Lamarr-Arruz v. CVS Pharmacy, Inc.

271 F.Supp.3d 646

Zaire LAMARR–ARRUZ and Mominna Ansoralli, on behalf of themselves and all other similarly situated employees, Plaintiffs,

v.CVS PHARMACY, INC., Defendant.

15–cv–04261 (JGK)

United States District Court, S.D. New York.

Signed September 26, 2017

David Evan Gottlieb, Douglas Holden Wigdor, Michael John Willemin, Kenneth David Sommer, Wigdor LLP, New York, NY, for Plaintiffs.

Jason A. Nagi, Adam K. Grant, Polsinelli PC, New York, NY, J. Stanton Hill, Nancy Elizabeth Rafuse, Stephanie Diane Delatorre, Polsinelli PC, Atlanta, GA, for Defendant.

OPINION AND ORDER

JOHN G. KOELTL, District Judge:

This case is about an allegedly hostile work environment caused by directions to use racial profiling against black and Hispanic store customers and by an alleged barrage of racial slurs in the workplace.

Zaire Lamarr–Arruz¹ and Mominna Ansoralli (collectively, the "plaintiffs") on behalf of a purported class have brought claims against the defendant, CVS Pharmacy, Inc. ("CVS" or the "Company"), for hostile work environment pursuant to 42 U.S.C. § 1981, as amended by the Civil Rights Act of 1991; the New York Human Rights Law, New York State Executive Law § 296 et seq. (the "NYSHRL"); and the New York City Human Rights Law, Administrative Code of the City of New York § 8–101 et seq. (the "NYCHRL"). In addition, Lamarr–Arruz, on behalf of himself only, has brought a retaliation claim against CVS under the same provisions.²

CVS has filed motions for summary judgment to dismiss the claims pursuant to Rule 56 of the Federal Rules of Civil Procedure.³

For the following reasons, the motions for summary judgment are denied .

I.

Pursuant to Federal Rule of Civil Procedure 56(a), "The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." See Celotex Corp. v. Catrett, 477 U.S. 317, 322–23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) ; Darnell v. Pineiro, 849 F.3d 17, 22 (2d Cir. 2017). "[T]he trial court's task at the summary judgment motion stage of the litigation is carefully limited to discerning whether there are any 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. P'ship, 22 F.3d 1219, 1224 (2d Cir. 1994). The moving party bears the initial burden of "informing the district court of the basis for its motion" and identifying the matters that "it believes demonstrate the absence of a genuine issue of material fact." Celotex, 477 U.S. at 323, 106 S.Ct. 2548. The substantive law governing the case will identify those facts that are material and "[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

In determining whether summary judgment is appropriate, a court must resolve all ambiguities and draw all reasonable inferences against the moving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (citing United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 8 L.Ed.2d 176 (1962) ); see also Gallo, 22 F.3d at 1223. Summary judgment is improper 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. See Chambers v. TRM Copy Ctrs. Corp., 43 F.3d 29, 37 (2d Cir. 1994). If the moving party meets its burden, the nonmoving 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 also Cohen v. Walcott, No. 13-cv-9181 (JGK), 2017 WL 2729091, at *1 (S.D.N.Y. June 23, 2017).

II.

Many of the relevant facts are disputed. The following facts, construed in the light most favorable to the plaintiffs, are undisputed unless otherwise noted.

CVS is a Rhode Island corporation that owns and operates retail drugstores throughout the United States, including in New York City. Second Am. Compl. ("SAC") ¶ 14.

CVS employs undercover security guards in plainclothes known as "Market Investigators" (also known as "Store Detectives"). Market Investigators are tasked with "loss prevention," which includes, among other things, patrolling CVS stores and apprehending shoplifters. Lamarr–Arruz R. 56.1 Counterst. ¶ 5.⁴ Market Investigators work at multiple CVS stores (including multiple stores in a given workweek) and rotate among CVS stores. See, e.g., Gaites Decl. Ex. 1 (CVS Market Investigator Training Presentation dated Mar. 2011) at CVS 00002898.

Lamarr–Arruz, who is African–American, worked as a Market Investigator from around February 18, 2013 to November 14, 2013. Gottlieb Decl. Ex. 2 (Lamarr–Arruz CVS Employee Profile). Lamarr–Arruz worked as a Market Investigator in several CVS stores in Brooklyn and Queens and was at least trained at CVS stores in Manhattan. Lamarr–Arruz R. 56.1 Counterst. ¶ 23. Before he was hired as a Market Investigator, Lamarr–Arruz worked for a CVS contractor as a security guard in CVS stores. Lamarr–Arruz R. 56.1 Counterst. ¶ 18.

Ansoralli is of Spanish, Portuguese, and West Indian (Guyanese) descent. Gottlieb Decl., Exhibit 31 (Ansoralli Dep. dated Mar. 21, 2016) at 19, 169. Ansoralli's mother is from Guyana. Gottlieb Decl., Exhibit 31 at 308; Ansoralli R. 56.1 Counterst. ¶ 9. Ansoralli was employed as a Market Investigator from October 2012 to February 2013. Ansoralli R. 56.1 Counterst. ¶ 39; Gottlieb Decl., Exhibit 90 (Ansoralli CVS Employee Profile). Ansoralli worked as a Market Investigator in several CVS stores in Brooklyn, Queens, and Manhattan. Ansoralli R. 56.1 Counterst. ¶ 36.

Market Investigators work in CVS's Loss Prevention Department. The parties dispute the precise reporting chain for Market Investigators, but agree that Market Investigators are supervised by at least Regional Loss Prevention Managers ("RLPMs"). Each RLPM oversees a team of Market Investigators within a geographic territory of CVS stores. See Gaites Decl. Ex. 1 at CVS 00002887.

CVS also employs Store Managers, who are responsible for the operations of their assigned "home stores" and for ensuring that the CVS employees working at their assigned home stores adhere to CVS policies. Lamarr–Arruz R. 56.1 Counterst. ¶ 10. Store Managers are supervised by "District Managers," who "supervise[ ] day to day operations of stores including [Loss Prevention] related operation functions." Gaites Decl. Ex. 1 at CVS 00002887. The parties dispute whether Store Managers have supervisory power over Market Investigators when the Market Investigators work in the Store Managers' home stores. See Lamarr–Arruz R. 56.1 Counterst. ¶¶ 11–17.

However, there is agreement that, because Market Investigators work at many different CVS stores, they also work with many different Store Managers. The degree and frequency with which any individual Market Investigator interacts with any individual Store Manager varies depending on a variety of factors, including respective work schedules; indeed, a Market Investigator may work at a CVS store without encountering a Store Manager. See, e.g., Lamarr–Arruz R. 56.1 Counterst. ¶¶ 34–37; Ansollari R. 56.1 Counterst. ¶¶ 37–38; Gottlieb Decl. Ex. 1 (Lamarr–Arruz Dep. dated Mar. 22, 2016) at 143–45. Market Investigators generally work independently (in other words, without any other Market Investigators present), although they may also occasionally work in pairs or in groups depending on need. See, e.g., Gottlieb Decl. Ex. 1 at 137–140; Gottlieb Decl. Ex. 3 at CVS 0007592; Gottlieb Decl. Ex. 15 (Kerth Pollock Dep. dated Mar. 29, 2016) at 103–04.

Lamarr–Arruz was supervised by at least RLPM Abdul Saliu. Lamarr–Arruz R. 56.1 Counterst. ¶¶ 8, 21–22.

Ansoralli was supervised by at least RLPM Anthony Salvatore for the first four-to-five weeks of her employment. Ansoralli R. 56.1 Counterst. ¶¶ 7, 22. Thereafter, Ansoralli was supervised by at least RLPM Saliu. Ansoralli R. 56.1 Counterst. ¶ 23.

Saliu and Salvatore were in turn supervised by Senior RLPM Juan Madrid. Lamarr–Arruz R. 56.1 Counterst. ¶ 9; Ansoralli R. 56.1 Counterst. ¶ 26.

Pursuant to CVS policy, Market Investigators are instructed to use "five steps" before stopping an individual suspected of shoplifting, which include: "(1) witnessing the subject enter the store or aisle and understanding what the subject entered with; (2) witnessing the selection of the item and identifying it as unpaid-for CVS property; (3) personally making a direct observation of the subject concealing CVS merchandise; (4) maintaining constant surveillance to ensure the item concealed was not removed or dropped; and (5) ensuring that the subject has passed all possible points of sale to give the person the opportunity to pay for the item." Lamarr–Arruz R. 56.1 Counterst. ¶ 6.

CVS provides an Employee Handbook and Code of Conduct (the "CVS Handbook") to its employees when they are hired; a copy is also available on the Company's internal Internet portal. Salvatore Decl. ¶ 4. The CVS Handbook prohibits discrimination against CVS employees and customers on the basis of (among other things) race and color. Salavatore Decl. Ex. 1 (CVS Handbook dated Jan. 2012) at CVS 00003058.⁵ At least superficially, racial profiling and other forms of discrimination have no place in shoplifter apprehension, loss prevention, or the operations of CVS stores.

However, Lamarr–Arruz and Ansoralli testified to a pervasive racially discriminatory culture at CVS stores (which CVS denies). The plaintiffs testified to repeated instructions by Saliu, Salvatore, and several Store Managers to monitor and apprehend Hispanic and black customers, who were...