Pierre v. Air Serv Sec., 14-CV-5915 (MKB) (ST)

JEAN G. PIERRE, Plaintiff, v. AIR SERV SECURITY, Defendant.

14-CV-5915 (MKB) (ST)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

September 21, 2016

NOT FOR PUBLICATION

MEMORANDUM & ORDER

MARGO K. BRODIE, United States District Judge:

Plaintiff Jean G. Pierre, proceeding pro se, commenced the above-captioned action on October 8, 2014 against Defendant Air Serv Security, alleging employment discrimination on the basis of national origin in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. ("Title VII"). (Compl., Docket Entry No. 1.) Plaintiff also appears to assert a claim of retaliation in violation of the Equal Pay Act of 1963, 29 U.S.C. § 215(a)(3) ("EPA"). (Id.) On October 27, 2015, Defendant moved for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. (Def. Mot. for Summ. J., Docket Entry No. 20.) On April 6, 2016, the Court referred Defendant's motion for summary judgment to Magistrate Judge Steven L. Tiscione for a report and recommendation. (Order dated April 6, 2016.) By report and recommendation dated July 28, 2016 (the "R&R"), Judge Tiscione recommended that the Court grant Defendant's motion for summary judgment.¹ (R&R 2, Docket Entry No. 34.) On August15, 2016, Plaintiff objected to the R&R.² (Pl. Answer to Def. Mot. to Rebut R&R ("Pl. Obj."), Docket Entry No. 39.) For the reasons discussed below, the Court adopts Judge Tiscione's R&R and grants Defendant's motion for summary judgment.³

I. Background

The Court assumes familiarity with the facts of the case as set forth in detail in the R&R. Plaintiff is of Haitian origin and speaks with a French accent. (Compl. ¶¶ 7-8; Def. Statement of Undisputed Material Facts Pursuant to Local Civil Rule 56.1 ("56.1") ¶ 3, Docket Entry No. 25). Defendant provides various services to airlines, including security services. (56.1 ¶ 1.) On December 23, 2011, Defendant hired Plaintiff as a security guard at the American Airlines terminal at John F. Kennedy Airport. (56.1 ¶ 2.)

During the first six months of Plaintiff's employment, Plaintiff received seven disciplinary warnings, beginning on December 24, 2011. (56.1 ¶¶ 14-33). Plaintiff's warnings covered conduct such as exceeding his allotted break time, (56.1 ¶ 14; Ex. I, annexed to Decl. ofCraig R. Benson ("Benson Decl."), Docket Entry No. 22); refusing to return to his assigned post after a break and being disrespectful to his supervisor, resulting in a suspension, (56.1 ¶ 15; Dep. of Jean G. Pierre ("Pl. Tr.") 156:3-157:13, annexed as Exs. B & C to Benson Decl.; Ex. J., annexed to Benson Decl.); insulting a colleague and accusing the colleague of spying on him, (56.1 ¶¶ 17-25; Pl. Tr. 158:7-22, 161:12-163:8, 164:12-165:2; Ex. K., annexed to Benson Decl.); refusing to return to his post after a bathroom break and speaking to his supervisor in a loud voice, (56.1 ¶¶ 26-27; Ex. L, annexed to Benson Decl.); addressing a coworker with foul language, (56.1 ¶ 31; Ex. M, annexed to Benson Decl.); failing to properly direct traffic, (56.1 ¶ 32; Ex. N, annexed to Benson Decl.); being late to work on four different days and missing work on one day, (56.1 ¶ 33; Ex. O, annexed to Benson Decl.).

On July 31, 2012, Plaintiff's employment was terminated following an altercation with his supervisors. (56.1 ¶¶ 34-62.) Plaintiff had been assigned to work at a security guard post but refused to go his assigned post, yelled at his supervisors and accused them of being discriminatory and abusive. (56.1 ¶¶ 34-36, 51; Pl. Tr. 73:13-22, 123:18-20, 136:15-137:10; Exs. F-I, annexed to Decl. of Eric Cuevas ("Cuevas Decl."), Docket Entry No. 23.) Plaintiff's supervisors then contacted Lisa Asaro, Defendant's account manager for American Airlines, (56.1 ¶¶ 30, 38; Pl. Tr. 73:23-74:2), who asked Plaintiff to return to his assigned post and warned Plaintiff that his refusal to do so would result in termination of his employment. (56.1 ¶¶ 38-39; Pl. Tr. 134:20-135:4.) Plaintiff refused to return to his assigned post and was terminated. (56.1 ¶¶ 39, 58; Pl. Tr. 133:20-23.)

According to Plaintiff, Defendant discriminated against him because his primary language is French. Plaintiff alleges that during a conversation with Asaro in May or June of2012, Asaro told Plaintiff that she "did not want to speak to [him] with [his] f--king French language." (Compl. 4; 56.1 ¶¶ 89-91; Pl. Tr. 37:12-16, 38:8-22, 39:22-25, 41:3-8, 215:15-20.)

II. Discussion

a. Standard of review

i. Report and recommendation

A district court reviewing a magistrate judge's recommended ruling "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1)(C). When a party submits a timely objection to a report and recommendation, the district court reviews the parts of the report and recommendation to which the party objected under a de novo standard of review. Id.; see also United States v. Romano, 794 F.3d 317, 340 (2d Cir. 2015). The district court may adopt those portions of the recommended ruling to which no timely objections have been made, provided no clear error is apparent from the face of the record. John Hancock Life Ins. Co. v. Neuman, No. 15-CV-1358, 2015 WL 7459920, at *1 (E.D.N.Y. Nov. 24, 2015). The clearly erroneous standard also applies when a party makes only conclusory or general objections, or simply reiterates its original arguments. Chime v. Peak Sec. Plus, Inc., 137 F. Supp. 3d 183, 187 (E.D.N.Y. 2015) ("General or conclusory objections, or objections which merely recite the same arguments presented to the magistrate judge, are reviewed for clear error." (citation omitted)); see also DePrima v. N.Y.C. Dep't of Educ., No. 12-CV-3626, 2014 WL 1155282, at *3 (E.D.N.Y. Mar. 20, 2014) (collecting cases).

ii. Summary judgment

Summary judgment is proper only when, construing the evidence in the light most favorable to the non-movant, "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a); Davis v. Shah, 821 F.3d 231,243 (2d Cir. 2016); see also Cortes v. MTA N.Y.C. Transit, 802 F.3d 226, 230 (2d Cir. 2015); Tolbert v. Smith, 790 F.3d 427, 434 (2d Cir. 2015); Zann Kwan v. Andalex Grp. LLC, 737 F.3d 834, 843 (2d Cir. 2013). The role of the court "is not to resolve disputed questions of fact but only to determine whether, as to any material issue, a genuine factual dispute exists." Rogoz v. City of Hartford, 796 F.3d 236, 245 (2d Cir. 2015) (first quoting Kaytor v. Elec. Boat Corp., 609 F.3d 537, 545 (2d Cir. 2010); and then citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50 (1986)). A genuine issue of fact exists when there is sufficient "evidence on which the jury could reasonably find for the plaintiff." Anderson, 477 U.S. at 252. The "mere existence of a scintilla of evidence" is not sufficient to defeat summary judgment. Id. The court's function is to decide "whether, after resolving all ambiguities and drawing all inferences in favor of the non-moving party, a rational juror could find in favor of that party." Pinto v. Allstate Ins. Co., 221 F.3d 394, 398 (2d Cir. 2000).

Finally, the court must "liberally construe pleadings and briefs submitted by pro se litigants" on a motion for summary judgment, reading such submissions "to raise the strongest arguments they suggest." Bertin v. United States, 478 F.3d 489 (2d Cir. 2008) (first citing Cruz v. Gomez, 202 F.3d 593, 597 (2d Cir. 2000); and then citing Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994)); see also Sealed Plaintiff v. Sealed Defendant, 537 F.3d 185, 191 (2d Cir. 2008) (noting that "when a plaintiff proceeds pro se a court is obliged to construe his pleadings liberally" (alterations and internal quotation marks omitted)); Ferran v. Town of Nassau, 471 F.3d 363, 369 (2d Cir. 2006) ("This Court will construe briefs submitted by pro se litigants liberally.").

b. Plaintiff's objections

Plaintiff objects to Judge Tiscione's recommendation that the Court grant Defendant's motion for summary judgment. Liberally construing Plaintiff's arguments, Plaintiff appears toraise two main objections to the R&R. Plaintiff argues that Judge Tiscione erred in holding that Plaintiff did "not provide[] enough evidence." (Pl. Obj. 30.) Plaintiff also argues that Defendant's motion for summary judgment should be denied as a sanction for spoliation. (Id. at 12.) In addition, Plaintiff appears to attempt to assert a new claim against Defendant in his objections. (Id. at 19-23.) Although Plaintiff fails to specifically challenge Judge Tiscione's findings as to each of his claims, the Court nevertheless broadly construes his objections and conducts a de novo review of the R&R.

i. Title VII and NYSHRL claims

Title VII and NYSHRL discrimination claims are assessed using the framework established in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), in which the Supreme Court set forth a burden-shifting scheme that governs a plaintiff's ultimate burden of proof at trial. Littlejohn v. City of New York, 795 F.3d 297, 307 (2d Cir. 2015) (discussing burden-shifting (first citing Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133 (2000); then citing St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 506 (1993); and then citing Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253-55 (1981)); see also Hyek v. Field Support Servs., Inc., 461 F. App'x 59, 60 (2d Cir. 2012) ("Claims brought under the NYSHRL 'are analyzed identically' and 'the outcome of an employment discrimination claim made pursuant to the NYSHRL is the same as it is under . . . Title VII.'" (alteration in original) (quoting Smith v. Xerox Corp., 196 F.3d 358, 363 n.1 (2d Cir. 1999))). Under that framework, a plaintiff must first establish a prima facie case of discrimination. Hicks, 509 U.S. at 506; Ruiz v. Cty. of Rockland, 609 F.3d 486, 491 (2d Cir. 2010). The plaintiff's burden at this stage is "minimal" or "de minimis." Hicks v....