MEMORANDUM AND ORDER
Plaintiff Tiffani Johnson, a former employee of humor website CollegeHu-mor.com, brings this action alleging racial
BACKGROUND
I. Rule 56.1 Statement
Local Civil Rule 56.1 calls for a summary judgment movant to submit “a separate, short and concise statement, in numbered paragraphs, of the material facts as to which the moving party contends there is no genuine issue to be tried,” and for the opposing party to submit “a correspondingly numbered paragraph responding to each numbered paragraph in the statement of the moving party, and if necessary, additional paragraphs containing a separate, short and concise statement of additional material facts as to which it is contended that there exists a genuine issue to be tried.” If the opposing party then fails to controvert a fact set forth in the movant’s Rule 56.1 statement, that fact will be deemed admitted pursuant to the local rule. Local R. 56.1(c); see also Giannullo v. City of New York,
Plaintiffs Rule 56.1 response fails to comply with the spirit, if not the letter, of the rule. Plaintiffs counter statement contains numerous unsubstantiated denials of incontrovertible material, such as the date of plaintiffs termination and direct quotations from contemporaneous documents. See, e.g., PL R. 56.1 Ctr. Stmt. ¶¶ 26-35, 45-46. Plaintiff also groundlessly denies basic and irrefutable information on the defendants’ corporate structure, derived from the declaration of CollegeHu-mor’s former General Counsel. PI. R. 56.1 Ctr. Stmt. ¶¶ 1-3. Because plaintiffs response abounds with extensive extraneous argumentation that fails to properly controvert defendants’ statements, the Court
II. Factual Allegations
Plaintiff Tiffani Johnson is an African-American graphic designer and video editor based in New York City. She holds a Bachelor of Arts degree in Broadcast Journalism from Hampton University and a Master of Science Degree in Digital Imaging and Design from New York University. Johnson Decl. ¶ 3. Prior to the events at issue in the instant suit, Johnson had developed professional experience in the graphic design and video editing field via a number of industry engagements and had also held the position of adjunct professor at New York City College of Technology, of the City University of New York, for the spring 2010 semester, during which she taught a course in digital production. Johnson Decl. ¶¶ 7-13.
Defendant Connected Ventures owns and operates CollegeHumor.com, which produces video content for distribution on its site and elsewhere. Defs. R. 56.1 ¶¶ 2, 3. Defendant IAC/Interactive Corp. is Connected Ventures’ parent company. Defs. R. 56.1 ¶ 1. In recruitment literature accessed by the plaintiff, CollegeHumor self-identified as “a leading online entertainment company targeting a core audience of people ages 18-49 ... delivering] daily comedic content, including videos, pictures, articles and jokes.” Johnson Decl. Ex. C. The type of humor produced by CollegeHumor was admittedly “raunchy,” (Tr. at 32) and certain video content was explicitly racial in nature, encompassing in some instances racially insensitive dialogue and even epithets. Defs. R. 56.1 ¶¶ 66-67; Johnson Decl. ¶ 67.
In or about June 2010, plaintiff Tiffani Johnson responded to an online advertisement for employment posted by the defendant, seeking a video editor for CollegeHu-mor.com. Johnson Decl. Ex. C; Compl. ¶ 18. Plaintiff interviewed with David Fishel, then-Director of Post-Production for CollegeHumor, and Michael Schau-bach, Fishel’s successor as Director of Post-Production and himself a former Col-legeHumor video editor. Defs. R. 56.1 ¶¶ 4, 12; PI. R. 56.1 Ctr. Stmt. ¶ 12. In August 2010, plaintiff was hired as a video editor, joining a Post-Production Department comprised of three or four video editors, several video directors and writers, Post-Production producer Lacy Witt-man, and Director of Post-Production Schaubach, who in turn reported to Sam Reich, CollegeHumor’s President of Original Content.
In early January 2011, writer Sarah Schneider provided via email notes and generally positive feedback (e.g., “[l]ooking good”) on a video project edited by Johnson. Johnson Supp. Decl. Ex. NNN. Among other comments, Schneider suggested, “the line ‘with so much that can still go wrong’ needs to be re-recorded (currently it’s like ghetto cut).” Id. Within the hour, Schaubach, a recipient of Schneider’s email, notified Reich of his “concern” with Schneider’s use of the term “ghetto cut,” further explaining, “Maybe nothing will come of this, I certainly don’t want to blow this out of proportion, but I just wanted you to be aware that this was out there and could potentially be an issue.” Parker Decl. Ex. RR. Reich replied to ask, “What does ‘ghetto cut’ mean?” but Schaubach testified that he never learned what Schneider had meant by that term. Id.; Schaubach Dep. at 11. In feedback for the same video project, writer David Young clarified a previous misidentification of a character, writing to a group of six, including Johnson, “Haha looks like I am racist. I meant Jordan.” Defs. R. 56.1 ¶ 54; Parker Deck Ex. SS.
In March 2011, Schaubach notified Reich via email that, in his estimation, plaintiffs “abilities as an editor are not up to the caliber that is needed for the editor position.” Defs. R. 56.1 ¶ 26; Silverman Deck Ex. 7. Citing weak editing skills and insufficient improvement over her seven months on the job, Schaubach wrote, “It saddens me to say, but my recommendation is to let Tiffani go and find a more suitable replacement.” Id.
Reich solicited and received opinions on Johnson’s performance from others who had reviewed her work, including directors Pollock and Ruben. Both directors agreed that Johnson “doesn’t quite have the skill set that it takes to be an editor at College] H[umor].” Defs. R. 56.1 ¶ 29; Sil-verman Deck Ex. 11. Pollock explained deficiencies in Johnson’s speed, proficiency, and “comic sensibilities,” particularly in comparison with other CollegeHumor video editors. Defs. R. 56.1 ¶ 29; Silverman Deck Ex. 11. Ruben echoed similar complaints: “My dissatisfaction lies largely with her pace as an editor as well as her sensibilities which are lackluster ... she exhibits strong vision but doesn’t have the skill set to execute it.” Defs. R. 56.1 ¶ 29; Silverman Deck Ex. 10. Ruben’s email cited specific examples of projects on which Johnson exhibited poor performance.
Plaintiff emphasized that the review of this “Hardly Working” video was initiated by her superiors in the production department on May 24, 2011, a day on which Johnson had called in sick. PI. R. 56.1 Ctr. Stmt. ¶ 30. Plaintiff further alleged that the clip was incomplete, and that the company “violated their own procedure” by not awaiting notification from Johnson herself that the cut was complete and by allowing writer Gurewitch to undertake the first review in Schaubach’s place.
In any event, the following week, Reich alerted Katie McGregor, Director of Human Resources for IAC and Connected Ventures, that Johnson’s work product in recent weeks had been “downright awful” and that her performance had “gone from bad to worse,” belying Schaubach’s ability to adequately “improve her.” Defs. R. 56.1¶¶ 34-35; Silverman Deck Ex. 12. McGregor spoke with both Reich and Schaubach and requested that Schaubach meet with Johnson to explain deficiencies and offer a final opportunity to improve. Defs. R. 56.1 ¶ 34; Silverman Deck Ex. 12-13. After outlining with Reich a rough agenda of items to cover, Schaubach met with Johnson on June 10, 2011. Defs. R. 56.1¶¶ 36-40; Silverman Deck Ex. 14. Schaubach explained the problems with Johnson’s work, offered specific suggestions for improvement, and explicitly placed Johnson on a two-week probation period, such that, if her performance failed to improve, she would be terminated. Id. Schaubach met with Johnson again during the probationary period, and, finding that she was “still struggling with getting her initial cuts up to the quality” expected, he “went over the projects she cut this week” and provided “specific examples of areas where she needs to improve,” as he later relayed to McGregor and Reich. Defs. R. 56.1¶¶ 41^12; Silverman Deck Ex. 14. He also provided guidance by email when Johnson’s work presented “the same issues that I’ve seen in the past.” Defs. R. 56.1¶ 43; Schaubach Aff. Ex. 2. At the end of the probationary period, Schaubach
Johnson testified that, during the ten months of her employment at CollegeHu-mor, she experienced largely unspecified demeaning treatment from colleagues. Defs. R. 56.1 ¶¶ 61-63. When asked to recall specific incidents, plaintiff testified that director Matt Pollock belittled her in editing sessions by saying “Everybody knows that it’s this way,” or “Everybody knows that you wouldn’t do that,” and further that in response to plaintiffs congratulations on an upcoming move, Pollock said, “I fucking hate when people say that to me.” Defs. R. 56.1 ¶ 64. According to her testimony, Johnson complained about the condescending treatment to Schau-bach, Wittman and others. Johnson Dep. at 224-226. Plaintiff also testified that, during a discussion of software “plug-ins,” director Vincent Peone said “She also got plug-ins in her hair,” an apparent reference to plaintiffs braided hairstyle. Defs. R. 56.1 ¶¶ 58-60. More generally, plaintiff alleges that defendants failed to provide her with support or feedback equivalent to that enjoyed by other video editors, but the accuracy of that allegation is not apparent from the record evidence, including email records and plaintiffs own testimony, which would suggest that plaintiff was given regular assistance and advice. Defs. R. 56.1 ¶ 53; Johnson Dep. at 115, 117— 119.
Finally, plaintiffs testimony contains claims of retaliation — specifically, that two former colleagues, Creighton DeSimone and Matt Pollock, must have “badmouthed” her to prospective employers to prevent her from finding other employment. Defs. R. 56.1 ¶¶ 68-73; Johnson Dep. at 16, 19-27, 29, 35, 37-39, 49, 239. At this time this criticism allegedly occurred, DeSimone was no longer employed by College Humor or any IAC/Connected Ventures business. Defs. R. 56.1 ¶ 72. In deposition testimony, plaintiff was unable to identify any such negative comment, and the record contains no supportive testimony from prospective employers, DeSi-mone, Pollock, or otherwise. Defs. R. 56.1 ¶¶ 68-73; Johnson Dep. at 16, 19-27, 29, 35, 37-39, 49, 239.
III. Procedural History
According to her counsel, Johnson did not administratively exhaust her charge of discrimination with the Equal Employment Opportunity Commission; hence she brings no claims pursuant to Title VII. 42 U.S.C. § 2000e et seq. Johnson filed her complaint with this Court on November 4, 2011, and defendants answered on January 6, 2012. Discovery followed, and after briefing was completed, oral argument was held on January 23, 2014.
DISCUSSION
IV. Standard of Review
A motion for summary judgment is appropriately granted when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Crv. P. 56(a). In this context, “[a] fact is ‘material’ when it might affect the outcome of the suit under governing law,” and “[a]n issue of fact is ‘genuine’ if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” McCarthy v. Dun & Bradstreet Corp.,
The Second Circuit has “repeatedly emphasized ‘the need for caution about granting summary judgment to an employer in a discrimination case where ... the merits turn on a dispute as to the employer’s intent.’ ” Gorzynski,
V. Racial Discrimination Under § 1981
Johnson pursues her discrimination claim under 42 U.S.C. § 1981. It is well-established that discrimination claims brought under § 1981 and Title VII are analyzed under the three-step burden-shifting framework set forth in McDonnell Douglas Corp. v. Green,
Second, if the employee establishes a prima facie case, then the evidentiary burden shifts to “the employer to articulate some legitimate, nondiscriminatory reason” for the adverse employment action. McDonnell Douglas,
Third, if the employer articulates a nondiscriminatory reason for the adverse employment action, then the employee, with whom “ ‘[t]he ultimate burden of persuading the trier of fact ... remains at all times,’ ” must “demonstrate by competent evidence that ‘the legitimate reasons offered by the [employer] were not its true reasons, but were a pretext for discrimination.’ ” Patterson v. Cnty. of Oneida,
Critically, “[i]n determining whether the articulated reason for the action is a pretext, ‘a fact-finder need not, and indeed should not, evaluate whether a defendant’s stated purpose is unwise or unreasonable. Rather, the inquiry is directed toward determining whether the articulated purpose is the actual purpose for the challenged employment-related action.’ ” Hartley v. Rubio,
Defendants argue that plaintiff has failed to show circumstances giving rise to an inference of discrimination, thereby precluding a proper prima facie case for discrimination. Defs. Mem. at 9-10. Given the minimal burden of establishing a prima facie case and our obligation to view the facts in the light most favorable to plaintiff, however, we assume for purposes of the present motion that plaintiff was terminated under circumstances giving rise to an inference of discrimination. See, e.g., Howard v. MTA Metro-North Commuter R.R.,
The record before us easily satisfies defendants’ second—step burden “of
At the final stage of the analysis, we examine whether plaintiff has produced evidence from which a rational jury could conclude that defendants’ proffered rationale was mere pretext and that race was more likely than not a motivating factor in her termination. Here, in light of compelling evidence to the contrary, plaintiff fails to raise a triable issue of fact.
The record evidence clearly and consistently supports defendants’ contention that plaintiffs poor performance — and not unlawful discrimination — prompted her termination. Most persuasively, defendants have submitted numerous contemporaneous documents from multiple sources, including Johnson’s supervisor and others who directly reviewed her work, attesting to problems with Johnson’s editing skills, work product, pace of work, and comedic sensibilities. See, e.g., Silverman Decl. Ex. 7, 10, 11; Schaubach Aff. Ex. 1, 2. The testimonial evidence from Johnson’s colleagues and supervisors, to the extent relevant, echoes the same performance issues reflected in the documents. See, e.g., Schaubach Tr. 157-161.
Plaintiff unpersuasively attempts to rebut this record by arguing that defendants inaccurately evaluated Johnson’s abilities, and that the extensive documentation of Johnson’s deficiencies constitutes mere “conclusory statements,” insufficient to meet defendants’ burden. PI. Opp. at 18; see also PI. R. 56.1 Ctr. Stmt. ¶¶ 28, 29, 35, 42 (feedback was “conclusory and inaccurate;” “Reich so described what he incorrectly believed to be Johnson’s capabilities”). To be sure, to prevail on summary judgment an employer must provide “clear and specific” non-discriminatory reasons; mere “vague or conclusory averments of good faith” will not suffice. Meiri v. Dacon,
Moreover, plaintiffs argument misunderstands the nature of the law’s requirements and the Court’s inquiry here. In a discrimination case, the Court is “decidedly not interested in the truth of the allegations against plaintiff,” but rather only asks “what motivated the employer.” McPherson v. N.Y. City Dep’t of Educ.,
[a] series of serious, independent, documented and therefore good faith complaints by an employer undermines an employee’s argument that the employer’s decision to terminate him was a pretext for discrimination. And if the employer relied upon these complaints in good faith, there is no violation of the employee’s rights, even if the complaints turn out to be wrong or inaccurate.
Finn v. N.Y. State Office of Mental Health-Rockland Psychiatric Ctr., No. 8 Civ. 5142(VB),
Instead, this Court has focused its scrutiny on the limited evidence plaintiff has presented of race-based conduct and found it wanting. Plaintiffs case hinges primarily on the probative force of three comments that might be considered racially-tinged: writer Schneider’s “ghetto cut” email; writer Young’s misidentification email (“Haha looks like I am racist. I meant Jordan.”); and director Peone’s comment regarding “plug-ins” in plaintiffs hair. Even assuming arguendo that these comments were in fact racially-charged — a position that is by no means evident or conclusive — plaintiffs argument fails because “allegedly discriminatory comments made by a nondecisionmaker are, as a matter of law, insufficient to raise an inference of discrimination.” De la Cruz v. City of New York,
Plaintiff has failed to present “sufficient evidence to support a rational finding that the legitimate nondiscriminatory reasons proffered by the employer were false, and that more likely than not discrimination was the real reason for the discharge,” and thus does not raise a genuine issue of material fact as to her § 1981 claim. Hongyan,
“In order to survive summary judgment on a claim of hostile work environment harassment, a[n employee] must produce evidence that the workplace is permeated with discriminatory intimidation, ridicule, and insult, that is sufficiently severe or pervasive to alter the conditions of the victim’s employment.” Cruz v. Coach Stores, Inc.,
This test contains both objective and subjective elements; plaintiff must show that the defendants’ conduct (1) was “objectively severe or pervasive — that is, ... create[d] an environment that a reasonable person would find hostile or abusive”; (2) created an environment that plaintiff “subjectively perceive[d] as hostile or abusive”; and (3) occurred because of plaintiffs protected characteristic. Patane v. Clark,
“For racist comments, slurs, and jokes to constitute a hostile work environment ... there must be more than a few isolated incidents of racial enmity.” Aulicino v. New York City Dept. of Homeless Services,
Because “[e]veryone can be characterized by sex, race, ethnicity, or (real or perceived) disability; and many bosses are harsh, unjust, and rude,” courts have found it important in hostile work environment cases “to exclude from consideration personnel decisions that lack a linkage or correlation to the claimed ground of discrimination.” Alfano,
Plaintiff argues that her hostile work environment claim is not “limited to separate and distinct acts of the defendants,” but rather encompasses miscellaneous incidents. PI. R. 56.1 Ctr. Stmt. ¶¶ 52-67. Of those, the three racially-tinged comments discussed supra constitute the most arguably race-based conduct. Plaintiff also contends that other conduct contributed to the hostile work environment, such as rude but racially-neutral comments delivered to Johnson in a demeaning tone, the hiring of a Caucasian woman as a video editor in the months after Johnson’s departure, an undesirable apportionment of assignments, inadequate support, premature review of her work, the strict standard of review applied to her work, and the storylines and general nature of the humor videos, some of it race-based, that defendants’ business produces. Id.
Assuming for the purposes of this motion the truth of plaintiffs contentions, these allegations fail to raise a triable claim of hostile work environment under § 1981. Even accepting arguendo that the three racially-tinged comments were in fact racist, they do not constitute the type of “severe or pervasive” treatment that would “alter the conditions of her employment and create an abusive working environment.” Alfano,
-As for the rest of the conduct, even if true, the allegations entirely fail to exhibit the requisite “linkage or correlation to the claimed ground of discrimination,” i.e., plaintiffs race. Alfano,
Evaluating, as we must, the “totality of the circumstances,” we find that plaintiff fails to raise a genuine issue of triable fact with respect to her hostile work environment claim, which is hereby dismissed. Id.
VII. Retaliation
Plaintiffs retaliation claim is subject to the same three-step burden-shifting framework that also governs discrimination claims under § 1981. See Fincher v. Depository Trust and Clearing Corp.,
VIII. NYCHRL Claim
Discrimination claims brought under the NYCHRL are evaluated under a more permissive standard than analogous federal claims. To establish a NYCHRL claim, a plaintiff must only demonstrate “by a preponderance of the evidence that she has been treated less well than other employees because of her [race].” Mihalik v. Credit Agricole Cheuvreux N. Am., Inc.,
While it is unclear whether McDonnell Douglas continues to apply to NYCHRL claims and, if so, to what extent it applies, the question is also less important because the NYCHRL simplified the discrimination inquiry: the plaintiff need only show that her employer treated her less well, at least in part for a discriminatory reason. The employer may present evidence of its legitimate, non-discriminatory motives to show the conduct was not caused by discrimination, but it is entitled to summary judgment on this basis only if the record establishes as a matter of law that ‘discrimination play[ed] no role’ in its actions.
Id. at 110 n. 8 (quoting Williams v. N.Y. City Hous. Auth.,
We need not engage in this inquiry. Having granted summary judgment and dismissed all of the claims for which there exists federal-question jurisdiction, it is within the Court’s discretion to exercise supplemental jurisdiction over plaintiffs remaining municipal law claims. Klein & Co. Futures, Inc. v. Bd. of Trade of City of N.Y.,
CONCLUSION
For the foregoing reasons, defendants’ motion for summary judgment is granted insofar as this Court dismisses all federal claims. This Memorandum and Order resolves Docket No. 19. The Clerk of Court is respectfully requested to close this case.
Notes
. The facts recited here are drawn from the Complaint (“Compl.”), filed November 4, 2011; Defendants’ Memorandum of Law in Support of their Motion for Summary Judgment, filed July 22, 2013 ("Defs. Mem.”); Defendants’ Rule 56.1 Statement of Material Facts in Support of their Motion for Summary Judgment, filed July 22, 2013 ("Defs. R. 56.1”); the Declaration of Shelby A. Silver-man, Esq. in Support of Defendants’ Motion for Summary Judgment (“Silverman Decl.”), filed July 22, 2013, and the exhibits annexed thereto; the Declaration of Joshua Sussman, Esq. in Support of Defendants’ Motion for Summary Judgment ("Sussman Decl.”), filed July 22, 2013, and the exhibit annexed thereto; the Affidavit of Michael Schaubach in Support of Defendants' Motion for Summary Judgment (“Schaubach Aff.”), filed July 22, 2013, and the exhibits annexed thereto; Plaintiff’s Memorandum of Law in Opposition to Defendants' Motion for Summary Judgment, filed September 23, 2013 ("PI. Opp.”); Plaintiff’s Response to Defendants’ Rule 56.1 Statement, filed September 23, 2013 ("Pi. R. 56.1 Ctr. Stmt.”); the Declaration of Tiffani Johnson in Opposition to Defendants' Motion (“Johnson Decl.”), filed September 23, 2013, and the exhibits annexed thereto; the Declaration of Sandra D. Parker, Esq. ("Parker Decl.”), filed September 23, 2013, and the exhibits annexed thereto; Defendants' Reply Memorandum of Law in Further Support of their Motion for Summary Judgment, filed October 25, 2013 ("Defs. Reply Mem.”); the Reply Declaration of Shelby A. Silverman, Esq. in Further Support of Defendants’ Motion, filed October 25, 2013 ("Silverman Reply Decl.”) and the exhibits annexed thereto; and Supplemental Declarations of Tiffani Johnson (“Johnson Supp. Deck”) and Sandra D. Parker, Esq. ("Parker Supp. Deck”), filed Jan. 30, 2014, and exhibits thereto.
. Plaintiff's primary interviewer, David Fish-el, was terminated by CollegeHumor in September 2010, but no evidence suggests that Fishel’s termination was in any way related to Johnson’s employment. Defs. R. 56.1 ¶ 13; Pl. R. 56.1 Ctr. Stmt. ¶ 13.
. As plaintiff emphasized in her papers, the record evidence also contains certain positive indicators regarding the quality of Johnson's performance. PI. R. 56.1 Ctr. Stmt. ¶¶ 26-29;
. The email traffic indicates that Schaubach actually did ask Johnson whether the clip under review was the version she "intended to post.” Johnson Deck Ex. W.
. For the same reasons, with regard to plaintiff's allegations that video editor Nick Barbieri exhibited equivalent performance problems (see, e.g., PL Opp. at 2, 18), we merely note that the record presented here does not reflect the kind of "serious, independent, documented and therefore good faith complaints" about Barbieri's work as were made about Johnson’s work, or indeed any internal discussion of performance issues with Barbi-eri at all. Finn,
. As discussed supra, plaintiff testified that, in response to her proffered congratulations on an upcoming move, director Matt Pollock said, “I fucking hate it when people say that to me.” Defs. R. 56.1 ¶ 64.