Shepherd v. BCBG Max Azria Grp., Inc., 11 Civ. 7634 (RJS) (AJP)

• Decision Date: 11 October 2012
• Docket Number: 11 Civ. 7634 (RJS) (AJP)
• Parties: LATRICE DARLENE SHEPHERD, Plaintiff, v. BCBG MAX AZRIA GROUP, INC., Defendant.
• Court: U.S. District Court — Southern District of New York

LATRICE DARLENE SHEPHERD, Plaintiff, v. BCBG MAX AZRIA GROUP, INC., Defendant.

11 Civ. 7634 (RJS) (AJP)

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

October 11, 2012

REPORT AND RECOMMENDATION

ANDREW J. PECK, United States Magistrate Judge:

To the Honorable Richard J. Sullivan, United States District Judge:

Pro se plaintiff Latrice Darlene Shepherd, an African American woman, brings this action against her former employer, defendant BCBG Max Azria Group, Inc., alleging violations of Title VII, the New York State Human Rights Law ("NYSHRL") and the New York City Human Rights Law ("NYCHRL"). (Dkt. No. 2: Compl. at 1.) Shepherd asserts that BCBG unlawfully discriminated against her on the basis of her race, subjected her to a hostile work environment, and retaliated against her. (Compl. ¶ II.)

Presently before the Court is BCBG's summary judgment motion. (Dkt. No. 25: Notice of Motion.) For the reasons set forth below, BCBG's motion should be GRANTED.

FACTS

Shepherd's at-will employment with BCBG began on June 6, 2008. (Dkt. No. 27: BCBG Rule 56.1 Stmt. ¶¶ 7-8, 100; Dkt. No. 29: Macias Aff. ¶¶ 3, 11-12; Dkt. No. 28: Savage Aff. Ex. A: Shepherd Dep. at 37, 247.)

BCBG is a national retail corporation with eight store locations in Manhattan, including the Madison Avenue store where Shepherd was employed as a First Assistant Manager. (BCBG Rule 56.1 Stmt. ¶¶ 2, 7; Dkt. No. 30: Donahoe Aff. ¶¶ 3-4.) The Madison Avenue store had thirteen employees: three stock associates, six sales associates, three First Assistant Managers, and a General Manager. (BCBG Rule 56.1 Stmt. ¶ 20; Donahoe Aff. ¶ 5.)

First Assistant Managers at the Madison Avenue store reported to General Manager Lauren Van Dillon, who is part African American and part Caucasian. (BCBG Rule 56.1 Stmt. ¶¶ 9-10; Shepherd Dep. at 37.) Van Dillon's responsibilities included ensuring the store's compliance with company goals, hiring, scheduling, and taking disciplinary actions. (Macias Aff. Ex. T at 4: BCBG Retail Field Mgmt. Roles: General/Store Manager; Dkt. No. 37: Shepherd Opp. Br. at 1.)

Van Dillon reported to BCBG Manhattan District Manager Matthew Donahoe, who is Caucasian. (BCBG Rule 56.1 Stmt. ¶¶ 11-12; Shepherd Opp. Br. at 1; Macias Aff. ¶ 30.) Donahoe's responsibilities included overseeing sales and personnel developments at all eight Manhattan BCBG stores, and reporting performance and disciplinary issues. (Donahoe Aff. ¶¶ 4, 24; Macias Aff. Ex. T at 4: BCBG Retail Field Mgmt. Roles: Dist. Manager Role; Shepherd Opp. Br. at 1.) Van Dillon and Donahoe also held weekly management meetings, which First Assistant Managers were required to attend. (BCBG Rule 56.1 Stmt. ¶ 16; Donahoe Aff. ¶ 10.)

Facts Relevant To Shepherd's Race Discrimination And Harassment Claims

Shepherd alleges she was discriminated against on the basis of her race by Van Dillon and Donahoe. (Dkt. No. 28: Savage Aff. Ex. A: Shepherd Dep. at 45-46; Dkt. No. 29: Macias Aff. ¶ 19 & Ex. G: Investigation Questionnaire at 128.)

Shepherd alleges that Van Dillon made two remarks that constitute racial discrimination: Shepherd claims that in December 2008, she was told by a stock associate that Van Dillon said Shepherd did not look "Madison Avenue," was being paid too much, was lazy, was failing at her job, and that Van Dillon said that Donahoe might want to fire Shepherd. (Dkt. No. 2: Compl. Ex.: 5/20/09 EEOC EAS Questionnaire at 2; Shepherd Dep. at 96-102, 165; Savage Aff. Ex. B: 12/16/08 Shepherd Journal Entry; Dkt. No. 27: BCBG Rule 56.1 Stmt. ¶ 28; Macias Aff. ¶ 20.) Shepherd did not confront Van Dillon about these alleged comments. (Shepherd Dep. at 101-02; BCBG Rule 56.1 Stmt. ¶ 29.)

According to Van Dillon, the phrase "Madison Avenue" was used to describe the polished and professional look of the clientele who shop at the Madison Avenue store, as compared to other BCBG stores, and was not a race-based phrase. (Macias Aff. Ex. G: Investigation Questionnaire at 133.) An African American First Assistant Manager confirmed that the phrase was not race-based. (Macias Aff. Ex. G: Investigation Questionnaire at 131.) Van Dillon believed that Shepherd was "Madison Avenue" material. (Macias Aff. Ex. G: Investigation Questionnaire at 133.)

Second, Shepherd claims that after closing the store together and while walking to the train in December 2008, Van Dillon asked Shepherd how she felt about being a black woman in New York. (Shepherd Dep. at 90-94, 166; Savage Aff. Ex. B: 12/16/08 Shepherd Journal Entry; Macias Aff. ¶ 21; BCBG Rule 56.1 Stmt. ¶¶ 30-32.) Shepherd testified that this question was asked in the context of a general conversation about Shepherd's transition from California to New York. (Shepherd Dep. at 93; BCBG Rule 56.1 Stmt. ¶ 31.) Shepherd never told Van Dillon that she was offended by this question. (Shepherd Dep. at 94, 97; BCBG Rule 56.1 Stmt. ¶ 33.)

Shepherd also identifies two allegedly discriminatory remarks by Donahoe. First, she alleges that Donahoe addressed her as "sistah" beginning in approximately September 2008. (Macias Aff. ¶ 23 & Ex. G: Investigation Questionnaire at 129; Shepherd Dep. at 46.) Shepherd states that Donahoe did not use the term with any other employees. (Macias Aff. ¶ 23 & Ex. G: Investigation Questionnaire at 129; Shepherd Dep. at 46; BCBG Rule 56.1 Stmt. ¶ 35.) Shepherd never told Donahoe that she was offended by his use of the term "sistah" and responded with a normal "hello" to his greetings. (Macias Aff. ¶ 29 & Ex. G: Investigation Questionnaire at 129; Shepherd Dep. at 62; BCBG Rule 56.1 Stmt. ¶ 36.) Donahoe denies ever using the term "sistah" to address anyone, and states that while it is possible he could have used the word "sister" on occasion, it is not part of his normal speech. (Macias Aff. ¶ 29 & Ex. G: Investigation Questionnaire at 134; BCBG Rule 56.1 Stmt. ¶ 34.)

Second, Shepherd asserts that during a management meeting in March 2009, Donahoe directed the staff to hire blonde females. (Compl. Ex.: 5/20/09 EEOC EAS Questionnaire at 2; Shepherd Dep. at 51, 166-67; Savage Aff. Ex. C: 3/24/09 Shepherd Journal Entry; Macias Aff. ¶ 22 & Ex. G: Investigation Questionnaire at 129.) Another First Assistant Manager confirmed that Donahoe made this statement. (Macias Aff. Ex. G: Investigation Questionnaire at 131.) Donahoe denied making this statement. (Donahoe Aff. ¶ 12; Macias Aff. ¶ 28 & Ex. G: Investigation Questionnaire at 134; BCBG Rule 56.1 Stmt. ¶ 37.) Two other managers reported they never heard Donahoe make the alleged statement. (Macias Aff. Ex. G: Investigation Questionnaire at 132-33.)

Donahoe describes the staff at the Madison Avenue store as "all Latino [a]nd African-American" and states the "[g]oal was to make the store [d]iverse" to cater to their female customer base. (Macias Aff. ¶ 28 & Ex. G: Investigation Questionnaire at 134.) Donahoe states that nine women were hired during his management from June 2008 through April 2010, and of those nine, two were Caucasian, and only one of those two was blonde. (Donahoe Aff. ¶ 14.) The other new hires were African American, Hispanic, and Asian American women, as well as three males. (Donahoe Aff. ¶ 8.)

Events Leading Up To Shepherd's Termination

On May 11, 2009, in response to what Shepherd felt was an invasion of her privacy by Van Dillon, Shepherd sent an email to Director of Human Resources Carla Macias, stating:

Without my knowledge Lauren Van Dillon made and kept [a] copy for her personal records. . . . This private matter was to be presented to HR only. It was not a matter for my General Manager and District Manager to discuss. I am overwhelmed by the constant harassment and embarrassed by the invasion of privacy. I would like to be assured that this information or any other private matters will not be discussed with parties outside of Human Resources.

(Dkt. No. 29: Macias Aff. ¶ 17 & Ex. F: 5/11/09 Shepherd Email, emphasis added.)¹ Macias sought to discuss with Shepherd her "constant harassment" complaint. (Macias Aff. ¶ 18 & Ex. F: 5/13/09 Macias Email.)

BCBG's Internal Investigation

On June 3, 2009, Macias interviewed Shepherd as part of BCBG's internal investigation into Shepherd's complaint, during which Shepherd identified Van Dillon and Donahoe as the alleged harassers, and described the same incidents of racial discrimination complained of in this action. (Dkt. No. 29: Macias Aff. ¶ 19 & Ex. G: Investigation Questionnaire at 128-30; Dkt. No. 28: Savage Aff. Ex. A: Shepherd Dep. at 45-46.)²

Van Dillon and Donahoe were interviewed about Shepherd's allegations, denied the alleged racially discriminatory conduct and complained about Shepherd's job performance. Van Dillon stated that Shepherd's job performance was suffering, including that she "doesn't respect the protocol when dealing with Corporate" and that Van Dillon received a complaint about Shepherd from another First Assistant Manager. (Macias Aff. ¶ 27 & Ex. G: Investigation Questionnaire at 133.) Van Dillon stated she had documented Shepherd's performance issues twice previously, and on both occasions Shepherd refused to sign the Performance Correction Notices. (Macias Aff. ¶ 27 & Ex. G: Investigation Questionnaire at 133.)³

Donahoe described issues with Shepherd's job performance. Specifically, Donahoe stated that he hardly saw or spoke to Shepherd because of her frequent absences. (Macias Aff. Ex. G: Investigation Questionnaire at 134.) Donahoe noted that Shepherd had attended no more than five of the mandatory weekly management meetings in person. (Macias Aff. ¶ 28 & Ex. G:Investigation Questionnaire at 134.) Donahoe claimed Shepherd was the "highest paid/lowest producing" First Assistant Manager in the Madison Avenue store, was not a team player, had failed to observe protocol for making reports/requests to Corporate, had used profanity, and other managers had complained to Donahoe about Shepherd. (Macias Aff. Ex. G: Investigation Questionnaire at 134.)

Macias interviewed several other employees of the...