Fernandez v. Wenig Saltiel LLP

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SHONDA FERNANDEZ, Plaintiff, v. WENIG SALTIEL LLP, IRA GREENE, JEFFREY L. SALTIEL, and MERYL L. WENIG, Defendants.

No. 19-CV-1979 (AMD) (MMH)

United States District Court, E.D. New York

March 29, 2024

OPINION

ANN M DONNELLY, UNITED STATES DISTRICT JUDGE

The plaintiff brings this action against her former employer Wenig Saltiel LLP, and former supervisors Jeffrey L. Saltiel and Meryl L. Wenig (together, the “Wenig Saltiel defendants”), as well as another former colleague, Ira Greene. (ECF No. 1.) The plaintiff alleges race discrimination and retaliation under 42 U.S.C. § 1981 (“Section 1981”), the New York State Human Rights Law (“NYSHRL”), and the New York City Human Rights Law (“NYCHRL”). Before the Court is the Wenig Saltiel defendants' motion for summary judgment on all claims. (ECF No. 86.)^[1] As explained below, the motion is granted in part and denied in part.

BACKGROUND^[2]

From August 2018 to March 1, 2019, the plaintiff, a Black woman of Hispanic descent (ECF No. 1 ¶ 2), was the office manager of Wenig Saltiel LLP, a Brooklyn law firm. (ECF No. 86-48, Defendants' Rule 56.1 Statement ¶¶ 1, 2, 23; ECF No. 88-1, Plaintiff's Rule 56.1 Counterstatement ¶¶ 1-2.) The plaintiff's primary responsibilities were to “follow-up with attorneys” about the status of cases, “manage the paralegal staff” and “ensure timely completion of work deadlines for all.” (ECF No. 86-48 ¶ 3.)

Ira Greene, a named partner of the firm until 2009, kept an office at Wenig Saltiel for most of the plaintiff's time at the firm. (Id. ¶¶ 2, 24.) From 2015 until about February 12, 2019, the firm and Greene agreed that Greene could use the firm's office equipment, including a computer with internet access and a phone, and the firm would pay for his overhead expenses and certain other office expenses; in exchange, Greene agreed to transfer some of his cases to the firm, assign the firm 100 percent of legal fees he received, and name the firm as “attorney of record” in his cases. (ECF No. 88-1 ¶¶ 5, 9-20; see also ECF No. 88-16 (2015 Wenig Saltiel LLP-Greene Agreement).)^[3] The defendants considered Greene to be an “employee” of Wenig Saltiel. (ECF No. 93-1 at 4 (“Defendants accept for purposes of Summary Judgment that Defendant Greene was an employee of Wenig Saltiel.”).)

I. Wenig Saltiel Hires the Plaintiff

The plaintiff had three interviews for the office manager job. (ECF No. 88-1 ¶ 25.) The first interview was with Saltiel and the second was with Saltiel and Wenig. (Id. ¶ 26.) The plaintiff maintains that the third interview was with Saltiel and Greene (id. ¶ 27 (citing ECF No. 88-3 at 72:18-24, 271-72; ECF No. 88-29 ¶¶ 4)); in the interview, Saltiel introduced Greene as “one of the original owners of the firm” (id. ¶ 31 (citing ECF No. 88-3 at 73:5-74:12). Greene read her resume and told Saltiel, “She looks real good.” (Id. ¶ 28 (quoting ECF No. 88-3 at 27273).)^[4] Wenig Saltiel LLP hired the plaintiff the day after the third interview. (Id. ¶ 30.)

The plaintiff understood that Greene was at “basically the same level as [Wenig and Saltiel] as far as running the office” (id. ¶ 33 (quoting ECF No. 88-3 at 248:3-249:6)), and that Greene could cause employees to get fired (id. ¶ 36 (citing ECF No. 88-3 at 252-55)). Saltiel told her that Greene was “a fixture” at the firm and that he was “not going anywhere” because Wenig would “never allow that to happen.” (Id. ¶ 34 (quoting ECF No. 88-3 at 250:2-16).)

Saltiel also told her to “[b]e very careful because if [Greene] gets in the ear of [Wenig], then [Wenig] will put you out.” (Id. (quoting ECF No. 88-3 at 250:11-16).)^[5]

The plaintiff's office was next to Greene's. (Id. ¶ 39.) Greene gave her assignments every day, including “calling the banks” and “speaking with his clients” (id. ¶ 37 (quoting ECF No. 88-3 at 256)); she worked for Greene more than she worked for other attorneys in the office (id. ¶ 38 (citing ECF No. 88-3 at 257:3); see also ECF No. 88-3 at 257:3-9).^[6]

II. Wenig Saltiel's Antidiscrimination Policies

When the plaintiff started at Wenig Saltiel, the firm's employee handbook included a policy for “workplace threats and violence,” including sexual harassment. (ECF No. 88-1 ¶ 183; see also ECF No. 88-11.) The policy directed employees to give their complaints to the office manager - the plaintiff - who would pass them on to Saltiel. (ECF No. 88-1 ¶ 182.) One of the plaintiff's responsibilities was to “update and revise” the policies, including the antidiscrimination policy, which was not “clear” or “up to date” when she joined the firm. (Id. ¶ 176.)^[7] At one point she led a meeting with the firm's employees about sexual harassment. (Id. ¶ 181.)^[8]

Saltiel was responsible for addressing Wenig Saltiel employees' “complaints of discrimination.” (Id. ¶ 134.) A complaint did not need to include the word “discrimination,” or be “artfully stated,” “for him to identify it as a discrimination complaint.” (Id. ¶ 148.) According to Saltiel, an employee “never made” an internal complaint of discrimination, so he never had to determine “whether the policy was violated.” (ECF No. 86-3 at 78:11-18.) He acknowledged, however, that “there was a discussion that took place that was raised by [the plaintiff]”^[9] in December 2018 about comments that Greene made about the Civil Rights Movement, discussed in detail below, but he was “not sure if [the discussion] was considered a complaint.” (Id. at 79:11-15.)

Greene was required to follow the firm handbook's “procedures and policies” (ECF No. 88-1 ¶ 20), but Saltiel did not tell him to review the antidiscrimination policies (id. ¶ 151 (citing ECF No. 88-5 at 261:2-8)). Saltiel required Greene to attend the plaintiff's sexual harassment policy training. (Id.).

III. Racist Conduct at Wenig Saltiel

Greene was “very interested in the period of the Civil War” and “may have” discussed the Civil War with the plaintiff and other Wenig Saltiel employees. (Id. ¶¶ 49-50.) Greene sometimes participated in Civil War reenactments, in which he usually played a Confederate soldier. (Id. ¶¶ 51-52.)^[10] Greene used his work computer to play “[C]onfederate songs out loud in his office,” which the plaintiff heard and recognized. (Id. ¶¶ 59, 69.)^[11] These songs included “Dixie,” the “unofficial confederate anthem” (id. ¶ 63),^[12] and “Bonnie Blue Flag,” a “well known Confederate marching song” (id. ¶ 68).^[13] Saltiel once saw Greene “with a book or picture related to the [C]onfederacy.” (Id. ¶ 89.)

During the plaintiff's first week at the firm, Greene told her about “his relatives who, to this day, sat on their porch in Virginia with their shotguns just like the good old days.” (Id. ¶ 40 (quoting ECF No. 88-3 at 259-60).)^[14] He called his relatives “good old boys” and “continued to talk about what goes on there in the south.” (Id. (quoting ECF No. 88-3 at 259-60).) The plaintiff “did not want to discuss ‘racism or race' with [Greene]” and “ended the discussion.” (Id. ¶ 41 (citing ECF No. 88-3 at 260).) She “immediately” told Saltiel about Greene's statements because she “believed [that] they had racial connotations.” (Id. ¶ 42 (citing ECF No. 88-3 at 260:17-23).)^[15] She described the comments as “very disturbing” and said that she “didn't understand what was going on.” (Id. ¶ 43 (citing ECF No. 88-3 at 261:6); see also ECF No. 88-3 at 260:17-261:11). She said that it was “very offensive to be told that people are sitting on porches with shotguns like the good old days. It's very offensive to me. Speaking about the confederate flag flying high . . . that's unacceptable.” (ECF No. 88-1 ¶ 45 (quoting ECF No. 883 at 264:5).) Saltiel “laughed and downplayed it” (id. ¶ 44 (quoting ECF No. 88-3 at 262:11263)) and “did not take it seriously” (id. (quoting ECF No. 88-3 at 263)). He told the plaintiff that she should “just put [Greene] out of your office.” He also said that he would “speak to [Greene]” but that she would “get to know old Ira.” (Id. (quoting ECF No. 88-3 at 261:6); see also ECF No. 261:8-15.)

The plaintiff and Greene sometimes had “non-work-related discussions about politics,” including about then-President Trump and a senator from New Jersey. (Id. ¶ 47.) At one point, Greene told the plaintiff that attorneys “born in other countries” often “offer full services in all kinds of areas” of law, and that “sometimes lawyers take on landlord-tenant cases when they don't know the law very well, and Wenig Saltiel winds up inheriting a lot of those cases because the initial lawyers have made mistakes.” (ECF No. 88-5 at 143-44.)

On “more than five” separate occasions, the plaintiff saw Greene watching videos in his office (ECF No 88-1 ¶¶ 74, 80 (citing ECF No. 88-3 at 279:10-280)); he watched them with his door open and with his computer screen facing the door, so that the plaintiff could see it when she walked by (id. ¶ 81; see ECF No. 88-3 at 282-83).^[16] The first time, he “called [her] over” and told her to “take a look.” (ECF No. 88-1 ¶¶ 74, 80.) The videos showed “a man hanging from a tree with his testicles and his penis cut off and shoved in his mouth, from a noose and they set him on fire;” “a woman running through the woods, pregnant, by a group of white men who gang raped her, tied her to a tree, cut the baby from her and bounced it around like a football;” or a “little boy, running . . . who [was] grabbed and assaulted by a group of white men.” (Id. ¶ 74 (citing ECF No. 88-3 at 277:17-278; ECF No. 88-29 ¶¶ 13, 17, 18).)^[17] The first time this happened, the plaintiff “screamed, ‘Ira, what are you doing? Are you crazy, what are you doing, what are you watching?'” (Id. ¶ 75 (quoting ECF No. 88-3 at 283:14-18).) Greene responded, “Oh, it's not me. It's the website. This is what they post.” (Id. ¶ 76 (quoting ECF No. 88-3 at 283:19-24).) ...