In Gerald v. DCV Holdings, Inc., et al, 17-CV-6525, 2021 WL 2809915 (E.D.N.Y. July 6, 2021), the court, inter alia, denied defendants’ motion for summary judgment on plaintiff’s claim of race discrimination asserted under Title VII of the Civil Rights Act of 1964, 42 U.S.C. 1981, and the New York State Human Rights Law, and the New York City Human Rights Law.
In this case, plaintiff asserts that the individual defendants “subjected him to a steady flow of egregious discrimination and abuse, including the regular use of shockingly racist language, throughout his approximately forty years with them.”
The court proceeded to summarize plaintiff’s allegations (in part) as follows:
The evidentiary record in this case contains a relentless stream of the most offensive racial invective. Among other things, Plaintiff testified, Vitucci, Sr. routinely referred to him by various racial epithets, including “monkey,” “n****r,” “black b**tard,” and “mutt.” Id. at 57:21-58:9; 145:11-146:3; Pl. Decl. ¶ 27. Vitucci, Jr. employed similarly derogatory language. See, e.g., id. at 167:14-17. On several occasions when Plaintiff protested this treatment, Defendants barred him from coming to work. See, e.g., id. at 228:4-229:3 (when Plaintiff asked Vitucci, Sr. to stop calling him “n****r,” Vitucci responded, “who the f**k are you for [me] to respect you, you f**king mutt,” and demanded that Plaintiff “take the week off,” telling him “don’t let me see you here”). Plaintiff also attested that he was undercompensated relative to white employees with similar job duties.
In order to establish a prima facie case of discrimination, the court explained, a plaintiff must show: (1) he belongs to a protected class; (2) he was competent to perform the job or was satisfactorily performing the duties required by his position; (3) he suffered an adverse employment action; and (4) the adverse action occurred under circumstances giving rise to an inference of discrimination based on his race.
Defendants did not dispute that plaintiff satisfied the first two elements, but rather challenged elements three (adverse employment action) and four (inference of discrimination).
The court held that triable issues of fact existed as to both elements.
As to the “adverse employment action” element, defendants primarily argued that plaintiff was not terminated at all, but rather that plaintiff resigned. There were, however, summary judgment-defeating issues of fact as to this issue:
Plaintiff describes the events leading to his separation as follows: in early January 2015, Plaintiff complained about his heavy workload and long hours, specifically noting that his hours exceeded those of all other employees apart from Eddie (who is also black). Pl. Decl. ¶ 40. In response, Vitucci, Sr. called Plaintiff a black motherf**ker and told him that if he had a problem he should not come back to work. Id.
Later that month, Plaintiff complained to Carol Vitucci about Vitucci, Sr.’s use of racial slurs. Id. ¶ 39. A few days later, Plaintiff approached Vitucci, Sr., again, asking that Plaintiff be paid “the same wage as everyone else in the yard,” including higher-paid white employees. Id. ¶ 41. Plaintiff “complained” about working long hours and weekends while other employees (including white employees) were paid at higher rates. Id. Plaintiff also “requested paid time off” and observed that “other employees, including white employees, were allowed to take paid leave for vacations and personal reasons” while Plaintiff was not. Id.
The next month, Plaintiff approached Vitucci, Sr., yet again. He asked if Vitucci, Sr. had thought about the requests for higher pay, shorter hours, and paid leave time. Vitucci, Sr. responded that Plaintiff should go see Carol Vitucci in the office. Id. ¶ 46. Carol, in turn, told Plaintiff that things were slow and then “terminated” him. Id. Plaintiff later went back to the yard to speak with Vitucci, Sr. who told him “I’ll have my son put a bullet in your head, n****r.” Pl. Tr. 260:12-262:11. Plaintiff testified that he was terminated because he opposed the Defendants’ discriminatory employment practices: “I think Dom told [Carol] to let me go …. I think he terminated me, got rid of me because I wanted [a] higher raise and I didn’t want to accept how he was treating me. That’s why.” Pl. Tr. 313:12-23; 321:9-12.
Plaintiff’s testimony is complicated, to a degree, by his acknowledgment that Vitucci, Sr. resisted his separation shortly before discharge (though in racially offensive terms, once again). See Pl. Tr. 299:8-301:2 (Plaintiff states in a discussion of his potential relocation to North Carolina, Vitucci, Sr. told him “you ain’t going nowhere n****r, I own you”).
Considering this evidence in the light most favorable to Plaintiff, however, there is clearly a dispute of fact as to whether Plaintiff was terminated or resigned.
Turning to the “inference of discrimination” element, the court “easily dismissed” defendant’s argument that even if plaintiff was fired, that action was not racially motivated, in light of the evidence of racial animus discussed by the court. The court also rejected defendants’ argument based on the “same actor inference,” noting that that doctrine “is not a bar in every case … and is less compelling when a significant period of time elapses between the hiring and firing.”