Barry v. Macy's, Inc.

Background

Abdoul Karim Barry, a former Bloomingdale’s employee, sued Macy’s, Inc.; Bloomingdale’s LLC; Natalia Surazhsky; and April Dito. He asserted claims under Title VII of the Civil Rights Act, the Americans with Disabilities Act, the Family and Medical Leave Act, the New York State Human Rights Law, and the New York City Human Rights Law. The claims alleged discrimination, hostile work environment, retaliation, interference, and aiding and abetting.

Barry worked in Bloomingdale’s alterations department. The defendants presented evidence that his performance was deficient, including problems with marking garments, altering denim, productivity, availability, and work speed. He received disciplinary counseling and later grieved the related write-ups through his union. The December 2019 counseling was rescinded, and a formal reminder was reduced to a counseling summary.

Barry later took leaves of absence. During the COVID-19 pandemic, Bloomingdale’s furloughed him and later attempted to contact him about returning. When he returned, pandemic procedures required most alterations employees to work in the workroom. Barry said he could not perform that work for medical reasons, but later acknowledged that he had no medical reason and simply did not want to work in the workroom or with Surazhsky. He eventually took another leave to care for his mother and did not return. His employment was terminated in September 2021 because he failed to provide paperwork supporting the leave.

Summary-judgment standard and undisputed facts

The defendants moved for summary judgment, which asks whether the evidence shows that no genuine dispute over a material fact requires a trial. Barry did not oppose the motion or submit a counterstatement responding to the defendants’ factual statement. The court nevertheless reviewed the defendants’ evidence rather than automatically accepting their assertions. It concluded that the factual statement was supported by admissible evidence and treated the stated facts as admitted and undisputed.

The court recognized that Barry testified in his deposition that Surazhsky made four racially derogatory comments. Surazhsky denied making the comments. The court explained that such testimony ordinarily could create a factual dispute. But because Barry did not controvert the defendants’ factual statement and his lawyer stated there was no good-faith basis to oppose summary judgment, the court treated the defendants’ contrary factual assertions as admitted for purposes of the motion.

Discrimination claims

The court granted summary judgment on the discrimination claims under Title VII, the Americans with Disabilities Act, the New York State Human Rights Law, and the New York City Human Rights Law. It accepted that Barry belonged to protected classes because he was Black and from Guinea, but found that he failed to show the other required elements of discrimination, including satisfactory job performance, a discriminatory adverse employment action, or circumstances supporting an inference of discrimination.

The court found that the evidence showed Barry was terminated for failing to provide paperwork supporting his leave, not because of race or national origin. The termination decision was made by the ADLM team, and the court found no evidence that Surazhsky, who allegedly made the racial comments, participated in or influenced that decision. The court also rejected the disability-discrimination claim because Barry offered no evidence that he had a disability or that anyone discriminated against him because of an actual or perceived disability.

Hostile-work-environment claims

The court granted summary judgment on the hostile-work-environment claims under Title VII, the Americans with Disabilities Act, and the New York State Human Rights Law. Under the federal standard, the alleged conduct had to be sufficiently severe or pervasive to alter the conditions of employment and create an abusive environment, and it had to occur because of a protected characteristic. The court noted that the New York State standard applicable during the relevant period was less demanding.

The court stated that Barry’s deposition testimony about repeated racial comments would ordinarily create a material factual dispute. However, because Barry failed to dispute the defendants’ factual statement and did not oppose the motion, the court deemed the assertion that no such comments were made admitted. It therefore concluded that the alleged comments could not support a hostile-work-environment claim. The court separately found no evidence that Barry experienced hostility because of a disability and stated that he did not have a disability covered by the Americans with Disabilities Act.

Retaliation claims

The court granted summary judgment on the retaliation claims under Title VII, the Americans with Disabilities Act, the New York State Human Rights Law, and the New York City Human Rights Law. Barry’s grievance of his disciplinary write-ups was protected activity, but the court found no evidence that he suffered an adverse action because he filed the grievance. The grievance was investigated and resolved in his favor, and the decision-maker who terminated him was not involved in the grievance.

The court also found no evidence of conduct that would reasonably deter a person from engaging in protected activity, as required under the broader New York City standard. Finally, it found that Barry did not engage in protected activity under the Americans with Disabilities Act because he later admitted he had no disability and did not want to perform the assigned tasks.

Family and Medical Leave Act claims

The court granted summary judgment on Barry’s Family and Medical Leave Act claims for interference and retaliation. It found that the defendants were willing to consider leave for Barry to care for his mother but required him to submit supporting paperwork. Barry did not provide the paperwork, and he offered no evidence that the employer’s requirements were unreasonable.

The court treated one portion of Barry’s interference claim as duplicative of his other interference claim because both were based on the alleged denial of leave. It also found no evidence that Barry was terminated because he took leave to care for his mother. Instead, the evidence showed that the stated reason for termination was his failure to provide the paperwork needed to support the leave.

Aiding-and-abetting and interference claims

The court granted summary judgment on the claims against Surazhsky and Dito for aiding and abetting under the New York State Human Rights Law and the New York City Human Rights Law. Because the underlying discrimination and retaliation claims were unsupported and had been dismissed, the court concluded that Surazhsky and Dito could not have aided and abetted those violations.

The court also dismissed Barry’s claim that Surazhsky and Dito interfered with rights protected by the New York City Human Rights Law. That claim required allegations or evidence of coercion, intimidation, threats, or other interference. The court found none in the complaint or the factual record.

Disposition

The court granted the defendants’ motion for summary judgment without opposition. It dismissed the complaint with prejudice, directed the clerk to remove the motion from the list of open motions, and closed the case.