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Sethi v. Narod
Citations: 12 F. Supp. 3d 505; 2014 U.S. Dist. LEXIS 46614; 2014 WL 1343069Docket: No. 11-CV-2511 (MKB)
Court: District Court, E.D. New York; April 2, 2014; Federal District Court
Plaintiff Harsharan Sethi filed a lawsuit against multiple defendants, including Randy Narod and Donald Trump, Jr., claiming race and national origin discrimination under Title VII of the Civil Rights Act and the New York State Human Rights Law, as well as violations of the Fair Labor Standards Act (FLSA) and New York State Labor Law (NYLL) related to unpaid overtime and recordkeeping. Defendants moved for summary judgment on all claims. On May 9, 2013, the court granted summary judgment for defendants concerning Sethi's FLSA claims against individual defendants and his recordkeeping claims. Following oral arguments, Sethi cross-moved for summary judgment on remaining claims, leading to a September 30, 2013 decision where the court denied both parties' motions regarding unpaid overtime compensation but deferred ruling on Title VII and NYSHRL claims pending further documentation. After reviewing additional submissions, the court ultimately denied Sethi's motion and granted defendants' motion for summary judgment on the Title VII and NYSHRL claims. The memorandum provides background, noting that CWW, a private company, is led by Narod and Lee. Sethi was hired by Lee and served as the Director of Management Information Systems at CWW from July 2008 to May 2010. In May 2009, Plaintiff received an email from the newly established USA Honors Society at CWW, indicating his selection for membership due to his professional contributions. Plaintiff perceived the email's claims as false, leading him to report his concerns to Lee, believing the Honors Society was separate from CWW and that customers should be informed accordingly. Despite Lee's explanations, Plaintiff maintained that CWW was engaging in improper business practices. Following this incident, Plaintiff experienced changes in his work responsibilities, including increased hours, which he attributed to retaliation for questioning the Honors Society and being required to provide technical support for Narod’s personal ventures. He also reported experiencing discriminatory remarks about his Indian heritage from CWW executives, including derogatory nicknames. On November 10, 2009, during a meeting with Narod, Lee, and Morrissey, Plaintiff alleged that Narod physically assaulted him and made threatening statements regarding Plaintiff's nationality. Plaintiff confronted Narod, asserting that CWW's actions were illegal, to which Narod responded with derogatory comments and threats about sending Plaintiff back to India. Plaintiff claimed Narod charged at him, slapped him, and made physical contact by hitting him with his chest. The defendants acknowledged the meeting but disputed Plaintiff's allegations of assault and the surrounding circumstances. In January 2010, CWW established a Chief Technology Officer (CTO) position, with an announcement made by Lee indicating that a hire was imminent. All applicants had extensive experience in managing technology for large companies. The Plaintiff inquired about the opportunity, questioning why he was not considered, and expressed readiness to apply, though Narod emphasized the need for an interview due to the high qualifications of other candidates. CWW was in the final stages of the hiring process, having already vetted candidates and leaning towards one individual. Lee informed the Plaintiff that top candidates had significant programming experience and had managed projects independently, which CWW deemed critical for the role. Despite the Plaintiff's interest, Lee indicated that he had not been approached for the position due to a mismatch in experience. Ultimately, CWW hired Gerard Mott, who had considerable experience as a CTO at large organizations. Mott later assessed the Plaintiff’s skills, finding them inadequate for the role, describing the Plaintiff as only slightly above a desktop technician and lacking knowledge of CWW's systems. The Plaintiff contested the accuracy of this assessment. Defendants allege that Plaintiff exhibited hostile behavior at CWW, particularly noted by Lee, who described Plaintiff's attitude as "hostile" towards both CWW employees and those from the technology vendor Proactive. A January 12, 2010 email from Plaintiff to Proactive was characterized by Lee as “unnecessarily hostile and combative,” leading Proactive employees to express frustration about Plaintiff's aggression. Lee arranged a meeting between Plaintiff and Proactive on January 15, 2010, but felt her attempts to improve Plaintiff's behavior were unsuccessful. On February 1, 2010, Proactive employees removed computer components from Plaintiff's office, prompting him to email Lee with a warning that anyone entering his office did so “at their own risk,” which Lee found disturbing and threatening. Additionally, CWW employees reported incidents of Plaintiff belittling others, and by February 2010, Lee claimed that Plaintiff's hostility impeded his ability to perform his duties effectively. Plaintiff disputes these claims, asserting that his email was intended to address liability concerns regarding unauthorized access to his office and that some colleagues were satisfied with his treatment of them, accusing Lee of exaggerating the situation. Plaintiff did not attend work on February 10, 2010, due to snow and was absent for half a day on February 11, 2010. Following these absences, Plaintiff sought clarification from Defendants about his work hours and available vacation days. In response, Lee, a supervisor, provided the expected hours and referred the vacation inquiry to human resources. During a meeting on February 12, 2010, intended to address attendance issues, Plaintiff became combative, challenging Lee's authority and attempting to divert the discussion. He referenced a previous email he sent, which Lee interpreted as threatening. After the meeting, Plaintiff requested access to his personnel file, but was told to submit a written request according to company policy. Plaintiff subsequently left the meeting in anger and took a paid leave of absence. On February 16, 2010, Narod, another supervisor, met with Plaintiff to address his concerns, ultimately deciding not to terminate him but to extend his leave. Following this, Plaintiff sent emails accusing CWW of wrongdoing and threatening to take action if his demands were not met. He claimed these emails were meant to highlight his concerns rather than cause harm. In a specific email dated February 14, 2010, Plaintiff asserted he was being forced to resign for raising complaints about fraud and illegal activities, expressed fear for his safety, and mentioned the possibility of filing a criminal complaint. He also sought clarification on whether he should report to work on February 15 or 16 to resolve the matter amicably. On February 19, 2010, the Plaintiff accused CWW of serious misconduct, alleging involvement in immoral sexual acts, drug transactions, fraud, employee harassment, slavery, and various illegal activities. He described his treatment at CWW as belittling, discriminatory, and threatening, claiming he faced harassment and assault under the threat of termination. He threatened to go to the media and subpoena employees regarding these issues. On February 22, 2010, the Plaintiff proposed a collaborative approach to resolve the situation, requesting a three-day period for CWW to respond and expressing a desire to return to work. Subsequent emails on March 5 and March 11, 2010, reiterated his need to return to work and emphasized his patience. On April 30, 2010, he sought updates on his employment status and inquired about an HR investigation into his complaints, accusing Morrissey of ongoing harassment. Following up on May 3, he alleged manipulation of his personnel file and discriminatory work hours, warning that any health complications would result in liability for CWW's management. On May 6, he set a deadline for a response, threatening to engage the media and legal counsel if no action was taken. He detailed multiple allegations, including threats to his life, illegal harassment for medical records, and improper deductions from his leave. The email concluded with a signature from "Buddy Hershidoodle." On May 8, 2010, the Plaintiff contacted Morrissey and Narod via email to raise awareness about “www.worldwidewhoswhoscam.com.” The next day, he expressed concerns over Morrissey’s qualifications to address his grievances regarding a legal leave of absence. Plaintiff was terminated by CWW on or about May 11, 2010, with CWW asserting that his termination was due to threats he made. He filed a lawsuit on May 25, 2011. The Plaintiff claims he experienced unfair treatment during his employment, alleging discrepancies in overtime pay between himself and certain managers, specifically Morrissey and Lee. Although CWW contends that these managers typically do not receive overtime, Morrissey acknowledged receiving overtime pay once, while Lee claimed she never received overtime, despite Morrissey stating Lee had received it on a holiday. Additionally, Plaintiff alleges he was required to provide medical documentation for sick leave, unlike other employees who were only required to do so for absences longer than two days. He asserts that Morrissey insisted on a doctor’s note for any absence, regardless of duration, while Defendants maintain that company policy necessitated medical documentation only when an employee had no accrued paid sick time available. The court had previously directed the Plaintiff to identify and submit supporting documents for his discrimination claims following his transition to pro se representation. Plaintiff alleges discriminatory treatment regarding vacation benefits, claiming he received only five vacation days compared to ten or more for others, and was restricted to rolling over only three days annually, while management could roll over unlimited days. He asserts that after his termination, he was denied payment for unused vacation days, unlike other employees. Additionally, Plaintiff highlights the requirement of advance notice and paperwork to use vacation leave, a burden not imposed on others. He further contends that his benefits commenced after a 90-day probation period, unlike other employees who received benefits immediately. Moreover, Plaintiff claims he was denied free health insurance, was not granted a raise for opting out of medical benefits, lacked a proper orientation and welcoming communications, and was not subject to the same progressive discipline system as his peers. Other grievances include not receiving a prepaid legal services plan, daily break time, business cards, annual reviews and raises, compensation for travel mileage, and the imposition of a hand-scanner attendance system solely on him. Defendants contest Plaintiff's claims, asserting that he did not consistently adhere to company policies, including failing to provide adequate notice for absences, and characterize his behavior as often absent, tardy, and insubordinate. Summary judgment is appropriate when, viewing evidence favorably to the non-movant, there is no genuine dispute over material facts and the movant is entitled to judgment as a matter of law, per Federal Rule of Civil Procedure 56(a). The court's role is not to weigh evidence or determine truth but to identify genuine issues for trial. A genuine issue exists when evidence could reasonably support a jury finding for the plaintiff; mere existence of minimal evidence is insufficient to overcome summary judgment. The court must decide if, after resolving ambiguities in favor of the non-moving party, a rational juror could find for that party. Additionally, in cases involving potential discriminatory intent by an employer, direct evidence is rare, necessitating careful examination of affidavits and depositions for circumstantial evidence of discrimination. Title VII prohibits employment discrimination based on race, color, religion, sex, or national origin, stating that any employment decision influenced by such discrimination is unlawful. Claims under Title VII follow the McDonnell Douglas burden-shifting framework. Initially, the plaintiff must establish a prima facie case of discrimination, which requires minimal evidence. If successful, the burden shifts to the defendant to provide a legitimate, nondiscriminatory reason for the employment decision, a burden that is not substantial and does not involve credibility assessments. If the defendant meets this burden, the plaintiff must then show that the provided reason is a pretext for discrimination, demonstrating that discriminatory motives were at least part of the employer's rationale, even if other lawful motives existed. To establish a prima facie case of race or national origin discrimination under Title VII, a plaintiff must demonstrate four elements: (1) membership in a protected class, (2) qualification for the position, (3) suffering an adverse employment action, and (4) circumstances suggesting discriminatory intent. The plaintiff, born and educated in India, is recognized as belonging to a protected class based on his national origin. Although defendants acknowledge this, they argue that the plaintiff has not adequately claimed protected status based on race. The plaintiff identifies as Asian, which is also a protected class under Title VII. The court has affirmed that the plaintiff holds protected status due to both his Asian race and Indian national origin. The defendants concede the plaintiff’s qualifications for his role as MIS Director but contest his ability to show an adverse employment action and the presence of discriminatory intent in the circumstances surrounding it. An adverse employment action is defined by the Second Circuit as a materially adverse change in employment terms, requiring disruption beyond mere inconvenience or job responsibility alterations. Examples of such actions include termination, demotion, loss of benefits, and significant changes in responsibilities. Although the plaintiff was terminated from CWW, he does not claim this termination as an adverse action. Instead, he identifies several alleged adverse actions during oral arguments, including: (1) suspension with pay in February 2010, (2) denial of promotion to CTO, (3) an alleged physical assault, (4) unpaid overtime, (5) requirement for medical documentation during illness, (6) negative personnel file entries regarding absence notifications, and (7) chronic lateness documentation. In subsequent filings, the plaintiff lists additional grievances, such as limited vacation days, lack of payment for unused vacation, absence of health benefits, and various other workplace conditions. The court will consider the suspension with pay, denial of overtime, and deprivation of vacation days as adverse employment actions for the summary judgment motions. However, it determines that the remaining actions listed do not meet the criteria for materially adverse employment actions necessary to support a discrimination claim. The Second Circuit has determined that administrative leave with pay during an investigation does not inherently qualify as an adverse employment action, as long as the employer is enforcing existing disciplinary policies reasonably. However, a paid suspension could be considered adverse if it exceeds standard disciplinary procedures and alters the terms and conditions of employment. In this case, the court found insufficient evidence to establish that the plaintiff's paid suspension was unreasonable or materially adverse, despite unclear reasons for the suspension related to the plaintiff's complaints and behavior. The court noted a factual dispute regarding whether the proper disciplinary procedures were followed. Consequently, for the purposes of summary judgment, the court assumed the paid suspension was an adverse action. Additionally, the plaintiff claimed that the failure to promote him to a CTO position constituted an adverse employment action, aligning with precedents that recognize failure to promote as a potentially discriminatory adverse action. To establish a failure to promote claim, a plaintiff must demonstrate that they applied for a specific position and were subsequently rejected, as emphasized in *Petrosino v. Bell Atlantic*. General interest in a position or informal requests for promotion do not satisfy this requirement. Courts have consistently ruled that merely expressing interest or making general requests for promotion consideration is inadequate to support such claims (*Moore v. Metro. Transp. Auth.*; *Ciulla-Noto v. Xerox Corp.*). In the case discussed, the plaintiff did not apply for the CTO position, despite expressing interest through emails to Narod, who then communicated with Lee regarding the selection process. The plaintiff failed to respond to Lee’s email and did not provide evidence of an application for the CTO position, leading the court to conclude that the plaintiff could not prove a material adverse employment action. Additionally, the plaintiff contends that Narod's aggressive behavior during a November 2009 meeting constituted an adverse employment action, detailing that Narod made derogatory comments and physically confronted the plaintiff, threatening to send him back to India. The Second Circuit has determined that "unprofessional and boorish" treatment does not qualify as an adverse employment action, which is defined as a materially adverse change in employment terms and conditions. Only under specific circumstances can a single incident of abuse be considered adverse if it significantly alters the employee's working conditions. In the case of Mathirampuzha, a supervisor's physical assault was deemed insufficiently severe to materially change the plaintiff's working conditions, as the plaintiff continued his employment for months after the incident and showed interest in promotion. In the current case, a confrontation between the Plaintiff and Narod is compared to Mathirampuzha, concluding it similarly did not constitute an intolerable alteration of the plaintiff's working conditions. The Plaintiff continued working for approximately three months post-incident until his suspension in February 2010. The Plaintiff also claims an adverse employment action due to the failure to receive overtime pay. Defendants classified the Plaintiff as an exempt employee, denying him overtime compensation. A pending FLSA claim challenges this classification, suggesting that if the Plaintiff was miscategorized, he indeed suffered an adverse action through the denial of overtime pay, which can violate Title VII if based on race. Regarding vacation days, the Plaintiff asserts he was entitled to ten days annually but only received five. The CWW employee handbook specifies that employees are entitled to five days after one year, increasing to ten days after ten years. The Plaintiff’s claim of inadequate vacation days is presented as an adverse employment action. Plaintiff was terminated before completing two years of employment, which, according to the employee handbook, entitled him to five days of paid vacation. Testimony from Morrissey indicated that Plaintiff should have received ten vacation days, but an email dated January 7, 2010, suggested he only received five days annually. Evidence indicates Plaintiff was allotted five vacation days from July 2009 through 2010, with an additional five days available in July 2010, creating a disputed factual issue regarding his vacation entitlements. If Plaintiff was deprived of these vacation days, it could constitute a materially adverse employment action, impacting his employment terms. In contrast, other claims by Plaintiff, such as being required to provide medical documentation for sick leave, were deemed trivial and not adverse employment actions. At oral argument, Plaintiff's counsel could not demonstrate any adverse changes related to the documentation requirement, which typically does not constitute a materially adverse action based on precedents. Courts have consistently ruled that requiring medical documentation for sick leave does not materially alter employment conditions. No reasonable fact-finder could determine that the Plaintiff experienced 'adverse employment actions' due to being asked for a doctor's note related to sick leave, as courts in this District have ruled that such requests do not qualify as adverse employment actions. A note added to the personnel file does not constitute an adverse employment action unless it has a tangible effect on employment terms. Disciplinary letters or write-ups must be accompanied by adverse changes in employment conditions to be considered adverse actions. The Plaintiff's claims regarding the requirement of advance notice for time off and the notation of inadequate notice or chronic lateness in the personnel file also fail to demonstrate adverse employment actions, as no tangible effects were shown. Furthermore, the Plaintiff's argument about being denied compensation for unused vacation days post-termination lacks supporting evidence, as the employer's policy does not provide for payout of vacation or paid time off upon departure. The Plaintiff's claims of other employees receiving vacation compensation are based on unverified records and do not contradict the established policy. Plaintiff failed to demonstrate entitlement to compensation for unused vacation days post-termination, lacking evidence of unused accrued vacation days or denial of compensation for such days. Regarding health benefits, Plaintiff's claim of not receiving paid health benefits contradicts CWW’s policy, which provided a monthly stipend of $280 for his medical insurance. Plaintiff alleges his medical costs exceeded $1,000 per month but offers no admissible evidence to support this claim. As for delayed benefits, Plaintiff contends that a 90-day probationary period was an adverse employment action compared to other employees who received immediate benefits. However, the offer letter indicated he would have the option to enroll in benefits after 90 days, and the employee handbook confirmed this policy. Plaintiff has not substantiated claims of entitlement to immediate benefits or shown that the company's enforcement of its policy constituted an adverse employment action, consistent with legal precedent that employees do not have immunity from standard employment policies. A plaintiff must demonstrate more than mere enforcement of a general policy to establish an adverse employment action. The offer of employment from CWW to the plaintiff, which lacked information about the PrePaid Legal Services Program, does not constitute an adverse action. The CWW employee handbook specifies that full-time employees can enroll in the program at their own expense, and enrollment details are available from human resources. The plaintiff failed to provide evidence that CWW had a policy requiring the inclusion of the enrollment offer in the offer letter or that he had requested enrollment and was denied. Additionally, the plaintiff did not assert that he was not given the handbook. Regarding break time, the plaintiff's claim of not receiving two 15-minute breaks is unsupported, as the relevant policy applies only to administrative and operational employees, a classification the plaintiff did not demonstrate he belonged to. The claims concerning the lack of a welcome email and business cards are deemed trivial and do not rise to the level of adverse employment actions. The plaintiff did not request business cards or provide evidence of a policy entitling him to them. The court cited that adverse employment actions must be material and more disruptive than mere inconvenience, reinforcing that trivial matters do not qualify as such. Nakis v. Potter establishes that a plaintiff's assertion of not receiving business cards does not constitute a materially adverse change in employment conditions. The plaintiff claims he was denied a raise for not taking health benefits, contrasting with other employees who received raises, but this claim lacks supporting evidence. The plaintiff provided a single email suggesting a raise for another employee who refused health insurance, while he admitted to receiving health insurance and a stipend from CWW, with no proof of ever refusing health insurance or being entitled to additional compensation for it. Regarding claims of denied annual reviews and raises, the plaintiff's assertions are unsupported by the record. He references the CWW employee handbook that mentions periodic reviews but fails to provide evidence that he was denied such reviews or raises, aside from his own unsworn statement. The plaintiff also claims that CWW did not follow its progressive discipline policy and fabricated reprimands in his file. However, the evidence he submitted, including the CWW handbook detailing disciplinary procedures for tardiness and a warning letter addressed to him, indicates that the policy was followed. The warning letter outlines the consequences of repeated tardiness, and he acknowledges receiving a verbal warning. Overall, the plaintiff has not demonstrated entitlement to raises, denied reviews, or improper discipline. A document submitted by the Plaintiff, titled “Time Card Report,” details his clock-in and clock-out times for November 24, 2008, and indicates he was not present at CWW premises when a warning letter was purportedly issued. The Plaintiff argues that this suggests CWW's disciplinary policy regarding tardiness was improperly applied to him, asserting that the warning letter was fabricated due to the absence of his signature and lack of verbal warnings from his supervisor, Lee. However, the court notes that the documents indicate CWW’s policy applies to sales representatives’ tardiness and compliance with confidentiality guidelines, neither of which the Plaintiff adequately connects to his role. The court finds that the absence of a signature does not equate to proof of fabrication nor does it negate the possibility of prior verbal warnings. The Plaintiff has not substantiated claims that CWW had a progressive discipline policy relevant to his employment or that he experienced materially adverse changes in employment conditions. For the purpose of summary judgment motions, the court will consider the Plaintiff's suspension, denial of overtime, and loss of vacation days as adverse employment actions. Regarding discrimination, the standard for inferring discrimination is flexible, accommodating different factual scenarios. An inference can arise from various circumstances, such as derogatory remarks about the employee's performance, favorable treatment of employees outside the protected group, or the sequence of events leading to the adverse action. The court cites prior cases affirming that no singular proof type is required to establish an inference of discrimination. A discriminatory motive based on race or color can be inferred if a plaintiff is treated differently than similarly situated white employees or if there is a pattern of discriminatory treatment towards African-American employees. However, a plaintiff's subjective belief of discrimination is insufficient to support a claim. Adverse employment actions, such as suspension or denial of benefits, must be accompanied by evidence of discriminatory intent to establish a prima facie case. In this instance, the plaintiff's suspension, denial of overtime, and deprivation of vacation days do not demonstrate discriminatory animus based on circumstantial evidence or the remarks cited. Specifically, the circumstances surrounding the plaintiff's February 12, 2010 suspension do not reference race or national origin. The plaintiff claimed his suspension was related to his request for his personnel file, while the defendants characterized it as a result of the plaintiff's combative behavior and a "threatening" email. Additionally, the plaintiff's communications post-suspension suggest a lack of belief in discrimination, as he framed his suspension as retaliation for reporting illegal activities rather than as racially motivated. At no point did the plaintiff assert that his suspension was due to race or national origin discrimination in his correspondence following the incident. The circumstances surrounding the Plaintiff's suspension and his subsequent perception do not indicate racial or national origin animus. Citing legal precedents, the court highlights that the Plaintiff's own characterization of the evidence fails to demonstrate such animus. Specifically, in similar cases, claims were dismissed when the plaintiffs could not substantiate their allegations of discrimination based on their descriptions of events. Regarding the Plaintiff's denial of overtime compensation and vacation days, there is no indication of race or national origin discrimination. The terms of his employment, established at hiring in July 2008, were not shown to have changed, and the Plaintiff did not provide evidence to suggest otherwise. The Plaintiff also alleges discriminatory remarks made by Narod, including derogatory comments based on national origin. Although the Defendants deny these statements, the court assumes they were made for the sake of analysis. The court refers to Second Circuit precedent that emphasizes the importance of the context and content of such remarks in determining discriminatory intent. The relevance of these remarks is assessed based on their potential to show that the decision-maker was influenced by biases related to the Plaintiff's protected status. A court evaluating whether a remark indicates discrimination or is merely a non-probative "stray remark" should examine four key factors: 1) the identity of the speaker (decision-maker, supervisor, or low-level co-worker), 2) the timing of the remark in relation to the employment decision, 3) the remark's content and whether a reasonable juror might view it as discriminatory, and 4) the context of the remark concerning the decision-making process. In this case, remarks made by Narod, the CEO and majority owner of CWW, are considered more relevant due to his supervisory role and decision-making authority, which aligns with precedents indicating that statements from influential individuals can suggest a discriminatory corporate atmosphere. The remarks in question were made by Narod during a meeting on November 10, 2009, while the terms of the plaintiff's employment were established over 15 months prior, in July 2008. The plaintiff's suspension occurred approximately three months after the remarks. Courts in this Circuit have found that a gap of three months between a discriminatory statement and an adverse employment action can be too long to establish a probative link. Ultimately, while Narod’s position lends weight to the remarks as potentially indicative of discrimination, the timing and context suggest insufficient evidence to support an inference of discriminatory intent. In Callistro v. Cabo, the court determined that remarks made regarding the plaintiff's employment were too distant from the termination events to imply discrimination, as one comment occurred over a month before any discussions about termination, and another at the start of the plaintiff's employment. Similarly, in Del Franco v. New York City Off-Track Betting Corp., over three months elapsed between allegedly discriminatory statements and termination, leading to a lack of temporal connection. Rinsler v. Sony Pictures Entertainment found that a stray remark made three months prior to a transfer did not suggest discrimination. Leacock v. Nassau Health Care Corp. ruled that a statement by a chief operating officer, made informally three months before the plaintiff's replacement, did not indicate discriminatory intent. In Obinabo v. RadioShack Corp., remarks made six weeks before termination were deemed "too far removed" from the decision-making process, as the individual who made the comment had ceded authority over the plaintiff. Contrastingly, Dupree v. UHAB-Sterling St. Housing Development Fund Corp. allowed for the possibility of discriminatory intent despite a six-month gap between remarks and discharge, suggesting that the defendants may have planned the termination well in advance. Papalia v. Milrose Consultants, Inc. found that although discriminatory comments occurred a year before demotion, they reflected active hostility towards women in key roles, indicating potential discrimination. Lastly, remarks made by Narod to the plaintiff, including derogatory statements and a nickname implying racial bias, were considered not probative of discrimination due to the significant time lapse and context, although they displayed a negative attitude towards the plaintiff's Indian heritage. Plaintiff's coworkers used nicknames such as “Harsh” and “Harshy,” but he did not claim that the name “Harshidoodle” was discriminatory regarding his race or national origin. In contrast, Narod's statement, "You f-king Indian, what do you think about yourself? I will make sure you are sent back to India," demonstrates animus related to Plaintiff's Indian heritage, which could be interpreted as discriminatory by a reasonable jury. Relevant case law supports that remarks made in similar contexts indicate discriminatory intent when linked to employment actions, as seen in O’Diah v. Yogo Oasis and Richmond v. Gen. Nutrition Cntrs. Inc. The context of Narod's November 2009 comments occurred during a heated meeting where Plaintiff accused CWW of illegal actions and alleged physical assault by Narod. Despite this, Plaintiff continued his employment with CWW until his suspension in February 2010 and showed interest in other positions. He provided no evidence linking Narod's remarks to the terms of his employment or the decision to suspend him, which undermines the argument for discriminatory intent. The relevance of supervisor remarks to employment decisions is critical; only remarks directly connected to adverse actions can support claims of discrimination. Remarks unrelated to employment decisions, as highlighted in Del Franco, do not provide sufficient evidence to infer discriminatory intent. In *Brollosy v. Margolin, Winer, Evens, LLP*, the court determined that the plaintiff failed to establish discriminatory animus regarding his termination. A supervisor's remark made five months prior to the termination, suggesting that an older individual would perform better, lacked a direct connection to the termination decision. The plaintiff could not demonstrate that remarks from November 2009 impacted his employment terms or suspension, leading the court to conclude that the context of the comments did not indicate discriminatory intent. The court referenced that while remarks from decision-makers may suggest discrimination, they can be categorized as stray remarks if they are not related to the employment decisions in question. As such, Narod's comments were deemed insufficient to infer discrimination. Regarding similarly situated individuals, the plaintiff argued he was treated less favorably compared to employees outside his protected group. The court noted that establishing discriminatory motivation could involve demonstrating preferential treatment toward similarly situated employees or remarks indicative of discriminatory intent. For an inference of discrimination to arise, the individuals compared must resemble the plaintiff in all material respects, emphasizing the need for a close resemblance in circumstances. Under Second Circuit law, establishing a discrimination case based on disparate treatment requires a plaintiff to demonstrate that they and a comparator employee share sufficient employment characteristics to be considered similarly situated. The criteria for being similarly situated include (1) being subject to the same performance evaluation and discipline standards, and (2) engaging in comparable conduct. Courts may grant summary judgment if no reasonable jury could find that the similarly situated criterion is met. In this case, the plaintiff alleges various forms of less favorable treatment compared to similarly situated employees outside his protected group, which includes: (1) not receiving overtime while others did; (2) being required to provide medical documentation for sick leave, unlike others; (3) receiving only five vacation days compared to ten or more for others; (4) being mandated to give advance notice before taking vacation and fill out forms, while others were not; (5) being limited to rolling over three vacation days annually, in contrast to other management employees who could roll over unlimited days; (6) being denied benefits from the start of employment, while others received them; (7) not receiving free health insurance, contrary to other employees; (8) being denied a raise for not accepting company health benefits; (9) lacking proper orientation and a welcoming email, unlike other employees who received a cordial introduction; and (10) not being afforded progressive discipline, which was available to others. Plaintiff alleges disparate treatment at CWW following his termination, claiming he was denied various benefits such as payment for vacation days, a prepaid legal services plan, daily break time, business cards, annual performance reviews and raises, and travel mileage compensation, while other employees received these benefits. Additionally, he asserts he was uniquely required to use a hand-scanner attendance system. However, the court finds that Plaintiff has not established a prima facie case of discrimination because he failed to identify comparators outside of his protected group who were similarly situated in all material respects. Although he referenced over 50 employees, he did not prove that they belonged to different races or nationalities. Specifically, one comparator mentioned (Lee) is also Asian. The court emphasizes that to demonstrate discrimination, the plaintiff must show that he was treated less favorably than a similarly situated employee who is outside his protected group, a requirement he has not met. Furthermore, while Plaintiff presented emails indicating that other employees occasionally received the benefits he was denied, he did not establish that these employees had comparable job duties or were subject to the same performance and discipline standards as him, who served as Director of Management Information Systems. In Whethers v. Nassau Health Care Corp., the court found that the plaintiff failed to provide adequate evidence of discrimination, as he did not identify similarly situated employees with comparable job titles and responsibilities. The court emphasized that to establish a prima facie case of discrimination, a plaintiff must demonstrate that the comparator shared sufficient employment characteristics. The plaintiff's allegations of disparate treatment were deemed conclusory and insufficient. The court referenced a precedent where a plaintiff failed to show how comparators were similarly situated regarding team assignments or roles. The plaintiff could not demonstrate that adverse employment actions—such as suspension, denial of overtime, and unpaid vacation—occurred under circumstances suggesting discriminatory intent. It was noted that workplace unfairness not based on discrimination against a protected characteristic is not actionable. Even if the plaintiff had established a prima facie case, he could not prove that the defendants' non-discriminatory reasons for their actions were pretextual. The defendants presented legitimate justifications for their decisions: classifying the plaintiff as an exempt employee under the FLSA, adhering to a vacation policy, and citing the plaintiff's anger and hostility that hindered his work performance. The court highlighted that the key issue was not the accuracy of the defendants' justifications but whether there was evidence to indicate they were not the actual reasons for the decisions made against the plaintiff. Simple disagreement with the supervisors' assessments was insufficient to establish pretext. In **Oliveras v. Wilkins**, it was determined that an employer’s erroneous conclusion about an employee’s involvement in a dispute does not inherently imply a discriminatory motive for termination. Similarly, in **Coltin v. Corp. for Justice Mgmt, Inc.**, the court found that even if a decision-maker misunderstood policies or the employee had implicit permission for certain conduct, there was no evidence of wrongful discrimination contributing to the termination. Regarding the burden of proof in discrimination cases, once a defendant provides a legitimate, nondiscriminatory reason for an adverse action, the plaintiff must show that this reason is a pretext for discrimination. The plaintiff does not need to prove that the employer's reasons were entirely false, only that discriminatory factors were among the motivating factors. Conclusory or speculative allegations are insufficient to demonstrate intent to discriminate. At the pretext stage, a court can reassess the evidence from the prima facie case to infer discrimination. A plaintiff may prove pretext by presenting additional evidence or relying on the evidence from their initial case. In this instance, the plaintiff failed to demonstrate that the reasons for their suspension and denial of overtime were racially or nationally motivated, as they only reiterated evidence from the prima facie stage. Consequently, the court found that a reasonable jury could not conclude that discrimination influenced the adverse actions taken. The court granted the defendants' motion for summary judgment and denied the plaintiff's motion regarding claims of race and national origin discrimination under Title VII and NYSHRL. Plaintiffs' claims under the Fair Labor Standards Act (FLSA) and New York Labor Law (NYLL), previously denied summary judgment, will proceed to trial. The plaintiff, referred to as "Harshidoodle" by Narod, does not recall the frequency of this usage or identify others who used the nickname. He believes Narod's intent was to reference his Indian heritage, stemming from Narod's discriminatory views on hiring practices regarding Indian workers. The plaintiff was instructed to submit only discovery documents relevant to this case, not from other actions, and filed his submissions on October 16, 2013. Defendants objected and sought permission to respond, which was granted by the court. Subsequent exchanges of arguments and evidence occurred, with the plaintiff submitting additional materials on November 5 and December 6, 2013. For employment discrimination claims under Title VII and the New York State Human Rights Law (NYSHRL), the burden of proof is identical. The plaintiff clarified that his lawsuit does not concern his termination on May 11, 2010, but rather focuses on alleged wrongful acts between July 21, 2008, and February 12, 2010. He asserted that the termination is irrelevant to the claims, emphasizing that he does not allege discrimination related to his termination and acknowledges a lack of evidence supporting such a claim. To be exempt from the specific application requirement for a position, an employee must prove that (1) the vacancy was not posted and (2) the employee either lacked knowledge of the vacancy before it was filled or attempted to apply through informal procedures supported by the employer. In the case at hand, the CTO position was posted on multiple job listing websites and was not filled when the Plaintiff became aware of it. Additionally, the Plaintiff did not demonstrate that he attempted to apply informally for the CTO position as endorsed by CWW, thus he must comply with the application requirement. The Plaintiff contends that he faced unnecessary and irrelevant requirements for promotion to CTO, including a formal interview that was not required of other employees for internal promotions. However, there is no evidence regarding CWW's internal promotion procedures, leaving the Plaintiff's claim unsupported. Furthermore, the Plaintiff's assertion that he attempted to apply informally is not substantiated by evidence indicating CWW endorsed any such procedures. Claims of discouragement from applying lack merit, as the Second Circuit has ruled that an employee cannot claim discriminatory failure to promote without a formal application, even if they assert an "aura of discrimination" that discouraged them. Lastly, regarding an alleged assault by Narod, the Plaintiff argues that issue preclusion should prevent this Court from finding that the incident was not an adverse employment action, referencing a state court ruling. However, the claim is insufficient, as the state court merely recognized that the Plaintiff alleged harassment and a retaliatory discharge, which is defined as a retaliatory personnel action. The November 2009 assault is considered a potential instance of harassment that could qualify as adverse action affecting employment conditions. However, Judge Bucaria did not definitively determine if this incident constituted an adverse employment action, and his remarks were not a conclusive judgment on the merits. For issue preclusion to apply, four conditions must be satisfied: 1) the identical issue was previously raised, 2) it was actually litigated and decided, 3) the parties had a fair opportunity to litigate, and 4) the resolution was essential to a valid judgment. The plaintiff has failed to demonstrate that the issue was conclusively decided by Judge Bucaria or that the issues were identical. The court noted that the plaintiff was classified as an exempt employee and did not experience a change in employment terms, which undermines the claim of adverse action. The Second Circuit defines an adverse employment action as a "materially adverse change" in employment conditions, emphasizing that incidents such as intimidation or refusal to accommodate scheduling requests do not qualify unless they reflect such a change. The inquiry regarding adverse action is fact-intensive, and courts must analyze each case individually to determine if the employment action rises to the level of adverse. The Court rejects a restrictive interpretation of case law regarding materially adverse employment actions, clarifying that such actions may exist even without a change in employment terms or conditions. The plaintiff claims that his suspension on February 12, 2010, was retaliatory, stemming from his request to view his personnel file and complaints about CWW's alleged illegal activities. The Court infers that the suspension was not due to noncompliance with attendance requirements. Documentation presented includes references to severance and vacation pay for laid-off employees, alongside an "Employee Warning" document that outlines sales performance issues but does not constitute an adverse employment action on its own. Multiple case precedents affirm that oral and written warnings do not qualify as materially adverse actions without tangible consequences. The plaintiff also alleges discriminatory practices, stating he was paid less than the American employee he replaced and that his position was filled by a white American, claims which the defendants deny. However, the record lacks evidence regarding the race or national origin of either the plaintiff's replacement or the individual he replaced. Plaintiff alleges that CWW failed to hire any Director of MIS before or after his termination in May 2010, but this unsworn and unsupported claim does not suggest discrimination, as established in Casciani v. Nesbitt. The plaintiff's subjective beliefs and unsubstantiated allegations about discrimination based on national origin are inadequate. In his cross-motion for summary judgment, the plaintiff cites discriminatory factors related to his origin, including being required to travel off-site and perform tasks outside his job profile, yet provides no evidence for these claims. Allegations of degrading language and comments made in a meeting lack supporting evidence except for one incident involving the term "Harshidoodle," which he attributes to a single individual. The court emphasizes that mere speculation or conjecture cannot defeat a motion for summary judgment; concrete evidence is necessary to support claims. Unsupported allegations are insufficient to overcome summary judgment, and the plaintiff must demonstrate that his version of events is credible rather than fanciful. A party opposing summary judgment must provide admissible evidence rather than relying solely on allegations, conclusory statements, or claims regarding the credibility of supporting affidavits. In this case, the Plaintiff's assertion that he was called “Harshidoodle” starting in September 2009 lacks specific instances, and the remarks made by Narod at a November 10, 2009 meeting do not establish a temporal link to support claims of discrimination. The lengthy time between the alleged remarks and the Plaintiff's hiring in July 2008 and suspension in February 2010 diminishes their probative value regarding discrimination. The Court distinguished this case from *Dupree* and *Papalia*, where temporal connections were found more relevant. In *Dupree*, a remark was made closer in time to termination, while in *Papalia*, the president's broader hostile actions towards women outweighed the temporal lapse. Here, with a three-month gap between remarks and adverse action, the remarks are not considered probative. Additionally, Narod's involvement in the Plaintiff's hiring further weakens claims of racial and national origin animus, as he was part of the hiring process, and later opted for a leave of absence rather than termination. The principle that if the same individual who hired the Plaintiff also decided not to terminate him, it complicates the attribution of discriminatory intent to that individual, is supported by relevant case law. Plaintiff failed to demonstrate an inference of discrimination regarding the non-renewal of her contract, as the decision was made by the same individual who initially recommended her for the position. The “same actor doctrine” negates any inference of age discrimination when the same person who hired the plaintiff was involved in her termination. Although a longer time gap between hiring and firing could weaken this inference, a period of less than two years is generally supportive of it. Various cases illustrate that the same actor inference is applicable when hiring and firing occur within a two- to three-year timeframe, with courts finding it particularly robust when the time span is under two years. Additionally, the plaintiff's claim that changes in her working hours indicated discrimination was not substantiated, as she testified these changes were in retaliation for her inquiries about management practices. The plaintiff's unsupported allegations do not raise a credible inference of discrimination. Defendants objected to the plaintiff's new theories of disparate treatment, arguing they were not included in her EEOC charge or Amended Complaint, but the Court determined that even considering these arguments, the plaintiff did not establish a claim for race or national origin discrimination.