Drouillard v. Sprint/United Mgmt. Co.

• Decision Date: 22 March 2019
• Docket Number: 2:16-cv-02997 (ADS)(ARL)
• Citation: 375 F.Supp.3d 245
• Parties: Shaina DROUILLARD, Plaintiff, v. SPRINT/UNITED MANAGEMENT COMPANY, Defendant.
• Court: U.S. District Court — Eastern District of New York

375 F.Supp.3d 245

Shaina DROUILLARD, Plaintiff,

v.SPRINT/UNITED MANAGEMENT COMPANY, Defendant.

2:16-cv-02997 (ADS)(ARL)

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

Signed March 22, 2019

Neil H. Greenberg & Associates, P.C., 4242 Merrick Rd, Massapequa, NY 11758, By: Justin M. Reilly, Esq., Neil H. Greenberg, Esq., Of Counsel., Attorneys for the Plaintiff.

Proskauer Rose LLP, Eleven Times Square, New York, NY 10036-8299, By: Harris Michael Mufson, Esq., Steven D. Hurd, Esq., One Newark Center, Newark, NJ 07102, By: Alychia Lynn Buchan, Esq., Of Counsel., Attorneys for the Defendant.

Littler Mendelson P.C., 532 Broadhollow Road Suite 142, Melville, NY 11747, By: Lisa Marie Griffith, Esq., Kimberly Natalie Dobson, Esq., Of Counsel., Attorneys for the Defendant.

MEMORANDUM OF DECISION & ORDER

ARTHUR D. SPATT, United States District JudgeThe plaintiff Shaina Drouillard (the "Plaintiff") brought this employment discrimination action against the defendant Sprint/United Management Company (the "Defendant") alleging that it discriminated against her based on her race and gender and retaliated against her for engaging in a protected activity in violation of, Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. ("Title VII"), and the New York Executive Law § 290 et seq. ("NYHRL").

Presently before the Court is a motion by the Defendant, pursuant to Federal Rule of Civil Procedure ("FED. R. CIV. P." or "Rule") 56, seeking summary judgment dismissing the complaint. For the reasons that follow, that motion is granted in part and denied in part. Specifically, the Court denies the Defendant's motion with respect to the Plaintiff's race-based hostile work environment claims but grants the Defendant's motion with respect to the Plaintiff's gender-based hostile work environment claims and retaliation claims.

I. BACKGROUND

Unless otherwise noted, the following facts are not in dispute. The Court draws these facts from the Defendant's Rule 56.1 Statement of Material Facts and the Plaintiff's Response. ECF 33 (the "SMF"). As a preliminary matter, the Court notes that both parties' briefs eschewed citations to the SMF in favor of direct citations to the record. This error or oversight wholly contradicts the purpose of requiring Rule 56.1 statements, which focus the Court's attention on the purportedly undisputed facts in the record to facilitate its determination of which issues properly remain for the jury. By failing to reference the SMF, the parties abdicated their responsibility to provide a thorough initial legal analysis. See Allied Bldg. Prod. Corp. v. Pinsler , No. 12-cv-6249, 2013 WL 2384268, at *2 (N.D. Ill. May 23, 2013) (explaining that citing Rule 56.1 statements in supporting memorandum "rather than citing directly to the record" is necessary "to streamline the summary judgment process"). Although the Court was able to wade through the record to reach its conclusion, the process chosen by the parties occurred to the detriment of the efficient use of judicial resources. Bearing that in mind, the Court will proceed to the facts.

The Defendant is a telecommunications company that provides wireless and digital services to customers throughout the United States. The Defendant owns and operates approximately 1,100 retail stores nationwide. The Defendant has a Code of Conduct, conveyed to employees through its employee guide. The Code of Conduct contains an anti-harassment and anti-retaliation policy, which the Defendant also publishes and distributes as a separate document titled "Not Here, Not Ever." The Defendant's intranet also defines harassment and the different reporting mechanisms available to employees. Each employee must re-certify his or her reading and understanding of the Code of Conduct annually by an online refresher course, "i-Comply."

The Plaintiff is an African American female who is currently employed by the Defendant as an Assistant Store Manager ("ASM") for the Westbury, New York retail store. The Defendant hired the Plaintiff as a retail consultant in 2006 and promoted her to ASM in 2014. In March 2015, the Defendant transferred the Plaintiff to its retail location in Bay Shore. The dispute in this case relates to the Defendant's handling of incidents that occurred during her time at Bay Shore, culminating in her transfer to the Lake Grove location on June 27, 2015. The Plaintiff's claim stems from the behavior of her subordinate, a salesman at Bay Shore named Ebraheem Elkilany ("Elkilany"), who engaged in a pattern of racially and sexually offensive behavior.

A. ELKILANY'S CONDUCT.

Elkilany called the Plaintiff a "nigger" on three occasions, and repeatedly used the word in her presence. One evening in April 2015, the Plaintiff and Elkilany were performing nightly closing procedures at Bay Shore. When the Plaintiff asked Elkilany to put away accessories, he said to her either "listen my n word," or "[t]his ‘N word’ is always on my case about something." Thereafter, in late April or early May 2015, Elkilany again said "this ‘N word’ is always on my case." And, on May 9, 2015, the following incident occurred while the Plaintiff was sitting at a desk in the back of the breakroom at work:

[Elkilany] came up next to me, and when he came next to me, he was too close so I asked him to step back. And he refused to move back. I was literally cornered on the desk because I couldn't move unless he moved away from me. And when I asked him to move, he wouldn't move. And then finally I extended my arm to move out and when I did, he said, "Oh, you just hit my nuts, now you need to massage it." And I asked him, "Please don't speak to me in that language. And please don't talk to me that way." And I go to step away, and he's like, "Oh, you're not going to massage my nut?" And I said, "Stop, Ebraheem, stop." Then he turned around and said, "Oh, this nigger again."

Although the Plaintiff testified that Elkilany only directly called her that slur on three occasions, she also testified that Ekilanly "repeatedly would use the word" in her presence and that he went about saying it like it "was just a regular, everyday word." Many of the times that he said the word, Ekilanly looked at the Plaintiff, as if he was trying to taunt her by directing it at her. For instance, Elkilany played a song at work that repeated the slur every other word, during which Elkilany would sing along and emphasize the slur while looking at the Plaintiff.

Other coworkers of the Plaintiff testified that Elkilany "very often" referred to African-Americans, including customers, as "niggers." One coworker, Christian Pineda ("Pineda") described the word as "just part of his vocabulary" and that he used it daily. Another coworker, Tiffany Pharr ("Pharr"), heard Elkilany use the slur at least 10-to-12 times and testified that he was "constantly saying it." Shaukat Alam ("Alam"), also a coworker of the Plaintiff, heard Elkilany say the word on a regular basis.

According to these coworkers, Elkilany specifically called the Plaintiff the epithet. Pineda heard Elkilany direct the word at the Plaintiff on two occasions, including saying the Plaintiff's name and then calling her a "nigger." Pineda further testified that he told the Plaintiff that Elkilany called her the epithet. Pharr witnessed Elkilany say to the Plaintiff: "[y]ou're acting like a nigger." Pharr also explained that Elkilany used the word in a more aggressive context when he directed it at the Plaintiff. Asad Hamdani ("Hamdandi") testified that he heard Elkilany call the Plaintiff a "nigger" on one occasion and a "nigga" more than a handful of times. Hamdani also observed Elkilany ask the Plaintiff: "Do you have to be such a [n----r] or why do you have to be such a [n----r]."

In addition to witnessing Elkilany's racist remarks, the Plaintiff's coworkers also testified that Elkilany frequently used the term "bitch" in the store, and specifically directed the term at the Plaintiff. Pharr stated that Elkilany "went through the store and ... called [the Plaintiff] a bitch." Pharr further testified that Elkilany called "us all bitches" and referred to women in the store as "bitches." Alam also heard Elkilany use the word "bitch" on several occasions in the workplace.

B. THE INITIAL INVESTIGATION.

The parties disagree as to the nature, content, and frequency of the Plaintiff's complaints to management regarding Elkilany's conduct. According to the Plaintiff, she reported Elkilany's conduct to her supervisor and store manager, Serap Sezer ("Sezer") in April 2015, after the first time Elkilany directed a racial epithet at her. She also testified that she complained to Sezer many other times over the first half of 2015. The Defendant, on the other hand, seems to believe that the first time the Plaintiff reported Elkilany's conduct to Sezer was on May 9, 2015, when she told Sezer that only two alleged incidents occurred between her and Elkilany.

On May 9, 2015, Sezer scheduled a meeting with Elkilany and the Plaintiff to discuss the Plaintiff's complaints. The parties present two different versions of the meeting. In the Plaintiff's view, Sezer scheduled the meeting upon the Plaintiff's request, after the Plaintiff complained on several occasions with no action taken. The Plaintiff claims that, during the meeting, Elkilany admitted to calling her the "N word" but refused to apologize because in his view it wasn't malicious. Conversely, the Defendant's position is that Sezer called the meeting upon her own initiative, and after the Plaintiff reported only two incidents where Elkilany used the slur. In addition, the Defendant believes that Elkilany denied calling the Plaintiff that word and apologized to her in the meeting.

The parties also disagree about what occurred after the meeting. The Defendant claims that Sezer immediately forwarded the Plaintiff's complaint to Kenneth McQuiller ("McQuiller"), the district manager of 13 or 14 retail stores located throughout Long Island, and that the...