, Federated Department Stores, Inc., Federated Logistics, Macy's East. (Saunders, Diane) (Entered: 10/18/2004)
26 AFFIDAVIT OF SERVICE. Michael Green served on 9/27/2004, answer due 10/18/2004. Service was made by MAIL. Document filed by Harold Baergas. (Wallace, Ian) (Entered: 10/20/2004)
28 ORDER that the depositions that are currently scheduled to take place between today's date and 11/8/04 shall proceed as scheduled; this order is without prejudice to a future application by plaitniff to reopen the depositions on the ground that dfts have unreasonably withheld critical documents from their produciton without reasonable basis in law or fact; no later than 5:00 p.m. on 10/22/04 counsel for dfts shall fax to my chambers and to all other parties a letter brief in support of their application for a protective order; no later than 5:00 p.m. on 10/26/04 counsel fo plaintiff shall fax his response to my chambers and to all counsel. (Signed by Judge Henry B. Pitman on 10/21/04)Copies electronically sent by chambers.(dle, ) (Entered: 10/22/2004)
29 FIRST REPLY MEMORANDUM OF LAW in Support re: 23 FIRST MOTION to Amend/Correct 1 Complaint, Cross Motion and Opposition to Defendants' Motion to Sever.. Document filed by Harold Baergas. (Wallace, Ian) (Entered: 10/22/2004)

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10/25/2004 10/26/2004 10/29/2004 10/29/2004 10/29/2004
11/24/2004 12/06/2004 12/21/2004 12/21/2004 01/07/2005 01/27/2005
02/04/2005 02/14/2005

30 REPLY AFFIDAVIT of Harold Baergas in Opposition re: 23 FIRST MOTION to Amend/Correct 1 Complaint, Cross Motion and Opposition to Defendants' Motion to Sever.. Document filed by Harold Baergas. (Wallace, Ian) (Entered: 10/25/2004)
31 DECLARATION of Diane Saunders in Support re: 23 FIRST MOTION to Amend/Correct 1 Complaint, Cross Motion and Opposition to Defendants' Motion to Sever.. Document filed by Macy's East. (Attachments: # 1)(Saunders, Diane) (Entered: 10/26/2004)
32 ENDORSED LETTER addressed to Magistrate Judge Henry B. Pitman from Ian Wallace dated 10/27/04 re: counsel for parties request an extension of factual discovery deadline until 12/15/04; plaintiff requests until 11/30/04 by which to file this motion for class certification. Application Granted. (Signed by Judge Henry B. Pitman on 10/28/04) (dle, ) (Entered: 11/01/2004)
Set/Reset Deadlines: Discovery due by 12/15/2004. Motions due by 11/30/2004. (dle, ) (Entered: 11/01/2004)
33 ORDER that Macy's application for a protective order concerning the circumstances surrounding Chester's cessation of employment with Macy's is denied; given the liberal standards applicable to discovery, I conclude that evidence of possible race based discrimination against African Americans is sufficiently proximate to national original based discrimination against Hispanics to be discoverable; for the reasons stated during the conference call of 10/21/04 the fact that Chester's alleged conduct post dated the events alleged in the complaint is immaterial. (Signed by Judge Henry B. Pitman on 10/29/04) Copies electronically sent by chambers.(dle, ) (Entered: 11/01/2004)
34 STIPULATION AND ORDER; regarding procedures that will govern the handling of "Confidential Information." (Signed by Judge Henry B. Pitman on 11/24/04) (sac, ) (Entered: 11/29/2004)
35 DECLARATION of Diane Krebs, Esq. in Support re: 20 MOTION to Sever.. Document filed by Scott Chester. (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C# 4 Exhibit D# 5 Exhibit E)(Krebs, Diane) (Entered: 12/06/2004)
36 NOTICE of Change of Address by Diane Marjorie Saunders on behalf of Chris De Santis, Federated Department Stores, Inc., Federated Logistics, Frick Company, Macy's East. New Address: Morgan, Brown &Joy, LLP, 200 State Street, Boston, Massachusetts, USA 02109, 617−523−6666. (Saunders, Diane) (Entered: 12/21/2004)
37 RESPONSE to Motion re: 20 MOTION to Sever., 23 FIRST MOTION to Amend/Correct 1 Complaint, Cross Motion and Opposition to Defendants' Motion to Sever. 12/21/04 Letter to Hon. Barbara S. Jones. Document filed by Harold Baergas. (Wallace, Ian) (Entered: 12/21/2004)
38 ORDER: regarding the Court's order after the tape−recorded conference calls held on January 5 and 6, 2005. The deadline for the filing of plaintiff's motion for class certification is extended to 2/15/05. The deadline for the filing of dispositive motions is extended to 3/4/05. (Signed by Judge Henry B. Pitman on 1/7/05) Copies Mailed By Chambers.(kw, ) (Entered: 01/11/2005)
39 ORDER; the Macy's defendants' motion for reconsideration of my Order dated January 7, 2005 with respect to the number of witnesses plaintiff may depose is granted, and upon reconsideration, I adhere to my January 7, 2005 Order. Plaintiff's application to apportion to the costs of depositions that plaintiff has noticed is denied. (Signed by Judge Henry B. Pitman on 1/27/05); copies electronically sent to attorneys of Record; (djc, ) (Entered: 01/31/2005)
40 AFFIDAVIT OF SERVICE of Subpoena for production of documents served on Cablevision Systems Corporation on 1/13/05. Service was accepted by Marie Mastroianni, employee. Document filed by Federated Department Stores, Inc.. (O'Leary, Richard) (Entered: 02/04/2005)
41 ENDORSED LETTER addressed to Mag. Judge Pitman from Ian F. Wallace dated 02/08/05 re: the deadline for making the class certification motion is extended to 02/22/05; the deadline for dispo motions is extended to 3/11/05; (Signed by Judge

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02/14/2005 02/22/2005 02/28/2005
03/01/2005 03/08/2005
03/08/2005 03/10/2005 03/25/2005 03/25/2005
03/28/2005

Henry B. Pitman on 2/11/05) (djc, ) (Entered: 02/15/2005)
Set Deadlines/Hearings: Motions due by 2/22/2005. (djc, ) (Entered: 02/15/2005)
42 SECOND MOTION to Amend/Correct 1 Complaint,., FIRST MOTION to Certify Class. Document filed by Harold Baergas. (Attachments: # 1 # 2 # 3 # 4 # 5 # 6 # 7 # 8 # 9 # 10 # 11 # 12 # 13 # 14 # 15 # 16 # 17)(Wallace, Ian) (Entered: 02/22/2005)
45 ENDORSED LETTER addressed to Magistrate Judge Pitman from Laura M. Raisty dated 02/24/05 re: the schedule proposed herein is approved. March 25, 2005− oppositions to plaintiff's motion for class certification and motion to amend due; March 29,2005 − summary judgment due; April 25, 2005 − Reply for Plaintiff's motion for class certification and motion to amend due; May 12, 2005 − opposition to summary judgment motions due; June 3, 2005 Reply for summary judgment motions due; (Signed by Judge Henry B. Pitman on 2/28/05) (djc, ) (Entered: 03/09/2005)
43 FILING ERROR − WRONG DOCUMENT TYPE SELECTED FROM MENU − FIRST MOTION to Amend/Correct 42 SECOND MOTION to Amend/Correct 1 Complaint,.FIRST MOTION to Certify Class.FIRST MOTION to Certify Class, MOTION to Certify Class (Supplemental Affidavit in Support of Motions). Document filed by Harold Baergas. (Attachments: # 1)(Wallace, Ian) Modified on 3/8/2005 (kg, ). (Entered: 03/01/2005)
***NOTE TO ATTORNEY TO RE−FILE DOCUMENT − DOCUMENT TYPE ERROR. Note to Attorney Ian Wallace to RE−FILE Document 43 FIRST MOTION to Amend/Correct 42 SECOND MOTION to Amend/Correct 1 Complaint,.FIRST MOTION to Certify Class.FIRST MOTION to Certify Class. MOTION to Certify Class Supplemental (Affidavit in Support of Motions). MOTION to Certify Class (Supplemental Affidavit in Support of Motions). Use the document type Affirmation in support of motion found under the document list Responses and Replies. (kg, ) (Entered: 03/08/2005)
44 AFFIRMATION of Ian F. Wallace in Support re: 42 SECOND MOTION to Amend/Correct 1 Complaint,.FIRST MOTION to Certify Class.FIRST MOTION to Certify Class.. Document filed by Harold Baergas. (Attachments: # 1)(Wallace, Ian) (Entered: 03/08/2005)
46 ENDORSED LETTER addressed to Judge Jones from Ian F. Wallace dated 3/8/05 re: request for leave to file a paper copy of an exhibit further to plaintiff's motion for class certification and to amend the complaint. Application is granted (Signed by Judge Barbara S. Jones on 3/10/05) (yv, ) (Entered: 03/11/2005)
47 RESPONSE to Motion re: 42 SECOND MOTION to Amend/Correct 1 Complaint,.FIRST MOTION to Certify Class.FIRST MOTION to Certify Class.. Document filed by Scott Chester, Chris De Santis, Federated Logistics, Federated Department Stores, Inc., Macy's East. (Attachments: # 1 Second Half of Memo of Law# 2 Appendix)(Raisty, Laura) (Entered: 03/25/2005)
48 DECLARATION of Diane M. Saunders in Opposition re: 42 SECOND MOTION to Amend/Correct 1 Complaint,.FIRST MOTION to Certify Class.FIRST MOTION to Certify Class.. Document filed by Scott Chester, Chris De Santis, Federated Logistics, Federated Department Stores, Inc., Macy's East. (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit D# 4 Exhibit E# 5 Exhibit F# 6 Exhibit G# 7 Exhibit H# 8 Exhibit I# 9 Exhibit J# 10 Exhibit K# 11 Exhibit L# 12 Exhibit M# 13 Exhibit N# 14 Exhibit O# 15 Exhibit P# 16 Exhibit Q# 17 Exhibit R# 18 Exhibit S# 19 Exhibit T# 20 Exhibit U# 21 Exhibit V# 22 Exhibit W# 23 Exhibit X)(Raisty, Laura) (Entered: 03/25/2005)
49 DECLARATION of Diane M. Saunders in Opposition re: 42 SECOND MOTION to Amend/Correct 1 Complaint,.FIRST MOTION to Certify Class.FIRST MOTION to Certify Class.. Document filed by Scott Chester, Chris De Santis, Federated Logistics, Federated Department Stores, Inc., Macy's East. (Attachments: # 1 Exhibit C, Part 1# 2 Exhibit C, Part 2)(Raisty, Laura) (Entered: 03/28/2005)

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03/29/2005 03/29/2005 03/29/2005 03/29/2005
03/29/2005 03/30/2005 03/30/2005 04/01/2005
04/01/2005 04/01/2005 04/01/2005 04/01/2005 04/01/2005 04/01/2005
04/01/2005

50 FILING ERROR − ELECTRONIC FILING FOR NON−ECF DOCUMENT − FIRST MOTION for Extension of Time to File Summary Judgment Papers. Document filed by City of New York, New York City Police Department. (Gugel, Alison) Modified on 4/4/2005 (kg). (Entered: 03/29/2005)
52 ENDORSED LETTER addressed to Magistrate Judge Henry B. Pitman from Mercedes Colwin dated 3/28/05 re: counsel for defendant Scott Chester request a three (3) day extension until 4/1/05 to file their motions. (Signed by Judge Henry B. Pitman on 3/29/05) (db, ) (Entered: 04/01/2005)
Set/Reset Deadlines: Motions due by 4/1/2005. (db, ) (Entered: 04/01/2005)
53 ENDORSED LETTER addressed to Magistrate Judge Henry B. Pitman from Alison Gugel dated 3/29/05 re: counsel for defendants City of New York and NYC Police Department request an extension of time until 4/1/05 to file their motions for summary judgment. Application GRANTED. (Signed by Judge Henry B. Pitman on 3/29/05) (db, ) (Entered: 04/01/2005)
Set/Reset Deadlines: Motions due by 4/1/2005. (db, ) (Entered: 04/01/2005)
51 ENDORSED LETTER addressed to Judge Barbara S. Jones from Alison Gugel dated 3/29/05 re: counsel for City dfts request that the time to file their motion for summary judgment be extended from 3/29/05 to 4/1/05. Application granted. (Signed by Judge Barbara S. Jones on 3/29/05) (dle, ) (Entered: 03/31/2005)
Set/Reset Deadlines: Motions due by 4/1/2005. (dle, ) (Entered: 03/31/2005)
54 MOTION for Summary Judgment. Document filed by City of New York, New York City Police Department. Responses due by 5/12/2005 (Attachments: # 1 Affidavit of Alison Gugel, Esq.# 2 Exhibit A# 3 Exhibit B# 4 Exhibit C# 5 Exhibit D# 6 Exhibit E# 7 Exhibit F# 8 Exhibit G# 9 Exhibit H# 10 Exhibit I# 11 Exhibit J)(Gugel, Alison) (Entered: 04/01/2005)
55 MEMORANDUM OF LAW in Support re: 54 MOTION for Summary Judgment.. Document filed by City of New York, New York City Police Department. (Gugel, Alison) (Entered: 04/01/2005)
56 RULE 56.1 STATEMENT. Document filed by City of New York, New York City Police Department. (Gugel, Alison) (Entered: 04/01/2005)
57 MOTION for Summary Judgment. Document filed by Chris De Santis, Federated Logistics, Federated Department Stores, Inc., Macy's East. (Saunders, Diane) (Entered: 04/01/2005)
58 MOTION for Summary Judgment. Document filed by Scott Chester. (Krebs, Diane) (Entered: 04/01/2005)
59 DECLARATION of Scott Chester in Support re: 58 MOTION for Summary Judgment.. Document filed by Scott Chester. (Attachments: # 1 Exhibit Exhibit 1# 2 Exhibit Exhibit 2)(Krebs, Diane) (Entered: 04/01/2005)
60 DECLARATION of Diane M. Saunders in Support re: 57 MOTION for Summary Judgment.. Document filed by Chris De Santis, Federated Logistics, Federated Department Stores, Inc., Macy's East. (Attachments: # 1 Exhibit A# 2 Exhibit B, part 1# 3 Exhibit B, part 2# 4 Exhibit B, part 3# 5 Errata C, part 1# 6 Exhibit C, part 2# 7 Exhibit C, part 3# 8 Exhibit C, part 4# 9 Exhibit C, part 5# 10 Exhibit D# 11 Exhibit E# 12 Exhibit F, part 1# 13 Exhibit F, part 2# 14 Exhibit F, part 3# 15 Exhibit G# 16 Exhibit H, part 1# 17 Exhibit H, part 2# 18 Exhibit I# 19 Exhibit J# 20 Exhibit K, part 1# 21 Exhibit K, part 2# 22 Exhibit L# 23 Exhibit M# 24 Exhibit N# 25 Exhibit O# 26 Exhibit P# 27 Exhibit Q# 28 Exhibit R# 29 Exhibit S# 30 Exhibit T# 31 Exhibit U# 32 Exhibit V# 33 Exhibit W# 34 Exhibit X# 35 Exhibit Y# 36 Exhibit Z)(Raisty, Laura) (Entered: 04/01/2005)
61 MEMORANDUM OF LAW in Support re: 57 MOTION for Summary Judgment.. Document filed by Chris De Santis, Federated Logistics, Federated Department Stores, Inc., Macy's East. (Attachments: # 1 Part 2 of Memo of Law)(Raisty, Laura) (Entered: 04/01/2005)

Case: 1:04-cv-2944 As of: 09/28/2016 04:34 PM EDT 9 of 14

04/01/2005
04/01/2005 04/01/2005 04/01/2005
04/01/2005 04/01/2005 04/04/2005 04/05/2005
04/06/2005 04/06/2005 04/15/2005 04/21/2005 05/09/2005

62 DECLARATION of Mercedes Colwin, Esq. in Support re: 58 MOTION for Summary Judgment.. Document filed by Scott Chester. (Attachments: # 1 Exhibit Exhibit A# 2 Exhibit Exhibit B# 3 Exhibit Exhibit C# 4 Exhibit Exhibit D# 5 Exhibit Exhibit E# 6 Exhibit Exhibit F# 7 Exhibit Exhibit G# 8 Exhibit Exhibit H# 9 Exhibit Exhibit I# 10 Exhibit Exhibit J# 11 Exhibit Exhibit K# 12 Exhibit Exhibit L# 13 Exhibit Exhibit M)(Krebs, Diane) (Entered: 04/01/2005)
63 DECLARATION of Thomas Grady in Support re: 57 MOTION for Summary Judgment.. Document filed by Chris De Santis, Federated Logistics, Federated Department Stores, Inc., Macy's East. (Raisty, Laura) (Entered: 04/01/2005)
64 DECLARATION of Mitchell F. Borger in Support re: 57 MOTION for Summary Judgment.. Document filed by Chris De Santis, Federated Logistics, Federated Department Stores, Inc., Macy's East. (Raisty, Laura) (Entered: 04/01/2005)
65 DECLARATION of Rose Ashmore in Support re: 57 MOTION for Summary Judgment.. Document filed by Chris De Santis, Federated Logistics, Federated Department Stores, Inc., Macy's East. (Attachments: # 1 Exhibit 1# 2 Exhibit 2, part 1# 3 Exhibit 2, part 2# 4 Exhibit 2, part 3# 5 Exhibit 3, part 1# 6 Exhibit 3, part 2# 7 Exhibit 3, part 3# 8 Exhibit 3, part 4# 9 Exhibit 5# 10 Exhibit 6# 11 Exhibit 7# 12 Exhibit 8# 13 Exhibit 9# 14 Exhibit 10)(Raisty, Laura) (Entered: 04/01/2005)
66 MEMORANDUM OF LAW in Support re: 58 MOTION for Summary Judgment.. Document filed by Scott Chester. (Krebs, Diane) (Entered: 04/01/2005)
67 RULE 56.1 STATEMENT. Document filed by Scott Chester, Chris De Santis, Federated Logistics, Federated Department Stores, Inc., Macy's East. (Attachments: # 1 Part 2 of 56.1 Statement)(Raisty, Laura) (Entered: 04/01/2005)
***NOTE TO ATTORNEY TO RE−FILE DOCUMENT − NON−ECF DOCUMENT ERROR. Note to Attorney Alison E. Gugel to MANUALLY RE−FILE Document No. 50 Letter. This document is not filed via ECF. (kg) (Entered: 04/04/2005)
68 FILING ERROR − WRONG DOCUMENT TYPE SELECTED FROM MENU − MOTION for Summary Judgment supplemental declaration. Document filed by Chris De Santis, Federated Logistics, Federated Department Stores, Inc., Macy's East. (Attachments: # 1 Exhibit Ex. 4 part 1# 2 Exhibit Ex. 4 part 2# 3 Exhibit Ex. 4 part 3# 4 Exhibit Ex. 4 part 4# 5 Appendix brief table of contents)(Saunders, Diane) Modified on 4/6/2005 (kg). (Entered: 04/05/2005)
***NOTE TO ATTORNEY TO RE−FILE DOCUMENT − DOCUMENT TYPE ERROR. Note to Attorney Diane M. Saunders to RE−FILE Document 68 MOTION for Summary Judgment (supplemental declaration). Use the document type Declaration in support of motion found under the document list Responses and Replies. (kg) (Entered: 04/06/2005)
69 DECLARATION of Diane Saunders in Support re: 57 MOTION for Summary Judgment.. Document filed by Chris De Santis, Federated Logistics, Federated Department Stores, Inc., Macy's East. (Attachments: # 1 Appendix brief table of contents# 2 Exhibit Ex. 4 part 1# 3 Exhibit Ex. 4 part 2# 4 Exhibit Ex. 3 part 3# 5 Exhibit Ex. 4 part 4)(Saunders, Diane) (Entered: 04/06/2005)
70 ENDORSED LETTER addressed to Judge Barbara S. Jones from Ian F. Wallace dated 4/8/05 re: Applications granted. Plaintiff' reply is due 5/9/05. Plaintiff's opposition to dft's motions for summary judgment is due on 5/27/05 and dfts' reply papers are due on 6/17/05. (Signed by Judge Barbara S. Jones on 4/12/05) (pl, ) (Entered: 04/18/2005)
71 NOTICE of Appearance by Laura Mae Raisty on behalf of Chris De Santis, Federated Logistics, Federated Department Stores, Inc., Macy's East (Raisty, Laura) (Entered: 04/21/2005)
72 REPLY AFFIRMATION of Ian F. Wallace in Support re: 42 SECOND MOTION to Amend/Correct 1 Complaint,.FIRST MOTION to Certify Class.FIRST MOTION to Certify Class.. Document filed by Harold Baergas. (Attachments: # 1 # 2 # 3 # 4 # 5 # 6 # 7 # 8 # 9 # 10 # 11 # 12 # 13 # 14 # 15 # 16 # 17 # 18 # 19 #

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05/09/2005 05/25/2005 05/31/2005 05/31/2005 06/17/2005 06/17/2005 06/17/2005 06/17/2005 06/17/2005 07/01/2005
07/01/2005
07/01/2005

20)(Wallace, Ian) (Entered: 05/09/2005)
73 FIRST REPLY MEMORANDUM OF LAW in Support re: 42 SECOND MOTION to Amend/Correct 1 Complaint,.FIRST MOTION to Certify Class.FIRST MOTION to Certify Class.. Document filed by Harold Baergas. (Wallace, Ian) (Entered: 05/09/2005)
74 ENDORSED LETTER addressed to Judge Barbara S. Jones from Ian F. Wallace dated 5/24/05, Set Deadlines/Hearing as to 54 MOTION for Summary Judgment., 57 MOTION for Summary Judgment., 58 MOTION for Summary Judgment : Responses due by 6/17/2005; Replies due by 7/25/2005. (Signed by Judge Barbara S. Jones on 5/25/05) (sac, ) (Entered: 05/26/2005)
75 ENDORSED LETTER addressed to Judge Barbara S. Jones from Laura M. Raisty dated 5/11/05 re: Application DENIED. The Macy's defendant and the Chester co−defendant request that the surreply be due 6/15/05. (Signed by Judge Barbara S. Jones on 5/25/05) (db, ) (Entered: 06/01/2005)
76 ENDORSED LETTER addressed to Judge Barbara S. Jones from Ian Wallace dated 5/12/05 re: plaintiff requests a ruling from this Court allowing plaintiff to file a hard copy of relevant portions of deposition testimony in support of plaintiffs motion to certify class an amend the complaint. Application GRANTED. (Signed by Judge Barbara S. Jones on 5/25/05) (db, ) (Entered: 06/01/2005)
77 AFFIRMATION of Ian F. Wallace, Esq. in Opposition re: 54 MOTION for Summary Judgment., 57 MOTION for Summary Judgment., 58 MOTION for Summary Judgment.. Document filed by Harold Baergas. (Attachments: # 1 # 2 # 3 # 4 # 5 # 6 # 7 # 8 # 9 # 10 # 11 # 12 # 13 # 14 # 15 # 16 # 17 # 18 # 19 # 20 # 21 # 22 # 23 # 24 # 25 # 26)(Wallace, Ian) (Entered: 06/17/2005)
78 RULE 56.1 STATEMENT. Document filed by Harold Baergas. (Wallace, Ian) (Entered: 06/17/2005)
79 DECLARATION of O'Neil Duncan in Opposition re: 54 MOTION for Summary Judgment., 57 MOTION for Summary Judgment., 58 MOTION for Summary Judgment.. Document filed by Harold Baergas. (Wallace, Ian) (Entered: 06/17/2005)
80 AFFIDAVIT of Harold Baergas in Opposition re: 54 MOTION for Summary Judgment., 57 MOTION for Summary Judgment., 58 MOTION for Summary Judgment.. Document filed by Harold Baergas. (Attachments: # 1)(Wallace, Ian) (Entered: 06/17/2005)
81 FIRST MEMORANDUM OF LAW in Opposition re: 54 MOTION for Summary Judgment., 68 MOTION for Summary Judgment supplemental declaration., 57 MOTION for Summary Judgment., 58 MOTION for Summary Judgment.. Document filed by Harold Baergas. (Wallace, Ian) (Entered: 06/17/2005)
82 ENDORSED LETTER addressed to Judge Barbara S. Jones from Laura M. Raisty dated 6/21/05 re: the Macy's defendants request that this Court strike plaintiff's papers in opposition to the Macy's defendants' motion for summary judgment in their entirety and that plaintiff is required to file opposition papes within 30 days. Application denied. (Signed by Judge Barbara S. Jones on 6/29/05) (sac, ) (Entered: 07/05/2005)
83 ENDORSED LETTER addressed to Judge Barbara S. Jones from Ian F. Wallace dated 6/21/05 re: Plaintiff request permission to file papers copies of the following documents designated as confidential by Macy's under seal with the Clerk of the Court pursuant to Plaintiff's Opposition to the MSJ filed by the Defendants in this lawsuit. Application granted. (Signed by Judge Barbara S. Jones on 6/29/05) (sac, ) (Entered: 07/05/2005)
84 ENDORSED LETTER addressed to Judge Barbara S. Jones from Laura M. Raisty dated 6/2/05 re: the Macy's defendants and Chester request that the Court reconsider its decision denying leave to file a surreply. Application denied.. (Signed by Judge Barbara S. Jones on 6/29/05) (sac, ) (Entered: 07/05/2005)

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07/07/2005 07/11/2005 07/11/2005 07/19/2005 07/19/2005 07/20/2005 08/10/2005 08/15/2005 08/24/2005
08/24/2005
08/29/2005
08/29/2005 08/29/2005 09/09/2005

85 ENDORSED LETTER addressed to Judge Barbara S. Jones from Ian F. Wallace dated 7/7/05 re: granting plaintiff permission to file specific documents. (Signed by Judge Barbara S. Jones on 7/7/05) (pl, ) (Entered: 07/08/2005)
86 ENDORSED LETTER addressed to Judge Jones from Diane Krebs dated 7/7/05 re: Granting counsel's request for an extension of time until Monday, Aug. 15, 2005 in which to submit reply papers.. (Signed by Judge Barbara S. Jones on 7/11/05) (djc, ) (Entered: 07/11/2005)
Set/Reset Deadlines as to 58 MOTION for Summary Judgment.. Replies due by 8/15/2005. (djc, ) (Entered: 07/11/2005)
87 ENDORSED LETTER addressed to Judge Barbara S. Jones from Alison E. Gugel dated 7/18/05 re: Application GRANTED. City defendants time to file their reply in support of their motion for summary judgment is extended to 8/15/05. (Signed by Judge Barbara S. Jones on 7/18/05) (db, ) (Entered: 07/20/2005)
Set/Reset Deadlines as to 54 MOTION for Summary Judgment. Replies due by 8/15/2005. (db, ) (Entered: 07/20/2005)
88 AFFIRMATION of Ian F. Wallace, Esq. in Opposition re: 54 MOTION for Summary Judgment., 57 MOTION for Summary Judgment., 58 MOTION for Summary Judgment.. Document filed by Harold Baergas. (Wallace, Ian) (Entered: 07/20/2005)
89 ENDORSED LETTER addressed to Judge Barbara S. Jones from Laura M. Raisty dated 8/4/05, Set Deadlines/Hearing as to 57 MOTION for Summary Judgment., 58 MOTION for Summary Judgment: Replies due by 8/29/2005. (Signed by Judge Barbara S. Jones on 8/10/05) (sac, ) (Entered: 08/11/2005)
90 REPLY MEMORANDUM OF LAW in Support re: 54 MOTION for Summary Judgment.. Document filed by City of New York, New York City Police Department. (Gugel, Alison) (Entered: 08/15/2005)
91 DECLARATION of Mercedes Colwin in Support re: 58 MOTION for Summary Judgment.. Document filed by Scott Chester. (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C# 4 Exhibit D# 5 Exhibit E# 6 Exhibit F# 7 Exhibit G# 8 Exhibit H# 9 Exhibit I# 10 Exhibit J# 11 Exhibit K# 12 Exhibit L)(Krebs, Diane) (Entered: 08/24/2005)
92 ENDORSED LETTER addressed to Judge Jones from Laura M. Raisty dated 8/17/05 re: counsel on behalf of Macy's defendants and co−defendant Scott Cheester requests that the Court grant them permission to file a a paper copy (in lieu of an electronic copy) of their response to plaintiff's LocalRule 56.1 Statement and Chester's reply brief under seal.... (Signed by Judge Loretta A. Preska on 8/22/05) (djc, ) (Entered: 08/25/2005)
93 DECLARATION of Diane M. Saunders in Support re: 57 MOTION for Summary Judgment.. Document filed by Chris De Santis, Federated Logistics, Federated Department Stores, Inc., Macy's East. (Attachments: # 1 Exhibit 1# 2 Exhibit 2# 3 Exhibit 3# 4 Exhibit 4# 5 Exhibit 5# 6 Exhibit 6# 7 Exhibit 7# 8 Exhibit 8# 9 Exhibit 9# 10 Exhibit 10# 11 Exhibit 11# 12 Exhibit 12# 13 Exhibit 13# 14 Exhibit 14# 15 Exhibit 15)(Raisty, Laura) (Entered: 08/29/2005)
94 DECLARATION of Rose Ashmore in Support re: 57 MOTION for Summary Judgment.. Document filed by Chris De Santis, Federated Logistics, Federated Department Stores, Inc., Macy's East. (Attachments: # 1 Exhibit 1# 2 Exhibit 2# 3 Exhibit 3# 4 Exhibit 4# 5 Exhibit 5)(Raisty, Laura) (Entered: 08/29/2005)
95 REPLY MEMORANDUM OF LAW in Support re: 57 MOTION for Summary Judgment.. Document filed by Chris De Santis, Federated Logistics, Federated Department Stores, Inc., Macy's East. (Raisty, Laura) (Entered: 08/29/2005)
98 ENDORSED LETTER addressed to Judge Jones from Laura Raisty dated 8/30/05: grantng permission for defts to file a papers copy (in lieu of an electronic copy) Exhibit 2 to the Reply Declaration of Rose Ashmore in further support of the Macy's defts Motion for Summary Judgment. (Signed by Judge Barbara S. Jones on 9/9/05) (cd, ) (Entered: 09/12/2005)

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09/26/2005
10/25/2005 02/17/2006 03/15/2006
04/13/2006 04/14/2006 04/14/2006 04/14/2006

100 OPINION and ORDER re: defendant's motion to sever is denied; and denying 42 SECOND MOTION to Amend/Correct 1 Complaint,.FIRST MOTION to Certify Class.FIRST MOTION to Certify Class. filed by Harold Baergas,, 23 FIRST MOTION to Amend/Correct 1 Complaint, Cross Motion and Opposition to Defendants' Motion to Sever. filed by Harold Baergas,. (Signed by Judge Henry B. Pitman on 8/25/05) (djc, ) (Entered: 09/27/2005)
101 NOTICE of Appearance by Seth D. Eichenholtz on behalf of City of New York, New York City Police Department (Eichenholtz, Seth) (Entered: 10/25/2005)
102 NOTICE OF APPEARANCE by Elizabeth M. Daitz on behalf of City of New York, New York City Police Department (Daitz, Elizabeth) (Entered: 02/17/2006)
103 ORDER: For the foregoing reasons, plaintiff's motion to amend is DENIED. The City defendants' motion for summary judgment is GRANTED. The Macy's defendants' motion for summary judgment is GRANTED. Individual defendant Scott Chester's motion for summary judgment is GRANTED. The individual defendants Chris DeSantis and Michael Green are also entitled to summary judgment. Plaintiff's motion for class certification is DENIED as moot. The Clerk of the Court is directed to close this case. (Signed by Judge Barbara S. Jones on 3/13/2006) (lb, ) (Entered: 03/15/2006)
104 NOTICE OF APPEAL from 103 Order on Motion to Certify Class, Order on Motion for Summary Judgment. Document filed by Harold Baergas. Filing fee $ 455.00, receipt number E 576083. (nd, ) (Entered: 04/14/2006)
Transmission of Notice of Appeal to the District Judge re: 104 Notice of Appeal. (nd, ) (Entered: 04/14/2006)
Transmission of Notice of Appeal and Certified Copy of Docket Sheet to US Court of Appeals re: 104 Notice of Appeal. (nd, ) (Entered: 04/14/2006)
Appeal Record Sent to USCA (Electronic File). Certified Indexed record on Appeal Electronic Files for 24 Reply to Response to Motion filed by Federated Department Stores, Inc.,, Macy's East,, Federated Logistics,, Chris De Santis,, 2 Order Referring Case to Magistrate Judge,, 64 Declaration in Support of Motion filed by Federated Department Stores, Inc.,, Macy's East,, Federated Logistics,, Chris De Santis,, 82 Endorsed Letter,, 79 Declaration in Opposition to Motion filed by Harold Baergas,, 1 Complaint, filed by Harold Baergas,, 14 Answer to Complaint filed by Federated Department Stores, Inc.,, Macy's East,, Federated Logistics,, Chris De Santis,, 53 Endorsed Letter,, 25 Reply to Response to Motion, filed by Federated Department Stores, Inc.,, Macy's East,, Federated Logistics,, Chris De Santis,, 100 Memorandum &Opinion,, 3 FIRST MOTION for Extension of Time to File Answer or respond to the complaint. filed by City of New York,, 77 Affirmation in Opposition to Motion, filed by Harold Baergas,, 61 Memorandum of Law in Support of Motion filed by Federated Department Stores, Inc.,, Macy's East,, Federated Logistics,, Chris De Santis,, 40 Affidavit of Service Other filed by Federated Department Stores, Inc.,, 12 Rule 7.1 Disclosure Statement filed by Federated Department Stores, Inc.,, 50 FIRST MOTION for Extension of Time to File Summary Judgment Papers. filed by New York City Police Department,, City of New York,, 66 Memorandum of Law in Support of Motion filed by Scott Chester,, 19 Answer to Complaint filed by Scott Chester,, 26 Affidavit of Service Complaints filed by Harold Baergas,, 7 Endorsed Letter,, 46 Endorsed Letter,, 13 Rule 7.1 Disclosure Statement filed by Macy's East,, 44 Affirmation in Support of Motion filed by Harold Baergas,, 39 Order,, 62 Declaration in Support of Motion, filed by Scott Chester,, 20 MOTION to Sever. filed by Federated Department Stores, Inc.,, Macy's East,, Federated Logistics,, Chris De Santis,, 28 Order,,, 23 FIRST MOTION to Amend/Correct 1 Complaint, Cross Motion and Opposition to Defendants' Motion to Sever. filed by Harold Baergas,, 78 Rule 56.1 Statement filed by Harold Baergas,, 101 Notice of Appearance filed by New York City Police Department,, City of New York,, 32 Endorsed Letter,, 90 Reply Memorandum of Law in Support of Motion filed by New York City Police Department,, City of New York,, 74 Endorsed Letter, Set Motion and RRDeadlines/Hearings,,, 43 FIRST MOTION to Amend/Correct 42 SECOND MOTION to Amend/Correct 1 Complaint,.FIRST MOTION to Certify Class.FIRST MOTION to Certify Class.. MOTION to Certify Class Supplemental Affidavit in Support of Motions.FIRST MOTION to Amend/Correct 42 SECOND

Case: 1:04-cv-2944 As of: 09/28/2016 04:34 PM EDT 13 of 14
MOTION to Amend/Correct 1 Complaint,.FIRST MOTION to Certify Class.FIRST MOTION to Certify Class.. MOTION to Certify Class Supplemental Affidavit in Support of Motions. filed by Harold Baergas,, 84 Endorsed Letter,, 104 Notice of Appeal filed by Harold Baergas,, 92 Endorsed Letter,, 58 MOTION for Summary Judgment. filed by Scott Chester,, 70 Endorsed Letter,, 21 Memorandum of Law in Support of Motion filed by Federated Department Stores, Inc.,, Macy's East,, Federated Logistics,, Chris De Santis,, 48 Declaration in Opposition to Motion,, filed by Federated Department Stores, Inc.,, Macy's East,, Federated Logistics,, Scott Chester,, Chris De Santis,, 9 FIRST MOTION to Compel the Criminal Records Release. filed by City of New York,, 42 SECOND MOTION to Amend/Correct 1 Complaint,.FIRST MOTION to Certify Class.SECOND MOTION to Amend/Correct 1 Complaint,.FIRST MOTION to Certify Class. filed by Harold Baergas,, 75 Endorsed Letter,, 6 Endorsed Letter,, 29 Reply Memorandum of Law in Support of Motion filed by Harold Baergas,, 17 Endorsed Letter, 76 Endorsed Letter,, 11 Rule 7.1 Disclosure Statement filed by Macy's East,, 49 Declaration in Opposition to Motion, filed by Federated Department Stores, Inc.,, Macy's East,, Federated Logistics,, Scott Chester,, Chris De Santis,, 54 MOTION for Summary Judgment. filed by New York City Police Department,, City of New York,, 65 Declaration in Support of Motion, filed by Federated Department Stores, Inc.,, Macy's East,, Federated Logistics,, Chris De Santis,, 93 Declaration in Support of Motion, filed by Federated Department Stores, Inc.,, Macy's East,, Federated Logistics,, Chris De Santis,, 69 Declaration in Support of Motion, filed by Federated Department Stores, Inc.,, Macy's East,, Federated Logistics,, Chris De Santis,, 33 Order,,, 67 Rule 56.1 Statement filed by Federated Department Stores, Inc.,, Macy's East,, Federated Logistics,, Scott Chester,, Chris De Santis,, 83 Endorsed Letter,, 98 Endorsed Letter,, 30 Reply Affidavit in Opposition to Motion filed by Harold Baergas,, 34 Stipulation and Order, 59 Declaration in Support of Motion filed by Scott Chester,, 85 Endorsed Letter, 55 Memorandum of Law in Support of Motion filed by New York City Police Department,, City of New York,, 47 Response to Motion, filed by Federated Department Stores, Inc.,, Macy's East,, Federated Logistics,, Scott Chester,, Chris De Santis,, 71 Notice of Appearance filed by Federated Department Stores, Inc.,, Macy's East,, Federated Logistics,, Chris De Santis,, 31 Declaration in Support of Motion filed by Macy's East,, 18 Endorsed Letter,, 94 Declaration in Support of Motion, filed by Federated Department Stores, Inc.,, Macy's East,, Federated Logistics,, Chris De Santis,, 68 MOTION for Summary Judgment supplemental declaration. filed by Federated Department Stores, Inc.,, Macy's East,, Federated Logistics,, Chris De Santis,, 80 Affidavit in Opposition to Motion filed by Harold Baergas,, 16 Scheduling Order,, 103 Order on Motion to Certify Class, Order on Motion for Summary Judgment,,,,,,,,,,, 37 Response to Motion, filed by Harold Baergas,, 8 Endorsed Letter,, 35 Declaration in Support of Motion filed by Scott Chester,, 63 Declaration in Support of Motion filed by Federated Department Stores, Inc.,, Macy's East,, Federated Logistics,, Chris De Santis,, 81 Memorandum of Law in Oppisition to Motion, filed by Harold Baergas,, 5 Endorsed Letter,, 38 Order, Set Scheduling Order Deadlines,,, 57 MOTION for Summary Judgment. filed by Federated Department Stores, Inc.,, Macy's East,, Federated Logistics,, Chris De Santis,, 86 Endorsed Letter, 95 Reply Memorandum of Law in Support of Motion filed by Federated Department Stores, Inc.,, Macy's East,, Federated Logistics,, Chris De Santis,, 89 Endorsed Letter, Set Motion and RRDeadlines/Hearings,,, 52 Endorsed Letter,, 91 Declaration in Support of Motion, filed by Scott Chester,, 102 Notice of Appearance filed by New York City Police Department,, City of New York,, 73 Reply Memorandum of Law in Support of Motion filed by Harold Baergas,, 22 Answer to Complaint filed by New York City Police Department,, City of New York,, 45 Endorsed Letter,,, 88 Affirmation in Opposition to Motion filed by Harold Baergas,, 10 Rule 7.1 Disclosure Statement filed by Federated Department Stores, Inc.,, 41 Endorsed Letter,, 15 Endorsed Letter,, 56 Rule 56.1 Statement filed by New York City Police Department,, City of New York,, 60 Declaration in Support of Motion,,, filed by Federated Department Stores, Inc.,, Macy's East,, Federated Logistics,, Chris De Santis,, 72 Reply Affirmation in Support of Motion, filed by Harold Baergas,, 87 Endorsed Letter,, 36 Notice of Change of Address, filed by Frick Company,, Federated Department Stores, Inc.,, Macy's East,, Federated Logistics,, Chris De Santis, were transmitted to the U.S. Court of Appeals. (nd, ) (Entered: 04/14/2006)

Case: 1:04-cv-2944 As of: 09/28/2016 04:34 PM EDT 14 of 14

01/16/2007
01/22/2007 11/05/2008

105 MANDATE of USCA WITHDRAWING APPEAL (Certified Copy) as to 104 Notice of Appeal filed by Harold Baergas USCA Case Number 06−1811−cv....that the appeal is hereby WITHDRAWN pursuant to Rule 42(b) of the Federal Rules of Appellate Procedure. Thomas Asreen, Acting Clerk USCA. Certified: 1/12/2007. (nd) (Entered: 01/22/2007)
Transmission of USCA Mandate/Order to the District Judge re: 105 USCA Mandate Withdrawing Appeal,. (nd) (Entered: 01/22/2007)
106 ORDER that the Clerk of the Court is directed to close this case. (Signed by Judge Barbara S. Jones on 11/4/08) (cd) (Entered: 11/05/2008)