In Kinney v. Duane Reade Inc., No. 150713/17, 2019 WL 2995809, 2019 N.Y. Slip Op. 31948(U) (N.Y. Sup Ct, New York County July 09, 2019), the court, inter alia, denied defendants’ motion for summary judgment on plaintiff’s claims of discriminatory failure to promote and termination.
Plaintiff, who is white and openly gay, worked for Duane Reade. The court summarized plaintiff’s allegations, in part, as follows:
When plaintiff began working for defendants at its York Avenue store, plaintiff claims he was one of two Caucasian employees out of a staff of more than thirty there. Plaintiff explains in his affidavit that his coworkers treated him differently because he is Caucasian and gay. He claims that his coworkers gossiped about him, discouraged him from applying for higher level positions with defendant, excluded him and did not provide the same level of training as to other employees. Plaintiff further contends that his supervisors, Store Managers Angel Velez and particularly Stephanie Martinez, “would write [him] up excessively for minor things, like not being neat enough.”
In addition, plaintiff alleges that he was assaulted by a man who plaintiff believed to be a shoplifter (who also called him a “faggot”), after which plaintiff was fired.
As to plaintiff’s claim of discriminatory termination, the court explained:
Defendants have not met their burden on this motion and established that the decision to terminate plaintiff was legitimate and non-discriminatory as a matter of law. If a jury finds that plaintiff was fired at least in part because of his opposition to customer harassment based upon sexual orientation discrimination, defendants may be held liable (see Singh v. Covenant Aviation, 131 AD3d 1158, 1161 (2d Dept 2015) citing Bennett v. Health Mgt. Sys., Inc., 92 AD3d at 40).
It is not even clear who decided to fire plaintiff. While Fullerton claims that she had no involvement in the decision, the 8/2/16 report indicates that it was Fullerton who fired plaintiff. Fullerton was present **12 at Orlando’s interview of plaintiff about the incident and claims that she told plaintiff he had been suspended at Orlando’s direction.
There are other inconsistencies between defendants’ employees’ testimony which further highlight material issues of fact on this record. Did plaintiff have a temper problem as Fullerton described despite failing to write him up for it? Was plaintiff’s job performance at the first store legitimately unsatisfactory as Velez described? Did defendant have a “Managing Confrontational Customers” policy? Even if not necessarily relevant, these questions go to witness credibility.
Defendants claim that plaintiff was terminated for failing to follow its policies by re-engaging with the man instead of walking away. Plaintiff is indisputably the victim of a hate crime. It is telling that defense counsel refers to the man who called plaintiff a faggot and repeatedly punched him in the face a “customer”. There is absolutely nothing on this record to actually support that description of the man. The attacker was in the store for mere seconds, during which time he punched plaintiff in the face.
In any event, plaintiff has raised a triable issue of fact as to whether defendants’ proffer regarding his termination is mere pretext. Plaintiff points to defendants’ failure to follow its own policies in regard to termination, such as firing him instead of following its progressive counseling policy and not conducting an investigation of how other employees who violated defendants’ shoplifting policies were punished. A departure from defendant’s internal procedures can serve as evidence of pretext (DeFreitas v. Bronx Lebanon Hosp., 2019 168 AD3d 541 [1st Dept 2019]).
Further, Hai claims that she decided to terminate plaintiff based upon her review of the surveillance video. She did not interview plaintiff. She did not read his written statement. Even if she and Geyer made the decision to terminate plaintiff without input from anyone else, a reasonable factfinder could conclude that the policy violations were mere pretext since Hai did not seem interested in investigating all the facts before deciding to fire plaintiff. Further, the contrast between Hai’s testimony that she would promote an employee only with a Store Manager’s recommendation, but did not confer with Fullerton regarding plaintiff’s termination is stark and mandates denial of the motion as to plaintiff’s termination claim.
*10 Plaintiff’s counsel also claims that the reason plaintiff was terminated shifted from being outside the store to violating the Be Safe policy. Plaintiff denies ever being told he violated a policy when he was fired and the Be Safe policy is first documented as the basis for plaintiff’s termination on 8/2/16, ten days after plaintiff was terminated. Indeed, Hai’s emails before plaintiff was fired indicate that plaintiff was fired for being outside the store more than five minutes. A shifting, inconsistent, and questionable explanation for termination are evidence of pretext (Sullivan v. New York City Department of Investigation, 163 FSupp3d 89 [SDNY 2016]).
Otherwise, plaintiff has come forward with evidence of disparate discipline; other employees in plaintiff’s region committed similar violations of defendants’ shoplifting policies but were not terminated. He claims that many of these employees were outside plaintiff’s protected classes. Plaintiff specifically points to an African-American woman who violated the Be Safe policy that Hai did not terminate. Indeed, defense counsel concedes: “Defendants, however, never asserted that every Duane Reade employee who violated Duane Reade’s policies concerning the handling of confrontational customers and/or shoplifters was terminated.”
The court, however, rejected plaintiff’s argument “that defendants’ policies are inherently discriminatory because defendants essentially require their employees to tolerate and walk away from unlawful discrimination”, reasoning that this argument “would require a logic jump from a simple policy requiring employees to diffuse and deescalate a situation” and that “[t]he policy itself is certainly not discriminatory on its face” and “is not based upon discriminatory animus or in furtherance of a discriminatory scheme.”