Brown v. Incorp (Sept. 17, 2025)

Case details
Full caption
Jeramiah Brown v. Fat Dough Incorp., doing business as Dominos Pizza
Country
United States
Jurisdiction
Federal
Decided
Sept. 17, 2025
Disposition
Motion Granted
JERAMIAH BROWN, Plaintiff, v. FAT DOUGH INCORP., doing..., Slip Copy (2025) © 2025 Thomson Reuters. No claim to original U.S. Government Works.12025 WL 2663170Only the Westlaw citation is currently available.United States District Court, N.D. New York.JERAMIAH BROWN, Plaintiff,v.FAT DOUGH INCORP., doing businessas DOMINOS PIZZA, Defendant.5:22-cv-761 (ECC/ML)|Filed 09/17/2025Editor's Note: This decision contains citation referencesthat are incorrect or do not actually exist. These invalidcitations appeared in the original court opinion and have beenpreserved as written since they are part of the official record.Any links to these invalid citations have been removed.Attorneys and Law FirmsAPPEARANCES:Jeramiah Brown, pro se PlaintiffChristopher Maugans, Esq., for DefendantMEMORANDUM-DECISION & ORDERElizabeth C. Coombe U.S. District Judge*1 Plaintiff Jeramiah Brown brought this action allegingemployment discrimination in violation of federal law againstDefendant Fat Dough Incorp., doing business as DominosPizza (Fat Dough). Dkt. No. 1. Plaintiff amended thecomplaint on October 31, 2022. Dkt. No. 7. After initialreview under 28 U.S.C. § 1915(e)(2)(B) and a motion todismiss under Federal Rule of Civil Procedure 12(b)(6),the following claims remain: (1) retaliation in violation ofTitle V of the Americans with Disabilities Act (ADA), (2)sexual harassment in violation of Title VII of the CivilRights Act of 1964, and (3) retaliation in violation of TitleVII. Presently before the Court are Plaintiff's motions forsummary judgment and sanctions,1 Dkt. Nos. 80, 88, andDefendant's cross-motion for summary judgment, Dkt. No.84. The motions are fully briefed. Dkt. Nos. 87, 89, 91, 92.For the following reasons, Plaintiff's motions for sanctionsand summary judgment are denied, and Defendant's motionfor summary judgment is granted.I. Background2Plaintiff, who is Norwegian and identifies as nonbinary,3 wasborn with thrombocytopenia with absent radius, also knownas “TAR Syndrome.” Am. Compl. at 3;4 Def. SUMF ¶¶ 7,8. From October 8, 2021 through October 28, 2021, Plaintiffworked for Fat Dough at its Fort Drum location on at at-willbasis. Def. SUMF. ¶¶ 5, 6, 9, 10, 15. Plaintiff was hired asa delivery driver, and his duties included delivering pizzas,washing dishes, and helping with the front counter. Id. at 11.On Plaintiff's first day of work, Richard Filkins, a Fat Doughmanager, showed Plaintiff where he would deliver pizza. Def.SUMF 20; Plaintiff's Deposition (Pl. Dep.) at 26, Dkt. No.84-3. According to Plaintiff, during this tour Filkins told himthat if he delivered pizzas to a certain part of the base, thenhe risked having soldiers “require [Plaintiff] to give themoral sex.” Pl. Dep. at 18. Defendant does not address this inits Statement of Undisputed Material Facts, but states thatFilkins did not ask Plaintiff to perform oral sex. Id. at 18; Def.SUMF 21. Plaintiff does not refer to any other conversationsinvolving sex.*2 The parties dispute whether a delivery driver whoPlaintiff “shadowed” for one or two days, Megan Scott, askeda question about Plaintiff's national origin and then stolemoney that he had to replace. Def. SUMF 22; Pl. Dep. at27-28; Am. Compl. at 3; Dkt. No. 84-12 ¶¶ 15, 20.Plaintiff worked from 2 p.m. to 11 p.m. until he told thegeneral manager that he has “difficulty seeing at night,” andthe general manager gave him earlier shifts. Def. SUMF ¶¶28-30; Pl. Dep. at 11-12. In addition, within three days ofwhen he started working for Fat Dough, Plaintiff asked thathe not deliver pizzas because he did not feel safe at Ft. Drumafter someone told him that he could not enter any buildingson Ft. Drum when he tried to deliver a pizza to a barracks. Pl.Dep. at 15-16; Def. SUMF 31-32.Plaintiff claims that on October 27th, another employee threwdirty water and mushrooms at Plaintiff while Plaintiff waswashing dishes. Am. Compl. at 4. Plaintiff also claims thaton approximately October 28th, someone broke into his car5in a parking lot and drew a “smiley face” on the inside ofhis windshield with pizza grease. Def. SUMF 33, 35-36,
JERAMIAH BROWN, Plaintiff, v. FAT DOUGH INCORP., doing..., Slip Copy (2025) © 2025 Thomson Reuters. No claim to original U.S. Government Works.240; Pl. Dep. at 18-19. Plaintiff reported the break-in to bothhis supervisor, Pl. Dep. at 19, and the Fort Drum Police, Dkt.No. 87-4 at 60. According to the supervisor, he interviewedemployees and inspected Plaintiff's car, but he saw “an areaof dew” on the windshield, and he did not find any evidenceof a break-in. Def. SUMF ¶¶ 34, 37-39; Dkt. No. 84-11 ¶¶22-25. According to Plaintiff, there were security cameras,6and the supervisor did not review them, Pl. Dep. at 20-21, butaccording to the supervisor, there were no security camerason the side of the building where Plaintiff parked, and he toldPlaintiff that. Dkt. No. 84-11 ¶¶ 21, 24. The police reportstates that “Brown had cleaned the grease up himself and therewas no further reported or visible damage to the vehicle.” Dkt.No. 87-4 at 60.Plaintiff also reported to both his supervisor and the policethat he overheard other employees discuss slashing histires. Def. SUMF ¶¶ 42. After investigating, the supervisordetermined that “drivers were discussing putting snow tireson their personal vehicles.” Id. 43. Plaintiff's tires werenever slashed. Id. 44.On approximately October 25, 2021, Plaintiff told asupervisor than he was resigning with two weeks of notice.Def. SUMF ¶¶ 45, 46; Pl. Dep. at 32. The supervisorresponded that Plaintiff “would be welcome back” and that“they would allow [Plaintiff] to come back for more shifts if[Plaintiff] needed to.” Pl. Dep. at 33. According to Fat Dough,the resignation was “voluntary,” but Plaintiff claims thatit was “coerced by ongoing harassment and discriminatorypractices.” Dkt. No. 87-3 45 (p. 31). According to Plaintiff,supervisor Brian Galloway called him on October 29, 2021,the day after the windshield incident, and terminated hisemployment because Plaintiff filed a police report.7 Dkt. No.87-3 ¶5-13 (p. 4-5); Dkt. No. 87-4 at 60; Pl. Dep. at 32.Plaintiff provided a screenshot from his cell phone to provethat this call occurred, but the screenshot only shows twooutgoing calls to “Domino's” on October 29, 2021, and noincoming calls. Dkt. No 87-4 at 59. According to Galloway,Galloway did not fire Plaintiff, Dkt. No. 84-10 at 9, andPlaintiff called Galloway to tell him that Plaintiff would notwork his last two shifts because UPS had hired Plaintiff, id.at 10.*3 Plaintiff began working for UPS on November 1, 2021.Def. SUMF 49.II. Legal StandardUnder Rule 56(a), summary judgment may be granted onlyif all the submissions taken together “show that there is nogenuine issue as to any material fact and that the moving partyis entitled to judgment as a matter of law.” Celotex Corp.v. Catrett, 477 U.S. 317, 322 (1986); see also Anderson v.Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). The movingparty bears the initial burden of demonstrating “the absenceof a genuine issue of material fact.” Celotex, 477 U.S. at 323.A fact is “material” if it “might affect the outcome of thesuit under the governing law,” and is genuinely in dispute“if the evidence is such that a reasonable jury could returna verdict for the nonmoving party.” Anderson, 477 U.S. at248; see also Jeffreys v. City of New York, 426 F.3d 549, 553(2d Cir. 2005) (citing Anderson). The movant may meet thisburden by showing that the nonmoving party has “fail[ed]to make a showing sufficient to establish the existence ofan element essential to that party's case, and on which thatparty will bear the burden of proof at trial.” Celotex, 477U.S. at 322; see also Selevan v. N.Y. Thruway Auth., 711 F.3d253, 256 (2d Cir. 2013) (explaining that summary judgmentis appropriate where the nonmoving party fails to “ ‘comeforth with evidence sufficient to permit a reasonable juror toreturn a verdict in his or her favor on’ an essential element ofa claim” (quoting In re Omnicom Grp., Inc. Sec. Litig., 597F.3d 501, 509 (2d Cir. 2010))).If the moving party meets this burden, the nonmoving partymust “set out specific facts showing a genuine issue for trial.”Anderson, 477 U.S. at 248, 250; see also Celotex, 477 U.S. at323-24; Wright v. Goord, 554 F.3d 255, 266 (2d Cir. 2009).“When ruling on a summary judgment motion, the districtcourt must construe the facts in the light most favorable tothe non-moving party and must resolve all ambiguities anddraw all reasonable inferences against the movant.” DallasAerospace, Inc. v. CIS Air Corp., 352 F.3d 775, 780 (2dCir. 2003). Still, the nonmoving party “must do more thansimply show that there is some metaphysical doubt as to thematerial facts,” Matsushita Elec. Indus. Co. v. Zenith RadioCorp., 475 U.S. 574, 586 (1986), and cannot rely on “merespeculation or conjecture as to the true nature of the facts toovercome a motion for summary judgment,” Knight v. U.S.Fire Ins. Co., 804 F.2d 9, 12 (2d Cir. 1986) (quoting Quarlesv. Gen. Motors Corp., 758 F.2d 839, 840 (2d Cir. 1985)).Furthermore, “[m]ere conclusory allegations or denials ...cannot by themselves create a genuine issue of material factwhere none would otherwise exist.” Hicks v. Baines, 593 F.3d159, 166 (2d Cir. 2010) (quoting Fletcher v. Atex, Inc., 68 F.3d1451, 1456 (2d Cir. 1995)).
JERAMIAH BROWN, Plaintiff, v. FAT DOUGH INCORP., doing..., Slip Copy (2025) © 2025 Thomson Reuters. No claim to original U.S. Government Works.3When considering cross-motions for summary judgment, acourt “must evaluate each party's motion on its own merits,taking care in each instance to draw all reasonable inferencesagainst the party whose motion is under consideration.” HotelEmp. & Rest. Emp. Union, Local 100 of New York, N.Y. &Vicinity v. City of New York Dep't of Parks & Recreation,311 F.3d 534, 543 (2d Cir. 2002) (quoting Heublein v. UnitedStates, 996 F.2d 1455, 1461 (2d Cir. 1993) (internal quotationmarks omitted)).*4 When a plaintiff is proceeding pro se, the court “reads hispleadings ‘liberally and interpret[s] them to raise the strongestarguments that they suggest.’ ” Jorgensen v. Epic/Sony Recs.,351 F.3d 46, 50 (2d Cir. 2003) (quoting McPherson v.Coombe, 174 F.3d 276, 280 (2d Cir. 1999)). The “applicationof this different standard does not relieve plaintiff of his dutyto meet the requirements necessary to defeat a motion forsummary judgment.” Id.“While it is undoubtedly the duty of district courts not toweigh the credibility of the parties at the summary judgmentstage, in the rare circumstance where the plaintiff reliesalmost exclusively on his own testimony, much of whichis contradictory and incomplete, it will be impossible for adistrict court to determine whether the jury could reasonablyfind for the plaintiff, and thus whether there are any ‘genuine’issues of material fact, without making some assessment ofthe plaintiff's account.” Jeffreys, 426 F.3d at 554 (cleaned up).“[W]hen the facts alleged are so contradictory that doubt iscast upon their plausibility,” a court is “authorized to piercethe veil of the complaint's factual allegations, dispose ofsome improbable allegations, and dismiss the claim.” AzizZarif Shabazz v. Pico, 994 F. Supp. 460, 470 (S.D.N.Y.1998) (quoting Denton v. Hernandez, 504 U.S. 25, 32 (1992))(cleaned up).III. DiscussionA. Plaintiff's Motions for Summary Judgment andSanctions81. SanctionsPlaintiff seeks sanctions against Defendant for allegedlyharassing Plaintiff with counterclaims and “retaliatoryconduct.” Dkt. Nos. 80 at 2; 88 at 1. Plaintiff's initial motionfor sanctions was denied, Dkt. No. 81, and Plaintiff raiseslargely the same arguments in his renewed motion, Dkt. No.88.Plaintiff's renewed motion is mostly conclusory languagewithout any factual assertions that could support his request.In addition, contrary to Plaintiff's assertions, Defendant didnot file any counterclaims against Plaintiff. Finally, Plaintiffhas not described any specific “retaliatory conduct.” Dkt. No.88 at 3. Plaintiff's renewed motion for sanctions is thereforedenied.It appears, however, that Plaintiff could be sanctionedbecause he included at least one fictitious legal citation inhis submissions: “Lynch v. U.S. Postal Service, 2016 WL7338415 (N.D.N.Y. Dec. 19, 2016).” Dkt. No. 80 at 4. ThatWestlaw citation is for an unrelated habeas corpus case: Greenv. New York, No. 14-cv-2073, 2016 WL 7338415 (S.D.N.Y.Dec. 19, 2016). Although there are several cases with thecaption, “Lynch v. U.S. Postal Service,” none were issued bythis court or in 2016. See Lynch v. U.S. Postal Serv., 17 F.App'x 996 (Fed. Cir. 2001); Lynch v. U.S. Postal Serv., 3 F.App'x 287 (6th Cir. 2001); Lynch v. U.S. Postal Serv., 127 F.App'x 487 (Fed. Cir. 2005); Lynch v. U.S. Postal Serv., 316 F.App'x 972 (Fed. Cir. 2008).All litigants, including pro se litigants, must make surethat all assertions of fact and law in their submissions aretrue. Fed R. Civ. P. 11(b). If a litigant cannot verify alegal assertion, the litigant should omit the assertion ratherthan include a false statement. Plaintiff testified that heused ChatGPT to draft legal papers. Dkt. No. 89-1 at 5-10.It is well established that artificial intelligence regularly“hallucinates” and includes false statements. See Benjaminv. Costco Wholesale Corp., No. 2:24-cv-7399, 2025 WL1195925 (E.D.N.Y. Apr. 24, 2025) (“In recent years, courtsacross the country have continued to receive submissionslittered with AI-generated ‘case’ citations .... This epidemicof citing fake cases has continued unabated, and, by wayof example, the undersigned has identified at least fourreported cases in the recent weeks confronting this verysame issue.”) (collecting cases); see also Jeff Neal, TheLegal Profession in 2024: AI, HARV. L. TODAY (Feb.14, 2024), https://hls.harvard.edu/today/harvard-law-expert-explains-how-ai-may-transform-the-legal-profession-in-2024/.*5 The Court has decided not to impose sanctions at thistime, but Plaintiff is cautioned that he faces a substantialrisk of sanctions if he continues to use artificial intelligencewithout carefully verifying all citations.2. Summary Judgment
JERAMIAH BROWN, Plaintiff, v. FAT DOUGH INCORP., doing..., Slip Copy (2025) © 2025 Thomson Reuters. No claim to original U.S. Government Works.4Plaintiff seeks summary judgment on his “wrong terminationand retaliation” claims, but his legal argument regarding thebasis for summary judgment—consisting only of conclusorystatements relying on Fed. R. Civ. P. 56 as the sole“Legal Justification” untethered to any of his three specificclaims—is not clear. See Dkt. No. 88 at 1-4, 5, 9, 12.Although courts give special leniency to pro se plaintiffs andconstrue their papers “liberally and interpret them to raisethe strongest arguments that they suggest,” Jorgensen, 351F.3d at 50, Plaintiff's conclusory assertions are insufficient,see id. (“application of this different standard does not relieveplaintiff of his duty to meet the requirements necessary todefeat a motion for summary judgment.”).As for Plaintiff's statement of material facts, it does not setout, in particularity, with citations to the record, the factualbasis for summary judgment, and it contains contradictoryassertions of fact.9 Pl. SUMF; Dkt. No. 87-3. As a result, theCourt cannot determine which facts could support a summaryjudgment.For all of these reasons, Plaintiff's motion for summaryjudgment is denied.B. Defendant's Cross-Motion for Summary Judgment1. Preclusion10Defendant argues that collateral estoppel bars Plaintiff'sclaims because the New York Supreme Court of JeffersonCounty affirmed the NYSDHR No Probable CauseDetermination for his claims. Fat Dough Memorandum ofLaw (Def. MOL), Dkt. No. 84-15 at 7-9. Plaintiff does notrespond to this argument.“The federal full faith and credit statute provides, in relevantpart, that the ‘judicial proceedings of any court of any ...State ... shall have the same full faith and credit in everycourt within the United States ... as they have by law or usagein the courts of such State ... from which they are taken.’ ”Lawtone-Bowles v. City of New York, 22 F. Supp. 3d 341,348 (S.D.N.Y. 2014) (quoting 28 U.S.C. § 1738). “Under thefull faith and credit statute, ‘a federal court must give to astate-court judgment the same preclusive effect as would begiven that judgment under the law of the State in which thejudgment was rendered.’ ” Id. (quoting Migra v. Warren CitySch. Dist. Bd. of Educ., 465 U.S. 75, 81 (1984)).*6 “The doctrine of collateral estoppel—also known asissue preclusion—prohibits a party from re-litigating an issuein certain circumstances. Under New York law, collateralestoppel bars claims where ‘(1) the issue in question wasactually and necessarily decided in a prior proceeding, and (2)the party against whom the doctrine is asserted had a full andfair opportunity to litigate the issue in the first proceeding.’” Lawtone-Bowles, 22 F. Supp. 3d at 348 (quoting Colonv. Coughlin, 58 F.3d 865, 869 (2d Cir. 1995), abrogated onother grounds by Tangreti v. Bachmann, 983 F.3d 609 (2d Cir.2020)).Further, “a state court affirmation of a state administrativedetermination is entitled to preclusive effect in federalcourt, so long as the state's administrative proceedingssatisfy the minimum requirements of the Due ProcessClause of the Fourteenth Amendment.” Lewis v. Health& Hosps. Corp., No. 11-cv-99, 2013 WL 2351798, at*4 (S.D.N.Y. May 31, 2013) (citing Kremer v. Chem.Constr. Corp., 456 U.S. 461, 481–82 (1982)). A NYSDHR“determination finding no probable cause and dismissing acomplaint, coupled with a state court judgment affirming theadministrative determination, preclude[s] further litigationof federal claims arising from the same facts resolved bythe prior proceedings.” Id. (citing Kremer, 456 U.S. at485). However, a NYSDHR determination by itself, withoutstate court involvement, is not enough to create preclusiveeffect. See Lawtone-Bowles, 22 F. Supp. 3d at 348 n.7(S.D.N.Y. 2014) (explaining that a NYSDHR proceedingcannot by itself have preclusive effect “because [28 U.S.C.]§ 1738 applies to the judgments of state courts, not stateadministrative agencies, and the [NY]SDHR's determinationin this case was not judicially reviewed” (citations omitted)).Here, the NYSDHR issued a No Probable CauseDetermination to Plaintiff after he filed a charge with theagency. Dkt. No. 84-7 at 2-4. As to the Jefferson CountySupreme Court action, Defendant provided (1) the petitionPlaintiff filed in the New York Supreme Court in JeffersonCounty, Dkt. No. 84-8, and (2) the docket showing that (a)the case was closed, (b) the “decision type” was a “longform order;” and (c) Plaintiff's request was denied, Dkt. No.84-9 at 3. This is not a sufficient basis to determine whatissues and facts were litigated in that proceeding. Without thelong form order itself, it is not clear whether: (1) the statecourt reached the merits of the NYSDHR determination; (2)the NYSDHR determination was “actually and necessarilydecided,” Lawtone-Bowles, 22 F. Supp. 3d at 348 (quotationomitted); or (3) the state court case was dismissed with or
JERAMIAH BROWN, Plaintiff, v. FAT DOUGH INCORP., doing..., Slip Copy (2025) © 2025 Thomson Reuters. No claim to original U.S. Government Works.5without prejudice. Defendant's motion for summary judgmenton this basis is therefore denied.2. ADA RetaliationDefendant argues that Plaintiff voluntarily resigned and“therefore did not suffer an adverse employment action”as required for an ADA retaliation claim. Def. MOL at14-15. Plaintiff appears to take the position that he wasconstructively discharged, Dkt. No. 87-3 at 4-5, but he alsoargues repeatedly that he was terminated. Dkt. Nos. 80 at 4,7; 88 at 2, 3, 7, 9, 12, 19, 21, 23, 25.To state a prima facie case of retaliation, Plaintiff must allegethat “(1) he engaged in an activity protected by the ADA;(2) the employer was aware of this activity; (3) the employertook adverse employment action against him; and (4) a causalconnection exists between the alleged adverse action and theprotected activity.” Treglia v. Town of Manlius, 313 F.3d 713,719 (2d Cir. 2002).*7 “The standard for constructive discharge is whether‘working conditions [became] so intolerable that a reasonableperson in the employee's position would have felt compelledto resign.’ ” Aspilaire v. Wyeth Pharms., Inc., 612 F. Supp. 2d289, 311 (S.D.N.Y. 2009) (quoting Pa. State Police v. Suders,542 U.S. 129, 141 (2004)). “ ‘Constructive discharge occurswhen an employer deliberately makes an employee's workingconditions so intolerable that the employee is forced intoan involuntary resignation.’ ” Id. at 311-12 (quoting Kaderv. Paper Software, Inc., 111 F.3d 337, 339 (2d Cir. 1997)).A plaintiff alleging constructive discharge must demonstratethat “the employer's actions were deliberate and not merelynegligent or ineffective.” Petrosino v. Bell Atl., 385 F.3d 210,230 (2d Cir. 2004) (quotation omitted). The standard for“intolerable” working conditions is a higher bar than that for ahostile work environment claim. See Ferraro v. Kellwood Co.,No. 03-cv-8492, 2004 WL 2646619, at *7 (S.D.N.Y. Nov. 18,2004) (“Constructive discharge can be seen as an aggravatedcase of hostile work environment.”).Here, even viewing the evidence in the light most favorable toPlaintiff, he cannot establish an adverse employment action.As Plaintiff admits, Defendant did not reduce his salary orchange his job title, Dkt. No. 87-3 at ¶¶ 12-13 (p. 6). AfterPlaintiff resigned from his employment with Defendant, asupervisor told him that his position remained open and thathe was welcome to return. Def. SUMF 45-48; Pl. Dep. at32-33 (supervisor “had insinuated that he wanted me to stay,he didn't want me to leave and didn't want me to quit ....He said that I would be welcome back.”); 87-3 45 (p. 31)(admitting that the resignation was initiated by Plaintiff, butasserting that it was coerced).As to Plaintiff's constructive discharge argument, evenviewing the evidence in the light most favorableto Plaintiff, there is insufficient evidence to supportconstructive discharge. Plaintiff admits that his supervisorwas disappointed that Plaintiff was leaving and told Plaintiffthat his position would remain open if Plaintiff wished toreturn. Pl. Dep. at 32-33. Even assuming that an employeethrew dirty water and mushrooms at him, an employeedrew a “smiley face” with pizza grease on his windshield,and employees talked about slashing Plaintiff's tires, theseconditions are not objectively intolerable and, even ifthey were, there is no evidence that Plaintiff's supervisorsdeliberately caused those issues.Given the lack of evidence of an adverse employment action,Defendant's motion for summary judgment on Plaintiff'sADA retaliation claim is granted.3. Title VII Sexual HarassmentDefendant argues that Plaintiff's generic allegations were notsufficiently pervasive to create a hostile work environment,and there is no evidence that any actions were taken on thebasis of Plaintiff's sex. Def. MOL at 1-12. Plaintiff, whoidentifies as nonbinary, argues that he was subjected to a“hostile work environment.” Dkt. No. 88 at 31.Sexual harassment under Title VII can be alleged either undera “quid pro quo” theory or a “hostile work environment”theory. To allege Title VII harassment under a hostile workenvironment theory, “a plaintiff must plead facts that wouldtend to show that the complained conduct: (1) is objectivelysevere or pervasive—that is, ... creates an environment that areasonable person would find hostile or abusive; (2) creates anenvironment that the plaintiff subjectively perceives as hostileor abusive; and (3) creates such an environment because ofthe plaintiff's sex.” Barton v. Warren Cty., No. 119-cv-1061(GTS), 2020 WL 4569465 at *8 (N.D.N.Y. Aug. 7, 2020)(quoting Patane v. Clark, 508 F.3d 106, 113 (2d Cir. 2007)).“To satisfy this standard, a plaintiff must ‘produce enoughevidence to show that the workplace [was] permeated withdiscriminatory intimidation, ridicule, and insult, that [was]sufficiently severe or pervasive to alter the conditions ofthe victim's employment.’ ” Andersen v. Rochester City Sch.Dist., 481 F. App'x 628, 630 (2d Cir. 2012) (quoting Gorzynskiv. JetBlue Airways Corp., 596 F.3d 93, 102 (2d Cir. 2010)).
JERAMIAH BROWN, Plaintiff, v. FAT DOUGH INCORP., doing..., Slip Copy (2025) © 2025 Thomson Reuters. No claim to original U.S. Government Works.6*8 To determine whether conduct is “severe or pervasive,”courts review “the totality of the circumstances, including‘the frequency of the discriminatory conduct; its severity;whether it is physically threatening or humiliating, or a mereoffensive utterance; and whether it unreasonably interfereswith an employee's work performance.’ ” McGullam v.Cedar Graphics, Inc., 609 F.3d 70, 79 (2d Cir. 2010)(quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 23(1993)). The “severe or pervasive” standard is difficultto meet. See Davis v. Verizon Wireless, 389 F. Supp. 2d458, 475-77 (W.D.N.Y. 2005) (granting summary judgmentfor the employer because the evidence was insufficient toestablish a hostile work environment where the employee wassexually propositioned twice and, after rejecting the advances,shunned by her co-workers); Dall v. St. Catherine of SienaMed. Ctr., 966 F. Supp. 2d 167, 190 (E.D.N.Y. 2013) (nohostile work environment when employees “spoke frequentlyabout their sex lives and showed explicit photographs inthe workplace, creating an uncomfortable and inappropriatework environment”); Alfano v. Costello, 294 F.3d 365,380-81 (2d Cir. 2002) (same where allegations included foursexually inappropriate comments/conduct combined witheight examples of sex-based disparate treatment over a five-year span); id. at 379 (collecting cases from other circuitswhere the evidence was insufficient to establish a hostilework environment). Furthermore, if the conduct occurs overa brief period of time, it is unlikely to be considered “severeor pervasive.” See Ford v. N.Y.C. Dep't of Health & MentalHygiene, 545 F. Supp. 2d 377, 393 (S.D.N.Y. 2008) (“while[the plaintiff] was subjected to unkind comments on a dailybasis, the comments continued for only four months,” andconcluding that for this and other reasons, “no reasonablejury could find that the alleged misconduct was so severe orpervasive as to be objectively hostile or abusive”).Here, viewing the evidence in the light most favorableto Plaintiff, during his approximately 20-day employment,a supervisor told him that soldiers may request oral sexfrom him, an employee threw dirty water and mushroomsat him once, an employee drew a “smiley face” on hiswindshield with pizza grease, and employees allegedlydiscussed slashing his tires. Although this is inappropriatebehavior, it is not sufficient for Plaintiff to establish thesevere and pervasive environment required for hostile workenvironment claim. Furthermore, Plaintiff cannot establishthat any of these actions were connected to Plaintiff's sexualidentity or expression. Accordingly, Defendant's motion forsummary judgment is granted as to Plaintiff's Title VIIharassment claim.4. Title VII RetaliationDefendant argues that Plaintiff voluntarily resigned, andthere is no adverse employment action to support aretaliation claim. Def. MOL at 13-15. Plaintiff argues thathe was terminated “shortly after filing a complaint regardingdiscriminatory practices, a protected activity under federallaw.” Dkt. No. 88 at 2.“To make out a prima facie case for Title VII retaliation, aplaintiff must show 1) participation in a protected activity;2) the defendant's knowledge of the protected activity; 3)an adverse employment action; and 4) a causal connectionbetween the protected activity and the adverse employmentaction.” Dotson v. City of Syracuse, 688 F. App'x 69, 72 (2dCir. 2017) (quoting Jute v. Hamilton Sundstrand Corp., 420F.3d 166, 173 (2d Cir. 2005) (additional quotation omitted)(cleaned up)).Here, for the reasons articulated above, there is no adverseemployment action because Plaintiff resigned, and evenviewing the evidence in the light most favorable to Plaintiff,there is not sufficient evidence of constructive discharge.Accordingly, Defendant's motion for summary judgment onPlaintiff's Title VII retaliation claim is granted.IV. ConclusionFor these reasons, it is herebyORDERED that Plaintiff's motions for sanctions andsummary judgment under Rule 56, Dkt. Nos. 80, 88, areDENIED, and it is furtherORDERED that Defendant's motion for summary judgmentunder Rule 56, Dkt. No.84, is GRANTED, and it is furtherORDERED that the Clerk of the Court is directed to enterjudgment accordingly and close this action.IT IS SO ORDERED.All CitationsSlip Copy, 2025 WL 2663170
JERAMIAH BROWN, Plaintiff, v. FAT DOUGH INCORP., doing..., Slip Copy (2025) © 2025 Thomson Reuters. No claim to original U.S. Government Works.7Footnotes1Plaintiff filed a motion for sanctions, Dkt. No. 80, and Magistrate Judge Miroslav Lovric denied the motion,Dkt. No. 81. Plaintiff “renewed” the motion for sanctions in a “renewed Motion for Sanctions and SummaryJudgment,” Dkt. No. 88. To resolve all of the legal issues before the Court, and in light of Plaintiff's pro sestatus, the Court has reviewed both of those motions.2The facts are drawn from the parties’ submissions including Defendant's Statement of Material Facts, (Def.SUMF), Dkt. No. 84-14, and Plaintiff's Statement of Material Facts, (Pl. SUMF), Dkt. No. 79 at 3, and theexhibits that the parties have submitted, to the extent that they are admissible as evidence. Disputed factsare noted, and any facts in Def. SUMF not specifically denied by Plaintiff are deemed admitted pursuant toN.D.N.Y. Local Rule 56.1.3The Amended Complaint uses “he/him/his” pronouns to refer to Plaintiff. Dkt. No. 7.4Citations to page numbers refer to pagination generated by the ECF system, unless otherwise noted. TheECF page for citations to Plaintiff's filings with duplicative paragraph numbers is provided in parentheses.5Plaintiff offered evidence that his doors were unlocked, Pl. Dep. at 21, Dkt. No. 87-3 40 (p. 23), and 40(p. 25), but also offered evidence that he “consistently locked his vehicle during deliveries,” id. 40 p. 22.6Plaintiff later suggests that that there may not have been a camera, stating “management's failure to activateor maintain functional surveillance equipment violates their own security protocols, compromising the integrityof the investigation.” Dkt. No. 87-3 39 (p. 22).7At times, Plaintiff argues that his termination was in response to “ethics complaints” or contacting an “EthicsHotline,” but Plaintiff has introduced no evidence indicating that Plaintiff filed any formal ethics reports withDefendant. Dkt. No. 91 at 2, 6-7.8Plaintiff repeatedly asks for Magistrate Judge Lovric to be recused in his “Renewed Motion for SummaryJudgment and Sanctions,” but those requests will not be considered because a summary judgment motionis not the appropriate kind of motion to raise those requests, and the underlying arguments have alreadybeen addressed. See Dkt. No. 81.9For example, Plaintiff referred to a “police report against Domino's management for harassment,” Pl. SUMFat 3, but the report involved a complaint about vandalism and statements about the “possibility of slashing[Plaintiff's] vehicle's tires,” Dkt. No. 87-4 at 60; Plaintiff stated that he was “wrongfully terminated fromemployment with Defendant due to filing an ethics complaint and reporting a carjacking incident to lawenforcement,” Dkt. No. 80 at 7-8, but Plaintiff offered no evidence of an ethics complaint, and the policereport did not mention carjacking, Dkt. No. 87-4 at 60; Plaintiff stated that he was “denied the right to workhis scheduled shift on October 29, 2021,” Pl. SUMF at 3, but Plaintiff voluntarily resigned to accept anotherposition that began on November 1, 2021, Pl. Dep. at 5, 33.10Much of this section comes from Chief Judge Sannes's thoughtful analysis of the issue in her decision onthe motion to dismiss. Dkt. No. 43 at 7-9.End of Document© 2025 Thomson Reuters. No claim to original U.S. Government Works.
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