OPINION & ORDER
Plaintiff Bernard Goonewardena brings this discrimination and retaliation action against his former' employer, the New York Workers’ Compensation Board (the
FINDINGS OF FACT
A. The Parties
Plaintiff is a 78-year-old native of Sri Lanka who identifies as South Asian. See PI. Aff. ¶¶ 1-2. He was educated in Sri Lanka and moved to the United States in 1968. See id. ¶¶ 4, 9. The WCB is a New York state agency responsible for enforcing New York’s workers’ compensation laws. See Aff. of Winston Farnum (“Far-num Aff.”) ¶ 3. Farnum served as a Compensation Investigator II at the WCB’s Bureau of Compliance from 2001 to 2010. See id. ¶ 1. Farnum was Plaintiffs direct supervisor during Plaintiffs employment with the WCB. See id. ¶ 9. Farnum testified that he “is of Barbados ancestry” and that his “skin is brown, otherwise colloquially known as ‘black.’ ” Id. ¶ 40.
B. Plaintiffs Hiring and Training
In or about August or September 2007, Plaintiff applied for a position as a Compensation Investigator I at the WCB’s Harlem District Office. See Pl. Aff. ¶25. There is no dispute that Plaintiff was qualified for this position, as he had received a score of 85 percent on his civil service exam and had experience as a compensation investigator. See id. ¶ 26; Defs.’ Ex. B at 2. Plaintiff was interviewed by Farnum, Leonard Frasco, and other WCB employees. See Pl. Aff. ¶ 30. Plaintiff was hired, and he began work on October 4, 2007. See id. ¥36; Pl. Ex.2.
During Plaintiffs employment with the WCB, a Compensation Investigator I was a field investigator responsible for evaluating businesses’ compliance with New York’s workers’ compensation laws. See Pl. Aff. ¶ 27; Farnum Aff. ¶ 10; Aff. of Leonard Frasco (“Frasco Aff.”) ¶ 8. A Compensation Investigator I was expected to visit businesses to determine the status of their workers’ compensation insurance. See PL Aff. ¶ 27; Farnum Aff. ¶ 10; Frasco Aff. ¶8. A Compensation Investigator I was also expected to write clear, concise, and accurate reports. See Farnum Aff. ¶ 10; Frasco Aff. ¶8. In general, a Compensation Investigator I spent two to three days each week in the field and the remaining weekdays in the office. See Frasco Aff. ¶ 8; Trial Tr. (“Tr.”) at 30:22-25.
Upon starting at the WCB, Plaintiff was given one week of training, as were other newly hired employees. See Farnum Aff. ¶ 11; Frasco Aff ¶¶ 5, 7; Tr. at 27:7-25. This training consisted of, as Plaintiff testified, an “initial overview” of the responsibilities of a Compensation Investigator I. PL Aff. ¶ 47.
According to Plaintiff, he received less training than other newly hired Compensation Investigator Is. See id. ¥ 48; Tr. at 63:2-24. Farnum and Frasco denied this claim. See Farnum Aff. ¥11; Frasco Aff. ¶¶ 5, 7. For several reasons, the Court
C. Plaintiffs Initial Performance
During Plaintiffs first several months at the WCB, his performance was viewed as deficient in several respects. First, Far-num credibly testified that Plaintiffs'investigative reports often contained significant errors. See Farnum Aff ¶ 17; Tr. at 176:21-177:6. Indeed, Fárnum testified that approximately 20 to 25 percent of Plaintiffs reports contained errors, an error rate that was “very high” when compared to that of his colléagues. Tr. at 179:11-20. While the Court did not’have the benefit of reviewing a large number of Plaintiffs reports, two were examined closely at trial, and Farnum provided a reasonable — if debatable — explanation of why one report contained enough errors to be rejected by a supervisor. See Tr. at 172:2-23, 173:19-22; PI. Ex. 13. Frasco corroborated Farnum’s testimony by testifying that he reviewed examples of Plaintiffs completed reports and determined that Plaintiff repeatedly made the same mistakes. See Frasco Aff. ¶ 9.
Second, Farnum credibly testified that, in his view, Plaintiff had trouble following instructions. See Farnum Aff. ¶ 19. Far-num concluded that Plaintiff either did not understand his instructions or thought his way was better. See id. As a result, Far-num often had to repeat himself, and Plaintiffs work was not completed on time. See id.
Third, Plaintiffs coworkers reported to his supervisors that Plaintiff was confrontational and uncooperative. See Frasco Aff. ¶¶ 10-11. For example, Frasco credibly testified .that Plaintiffs eoworkers informed him that “Plaintiff would ask them questions related to the work and then invariably reject their, answers because Plaintiff thought that he knew better.” Id. ¶ 10. Frasco further testified that Plaintiffs coworkers complained that, while in the field, Plaintiff would “openly disagree” with them in public, which created a “confrontational and uncomfortable work environment,” as well as an “unprofessional public display.”.Id. ¶ 11. The Court again finds this testimony credible.
Fourth, Farnum found that Plaintiffs computer skills were inadequate. See Far-num Aff. ¶ 18. Farnum estimated that approximately 60 percent of an investigator’s job involves the use of a computer, and that; in his view, Plaintiff lacked-the skills to use the WCB’s computer system and business databases efficiently. See id,
The Court does not doubt that Plaintiff performed well at times. Plaintiffs affidavit states that, on at least some occasions, he capably informed various entities about the requirements of New York’s workers’
Concerns with Plaintiffs initial performance are reflected in the First Probationary Report, which Farnum completed on February 27, 2008. See Farnum Aff. ¶ 24; Pl. Ex. 7. In this report, Farnum gave Plaintiff a rating of “unsatisfactory” in three of the seven applicable performance categories. See Pl. Ex. 7. In particular, Farnum found Plaintiffs performance unsatisfactory in the categories of “Aptitude,” “Relationship with Co-workers/Supervisor,” and “Relationship with Public.” See id: Farnum gave Plaintiff a satisfactory rating in the categories of “Quality of Work,” “Work Habits,” and “Attendance,” and did not provide a rating for the category of “Quantity of Work.” See id. 'In the narrative section of the report, Farnum wrote that Plaintiff (1) has “[bjelow standard computer skills,” which he was “very slow to pick up,” (2) “[h]as difficulty with interpersonal communications with fellow employees and has difficulty accepting directions from the supervisor,” and (3) “[njeeds improvement in communications with the public,and employers.” Id. On the whole, the Court finds that the First Probationary Report confirms that, in Defendants’ view, Plaintiff performed inadequately during his first several months of employment.
To be sure, the First Probationary Report is not a model of clarity, and Farnum could have been more diligent in completing it. For example, the dates in. the report are somewhat confusing: the report lists a “due date”;of November 15, 2007, but it was completed in February 2008. See id. In addition, a box recommending “termination” was not checked, see id., although Farnum testified .-that “[biased--on the problems noted in the [First] Probationary Report it was being recommended that plaintiff be terminated,” Farnum .Aff. ¶ 25. At.trial, these discrepancies were largely explained. For instance, .Farnum testified that supervisors did not complete a probationary report until Human Resources der livered a blank copy of the form, see Tr. at 188:17-19, and that Plaintiffs form may not have been delivered until February 25, 2008, only two. days before Farnum completed it, see Tr. at 221:23 — 25. Farnum further testified that, in practice, he typically recommended terminating a provi-sionary employee by discussing the matter with his own supervisor, and not necessarily by checking the “termination” box in a probationary report. See Tr. at 189:13-190:11. Furthermore, the report rates Plaintiffs “quality of work” as “satisfactory,” which could seem inconsistent with Farnum’s testimony that Plaintiffs work routinely contained errors. Compare PI. Ex. 7, with Farnum Aff. ¶ 17. This potential discrepancy was also resolved at trial: Farnum consistently, and credibly, testified that Plaintiffs work in fact contained errors and that he should have checked “unsatisfactory” in this field. See Tr. at 135:20-24, 136:2. Overall, any discrepancies or omissions in the First Probationary Report do not undermine the Court’s finding that this, report accurately reflected Defendants’ contemporaneous belief that Plaintiffs performance was deficient.
In December .2007, Farnum met.with Frasco and reported his concerns with Plaintiffs performance. See Farnum Aff. ¶ 20; Frasco Aff. ¶ 12. The two men decided , to recommend terminating Plaintiffs employment if his performance did not improve by the end of his first three months at the WCB — that is, by the end of
D. Plaintiffs Leave of Absence and Initial Termination
On January 17, 2008, Plaintiff began a medical leave of absence after sustaining a knee injury. See Pl. Aff. ¶¶ 51, 57.,
In a letter dated March 6, 2008, while Plaintiff was on leave, the WCB informed Plaintiff that his services would be- terminated on March 20,2008. See Pl. Ex. 5; Pl. Aff. ¶ 62; Aff. of Lisa Sunkes (“Sunkes Aff.”) ¶ 24. Plaintiff -responded by sending a series of letters challenging the WCB’s decision and arguing that he should be reinstated. See Pl. Aff. ¶ 66; Sunkes Aff. ¶ 25. Some of these letters were lengthy— one contained 29 pages — and included discussions of Plaintiffs prior work experience and personal life. See Sunkes Aff. ¶ 25. In these letters-and in other communications with WCB' officials, Plaintiff threatened to take “the story of [his] termination” to New York newspapers. PL Aff. ¶ 68; see also Pl. Ex. 9 at 1. On March 20, 2008, the WCB informed Plaintiff that it had reversed its prior decision and that he would be reinstated. See Sunkes Aff. ¶ 30; Defs. Ex. L. According to Lisa Sunkes, who served as Director of Human Resources Management at the time, the WCB decided that Plaintiff should be given another opportunity to succeed. See Sunkes Aff. ¶ 28,
After Plaintiff was reinstated but before he returned to work, he continued to write letters to WCB officials. See Pl. Aff. ¶¶ 71-72. In some of these letters, Plaintiff indicated that he had a “normal or cordial relationship [his] supervisor,” Pl. Ex. 9 at 2, and a “normal work environment” before his leave of absence, Pl. Ex. 10 at 3. In at least -some of these letters, however, Plaintiff also alleged — for the first time— that he was subjected to discrimination and that he feared he would be subjected to retaliation. See, e.g., Pl. Ex. 10- at 2-3. For example, in a letter dated April 13, 2008, Plaintiff wrote that the reason given for his initial termination was “totally false given [his] outstanding performance in all jobs [he] held in New York state service” and that his termination “was done for discriminatory reasons.” Pl. Ex. 11 at . 4. Plaintiff added that he had been “accorded differential treatment than other American born employees.” Id. Plaintiff indicated .that, if he were terminated on the basis of “another negative performance evaluation,” he would “fil[e] a case of discrimination based on national origin, age, harassment, and retaliation.” Id. Defendants did not .find Plaintiffs complaints credible and did not investigate further. See Sunkes Aff. ¶ 35; Tr. at 254:6-8, 295:13-296:2.
E. Plaintiffs Return and Final Termination
On April 17, 2008, Plaintiff returned to work. See Pl. Aff. ¶ 74; Farnum Aff. ¶ 30. Plaintiffs affidavit asserts that, on his first day back at work, Farnum “angrily stated that [his]' ‘days are going to be numbered.’ ” Pl. Aff. ¶ 74. Plaintiff also claims that, at some point after he was reinstated, Farnum showed Plaintiff the letters he had sent to Sunkes and stated,- “They are not going to believe anything that you have to say. against me.” Id. ¶ 82. The Court does not credit this testimony. Other than Plaintiffs own testimony, no evidence adduced at trial suggests that Farnum acted with the “nasty and aggressive and hostile” attitude Plaintiff described. Tr. at 72:16. Indeed, although Farnum found Plaintiffs work product unsatisfactory, he expressed genuine-respect for Plaintiff as
Farnum testified that Plaintiffs performance did not improve after his reinstatement. See Farnum Aff. ¶ 32. He recalled that Plaintiffs reports continued to contain errors and that Plaintiff continued to have trouble using the WCB’s computer system and databases. See id. Farnum also described continued complaints from Plaintiffs coworkers, who explained that Plaintiff was “disruptive” on field assignments, refused to follow directions, and spoke over his colleagues. See id. ¶ 33. Farnum ultimately concluded that Plaintiff was “incapable of performing his job responsibilities independently.” Id. ¶ 32.
In June 2008, several WCB officials held a conference call to discuss Plaintiffs performance. See Farnum Aff. ¶ 34; Sunkes Aff. ¶ 36. The group decided that, since Plaintiffs performance had not improved, his employment would be terminated. See Farnum Aff. ¶ 34; Sunkes Aff. ¶ 36.
On June 30,- 2008, Farnum completed a Second Probationary Report. See Farnum Aff. ¶35; PI. Ex. 12. The report stated that Plaintiff’s performance was unsatisfactory in four of the seven applicable performance categories. See Farnum Aff. ¶ 35; PI. Ex. 12. In the narrative section of the report, Farnum elaborated on the problems with Plaintiffs performance. With respect to “Quality of Work,” Farnum wrote that Plaintiffs reports “have many errors.” PL Ex. 12. Specifically, Farnum noted that nine of twelve reports recently submitted by Plaintiff were returned to him for corrections. See id. With respect to “Quantity of Work,” the report noted that Plaintiff “works slowly” and that “his work production falls behind that of his co-workers.” Id. With respect to “Aptitude,” the report explained that Plaintiff “was slow to learn the various databases which are used by the investigators” and “demonstrated a lack of understanding of some of the basic legal concepts used in our investigations.” Id. Finally, with respect to “Relationships with Co-workers/Supervisor,” Farnum wrote that Plaintiff “has cultivated adversarial relationships with his co-workers and his supervisor.”,M The report further explained that Plaintiffs coworkers “don’t trust him” and “feel that his conduct while in the field with them can result in an unsafe work environment.” Id. The Court finds that the Second Probationary Report accurately reflects Defendants’ view of Plaintiffs performance following his reinstatement.
Once again, however, Farnum’s completion of this report was flawed in some respects. For exampie, unlike in the First Probationary Report, the category “Relationship with Public” was marked as “satisfactory” in the Second Probationary Report, although the narrative section of this report states that Plaintiff “has disagreements with [his coworkers] in the presence of the public.” • See id. At trial, Farnum testified that Plaintiff’s relationship with the public was in fact unsatisfactory, a
The Second Probationary Report recommended terminating Plaintiffs employment. See Pl. Ex. 12. On July 1, 2008, Sunkes approved Plaintiffs termination. See Sunkes Aff. ¶ 38. Plaintiffs termination became effective oh July 9, 2008. See Pl. Aff. ¶ 96; Pl. Ex. 15.
F. Alleged Incidents of Discrimination
Plaintiff claims that, after he was reinstated but before his final termination, Farnum made several negative comments about his race, national origin, and age! See Pl. Aff. ¶¶ 75-79. In particular, Plaintiff testified that Farnum told him that he came “from the third world,” that he was “senile,” and that he “was black ... not white.” Id. ¶¶ 75-76. Farnum denies making these remarks. See Farnum Aff. ¶ 39.
The Court does not credit Plaintiffs claim that Farnum made discriminatory statements about his race, national origin, or age. This credibility finding is based in part on Plaintiffs demeanor while testifying. It is also based on the timing of evénts and the fact that Plaintiff himself testified that Farnum did not make any discriminatory statements prior to his initial termination. See Tr. at 51:13-21. Indeed, Plaintiffs contemporaneous letters indicated that his relationship with Farnum during the first several months of his employment was “normal or cordial.” Pl. Ex. 9 at 2; see also Pl. Ex. 10 at 2-3 (“I want a normal work environment and relationship as that existed before my absence from work.”). Plaintiff did not explain why, after several months of a normal or cordial relationship, Farnum would begin to make discriminatory remarks. Finally, the Court’s credibility finding is based on some of the alleged remarks themselves. For example, Plaintiff claims that .Farnum stated, “You are no diplomat..,. My daughter is a diplomat in England.” Pl. Aff. ¶ 76. In light of the undisputed trial testimony that Far-num’s daughter is not in fact a diplomat, but .rather an actuary, it seems highly unlikely that Farnum,would make such a statement. ¡See Tr. at 197:19-198:1.
By contrast, the Court found Farnum’s testimony credible op, the issue of. any allegedly discriminatory , remarks. This credibility finding is also based, in part, on demeanor: Farnum appeared candid, matter-of-fact, and balanced throughout his testimony on this subject. Farnum also appeared fair and respectful in his assessment of Plaintiff — Farnum even described Plaintiff as a “brilliant human being.” Tr. at 198:10-11. In addition, Farnum credibly testified that he would not make such remarks because, as a member of several protected groups himself — he is a black man of Barbados ancestry — he is “sensitive to the equal treatment and supervision of all employees.” Farnum Aff. ¶ 40. In Farnum’s words, he “live[s] in. a glass house” and does not “want to throw a stone.” Tr. at 198:14-15. Finally, both Far-num and Frasco testified that Farnum worked well with several other South Asian employees, at least some of whom were over 65 and at least some of whom were not born in the United States. See Farnum Aff. ¶ 41; Frasco Aff. ¶ 20; Tr. at 194:23-196:21, 299:25-301:7.
Plaintiff also provided evidence that, in March 2008, the WCB hired two younger, African American individuals, AT John and Onyewuchi Echefu. See Pl. Aff. ¶ 84; Tr. at 142:1-7, These individuals filled one position that was vacant when Plaintiff began at the WCB and one that was' left vacant when Plaintiff was on medical leave. See Pl. Aff. ¶ 84. They were both given offers before Plaintiff was terminated. See Tr. at 98:10-12. The Court does not, however, find that these two individuals were less qualified than Plaintiff for the role of Compensation Investigator I. At trial, Plaintiff did not present evidence suggesting any significant difference between’Plaintiffs qualifications and those of these two individuals. Moreover, one of the key qualifications for the role of Compensation Investigator I was performance on the civil service exam, and documentary evidence showed that Echefu had received the same score as Plaintiff on the exam. See Pl. Ex. 1 at 3.
CONCLUSIONS OF LAW
A. Discrimination Claims
1. Title VII, Section 1983, and the New York State Human Rights Law
Plaintiff first brings discrimination claims against the WCB under Title VII and against Farnum. under Section 1983 and the NYSHRL, claiming that-he was terminated on the basis of his race, national origin, and age. • . .
These discrimination claims are governed by the burden-shifting framework set forth in McDonnell Douglas Corp. v. Green,
a. Prima Facie Case
Plaintiff has established a prima facie case of discrimination. First, Plaintiff was a member of a protected class: he is South Asian, a native of a country other than the United States, and over the age of 65. See Pl. Aff. ¶¶ 1-2. Second, Plaintiff was qualified for his position as a Compensation Investigator I: he met the WCB’s requirements through his score on the civil service exam and his prior work as a compensation investigator. See id. ¶ 26; Defs.’ Ex. B at 2. Third, Plaintiff suffered an adverse employment action because his employment was terminated. See Pl. Aff. ¶ 96.
With respect to the fourth factor, Plaintiff has shown that the circumstances of his termination give rise to an inference of discrimination. A court may infer discrimination from a variety of circumstances, including:
the employer’s continuing, after discharging the plaintiff, to seek applicants from persons of the plaintiff’s qualifications to fill that position; or the employer’s criticism of the plaintiff’s performance in ethnically degrading terms;' or its invidious comments about others in the employee’s protected group; or the more favorable treatment of employees not in the protected group; or the sequence of events leading to the plaintiffs discharge.
Leibowitz v. Cornell Univ.,
b. Legitimate, Non-Discriminatory Reasons for Termination
Because Plaintiff has established a pri-ma facie case, the burden shifts to Defendants to articulate some legitimate, nondiscriminatory reason for terminating Plaintiffs employment. “‘The defendant must clearly set forth, through the introduction of admissible evidence,’ reasons for its actions which, if believed by the trier of fact, would support a finding that unlawful discrimination was not the cause of the employment action.” St. Mary’s Honor Ctr.,
Defendants have explained that they terminated Plaintiff on the basis of several perceived deficiencies in his performance. First, Defendants determined that Plaintiffs written work often contained significant errors. See Farnum Aff. ¶ 17; Tr. at 176:21-177:6. Specifically, Far-num estimated that approximately 20 to 25 percent of Plaintiffs investigative reports contained errors — an error rate that was “very high” when compared to that of his colleagues. Tr. at 179:11-20. Frasco likewise testified that he viewed several examples of Plaintiffs work and found that Plaintiff repeatedly made the same mistakes. See Frasco Aff. ¶ 9. Defendants’ contemporaneous records document this concern. In the Second Probationaiy Report, for example, Farnum noted that Plaintiffs quality of work was unsatisfactory, as his reports “have many errors.” PL Ex. 12. Indeed, the Second Probationary Report notes that nine out of twelve of Plaintiffs recently completed reports were returned with errors. See id.
Second, Defendants found that Plaintiff established poor relationships with his colleagues. For example, Farnum testified that he received reports from two of Plaintiffs coworkers that Plaintiff “would be disruptive, would talk over his co-workers while they were speaking, and refused to follow directions.” Farnum Aff. ¶ 38. Fras-co similarly testified that Plaintiffs coworkers complained about Plaintiffs behavior, explaining that he would “openly disagree” with them and left them feeling “uncomfortable.” Frasco Aff. ¶ 11. Defendants’ contemporaneous records again reflect this concern. In the Second Probationary Report, for instance, Farnum wrote that Plaintiff had “cultivated adversarial relationships with his coworkers and his supervisor.” PI. Ex. 12. Indeed, the report explains that other WCB employees reported feeling “uneasy working with him,” and explained that they “don’t trust him” and feared that “his conduct while in the field with them can result in an unsafe work environment.” Id.
Third, Defendants concluded that Plaintiff did not follow instructions. For example, Farnum testified that Plaintiff refused to follow his instructions, either because Plaintiff did not understand the instructions or preferred to do things his way. See Farnum Aff. ¶ 19. As a result, Farnum was often forced to repeat himself, and Plaintiffs work was not completed on time. See id. The Second Probationary Report similarly explains that Plaintiff “does not take
Fourth, Defendants found that Plaintiff did not communicate well with members of the public. Because the role of a Compensation investigator I required frequent on-site visits to businesses, effective communication with business owners and other members of the public was a key part of the job. Plaintiffs colleagues, however, informed his supervisors that Plaintiff “creatfed] an unprofessional public display” while working with the public, in part because he tended to “openly disagree” with his coworkers while on field assignments. Frasco Aff. ¶ 11; Pl. Ex. 12.
Finally, Defendants found that Plaintiff was not sufficiently skilled in using the WCB’s computer system and databases. Farnum testified that Plaintiff was slow to pick up the computer skills necessary to use the WCB’s system, and that these skills were critical to the work of a Compensation Investigator I. See Farnum Aff. ¶ 18. In the Second Probationary Report, Farnum wrote that Plaintiff “works slowly” and that “his work production falls behind that of his coworkers.” See Farnum Aff. ¶ 35; Pl. Ex. 12.
These reasons constitute legitimate, non-discriminatory reasons for an adverse employment action. See, e.g., Ya-Chen Chen v. City Univ. of N.Y.,
c. Pretext
The burden thus shifts back to Plaintiff to show that Defendants’ reasons for his termination were pretextual. “[I]n applying the McDonnell Douglas test to determine whether an employer’s putative purpose is a pretext, a'fact-finder need not, and indeed should not, evaluate whether a defendant’s stated purpose is unwise or unreasonable.” DeMarco v. Holy Cross High Sch.,
Plaintiff has attempted to show pretext in several ways. First, Plaintiff argues that Defendants’ negative assessment of his performance is pretextual because it derives mostly from the findings of Farnum, whom Plaintiff argues is unreliable. As discussed above, however, the Court finds that Farnum provided credible testimony regarding his experience as Plaintiffs supervisor. In particular, the Court credits Farnum’s testimony that he did not-make discriminatory remarks against Plaintiff and finds that Farnum did not harbor any animus against Plaintiff that would call into question the truth of his statements regarding Plaintiffs performance.
Second, Plaintiff argues that Defendants’ stated reasons for terminating him are inconsistent with the documentary evidence. It is true that inconsistencies in an employer’s explanation for taking an adverse action may support a finding of pretext. See, e.g., Kwan v. Andalex Grp. LLC,
Third, Plaintiff points to alleged irregularities in the process of terminating him. Plaintiff is correct that “[departures from procedural regularity, such as a failure to collect all available evidence, can raise a question as to the good faith of the process where the departure may reasonably affect the decision.” Tolbert,
Fourth, Plaintiff has attempted to show pretext through the hiring of Replacements who were not members of his protected class. Evidence that an employee was replaced by an individual outside his protected group — -particularly if that individual is less qualified — may be probative of pretext. See, e.g., Ash v. Tyson Foods, Inc.,
Fifth, Plaintiff argues that, contrary to Defendants’ testimony, he was a strong performer. “In a discrimination case, however, we -are decidedly not .interested in the truth of the allegations against plaintiff.” McPherson v. N.Y.C. Dep’t of Educ.,
Sixth, Plaintiff has attempted to show pretext through evidence that he was not' informed of any .problems with his performance. Under some circumstances, the fact that an employee was not advised of perceived performance problems later cited as a basis for his termination may suggest pretext. See, e.g., Mihalik v. Credit Agricole Cheuvreux N. Am., Inc.,
Finally, the diversity of the WCB’s staff undermines Plaintiffs claim that Defendants acted with any discriminatory motive in terminating him. “Proof that [an employer’s] work force was racially balanced or that it contained a disproportionately high percentage of minority employees” may suggest that an adverse employment action was not “discriminatorily motivated.” Furnco Constr. Corp. v. Waters,
In sum, Plaintiff has not carried his burden of demonstrating that Defendants’ legitimate, non-discriminatory reasons for his termination were pretextual. Thus, the Court concludes that Plaintiff has failed to establish that Defendants terminated him on the basis of his race, national origin, or age under Title VII, Section 1983, or the NYSHRL.
2. New York City Human Rights Law
Plaintiff also asserts a discrimination claim against Farnum under the NYCHRL. Under the NYCHRL, it is unlawful for an employer to discriminate against an individual “in compensation or in terms, conditions, or privileges of employment” because of the individual’s race, national, origin, or age. N.Y.C. Admin. Code § 8-107(1)(a). Pursuant to the New York. City Council’s revisions to the NYCHRL in the Local Civil Rights Restoration Act of 2005, N.Y.C. Local L. No. 85, “courts must analyze NYCHRL claims separately and independently from any federal and state law claims.” Mihalik,
Plaintiff has not demonstrated that he received any less favorable treatment because of his race, national origin, or age. As discussed above, Defendants have shown that Plaintiff was terminated because of his poor work performance, not his protected characteristics. And while it is true, as Plaintiff argues, that inferior training relative to that of his colleagues could, in theory, support an NYCHRL claim, the Court does not credit Plaintiffs testimony that he received any less training than his colleagues. Accordingly, Far-num is not liable to Plaintiff under the NYCHRL for discrimination on the basis of Plaintiffs race, national origin, or age.
B. Retaliation Claims
1. Title VII, Section 1983, and the New York State Human Rights Law
Plaintiff next asserts retaliation claims against the WCB under Title VII
Plaintiff has established a prima facie case of retaliation. First, Plaintiff participated in a protected activity. “When an employee communicates to her employer a belief that the employer' has'engaged in a form of employment discrimination,' that communication virtually always constitutes the employee’s opposition to the activity.” Crawford v. Metro. Gov’t of Nashville & Davidson Cty., Tenn.,
Finally, Plaintiff has shown a causal connection between his protected activity arid the adverse employment action. “[T]he causal connection needed for proof of a retaliation claim can be established indirectly by showing that the protected activity Was closely followed in time by the adverse action.” Summa,
The burden thus shifts to Defendants to articulate legitimate, non-retaliatory reasons for terminating Plaintiff. Defendants have carried this burden. As discussed above, Defendants have explained they terminated Plaintiff on the basis of several perceived deficiencies in his performance — namely, that his work contained a large number of errors, that he established adversarial relationships with his coworkers, that he did not follow instructions, that he behaved inappropriately while communicating with members of the public, and that he lacked adequate computer skills to efficiently use the WCB’s systems.
The burden next shifts back to Plaintiff to show that Defendants’ proffered reasons for terminating him were pretextual and that, but for his protected activity, he would not have been terminated. Plaintiff has not carried this burden. As discussed above, Plaintiff has not shown that Defendants’ stated reasons for his termination were not the true basis for their decision. Moreover, Defendants docpmented their concerns, with Plaintiffs performance long before he .engaged in any protected activity. In particular, Farnum completed the First Probationary- Report, which identified several deficiencies in Plaintiffs performance, on February 27, 2008 — weeks before Plaintiff threatened to “take the wrongful termination to the news media” and before he complained of discrimination and retaliation in letters to WCB officials. Pl. Aff. ¶¶ 67, 70-73; see Pl. Exs. 9, 10, 11. In addition, Defendants maintained a consistent view of Plaintiffs performance before and after he began engaging in' protected activity. Indeed, the First Probationary Report, which -was completed before Plaintiffs complaints of discrimination and retaliation, and the Second Probationary Report, which was completed after this protected activity, identify several -of the same, concerns, and both reports conclude that Plaintiffs performance was inadequate. Compare Pl. Ex. 7, with Pl. Ex. 12. On the basis of this evidence, the Court concludes that Defendants’ stated concerns with Plaintiffs performance were not mere pretext for retaliation. See, e.g., Ya-Chen Chen,
Nor has Plaintiff established pretext through direct evidence of Defendants’ retaliatory- motives. Plaintiffs affidavit as
In sum, the Court finds that Defendants are not liable to Plaintiff for retaliation under Section 1983, Title VII, or the NYSHRL.
2. New York City Human Rights Law
Finally, Plaintiff asserts a retaliation claim against Farnum under the NYCHRL. “[T]he retaliation inquiry under the [NYCHRL] is ‘broader’ than its federal counterpart.” Fincher v. Depository Tr. & Clearing Corp.,
Even under the NYCHRL’s more liberal standard, Plaintiff cannot prevail on his retaliation claim. Although Plaintiff plainly “took an action opposing his employer’s discrimination” by sending WCB several letters alleging discrimination, he has not demonstrated that Farnum terminated him or took any other adverse action against him “as a result” of this activity. Mihalik,
SANCTIONS
Plaintiff moves for sanctions regarding Defendants’ alleged failure to preserve and produce records of the corrections made to his investigative reports. See Pl.’s Ltr. to Ct. (May 23, 2017); Pl.’s Ltr. to Ct. (May 25, 2017). While the Court is troubled by the possible spoliation of evidence, it declines to impose the sanctions Plaintiff requests.
A. Background
At trial, both parties addressed the extent to which Plaintiffs investigative reports contained errors. Although corrected copies of two of Plaintiffs reports were admitted into evidence, the trial record did
In response to this testimony. Plaintiff raised the issue of a possible discovery violation and requested sanctions. See Tr. at 206:3-9; Pl.’s Ltr. to Ct. (May 23, 2017). During a hearing on the issue, Defendants’ counsel notified the Court that, just prior to the hearing, Farnum informed counsel that his former colleagues may have located “some of his old files that he kept which might include or does include some of the documents at issue.” Tr. at 342:20-22. When asked by the Court, Plaintiff stated that he did not seek to reopen the trial and that the Court need not conduct any further investigation, including by questioning Farnum. Tr. at 348:15-18, 350:5-16, 353:7-13. There is no dispute.that Plaintiff never requested the documents Defendants may have destroyed. See Defs. Ltr. to Ct. (May 24, 2017); Pl. Ltr. to Ct. (May 25, 2017).
As a sanction for the alleged spoliation of this evidence, Plaintiff requests that the Court “(i) strike5 all testimony from any defénse witness regarding purported errors in Plaintiffs work product; and/or (ii) make an adverse inference that Plaintiffs work product did not contain errors as Defendants claim.” Pl.’s Ltr. to Ct. at 1 (May 23, 2017).
B. Analysis
“Spoliation is the destruction or significant alteration of evidence, of failure to preserve property for another’s use as evidence in pending or reasonably foreseeable litigation.” Allstate Ins. Co. v. Hamilton Beach/Proctor Silex, Inc.,
“The determination of an appropriate sanction for spoliation, if any, is confined to the sound discretion of the trial judge, and is assessed on a case-by-case basis.” Fujitsu Ltd. v. Fed. Express Corp.,
Assuming that Farnum’s copies of the corrections to Plaintiffs reports were in fact destroyed, the Court concludes that the three elements of spoliation are satisfied. First, Defendants had an obligation to preserve these records at the time they were destroyed. “The obligation to preserve evidence arises when the party has notice that the evidence is relevant to litigation or when a party should have known that the evidence may be relevant to future litigation.” Fujitsu,
Under the facts of this case, however, the Court does not find that the “extreme sanctions” of preclusion or an adverse inference are appropriate. Pall Corp. v. 3M Purification Inc.,
Moreover, considerations of deterrence do not weigh in favor of the sanctions Plaintiff requests. In particular, Farnum’s conduct in.failing to preserve the records at issue hardly constitutes the type of evasive. or obstructive behavior the spoliation doctrine was designed to prevent. Farnum testified that he destroyed the records because he simply “had to clean up th§ desk” when he retired. Tr. at 205:1-12. There is no evidence that Farnum’s decision to destroy the records at issue had anything to do with thi$ litigation. See, e.g., Royal Park Invs. SA/NV v. U.S. Bank Nat’l Ass’n,
CONCLUSION
In sum, the Court concludes that Plaintiff is not entitled to relief on any of his claims. Accordingly, the Court enters judgment in favor of the WCB on Plaintiffs discrimination and retaliation claims under Title VII and judgment in favor of Winston Farnum on Plaintiffs discrimination and retaliation claims under Section 1983, the NYSHRL, and the NYCHRL.
The Court notes that the parties’ submissions in connection with Plaintiffs motion for sanctions have not been publicly filed. No later than June 30, 2017, the parties shall file these submissions on ECF.
The Clerk of Court is directed to enter judgment in favor of Defendants and to close this case.
SO ORDERED.
Notes
. The Court thanks Mark Baghdassarian, Marcus Colucci, John Dillon, Cristina Martinez, and Jane Gross of Kramer Levin Naf-talis & Frankel, LLP for their pro bono representation of Plaintiff at trial. Their performance was exceptional, and the Court is extremely grateful for their service.
. Plaintiff's exhibits numbers refer to the numbers used on the tabs of Plaintiffs pretrial binder; they do not refer to the handwritten numbers some of these exhibits contain.
. During this period, Farnum had informal conversations with Plaintiff, in which Farnum told Plaintiff that his performance needed improvement. See Tr. at 183:24-25, 232:18-19. Farnum did not, .however, provide a formal counseling memorandum to Plaintiff regarding the issues with his performance.
. At trial, the Court ruled that evidence of other employees' races, nations of origin, and age were admissible, as this evidence may be ■ probative of Defendants' motivation in taking
. Of course, an employer’s degrading remarks may also be "probative of discriminatory intent.” Henry v. Wyeth Pharm., Inc.,
. Prior to trial, the Court denied Defendants' motion in limine seeldng to exclude evidence of other employees’ qualifications and explained that evidence of the qualifications of Plaintiffs replacements -may be relevant on the issue of pretext. ;
. ‘‘The NYCHRL does not differentiate between discrimination and hostile work environment claims; rather, both are governed'by N.Y.C. Admin. Code § 8-107(1)(a).” Russo v. N.Y. Presbyterian Hosp.,
. Notably, the Court examined two examples of Plaintiffs reports at trial. While Plaintiff testified that his reports were "perfect,” Tr. at 59:18-19, Farnum credibly testified that one of the reports contained sufficient errors to be rejected by a supervisor, see Tr. at 172:2-23, 173:19-22. As discussed above, Farnum’s analysis' of this report may reasonably be questioned, and indeed it was at trial. At a minimum, however, Farnum’s testimony, along with the Court’s independent review of these two investigative reports, casts serious doubt, on Plaintiff’s claim that the destroyed evidence would support his case.
. In addition, it does not appear that Plaintiff ever requested the preservation of the records at issue. See Allstate Ins. Co. v. Hamilton Beach/Proctor Silex, Inc.,
, The Court recognizes that Plaintiff was proceeding pro se during discovery in this action. Nonetheless, even when Plaintiff was well represented by counsel at trial, he did not seek to. review any of the reports that Farnum may have destroyed.
.Plaintiff also argues that, had the records been preserved, he would have received them through Defendants' disclosures under Federal Rule of Civil Procedure Rule 26(a)(l,)(A)(ii). This argument is not persuasive. By its terms, Rule. 26(a)(l)(A)(ii) only requires the disclosure of "documents, electronically stored information, and tangible things that the disclosing party ... may use to support its claims
. Even if the Court were to grant Plaintiff's motion for sanctions, it would not find that Plaintiff is entitled to relief on any of his claims. As discussed above, the purported errors in Plaintiff's investigative reports were only one of several legitimate, non-discriminatory reasons for his termination: Defendants explained that they also terminated Plaintiff because (1) he established poor relationships with his supervisor and coworkers, (2) he failed to follow instructions, (3) he did not communicate well with members of the public, and (4) he was not efficient in using the WCB’s computer system and databases. Plaintiff has not shown that any of these stated reasons for his termination were mere pretext for discrimination or. retaliation. Thus, even if the Court were to accept Plaintiff’s testimony that his work product was "perfect,” Tr. at 59:18-19, it would not find that he suffered any adverse employment action or was treated any less well because of his protected characteristics or activities.