Rivera v. Rochester Genesee Reg'l Transp. Auth.

• Decision Date: 10 February 2014
• Docket Number: No. 11–762–CV.,11–762–CV.
• Citation: 743 F.3d 11
• Parties: Enio R. RIVERA, Michael Talton, Plaintiffs–Appellants, v. ROCHESTER GENESEE REGIONAL TRANSPORTATION AUTHORITY, Defendant–Appellee, John Tiberio, Defendant.
• Court: U.S. Court of Appeals — Second Circuit

743 F.3d 11

Enio R. RIVERA, Michael Talton, Plaintiffs–Appellants,

v.ROCHESTER GENESEE REGIONAL TRANSPORTATION AUTHORITY, Defendant–Appellee, John Tiberio, Defendant.¹

No. 11–762–CV.

United States Court of Appeals,Second Circuit.

Submitted: March 1, 2012.

Decided: Dec. 21, 2012.

Amended: Feb. 10, 2014.

Christina A. Agola, Christina A. Agola, PLLC, Rochester, N.Y., for Plaintiffs–Appellants.

Scott D. Piper, Harris Beach PLLC, Pittsford, N.Y., for Defendant–Appellee.

Before: KEARSE, LOHIER, and DRONEY, Circuit Judges.

LOHIER, Circuit Judge:

Plaintiffs Enio Rivera and Michael Talton, employees of Lift Line, Inc., a subsidiary of Rochester Genesee Regional Transportation Authority (“RGRTA”), appeal from a judgment of the United States District Court for the Western District of New York (Larimer, J.), granting the summary judgment motion of RGRTA and dismissing the plaintiffs' claims of discrimination and retaliation under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (“Title VII”), 42 U.S.C. § 1981, and the New York State Human Rights Law (“NYSHRL”). RGRTA is the only defendant against which this appeal was taken.²On appeal, Rivera, who is of Puerto Rican descent, and Talton, an African American, contend that they proffered sufficient evidence that they were subjected to a hostile work environment based on national origin and race, respectively, and thereafter were retaliated against for complaining about it.³ For the reasons that follow, we affirm the judgment of the District Court as to Rivera's retaliation claims, but vacate the judgment of the District Court as to plaintiffs' remaining claims against RGRTA and remand to the District Court for further proceedings.

BACKGROUND

In reviewing the District Court's grant of summary judgment in favor of RGRTA, “we construe the evidence in the light most favorable to the plaintiff [s], drawing all reasonable inferences and resolving all ambiguities in [their] favor.” In re Omnicom Grp., Inc. Sec. Litig., 597 F.3d 501, 504 (2d Cir.2010) (quotation marks omitted).

1. Rivera

Lift Line is an RGRTA subsidiary that provides door-to-door public transportation services for elderly and disabled persons. Rivera, a Hispanic of Puerto Rican descent, started working for Lift Line as a bus driver in 1994 and remained in that position at all relevant times. Sometime in 2001, Dominic Folino, the senior mechanic at Lift Line, began an affair with Rivera's then-wife, Kimberly. Kimberly and Rivera divorced in 2002 or 2003, after Rivera learned about the affair, and Kimberly married Folino. Rivera also remarried, in 2006. Other than a brief period in 2006, Rivera's son lived with Folino and Kimberly from 2002 onward. The affair predictably ignited a deep personal conflict between Rivera and Folino at work.

As relevant to his claims of discrimination, Rivera testified that between 2003 and 2007 Folino called him a “spic” twice and a “Taco Bell” at least five times. Rivera testified that there were several occasions on which he pulled into the Lift Line garage to find Folino and Tim Driscoll, another Lift Line mechanic, chanting “What's that smell, look at the fat f* * *, there is Taco Bell.” During his deposition, Talton confirmed that Folino openly referred to Rivera as a “spic” and a “nigger spic” outside of Rivera's presence on at least one occasion. Talton further testified that Folino “looked at me and he said, ‘Mike, I'm not talking about you. A nigger can mean anybody. I'm talking about that spic, Ralph Rivera.’ ”

Rivera also presented extensive contemporaneous evidence suggesting that Folino and several other Lift Line mechanics regularly harassed and bullied him throughout this period, but without using ethnic slurs. Rivera reported many of these instances of harassment to RGRTA shortly after they occurred. For example, on April 23, 2003, Rivera filed an “Incident Report” in which he asserted that mechanic John Stiggins and another employee stopped and confronted him as he was driving out of the Lift Line parking lot after work. In May 2003 he followed up with a letter to Lift Line's Human Resources Department, claiming that Folino and another mechanic had cursed and stared at him menacingly. In another letter four months later, Rivera complained that Folino had cursed at him again and tampered with his time card slot. Rivera also alleged that Lift Line had ignored his complaints of harassment. None of these 2003 complaints referred to the use of ethnic slurs or harassment motivated by Rivera's national origin.

The following year, in June 2004, Folino filed an internal complaint of his own, claiming that Rivera had threatened him. In September 2004 Robert Bilsky, Lift Line's Vice President for Human Resources, informed Rivera that he had become aware of conflicts between Rivera and Folino due to “problems in [their] personal home lives.” Bilsky said that he could “find no proof of exactly who is right or wrong in this harassment complaint,” but that he was “extremely concerned” about the ongoing hostility between Folino and Rivera.

Although a change in shift times in late 2004 apparently reduced the frequency of interactions between Rivera and Folino at work, the conflicts between the two men resumed in 2005. Between March 2005 and September 2007, Rivera filed seven complaints about Folino's conduct, again accusing Folino of threatening and harassing him. For example, Rivera claimed that Folino sprayed Rivera with paint thinner, posted photos in the workplace of lavish gifts he had purchased for Rivera's son, stared menacingly at Rivera, swerved his car toward Rivera in the parking lot, and generally undermined Rivera's ability to do his job. Rivera's internal complaints employed the terms “prejudice,” “harassment,” and “discrimination,” but they did not mention or suggest that Folino's conduct involved ethnic slurs or was otherwise on account of Rivera's national origin. In his September 2005 complaint, Rivera attributed Folino's behavior to their personal conflict, asserting that Folino “insist[ed] to bring these very personal issues to work ... causing a very uncomfortable and hostile work environment.” Talton testified, however, that it was during this time period that Folino referred to Rivera as a “spic” and “nigger spic.”

Rivera first formally accused Folino of harassment on account of national origin in March 2007, when he filed a complaint with the New York State Division of Human Rights (“NYSDHR”). The NYSDHR complaint attributed the harassment to “an old boys club, specifically of Italian American descent that have a conspiracy against me and are trying to have me fired from Lift Line.” As with Rivera's earlier internal complaints, the complaint alleged that Folino, Stiggins, a supervisor, John Tiberio, and others had engaged in boorish or harassing behavior directed at Rivera, but failed to mention the use of ethnic slurs by any of his co-workers.

NYSDHR notified Lift Line of Rivera's complaint by letter dated March 7, 2007. Rivera claims that Lift Line retaliated against him thereafter. He testified that (1) he was disciplined for insubordination twice in approximately 2008 or 2009; (2) Lift Line rejected his request for a half day off for a doctor's appointment, in violation of a collective bargaining agreement; (3) he was assigned particularly “dirty buses” to drive; (4) he once received his overtime pay two weeks late; and (5) after he was involved in a minor driving accident, Folino unsuccessfully urged the Lift Line road supervisor to drug test him, even though company policy did not mandate it.

2. Talton

Talton was hired by Lift Line in 2004 as a “fueler-washer” responsible for refueling, cleaning, and servicing the buses when the drivers returned from their runs. Talton alleges that co-workers taunted him with racial slurs. During discovery, Talton testified about two specific incidents in which John Stiggins, a white mechanic, called him a “nigger.” He also presented evidence that his white supervisor, Tiberio, used the same racial slur.

In the first of two incidents involving Stiggins's conduct on the Lift Line premises, Stiggins told Talton, “I thought you was my boy,” and, “You know what I'm talking about, nigger. You were supposed to look out for us.” The statement apparently referred to Talton's failure to cover for Stiggins when a Lift Line dispatcher was looking for him. When Talton responded, “Who ... are you calling nigger?,” Stiggins aggressively approached Talton and said “We could do this right here.” In the second incident, Talton and Stiggins were talking casually when Stiggins abruptly announced that he had been “out drinking with Mingo [Sanhueza, a co-worker] last night” and that Sanhueza had “started talking about niggers.” Stiggins claimed that Sanhueza had said that he “wished all you niggers died.”

Talton further testified that his supervisor, Tiberio, called him a “nigger,” and also told him to “[g]et over it” when he complained that his co-workers had used the slur. This testimony is consistent with a charge that Talton filed with the Equal Employment Opportunity Commission (“EEOC”) in May 2006, which asserted that his supervisor—presumably Tiberio—responded to Talton's complaint about racial harassment by laughing and then telling Talton that he “should just ‘suck it up and get over it, nigger!’ ” In support of the defendant's summary judgment motion, Tiberio submitted an affidavit in which he denied that he ever used that or any other racial slur and similarly denied that Talton complained to him about racial harassment.

Talton also claims that he was racially harassed after he told Lift Line's management that Sanhueza, a bus driver, kept a gun on one of the buses. After discovering the gun while cleaning the bus, Talton immediately called Tiberio, who retrieved the gun and started an investigation. Upset by the disciplinary hearing that followed, Sanhueza threatened Talton by shaping his hand in...