OPINION & ORDER Tingyue Shi brings this action against her former employer Bagatelle International, Inc. (also known as Bagatelle International (USA), Inc.) (“Bagatelle”) and her former direct supervisor Anne King, as well as several unnamed corporations and individuals. Shi brings fifteen federal and state claims for discrimination and retaliation based on race, national origin, disability, and perceived disability. Doc. 1. Before the Court is Bagatelle’s motion for summary judgment on all claims. Doc. 27. For the reasons set forth below, Bagatelle’s motion is GRANTED in part and DENIED in part. I. FACTUAL AND PROCEDURAL BACKGROUND The following facts are undisputed except where otherwise noted. Shi, who is Chinese-American, worked as a sourcing manager in Bagatelle’s New York office from November 26, 2018 to June 13, 2019. Doc. 44 (Pl.’s Statement of Disputed Facts in Opp’n to Def.’s Mot. for Summ. J. Pursuant to Loc. Rule 56.1) at 3-4, 21. Bagatelle is a Montreal-based company that designs and manufactures sportswear, outerwear, and leather clothing. Id. at 2. As sourcing manager, Shi was responsible for sourcing fabric, coordinating costs, developing new mills and fabrics, and communicating with other internal departments and external vendors and factories. Id. at 17; Doc. 40 (Shi Decl.) 3. Shi’s direct supervisor was Anne King, then-vice president of Bagatelle. Doc. 44 at 2-3. King also hired Shi. Id. at 4. In Shi’s signed offer of employment, she was provided two weeks of paid vacation and three days of paid sick or personal days. Id. at 5. Approximately one month after Shi began her employment with Bagatelle, on December 20, 2018, she went to the hospital emergency room due to shortness of breath and flu-like symptoms. Doc. 47 (Reply to Pl.’s Counter-Statement of Material Facts Not in Dispute Pursuant to Fed. R. Civ. P 56(c)(1) and LR 56.1(a)) at 3. While at the hospital, both of her of her lungs collapsed, requiring surgery on her left lung on December 26, 2018, and her right lung on December 28, 2018. Id. Shi was diagnosed with pneumothorax and was medically restricted from lifting heavy objects and from being exposed to anxiety or stress. Id. at 3-4. Bagatelle disputes that Shi communicated any medical restrictions to King or anyone else at Bagatelle. Id. Shi returned to work on January 7, 2019 — although she alleges she was not cleared to return to work until January 28, 2019. Id. at 4. For an unspecified period after Shi returned, Bagatelle allowed her to work from home three days per week. Doc. 44 at 14. Upon her return, King moved Shi’s desk next to hers. Doc. 47 at 4-5. Shi alleges that King ordered the desk moved “in order to continuously observe [Shi], intimidate her, and harass her,” but Bagatelle alleges King moves every new recruit’s desk close to hers so that the new recruit could learn from King by example. Doc. 44 at 19. However, for the few weeks Shi had been employed before going on medical leave, King had never asked for the desk to be moved. Doc. 47 at 4-5. On May 15, 2019, Shi requested four days of paid time off (“PTO”), but King denied the request. Doc. 44 at 15; Doc. 47 at 5. Neither party states whether the requested PTO was connected to Shi’s health. Bagatelle alleges that King told Shi the denial was because King lacked the authority to provide the requested days off, since Shi had already exhausted all of the PTO days provided for in her offer of employment. Id. Shi disputes that King said she lacked authority to grant the request and disputes that she had exhausted the PTO days provided in her offer of employment. Id.; Doc. 44 at 15. Shi alleges that after King denied the request, Shi complained to King that another employee, Sophia Solomonson, who is Caucasian, was given preferential treatment because Solomonson had been granted ten PTO days, even though Solomonson had joined Bagatelle at approximately the same time Shi had. Id. Bagatelle disputes that Shi ever complained to King about any preferential treatment, including of Solomonson. Doc. 47 at 5. It further argues that Shi was extended more flexibility than any other employee in terms of working from home, but Shi disputes this. Doc. 44 at 16. Ultimately, Shi received the requested days off, although it is disputed whether King authorized the PTO (as Shi alleges) or Michael Litvak (Bagatelle’s chief executive officer), authorized the PTO (as Bagatelle alleges). Doc. 47 at 5. When Shi returned from her four PTO days, Shi alleges King had her phone extension removed; Bagatelle disputes that Shi ever had her own telephone. Id. at 6. On June 12, 2019, Shi asked King for a half day off on June 13 for a six-month post-surgery follow up with her doctor. Id. at 6-7. When Shi returned from her doctor’s appointment on June 13, 2019, she was fired by King. Id. at 7. Bagatelle alleges that Shi’s employment was terminated solely for Shi’s poor performance, but Shi alleges she was terminated because of her race, national origin, disability, and perceived disability. Doc. 44 at 21. Specifically, Bagatelle alleges that, throughout the duration of Shi’s employment, it received many complaints from other employees concerning her performance, and King had counseled and verbally warned Shi several times about her poor performance, but Shi’s performance never improved. Id. at 18-20. Bagatelle does not specify the number or nature of the complaints it received from employees, nor any information as to the complainants; nor does it specify what warnings were given to Shi or when. Indeed, the sole detail Bagatelle provides concerning Shi’s performance is a single identical sentence in King and Litvak’s declarations — which is not replicated or referenced in Bagatelle’s Rule 56.1 statement — that “Shi often failed to share with sales or management the information concerning the costs that she obtained from factories, and Shi also continuously failed to get prices to Bagatelle’s salespeople.” Doc. 30 (Litvak Decl.), 28; Doc. 31 (King Decl.) 22. Shi disputes that she was ever counseled, verbally or otherwise, by anyone at Bagatelle as to her alleged poor performance, and she disputes that she performed poorly. Doc. 44 at 19. It is undisputed that there are no emails, text messages, or other documentation pre-dating Shi’s termination corroborating Bagatelle’s alleged concerns regarding her performance. Doc. 47 at 2-3, 7. Shi however, alleges that when she returned to work in January following her hospitalization, King treated her rudely on the basis of her race, national origin, disability, and perceived disability. Specifically, Shi alleges that King ridiculed her in front of other staff about her Chinese accent; told Shi “I can’t understand what you’re talking about,” referring to Shi’s Chinese accent; rolled her eyes with annoyance or displeasure when she spoke with Shi; and generally treated Shi in a rude, disrespectful, and derogatory manner. Doc. 44 at 11-14. Bagatelle denies that any such conduct ever occurred. Id. at 8-14. It also denies that King ever understood or perceived Shi to be disabled in any way. Id. at 17. It is undisputed that there are no emails, text messages, or other documentation corroborating Shi’s allegations of King’s discriminatory and derogatory behavior. See id. at 8-14. Bagatelle further notes that, during the period of Shi’s tenure with Bagatelle, Bagatelle employed two other Asian-American employees at its New York office, Terrenz Hun and Katie Yun. Id. at 5. Shi states that Bagatelle produced no “undisputed admissible evidence during the course of discovery” identifying the race or national origin of Hun or Yun. Id. Shi filed a charge of discrimination with the Equal Employment Opportunity Commission (“EEOC”) on July 11, 2019, a copy of which was transferred to the New York State Department of Human Rights (“NYSDHR”) on January 10, 2020. Doc. 47 at 7. It is undisputed that the charge alleged Shi was discriminated against on the basis of her race and national origin. Doc. 44 at 22. Shi alleges the charge also included a claim of disability discrimination. Id. However, in the EEOC charge, which Bagatelle submitted to the Court in support of its motion, Shi left the box for disability discrimination unchecked and instead checked only the boxes for race, retaliation, and national origin. Doc. 29-1 (EEOC Charge and NYSDHR Complaint). Shi made only passing reference to any medical issues and instead reiterated repeatedly that Bagatelle discriminated against her because she was Asian and Chinese. Id. Shi received a right to sue letter on July 21, 2020. Doc. 39-12. Shi filed the complaint in the instant case on October 12, 2020. Doc. 1. Bagatelle answered on January 11, 2021. Doc. 7. An unsuccessful mediation was held on March 26, 2021. Doc. 9. The case thereafter proceeded to discovery, which concluded November 10, 2022. Docs. 12, 24. Bagatelle moved for summary judgment on December 8, 2022. Doc. 27. II. LEGAL STANDARD Summary judgment is appropriate where “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). “An issue of fact is ‘genuine’ if the evidence is such that a reasonable jury could return a verdict for the non-moving party.” Senno v. Elmsford Union Free School Dist., 812 F. Supp. 2d 454, 467 (S.D.N.Y. 2011) (citing SCR Joint Venture L.P. v. Warshawsky, 559 F.3d 133, 137 (2d Cir. 2009)). A fact is “material” if it might “affect the outcome of the litigation under the governing law.” Id. (quoting Miner v. Clinton County, N.Y., 541 F.3d 464, 471 (2d Cir. 2008)). The party moving for summary judgment is first responsible for demonstrating the absence of any genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the moving party meets its burden, “the nonmoving party must come forward with admissible evidence sufficient to raise a genuine issue of fact for trial in order to avoid summary judgment.” Saenger v. Montefiore Medical Ctr., 706 F. Supp. 2d 494, 504 (S.D.N.Y. 2010) (quoting Jaramillo v. Weyerhaeuser Co., 536 F.3d 140, 145 (2d Cir. 2008)). In deciding a motion for summary judgment, the Court must “construe the facts in the light most favorable to the non-moving party and must resolve all ambiguities and draw all reasonable inferences against the movant.” Brod v. Omya, Inc., 653 F.3d 156, 164 (2d Cir. 2011) (quoting Williams v. R.H. Donnelley, Corp., 368 F.3d 123, 126 (2d Cir. 2004)). However, in opposing a motion for summary judgment, the non-moving party may not rely on unsupported assertions, conjecture, or surmise. Goenaga v. March of Dimes Birth Defects Found., 51 F.3d 14, 18 (2d Cir. 1995). The non-moving party must do more than show that there is “some metaphysical doubt as to the material facts.” McClellan v. Smith, 439 F.3d 137, 144 (2d Cir. 2006) (internal quotation marks omitted) (quoting Matsushita Electric Industries Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986)). To defeat a motion for summary judgment, “the non-moving party must set forth significant, probative evidence on which a reasonable fact-finder could decide in its favor.” Senno, 812 F. Supp. 2d at 467-68 (citing Anderson v. Liberty Lobby, 477 U.S. 242, 256-57 (1986)). Courts are cautious in granting summary judgment in employment discrimination cases where the employer’s intent is at issue. Holcomb v. Iona Coll., 521 F.3d 130, 137 (2d Cir. 2008) (citations omitted); see also Schiano v. Quality Payroll Sys., Inc., 445 F.3d 597, 603 (2d Cir. 2006) (stating courts must use “an extra measure of caution” in determining whether to grant summary judgment “because direct evidence of discriminatory intent is rare and such intent often must be inferred from circumstantial evidence found in affidavits and depositions” (citation omitted)). However, “the salutary purposes of summary judgment — avoiding protracted, expensive and harassing trials — apply no less to discrimination cases.” Weinstock v. Columbia Univ., 224 F.3d 33, 41 (2d Cir. 2000) (citation omitted). Thus, even in the context of a discrimination case, “a plaintiff must provide more than conclusory allegations to resist a motion for summary judgment.” Holcomb, 521 F.3d at 137. Courts may grant summary judgment against “discrimination claims in cases lacking genuine issues of material fact.” Holtz v. Rockefeller & Co., 258 F.3d 62, 69 (2d Cir. 2001) (citation omitted). III. DISCUSSION Shi brings claims under the Americans with Disabilities Act of 1990, 42 U.S.C. §§12101, et seq. (“ADA”), Title VII of the Civil Rights of 1964, as amended 42 U.S.C. §§2000e, et seq. (“Title VII”), the New York State Human Rights Law, §296, et seq. (“NYSHRL”), and the New York City Human Rights Law, §8-101 (“NYCHRL”) for unlawful employment discrimination on the basis of her race, national origin, disability, and perceived disability. See Doc. 1. A. Bagatelle’s Motion for Summary Judgment is Denied as to Shi’s Race and National Origin Discrimination Claims Under Title VII, the NYSHRL, and the NYCHRL (Counts 1-6) Shi’s first three causes of action allege Bagatelle discriminated against her on the basis of her race in violation of Title VII, the NYSHRL, and the NYCHRL; and her fourth to sixth causes of action allege Bagatelle discriminated against her on the basis of her national origin in violation of the same statutes. Doc. 1
55-80. Shi’s race and national origin employment discrimination claims under Title VII and the NYSHRL are properly analyzed under the three-step burden-shifting framework set forth by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See Asiedu v. Broadreach Med. Res., 19-cv-11825 (ER), 2022 U.S. Dist. LEXIS 165568, at *26 (S.D.N.Y. Sep. 13, 2022). Under the McDonnell Douglas framework, a plaintiff alleging discrimination must first demonstrate a prima facie case of discrimination. McDonnell Douglas, 411 U.S. at 802. To prove a prima facie case of discrimination, a plaintiff must show that: (1) she is a member of a protected class; (2) she was qualified for the position in question; (3) she suffered an adverse employment action; and (4) the adverse action took place under circumstances giving rise to an inference of discrimination. Ruiz v. Cty. of Rockland, 609 F.3d 486, 491-92 (2d Cir. 2010) (citing Holcomb, 521 F.3d at 138). The Second Circuit has explained that a plaintiff’s burden at this stage is de minimis. Abdu-Brisson v. Delta Air Lines, Inc., 239 F.3d 456, 467 (2d Cir. 2001). Nonetheless, in order to state a prima facie case for discrimination, “a plaintiff must proffer some admissible evidence of circumstances that would be sufficient to permit an inference of discriminatory motive,” Bennett v. Watson Wyatt & Co., 136 F. Supp. 2d 236, 246 (S.D.N.Y. 2001), aff’d, 51 F. App’x 55 (2d Cir. 2002), and “cannot meet its burden through reliance on unsupported assertions,” Goenaga, 51 F.3d at 18. “Statements that are devoid of any specifics, but replete with conclusions, are insufficient to defeat a properly supported motion for summary judgment.” Griffin v. Ambika Corp., 103 F. Supp. 2d 297, 308 (S.D.N.Y. 2000) (quoting Bickerstaff v. Vassar College, 196 F.3d 435, 451-52 (2d Cir. 1999)). “A plaintiff’s self-serving statement, without direct or circumstantial evidence to support the charge,” is also insufficient. Fincher v. Depository Trust & Clearing Corp., No. 06-cv-9959 (WP), 2008 U.S. Dist. LEXIS 70046, at *8 (S.D.N.Y. Sep. 17, 2008). Here, it is not disputed that Shi is a member of a protected class as a Chinese-American woman, nor is it disputed that she suffered an adverse employment action when she was terminated. Thus, the only disputed questions are whether she was qualified for her position, and whether her termination gave rise to an inference of discrimination. As to the first question, Shi has submitted her resume, which sets forth her prior experience in the garment industry (Doc. 39-6); and there is no documentation pre-dating Shi’s termination as to any concerns regarding Shi’s performance (Doc. 47 at 2, 7). The Court thus finds that Shi has demonstrated she was qualified for her position. As to the second question, Shi has submitted her declaration specifically detailing incidents of alleged discriminatory behavior, as well as declarations from three other individuals — a former Chinese-American Bagatelle employee, who resigned approximately six months before Shi was terminated and witnessed King’s alleged discriminatory behavior, as well as Shi’s husband and friend, with whom Shi frequently discussed King’s behavior towards Shi at work. Docs. 40-43. Taken together, the declarations set forth allegations of specific examples of King’s discriminatory and derogatory conduct. The specific incidents detailed in the declarations give rise to an inference of discrimination, and Shi has therefore established a prima facie case for discrimination. If a plaintiff successfully presents a prima facie case of discrimination, the defendant must then rebut the presumption by offering legitimate and non-discriminatory reasons for the adverse employment action. Abdu-Brisson, 239 F.3d at 468-69 (citations omitted). “The employer need not persuade the court that it was motivated by the reason it provides; rather it must simply articulate an explanation that, if true, would connote lawful behavior.” Greenway v. Buffalo Hilton Hotel, 143 F.3d 47, 52 (2d Cir. 1998) (emphasis in original). “This burden is one of production, not persuasion; it ‘can involve no credibility assessment.’” Reeves v. Sanderson Plumbing Prods., 530 U.S. 133, 142 (2000) (quoting St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 509 (1993)). To satisfy the second step of McDonnell Douglas, “[i]t is sufficient if the defendant’s evidence raises a genuine issue of fact as to whether it discriminated against the plaintiff.” Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 254 (1981). “If the defendant carries this burden of production, the presumption [of discrimination] raised by the prima facie case is rebutted,” and “drops from the case.” Id. at 255, 255 n.10. Here, Bagatelle submits five declarations — from King, Litvak, Hun, Yun, and another Bagatelle employee (Sofia Wahlberg, Design Director) — stating that neither King nor Bagatelle ever treated Shi in a discriminatory manner and that Shi was terminated solely for performance reasons. See Docs. 30-34. Bagatelle’s sole detail as to the nature of Shi’s performance issues and the complaints against her, however, is a single sentence stating that Shi often failed to share information concerning pricing and costs with Bagatelle’s management and sales team. Doc. 30, 28; Doc. 31 22. The only other reference in the declarations to Shi’s performance is an additional identical sentence in King and Litvak’s declarations that “Bagatelle received many complaints from its staff concerning Shi’s performance. Doc. 30, 29; Doc. 31 23. Thus, Bagatelle’s evidence does little more than repeat the rote allegation that Bagatelle received an unknown number of complaints from unnamed Bagatelle employees about largely undescribed issues with Shi’s performance. Thus, the only admissible, non-hearsay evidence that Bagatelle has proffered as to the second step of the McDonnell Douglas framework is a single sentence in King’s declaration. A movant for summary judgment must produce admissible evidence, including to satisfy its burden under the second step of the McDonnell Douglas framework. See Reeves, 530 U.S. at 142 (quoting St. Mary’s Honor Ctr., 509 U.S. at 509); Saenger, 706 F. Supp. 2d at 504. Accordingly, Bagatelle has not met its burden, and this constitutes an independent basis on which to deny Bagatelle summary judgment. Even, however, if Bagatelle had met its burden — i.e., established its explanation for the termination (Shi’s poor performance) would connote lawful behavior if taken as true, see Greenway, 143 F.3d at 52 — Bagatelle’s motion would nonetheless be denied at the third step of the McDonnell Douglas framework. At the third step, the burden then shifts back to Shi to prove intentional discrimination by a preponderance of the evidence. Gordon v. N.Y. City Bd. of Educ., 232 F.3d 111, 117 (2d Cir. 2000) (quoting Fields v. N.Y. State Office of Mental Retardation & Developmental Disabilities, 115 F.3d 116, 120-21 (2d Cir. 1997)). The Second Circuit has explained that “there are two distinct ways for a plaintiff to prevail — ‘either by proving that a discriminatory motive, more likely than not, motivated the defendants or by proving both that the reasons given by the defendants are not true and that discrimination is the real reason for the actions.’” Id. (quoting Fields, 115 F.3d at 121). It is important to note, that “[a]lthough intermediate evidentiary burdens shift back and forth under this framework, ‘the ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff.’” Reeves, 530 U.S. at 143 (quoting Burdine, 450 U.S. at 253). Here, the declarations Shi submitted allege both that Bagatelle communicated no concerns as to her performance and that at least one other Bagatelle employee witnessed and personally experienced King discriminate against Shi and other Asian-American employees. Bagatelle’s declarations state the exact opposite: that King was never discriminatory, and Shi performed poorly. The evidence in this case is thus, essentially, two competing sets of declarations concerning Bagatelle’s motivations. Courts are cautious in granting summary judgment in employment discrimination cases where the employer’s intent is at issue, Holcomb, 521 F.3d at 137, and are not empowered to make credibility determinations at summary judgment, Reeves, 530 U.S. at 142. Thus, the competing declarations raise, at minimum, genuine disputes of material fact as to the reasons for Shi’s termination, and the Court accordingly cannot grant Bagatelle summary judgment on Shi’s Title VII and NYSHRL claims for race and national origin discrimination. See Holcomb, 521 F.3d at 137. Moreover, the NYCHRL was “designed to be ‘broader and more remedial’ than Title VII.” See Hornig v. Trs. of Colum. Univ., No. 17-cv-3602 (ER), 2022 U.S. Dist. LEXIS 60683, at *34 (S.D.N.Y. Mar. 31, 2022) (quoting Davis-Bell v. Columbia Univ., 851 F. Supp. 2d 650, 671 (S.D.N.Y. 2012)); see also Bright-Asante v. Saks & Co., No. 15-cv-5876 (ER), 2020 U.S. Dist. LEXIS 47354, at *14 (S.D.N.Y. Mar. 18, 2020) (stating that, to defeat summary judgment on an NYCHRL claim, a plaintiff “need only show that her employer treated her less well, at least in part for a discriminatory reason,” and an employer “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,” even where the employer presents evidence of its legitimate, non-discriminatory motives (quoting Mihalik v. Credit Agricole Cheuvreux N. Am., Inc., 715 F.3d 102, 110 n.8 (2d Cir. 2013))). Thus, where a plaintiff’s claims survive even under the more stringent Title VII standard, they necessarily meet the standard under the NYCHRL as well. See Hornig, 2022 U.S. Dist. LEXIS 60683, at *39. Summary judgment on Shi’s NYCHRL claims for race and national origin discrimination is also therefore denied. See id. B. Bagatelle’s Motion for Summary Judgment is Granted as to Shi’s Disability and Perceived Disability Discrimination Claims Under the ADA, the NYSHRL, and the NYCHRL (Counts 7-12) Shi’s seventh to ninth causes of action allege Bagatelle discriminated against her on the basis of her disability in violation of the ADA, the NYSHRL, and the NYCHRL respectively; and her tenth to twelfth causes of action allege Bagatelle discriminated against her on the basis of her perceived disability in violation of the same three statutes. Doc. 1
