Polite v. VIP Community Services

Background

Derrick Polite, representing himself, sued Vocational Instruction Project Community Services, Inc., which the opinion calls VIP. He asserted retaliation and color-based discrimination under Title VII of the Civil Rights Act of 1964, age discrimination under the Age Discrimination in Employment Act, and retaliation, age-discrimination, and color-discrimination claims under the New York City Human Rights Law.

Polite worked as clinical director of VIP’s Ryan White Clinic from approximately July 2018 through August 2019. He was paid $75,000 per year, which was approximately $5,000 less than his predecessor. In August 2019, Polite reported to Human Resources that two employees had told him that VIP supervisor Alison Maling had touched them inappropriately. Human Resources interviewed the two employees, who denied that the touching had occurred or that they had reported it to Polite. Human Resources concluded that Polite had intentionally fabricated the allegations. In combination with earlier workplace conduct involving Maling, Human Resources determined that the conduct warranted termination, and VIP communicated that decision to Polite on August 28, 2019.

Before the district judge, VIP sought summary judgment under Federal Rule of Civil Procedure 56. Magistrate Judge Stewart D. Aaron recommended granting the motion and dismissing the action. Neither party objected to the recommendation. Judge Daniels therefore reviewed it for clear error.

Retaliation Claims

For the Title VII retaliation claim, the court held that Polite’s report was not protected activity because it was not made in the good-faith, reasonable belief that it concerned unlawful employment conduct. The court relied on Human Resources’ determination that Polite fabricated the reports and concluded that no reasonable juror could find that he had the required good-faith belief. The court also held that VIP had provided a legitimate, non-retaliatory reason for the termination—Polite’s intentional fabrication of allegations against Maling—and that Polite offered no evidence showing that reason was a pretext, meaning a cover for unlawful retaliation.

The court applied the same basic requirements to the New York City Human Rights Law retaliation claim and granted summary judgment on that claim as well.

Age-Discrimination Claims

Polite’s age-discrimination claims were based on his allegation that he was paid less than his predecessor, whom he said was younger. For the federal claim, the court found that Polite produced no evidence that he and his predecessor were similarly situated in all material respects. The undisputed evidence showed that the predecessor had more experience, more education, and bilingual skills. The court therefore granted summary judgment on the Age Discrimination in Employment Act claim.

For the New York City Human Rights Law claim, the court found no evidence that Polite’s age played any role in setting his salary or that VIP treated him less favorably because of his age. His unsupported assertion was insufficient to create an inference of age discrimination. The court granted summary judgment on that claim too.

Color-Discrimination Claims

Polite’s color-discrimination claims relied on his deposition testimony that another employee, Eric Iglesias, told him that Angela Caban had used a racial slur referring to him. Polite was not present for the conversation and did not personally hear Caban or anyone else at VIP use the language. The court ruled that this was inadmissible hearsay and could not support opposition to summary judgment without a showing that admissible evidence would be available at trial. The court granted summary judgment on the Title VII and New York City Human Rights Law color-discrimination claims.

Disposition

Judge George B. Daniels adopted Magistrate Judge Aaron’s Report and Recommendation in full. The court granted VIP’s motion for summary judgment, dismissed the action, and directed the Clerk of Court to close the motion and the case.