Court Dismisses Disparate Treatment Employment Discrimination Claim; Finds Comparator Evidence Insufficient and No Connection Between Brusque/Rude/Unfriendly Conduct and Protected Status

In Zhao-Royo v. New York State Educ. Dept., 14-CV-0935, 2017 WL 149981 (N.D.N.Y. Jan. 13, 2017), the court granted defendant’s motion for summary judgment as to plaintiff’s employment discrimination claims.

As to her disparate treatment claim, it concluded that plaintiff “failed to identify circumstances justifying an inference that [alleged] incidents were actually related to Plaintiff’s protected characteristics.”

In reaching this conclusion, the court noted, inter alia:

  • the lack of evidence “that any employee of Defendant criticized Plaintiff, or her performance, in degrading terms related to her race, national origin, or gender”;
  • the lack of evidence “that any employee of Defendant made invidious comments about Plaintiff or anyone else in Plaintiff’s protected groups”; and
  • the fact that “although Plaintiff’s discrimination claim is cast as one arising from disparate treatment … Plaintiff has not identified any similarly situated employees outside of her protected groups who were treated differently.”

As to the last point, the court explained:

A plaintiff relying on disparate treatment evidence must show she was similarly situated in all material respects to the individuals with whom she seeks to compare herself. Here, Plaintiff[] has not even attempted to identify any similarly situated coworkers, probationary status or otherwise, much less established that any such coworker was subject to the same workplace standards, performed similar job functions, engaged in comparably serious conduct, or shared any other objectively identifiable basis for comparability. … As a result, Plaintiff’s repeated assertions in her deposition that she perceived that she was treated differently than Caucasian employees are conclusory and speculative. …

In sum, while Plaintiff has recited numerous events that, if fully credited, certainly suggest that her coworkers and supervisors were sometimes brusque, rude, and unfriendly, the Court concludes that she has failed to establish the existence of circumstances from which a reasonable juror could infer that these occasional actions were related to her protected status. Accordingly, for the reasons enumerated above (in addition to those set forth in Defendant’s memoranda of law), Plaintiff’s Title VII discrimination claim is dismissed.

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