In Assue v. UPS, INC., 2018 WL 3849843 (S.D.N.Y. 2018), the court granted defendant’s motion for summary judgment and dismissed plaintiff’s race discrimination claims.
From the decision:
Plaintiff also attempts to raise an inference of discrimination by pointing to his purportedly unfair assignments and the denial of a work-issue laptop and encrypted USB flash drive.16 Any such inference is undermined by the fact that individuals outside of Plaintiff’s protected class (such as Martinez, who did not have a laptop) were treated similarly, and individuals within his protected class (such as Scott, who allegedly received less work) were treated better. (P’s Depo. at 177:1-20, 210:8-15.) Plaintiff’s opinion that these actions were racially motivated is insufficient. See Moore, 2013 WL 3968748, at *6 (“[A] plaintiff’s mere subjective belief that he was discriminated against … does not sustain a … discrimination claim.”) (internal quotation marks omitted). Plaintiff offers an affidavit from Michelle Lawrence, (Doc. 35), and while she corroborates Plaintiff’s claims that Diaz treated him differently, her belief that Diaz acted with racial animus is nothing more than speculation and her personal opinion, which are insufficient. See Gelin v. Geithner, No. 06-CV-10176, 2009 WL 804144, at *23 n.15 (S.D.N.Y. Mar. 26, 2009) (affidavit of another employee that “consists largely of conclusory allegations and personal opinions” insufficient to raise a reasonable inference of discrimination), aff’d, 376 F. App’x 127 (2d Cir. 2010) (summary order); Divers v. Metro. Jewish Health Sys., No. 06-CV-6704, 2009 WL 103703, at *17 (E.D.N.Y. Jan. 14, 2009) (same), aff’d, 383 F. App’x 34 (2d Cir. 2010); Moore v. N.Y.S. Div. of Parole, No. 06-CV-1973, 2008 WL 4394677, at *10 (E.D.N.Y. Sept. 23, 2008) (same).
Moreover, Diaz acted harshly or inappropriately toward Felicia E. and Martinez. (P’s 56.1 Stmt. and Resp. ¶¶ 56, 69; see P’s Depo. at 210:8-15.) Diaz’s hostile behavior toward Hispanic technicians suggests that he was an “equal opportunity” offender. Casalino v. N.Y.S. Catholic Health Plan, Inc., No. 09-CV-2583, 2012 WL 1079943, at *8 (S.D.N.Y. Mar. 30, 2012); see Jerram v. Cornwall Cent. Sch. Dist., No. 08-CV-1025, 2011 WL 13176093, at *3 (S.D.N.Y. Feb. 1, 2011) (dismissing hostile work environment claim where evidence showed that supervisor was an “equal opportunity offender”), aff’d, 464 F. App’x 13 (2d Cir. 2012) (summary order).
Beyond Plaintiff’s and Lawrence’s subjective beliefs, the record is devoid of evidence that Plaintiff experienced discrimination because of his race. Diaz never used any racial epithets or called Plaintiff any inappropriate names. (P’s 56.1 Stmt. and Resp. ¶ 65.) Diaz never said anything to Plaintiff – and Plaintiff never overheard Diaz say anything to anyone else – that made Plaintiff think that Diaz was prejudiced or biased against Black people. (Id. ¶¶ 63, 64.) See, e.g., Lizardo v. Denny’s, Inc., 270 F.3d 94, 104 (2d Cir. 2001) (“If, as plaintiffs contend, the defendants exaggerated or lied about plaintiffs’ behavior, the record does not support a finding that they did so to mask race discrimination. No comment or statement made by the defendants had any racial content or overtone.”); Alexidor v. Donahoe, No. 11-CV-9113, 2017 WL 880879, at *6 (S.D.N.Y. Mar. 2, 2017) (dismissing discrimination claim where plaintiff, among other things, failed to provide evidence of discriminatory comments by supervisors or co-workers directed at plaintiff or others in her protected groups).
*15 In sum, Plaintiff seems to rely on the fallacy that because he belongs to a protected class, it is reasonable to conclude that anything negative that happened to him at work was because of his membership in that class.
The court therefore concluded that plaintiff failed to meet even the minimal burden of a prima facie case. It nevertheless found that even if plaintiff had done so, his claims still would not survive dismissal, since defendant advanced a legitimate, nondiscriminatory reason for terminating plaintiff (unsatisfactory performance) which plaintiff was unable to show was a pretext for unlawful discrimination.