Banks v. McGynn, Hays & Co., Inc.

Background

Edward Banks brought two consolidated cases against his former employer, McGlynn, Hays & Co., Inc., and several McGlynn employees: Gerard Carlucci, Jack Robinson, Christopher Sullivan, Ciro Donniacuo, and Joseph I. Crincoli. Banks alleged race, color, and ethnicity discrimination; a racially hostile work environment; retaliation; and disability or medical-leave discrimination and retaliation. The parties filed cross-motions for summary judgment.

Banks relied primarily on several incidents involving Donniacuo, including an alleged “rigger” remark, a text message, comments about music being “Black” music, and a comment referring to a car using a racial slur. Donniacuo was not a supervisor. The court also considered a conversation in which Sullivan told Banks to keep quiet and walk away from workplace problems. McGlynn investigated the car comment, Donniacuo apologized, and Donniacuo was suspended for approximately one work-week.

The record also included evidence that Banks slept during work hours, was away from his work area, received a disciplinary write-up, and was involved in a confrontation with Robinson. Banks was suspended and later terminated. The opinion notes that Carlucci testified Banks left rather than was fired, but the court assumed for purposes of the motions that Banks was fired.

Court’s Analysis

The court first addressed Banks’s claims under Section 1981, a federal law protecting the right to make and enforce contracts without racial discrimination. The court treated Banks’s allegations as asserting claims for race discrimination, a hostile work environment, and retaliation under that law.

For the hostile-work-environment claim, the court held that the alleged conduct, considered together and in the light most favorable to Banks, was not severe or frequent enough to alter the conditions of his employment. The court found that Banks had not provided evidence supporting his interpretation of the alleged “rigger” remark or the text message. The court considered the car comment unacceptable and the music comments inappropriate workplace conversation, but ruled that comments by a low-level, nonsupervisory coworker did not meet the legal standard for a hostile work environment. The court therefore granted defendants summary judgment on this claim.

For the race-discrimination claim, the court applied the burden-shifting framework used in employment-discrimination cases. The court ruled that Banks had not provided evidence showing that his suspension or termination occurred under circumstances suggesting racial discrimination. Carlucci, who hired Banks, was also the person who made the employment decision, and the court found no evidence that Carlucci made discriminatory remarks or took discriminatory actions against Banks. The court also rejected Banks’s argument that Carlucci’s actions could be attributed to Donniacuo under a theory sometimes called “cat’s paw,” which concerns an adverse employment action allegedly caused by a biased subordinate influencing a decision-maker.

The court further ruled that, even if Banks had established an initial discrimination case, he had not shown that McGlynn’s stated reasons for the suspension and termination were a pretext, meaning a false explanation hiding discrimination. The court relied on unrebutted evidence concerning Banks’s work performance and his confrontation with Robinson. It granted defendants summary judgment on the Section 1981 discrimination claim.

For retaliation, Banks relied on his complaints to Carlucci and an October 5, 2017 letter from his attorney alleging discrimination, harassment, and retaliation. The court assumed for purposes of its analysis that Banks had met the initial requirements for a retaliation claim. It nevertheless held that defendants had offered legitimate, non-retaliatory reasons for the employment actions and that Banks had not shown that retaliation was the necessary cause of his suspension or termination. The court granted defendants summary judgment on the Section 1981 retaliation claim.

Disposition

The court granted defendants’ motion for summary judgment as to all of Banks’s Section 1981 claims and therefore denied Banks’s motion for partial summary judgment. The court declined to exercise supplemental jurisdiction, meaning authority to decide related state-law claims, over Banks’s remaining claims under the New York State Human Rights Law and the New York City Human Rights Law. Those remaining state and city claims were dismissed without prejudice. The court directed the clerk to terminate the pending motions and close the consolidated cases.