Plaintiff was hired by defendant at will as a computer technician. While rendering computer assistance to an African-American fellow employee, plaintiff changed her password to “White Girl,” and later joked with other employees that he should have changed it to “Ghetto Girl.” Defendant has a strictly enforced zero-tolerance policy with regard to discrimination in the workplace. Called to account for his remarks before defendant’s Human Resources Department, plaintiff admitted making them, but said they were intended humorously. Plaintiff was advised that he had committed a terminable offense under company policy. Without conceding the offensiveness of his remarks, plaintiff questioned why anti-gay comments directed at him were not similarly sanctioned. Defendant thereupon investigated another employee’s anti-gay remarks to plaintiff, and discharged that offending employee immediately. After further investigation of plaintiffs claim in his defense, that the African-American employee had been amused and not offended by plaintiffs password choice, defendant nonetheless determined that the password was, in fact, taken as a racial slur, and plaintiffs employment was therefore terminated. Parenthetically, several months later, defendant fired another computer technician who changed a female employee’s password to “Sexy One.”
In order to challenge a dismissal based on an established violation of an employer’s nondiscrimination policy, the employee must demonstrate a material dispute of fact as to the charge (see Forrest v Jewish Guild for the Blind,
Plaintiff fares no better in his claim of retaliation, as he has failed to establish a prima facie case, which requires: (1) engagement in a protected activity; (2) the employer’s awareness of participation in that activity; (3) an adverse employment action based on the activity; and (4) a causal connection between the protected activity and the adverse action taken by the employer (Pace v Ogden Servs. Corp.,
We have considered plaintiffs remaining contentions and find them to be unavailing. Concur—Mazzarelli, J.P., Saxe, Friedman, Marlow and Gonzalez, JJ.
