     11-762-cv
     Rivera v. Rochester Genesee Regional Transportation Authority
 1
 2                                       UNITED STATES COURT OF APPEALS
 3                                           FOR THE SECOND CIRCUIT
 4
 5
 6                                                         August Term, 2011
 7
 8          (Submitted: March 1, 2012                                                    Decided: December 21, 2012)
 9
10
11                                                        Docket No. 11-762-cv
12
13
14          - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -X
15
16          ENIO R. RIVERA,
17          MICHAEL TALTON,
18
19                              Plaintiffs-Appellants,
20
21          v.
22
23          ROCHESTER GENESEE REGIONAL TRANSPORTATION AUTHORITY,
24          JOHN TIBERIO,
25
26                              Defendants-Appellees.1
27
28          ---------------------------------------X
29
30          Before: KEARSE, LOHIER, and DRONEY, Circuit Judges.
31
32           Enio Rivera and Michael Talton, employees of the Rochester Genesee Regional
33   Transportation Authority (“RGRTA”), sued that agency and a supervisory employee, John
34   Tiberio, alleging that they were subjected to a hostile work environment on the basis of race and
35   national origin and were retaliated against for complaining about the hostile work environment.
36   The District Court granted summary judgment to the defendants-appellees on all claims.
37   Because we conclude that genuine issues of material fact exist as to plaintiff-appellant Rivera’s
38   hostile work environment claims against RGRTA and as to all of plaintiff-appellant Talton’s
39   claims, we VACATE in part the grant of summary judgment and REMAND to the District Court


            1
                 The Clerk of Court is directed to amend the official caption as shown above.

                                                                  1
 1     for further proceedings as to these claims. However, we AFFIRM the judgment of the District
 2     Court as to plaintiff-appellant Rivera’s remaining claims, including his claims of retaliation.
 3
 4                                            CHRISTINA A. AGOLA, Christina A. Agola, PLLC, Rochester,
 5                                            NY, for Plaintiffs-Appellants.
 6
 7                                            SCOTT D. PIPER, Harris Beach PLLC, Pittsford, NY, for
 8                                            Defendants-Appellees.
 9
10
11   LOHIER, Circuit Judge:
12
13            Plaintiffs Enio Rivera and Michael Talton, employees of Lift Line, Inc., a subsidiary of

14     Rochester Genesee Regional Transportation Authority (“RGRTA”), appeal from a judgment of
15     the United States District Court for the Western District of New York (Larimer, J.), granting the
16     summary judgment motions of RGRTA and a supervisor, John Tiberio, and dismissing the

17     plaintiffs’ claims of discrimination and retaliation under Title VII of the Civil Rights Act of

18     1964, 42 U.S.C. § 2000e et seq. (“Title VII”), 42 U.S.C. § 1981, and the New York State Human

19     Rights Law (“NYSHRL”).2 On appeal, Rivera, who is of Puerto Rican descent, and Talton, an

20     African American, contend that they proffered sufficient evidence that they were subjected to a

21     hostile work environment based on national origin and race, respectively, and thereafter were

22     retaliated against for complaining about it.3 For the reasons that follow, we affirm the judgment

23     of the District Court as to Rivera’s § 1981 claim against Tiberio as well as his retaliation claims,

24     but vacate the judgment of the District Court as to plaintiffs’ remaining claims and remand to the

25     District Court for further proceedings.

26

27


              2
                Talton also alleged causes of action for violations of, and retaliation under,
       the Family Medical Leave Act, 29 U.S.C. § 2601 et seq. Those claims are not pursued in this
       appeal.
              3
                  Although Rivera purported to state a claim for discrimination on account of his “race
       . . . and national origin,” all of his factual allegations concerned discrimination on the basis of his
       Puerto Rican national origin.
                                                            2
 1                                           BACKGROUND

 2          In reviewing the District Court’s grant of summary judgment in favor of RGRTA and

 3   Tiberio, “we construe the evidence in the light most favorable to the plaintiff[s], drawing all

 4   reasonable inferences and resolving all ambiguities in [their] favor.” In re Omnicom Grp., Inc.

 5   Sec. Litig., 597 F.3d 501, 504 (2d Cir. 2010) (quotation marks omitted).

 6          1. Rivera

 7          Lift Line is an RGRTA subsidiary that provides door-to-door public transportation

 8   services for elderly and disabled persons. Rivera, a Hispanic of Puerto Rican descent, started

 9   working for Lift Line as a bus driver in 1994 and remained in that position at all relevant times.

10   Sometime in 2001, Dominic Folino, the senior mechanic at Lift Line, began an affair with

11   Rivera’s then-wife, Kimberly. Kimberly and Rivera divorced in 2002 or 2003, after Rivera

12   learned about the affair, and Kimberly married Folino. Rivera also remarried, in 2006. Other

13   than a brief period in 2006, Rivera’s son lived with Folino and Kimberly from 2002 onward.

14   The affair predictably ignited a deep personal conflict between Rivera and Folino at work.

15          As relevant to his claims of discrimination, Rivera testified that between 2003 and 2007

16   Folino called him a “spic” twice and a “Taco Bell” at least five times. Rivera testified that there

17   were several occasions on which he pulled into the Lift Line garage to find Folino and Tim

18   Driscoll, another Lift Line mechanic, chanting “What’s that smell, look at the fat f***, there is

19   Taco Bell.” During his deposition, Talton confirmed that Folino openly referred to Rivera as a

20   “spic” and a “nigger spic” outside of Rivera’s presence on at least one occasion. Talton further

21   testified that Folino “looked at me and he said, ‘Mike, I'm not talking about you. A nigger can

22   mean anybody. I'm talking about that spic, Ralph Rivera.’”

23          Rivera also presented extensive contemporaneous evidence suggesting that Folino and

24   several other Lift Line mechanics regularly harassed and bullied him throughout this period, but

25   without using ethnic slurs. Rivera reported many of these instances of harassment to RGRTA

26   shortly after they occurred. For example, on April 23, 2003, Rivera filed an “Incident Report” in


                                                      3
 1   which he asserted that mechanic John Stiggins and another employee stopped and confronted

 2   him as he was driving out of the Lift Line parking lot after work. In May 2003 he followed up

 3   with a letter to Lift Line’s Human Resources Department, claiming that Folino and another

 4   mechanic had cursed and stared at him menacingly. In another letter four months later, Rivera

 5   complained that Folino had cursed at him again and tampered with his time card slot. Rivera

 6   also alleged that Lift Line had ignored his complaints of harassment. None of these 2003

 7   complaints referred to the use of ethnic slurs or harassment motivated by Rivera’s national

 8   origin.

 9             The following year, in June 2004, Folino filed an internal complaint of his own, claiming

10   that Rivera had threatened him. In September 2004 Robert Bilsky, Lift Line’s Vice President for

11   Human Resources, informed Rivera that he had become aware of conflicts between Rivera and

12   Folino due to “problems in [their] personal home lives.” Bilsky said that he could “find no proof

13   of exactly who is right or wrong in this harassment complaint,” but that he was “extremely

14   concerned” about the ongoing hostility between Folino and Rivera.

15             Although a change in shift times in late 2004 apparently reduced the frequency of

16   interactions between Rivera and Folino at work, the conflicts between the two men resumed in

17   2005. Between March 2005 and September 2007, Rivera filed seven complaints about Folino’s

18   conduct, again accusing Folino of threatening and harassing him. For example, Rivera claimed

19   that Folino sprayed Rivera with paint thinner, posted photos in the workplace of lavish gifts he

20   had purchased for Rivera’s son, stared menacingly at Rivera, swerved his car toward Rivera in

21   the parking lot, and generally undermined Rivera’s ability to do his job. Rivera’s internal

22   complaints employed the terms “prejudice,” “harassment,” and “discrimination,” but they did not

23   mention or suggest that Folino’s conduct involved ethnic slurs or was otherwise on account of

24   Rivera’s national origin. In his September 2005 complaint, Rivera attributed Folino’s behavior

25   to their personal conflict, asserting that Folino “insist[ed] to bring these very personal issues to
26   work . . . causing a very uncomfortable and hostile work environment.” Talton testified,


                                                       4
 1   however, that it was during this time period that Folino referred to Rivera as a “spic” and “nigger

 2   spic.”

 3            Rivera first formally accused Folino of harassment on account of national origin in

 4   March 2007, when he filed a complaint with the New York State Division of Human Rights

 5   (“NYSDHR”). The NYSDHR complaint attributed the harassment to “an old boys club,

 6   specifically of Italian American descent that have a conspiracy against me and are trying to have

 7   me fired from Lift Line.” As with Rivera’s earlier internal complaints, the complaint alleged that

8    Folino, Stiggins, Tiberio, and others had engaged in boorish or harassing behavior directed at

9    Rivera, but failed to mention the use of ethnic slurs by any of his co-workers.

10            NYSDHR notified Lift Line of Rivera’s complaint by letter dated March 7, 2007. Rivera

11   claims that Lift Line retaliated against him thereafter. He testified that (1) he was disciplined for

12   insubordination twice in approximately 2008 or 2009; (2) Lift Line rejected his request for a half

13   day off for a doctor’s appointment, in violation of a collective bargaining agreement; (3) he was

14   assigned particularly “dirty buses” to drive; (4) he once received his overtime pay two weeks

15   late; and (5) after he was involved in a minor driving accident, Folino unsuccessfully urged the

16   Lift Line road supervisor to drug test him, even though company policy did not mandate it.

17            2. Talton

18            Talton was hired by Lift Line in 2004 as a “fueler-washer” responsible for refueling,

19   cleaning, and servicing the buses when the drivers returned from their runs. Talton alleges that

20   co-workers taunted him with racial slurs. During discovery, Talton testified about two specific

21   incidents in which John Stiggins, a white mechanic, called him a “nigger.” He also presented

22   evidence that his white supervisor, defendant-appellee Tiberio, used the same racial slur.

23            In the first of two incidents involving Stiggins’s conduct on the Lift Line premises,

24   Stiggins told Talton, “I thought you was my boy,” and, “You know what I’m talking about,

25   nigger. You were supposed to look out for us.” The statement apparently referred to Talton’s

26   failure to cover for Stiggins when a Lift Line dispatcher was looking for him. When Talton


                                                       5
 1   responded, “Who . . . are you calling nigger?,” Stiggins aggressively approached Talton and said

 2   “We could do this right here.” In the second incident, Talton and Stiggins were talking casually

 3   when Stiggins abruptly announced that he had been “out drinking with Mingo [Sanhueza, a co-

4    worker] last night” and that Sanhueza had “started talking about niggers.” Stiggins claimed that

5    Sanhueza had said that he “wished all you niggers died.”

 6          Talton further testified that his supervisor, Tiberio, called him a “nigger,” and also told

 7   him to “[g]et over it” when he complained that his co-workers had used the slur. This testimony

 8   is consistent with a charge that Talton filed with the Equal Employment Opportunity

 9   Commission (“EEOC”) in May 2006, which asserted that his supervisor — presumably Tiberio

10   — responded to Talton’s complaint about racial harassment by laughing and then telling Talton

11   that he “should just ‘suck it up and get over it, nigger!’” In support of the defendants’ summary

12   judgment motion, Tiberio submitted an affidavit in which he denied that he ever used that or any

13   other racial slur and similarly denied that Talton complained to him about racial harassment.

14          Talton also claims that he was racially harassed after he told Lift Line’s management that

15   Sanhueza, a bus driver, kept a gun on one of the buses. After discovering the gun while cleaning

16   the bus, Talton immediately called Tiberio, who retrieved the gun and started an investigation.

17   Upset by the disciplinary hearing that followed, Sanhueza threatened Talton by shaping his hand

18   in the form of a gun and saying, “I’m going to kick your ass, nigger.” Sanhueza was initially

19   terminated as a result of the gun incident. In September 2005, however, Sanhueza’s union

20   settled with RGRTA, and Sanhueza was reinstated as a fueler-washer rather than a driver.

21   Somewhat ironically, Talton was made responsible for training Sanhueza in his new position. In

22   October 2005 Talton, Tiberio, and Sanhueza met to discuss the fact that some of the buses were

23   not adequately cleaned. After the meeting, according to Talton, Sanhueza threatened Talton and

24   again called him a “nigger.” Talton complained to Tiberio, who sought disciplinary action, and

25   Sanhueza was permanently terminated sometime, it appears, in autumn 2005.




                                                      6
 1          In May 2006 Talton filed his first charge of discrimination with the EEOC. The charge

 2   primarily recounted his encounters with Sanhueza, but also reported that other co-workers —

 3   including Tiberio, as described above — had called Talton a “nigger.” In both his EEOC charge

 4   and in his deposition during discovery in this case, Talton asserted that he had complained in

 5   hand-delivered letters to management about the incidents described above, but that Lift Line had

 6   failed to take remedial action.

 7          After the initial May 2006 charge, Talton filed two more EEOC charges of

 8   discrimination. The first of these charges, filed in August 2006, alleged that Tiberio warned

 9   Talton that he could lose his job for filing the initial EEOC charge. The last EEOC charge was

10   precipitated by internal complaints against Talton that were filed by Stiggins and Edwin Ayala, a

11   fueler-washer, claiming that Talton had made various menacing comments and “false

12   accusations” in the workplace. Their complaints quickly culminated in Talton meeting with

13   RGRTA’s Vice President of Regional Operations, Debie Himmelsbach, who told Talton that she

14   had “received reports from several employees . . . regarding behavior he had exhibited which

15   made them uncomfortable” and that he “needed to be more careful in his relationships with other

16   employees.” Talton charged that this counseling meeting with Himmelsbach was held in

17   retaliation for his first two EEOC charges.

18          Talton also points to at least four other acts of retaliation, not all of which were described

19   in his EEOC charges. First, he testified that he was disciplined three times for insubordination

20   after filing his EEOC charges. Second, he claims Tiberio distributed copies of at least one of

21   Talton’s EEOC charges to co-workers and directed the other fueler-washers not to interact with

22   him. Third, Talton submitted an affirmation from a co-worker asserting, among other things,

23   that Talton had been forced to clean buses containing blood and vomit after other employees had

24   refused to do so. Fourth, approximately one month after Talton filed his first EEOC charge, an

25   unidentified person called him a “nigger” and threw a brick at him.
26


                                                      7
 1          3. District Court Proceedings

 2          Rivera and Talton jointly filed an amended complaint in May 2008 and, after discovery,

 3   Tiberio and RGRTA moved jointly for summary judgment. The District Court granted the

 4   motion as to both plaintiffs, concluding that the harassment that Rivera allegedly experienced

 5   arose from a personal conflict rather than Rivera’s national origin, and that Talton had presented

 6   evidence only of “isolated incidents of crude and offensive language taking place over a period

 7   of several years.” Rivera v. Rochester Genesee Reg’l Transp. Auth., 761 F. Supp. 2d 54, 58

 8   (W.D.N.Y. 2011). After concluding that the plaintiffs could not “establish adverse employment

 9   actions, or a causal connection between those actions and their protected activity,” the court also

10   dismissed both plaintiffs’ retaliation claims. Id.

11          Both plaintiffs timely appealed.

12                                             DISCUSSION

13          1. Standard of Review

14          We review an award of summary judgment de novo. See Gorzynski v. JetBlue Airways

15   Corp., 596 F.3d 93, 101 (2d Cir. 2010). Summary judgment is appropriate “only where,

16   construing all the evidence in the light most favorable to the non-movant and drawing all

17   reasonable inferences in that party’s favor, ‘there is no genuine issue as to any material fact and .

18   . . the movant is entitled to judgment as a matter of law,’” McBride v. BIC Consumer Prods.
19   Mfg. Co., 583 F.3d 92, 96 (2d Cir. 2009) (quoting Fed. R. Civ. P. 56(c)); see Guilbert v.

20   Gardner, 480 F.3d 140, 145 (2d Cir. 2007) (“A genuine issue exists for summary judgment

21   purposes where the evidence, viewed in the light most favorable to the nonmoving party, is such

22   that a reasonable jury could decide in that party’s favor.”) (quotation marks omitted). Although

23   summary judgment is proper where there is “nothing in the record to support plaintiff’s

24   allegations other than plaintiff’s own contradictory and incomplete testimony,” Jeffreys v. City
25   of New York, 426 F.3d 549, 555 (2d Cir. 2005), district courts should not “engage in searching,




                                                          8
 1   skeptical analyses of parties’ testimony in opposition to summary judgment,” Rojas v. Roman

 2   Catholic Diocese of Rochester, 660 F.3d 98, 106 (2d Cir. 2011).

 3          2. Hostile Work Environment

 4          “In order to establish a hostile work environment claim under Title VII, a plaintiff must

 5   produce enough evidence to show that ‘the workplace is permeated with discriminatory

 6   intimidation, ridicule, and insult, that is sufficiently severe or pervasive to alter the conditions of

 7   the victim’s employment and create an abusive working environment.’” Gorzynski, 596 F.3d at

 8   102 (quoting Demoret v. Zegarelli, 451 F.3d 140, 149 (2d Cir. 2006)).4 In considering whether a

 9   plaintiff has met this burden, courts should “examin[e] the totality of the circumstances,

10   including: the frequency of the discriminatory conduct; its severity; whether it is physically

11   threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes

12   with the victim’s [job] performance.” Hayut v. State Univ. of N.Y., 352 F.3d 733, 745 (2d Cir.

13   2003) (quotation marks omitted). Moreover, the “test has objective and subjective elements: the

14   misconduct shown must be severe or pervasive enough to create an objectively hostile or abusive

15   work environment, and the victim must also subjectively perceive that environment to be

16   abusive.” Alfano v. Costello, 294 F.3d 365, 374 (2d Cir. 2002) (quotation marks omitted). Of

17   course, “[i]t is axiomatic that mistreatment at work, whether through subjection to a hostile

18   environment or through [other means], is actionable under Title VII only when it occurs because
19   of an employee’s . . . protected characteristic,” such as race or national origin. Brown v.

20   Henderson, 257 F.3d 246, 252 (2d Cir. 2001) (emphasis added).

21          With these principles in mind, and recognizing that there is no genuine dispute that

22   Rivera and Talton each subjectively perceived his environment to be hostile and abusive, we

23   review the hostile work environment claims of each plaintiff.


            4
               The same standards apply to the plaintiffs’ hostile environment claims arising under the
     NYSHRL, see Pucino v. Verizon Comm’cns., Inc., 618 F.3d 112, 117 n.2 (2d Cir. 2010), and to
     their claims arising under 42 U.S.C. § 1981, see Whidbee v. Garzarelli Food Specialties, Inc.,
     223 F.3d 62, 69 (2d Cir. 2000).
                                                     9
 1                  a. Rivera

 2          Rivera presented evidence that Folino, sometimes alone and sometimes with other Lift

 3   Line mechanics, harassed him based on his national origin and in a manner that interfered with

 4   his ability to do his job. We therefore disagree with the able and experienced District Judge that

 5   Rivera did not present any genuine dispute of material fact regarding whether the mistreatment

 6   included ethnic slurs or otherwise reflected ethnic animus.

 7          We recognize, however, that this is a close call. From 2003 to 2007, Rivera filed several

 8   complaints with RGRTA’s Human Resources Department regarding Folino’s conduct, none of

 9   which referenced Folino’s use of ethnic slurs or harassment based on national origin. Indeed,

10   Rivera’s testimony that Folino and others chronically directed ethnic slurs at him is somewhat

11   belied by his early assertions that the “hostile work environment” he experienced was a result of

12   his personal conflict with Folino. For example, one of Rivera’s complaints explicitly attributed

13   Folino’s harassment to their personal conflict, and criticized Folino for “bring[ing] these very

14   personal issues to work . . . causing a very uncomfortable and hostile work environment.”

15   Rivera’s NYSDHR complaint, which, in contrast to prior complaints, asserted that Folino’s

16   conduct constituted national origin discrimination, again made no reference to Folino’s use of

17   ethnic slurs or other ethnically based harassment. If the instances of ethnic name-calling were

18   “sufficiently severe or pervasive to alter the conditions of [Rivera’s] employment and create an
19   abusive working environment,” Gorzynski, 596 F.3d at 102 (quotation marks omitted), it is
20   reasonable to expect Rivera to have adverted to them at least once in his lengthy correspondence

21   with RGRTA’s Human Resources Department as well as the NYSDHR.

22          Still, this issue is left for the jury to decide at trial, since Rivera’s deposition testimony

23   about Folino’s use of ethnic slurs was not conclusory, and a reasonable jury could credit Rivera’s

24   testimony on this point, and discount the evidence demonstrating that Folino’s harassment was

25   not on account of Rivera’s national origin. See Redd v. N.Y. Div. of Parole, 678 F.3d 166, 178

26   (2d Cir. 2012). We arrive at this conclusion for three reasons.


                                                       10
 1           First, Rivera testified that Folino or Driscoll called him “spic” “probably like three

 2   times.” Although Rivera was unable to provide information about the specific timing and

 3   circumstances of these “spic” slurs, he testified more specifically that Folino and Driscoll

 4   together chanted another slur — “What’s that smell . . . there is Taco Bell” — at least once after

 5   Rivera pulled into a Lift Line garage. Rivera variously testified that he heard the same chant

 6   anywhere from “[e]very time” he pulled into the garage to “about five” times. We are obliged to

 7   consider the defendants’ alleged uses of slurs “cumulatively in order to obtain a realistic view of

8    the work environment,” Aulicino v. N.Y.C. Dep’t of Homeless Servs., 580 F.3d 73, 83 (2d Cir.

9    2009) (quotation marks omitted), and to determine whether they “alter[ed] the conditions of

10   [Rivera’s] employment and create[d] an abusive working environment,” Gorzynski, 596 F.3d at

11   102 (quotation marks omitted). Second, Rivera’s testimony was corroborated by Talton’s

12   deposition testimony, and that of other non-party witnesses who provided evidence about

13   ethnically and racially hostile comments made outside of Rivera’s presence, both about Rivera

14   and about Talton. See Schwapp v. Town of Avon, 118 F.3d 106, 111 (2d Cir. 1997) (“The

15   district court appears to have reasoned that because only the first four incidents occurred ‘in the

16   plaintiff's presence,’ only those four are relevant to this action. The district court's failure to

17   consider the totality of the circumstances in this case, including its selective treatment of the

18   evidence in the record, was in error and necessitates reversal.” (internal citations omitted)); Perry
19   v. Ethan Allen, Inc., 115 F.3d 143, 150–51 (2d Cir. 1997) (“Since one of the critical inquiries
20   with respect to a hostile environment claim is the nature of the environment itself, evidence of

21   the general work atmosphere is relevant.”). Third, in addition to the evidence of the use of

22   ethnic slurs, Rivera offered detailed testimony about extensive bullying and physical harassment

23   by Folino and others that occurred during the relevant period. A reasonable jury could conclude

24   that the alleged incidents of harassment in the record, including the slurs, constituted more than

25   “mere offensive utterance[s].” Hayut, 352 F.3d at 745; see Richardson v. N.Y. State Dep’t of




                                                       11
 1   Corr. Serv., 180 F.3d 426, 437 (2d Cir. 1999), abrogated on other grounds by Burlington N. &

 2   Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006) (“Burlington Northern”).5

 3          Rivera’s harassment claim does not present circumstances like those found appropriate

 4   for summary judgment in Jeffreys and Rojas. In Jeffreys, for example, we held that summary

 5   judgment was proper where the plaintiff’s case relied entirely on self-serving testimony and,

 6   prior to giving that testimony, the plaintiff made “multiple admissions” that were “inconsistent

 7   with his later testimony” and that he “failed to explain away” with “any plausible explanation.”

 8   426 F.3d at 555 n.2 (quotation marks omitted). The plaintiff, Percy Jeffreys, brought suit against

 9   several police officers who allegedly assaulted him with a flashlight before throwing him out of a

10   third-story window. Jeffreys’s account of the incident at his deposition differed on all points

11   from several accounts that Jeffreys gave shortly after the incident happened. On at least three

12   occasions Jeffreys “confessed to having jumped out of the third-story window,” and made “no

13   mention of any police misconduct.” Id. at 552. Similarly, “[a]t his arraignment, guilty plea, and

14   sentencing, Jeffreys . . . made no mention of any beating or defenestration,” id., and medical

15   records also appeared to belie his claim, id. at 552–53. During his deposition testimony,

16   moreover, Jeffreys was unable to provide any specific details about the incident, and the

17   testimony was corroborated only by two family members who submitted affidavits that

18   established, at best, what Jeffreys had told them about the incident sometime after it occurred.
19   Id. at 553. We concluded that “[i]n the circumstances presented in the instant case — where (1)
20   the District Court found nothing in the record to support plaintiff’s allegations other than

21   plaintiff's own contradictory and incomplete testimony, and (2) the District Court, even after

22   drawing all inferences in the light most favorable to the plaintiff, determined that no reasonable



            5
               We caution, however, that “‘[t]here is neither a threshold ‘magic number’ of harassing
     incidents that gives rise, without more, to liability as a matter of law, nor a number of incidents
     below which a plaintiff fails as a matter of law to state a claim.’” Richardson, 180 F.3d at 439
     (quoting Rodgers v. W.-S. Life Ins. Co., 12 F.3d 668, 675 (7th Cir. 1993), abrogated on other
     grounds by Burlington Northern, 548 U.S. 53).
                                                       12
 1   person could believe Jeffreys’[s] testimony, . . . the District Court did not err by awarding

 2   summary judgment.” Id. at 555 (alteration in original) (quotation marks omitted); see also

 3   Rojas, 660 F.3d at 105 (summary judgment properly granted to defendants where plaintiff

 4   “relied almost entirely on her own testimony,” which was contradicted by “contemporaneous

 5   letters and meeting notes” suggesting that the plaintiff had complained only of “general friction”

 6   with her supervisor, as opposed to sexual harassment).6

 7          Here, by contrast, Rivera does not allege the occurrence of something that he previously

 8   described as not happening. He claimed ethnic discrimination in his 2007 complaint to the

 9   administrative agency, as was required for purposes of exhaustion. In his administrative and

10   court assertions he has not been inconsistent in claiming that he was subjected to ethnic slurs.

11   Any variance in those assertions has been in the number of times he was subjected to such slurs.

12   That Rivera did not complain of ethnic slurs to RGRTA may lead a factfinder to find that claim

13   not credible, but there is no real, unequivocal, and inescapable contradiction of the sort we

14   contemplated in Jeffreys and Rojas, and matters of credibility are not to be determined on a

15   motion for summary judgment. In addition, unlike in Jeffreys or Rojas, Rivera’s testimony was

16   corroborated by other independent evidence, including the testimony of Talton.

17          Further, although RGRTA and Tiberio suggest that Rivera lacked detailed direct

18   evidence of a hostile work environment based on his national origin, his testimony and Talton’s

19   testimony provided that evidence. We have cautioned that a hostile work environment claim

20   need not be supported by direct evidence of explicit racial harassment. Circumstantial evidence

21   may do. See Raniola v. Bratton, 243 F.3d 610, 621–22 (2d Cir. 2001) (explaining that a hostile

22   work environment plaintiff may prevail by adducing “circumstantial proof that . . . adverse

23   treatment that was not explicitly sex-based was, nevertheless, suffered on account of sex”). Nor


            6
               Cf. Scott v. Harris, 550 U.S. 372, 380 (2007) (“When opposing parties tell two
     different stories, one of which is blatantly contradicted by the record, so that no reasonable jury
     could believe it, a court should not adopt that version of the facts for purposes of ruling on a
     motion for summary judgment.”).
                                                       13
 1   was Rivera required to demonstrate that his national origin was the only motivating factor. He

 2   needed to show only that “a reasonable fact-finder could conclude that race [or national origin]

3    was a motivating factor in the harassment.” See Terry v. Ashcroft, 336 F.3d 128, 150 (2d Cir.

4    2003) (emphasis added). Here, there was (barely) enough evidence — both the use of of ethnic

5    slurs and the broader bullying and physical harassment — from which a reasonable jury could

6    find that Folino harassed Rivera not merely because of their personal history, but also because

 7   Rivera was Puerto Rican.7 Raniola, 243 F.3d at 622. Considering that evidence, together with

 8   the evidence of a racially hostile work environment for Talton, his co-worker, in the light most

 9   favorable to Rivera, and resolving all ambiguities in his favor, we conclude that the District

10   Court erred in granting summary judgment to the RGRTA on Rivera’s hostile work environment

11   claim.

12                   b. Talton

13            Talton gave detailed and uncontradicted testimony indicating both that his supervisor

14   directed the word “nigger” at him, and that co-workers directed the word at him in a physically

15   threatening manner. For example, he specifically recounted that his co-worker, John Stiggins,

16   called him a “nigger” on at least two occasions, and that both times Stiggins threatened him with

17   physical violence, once by saying, “We could do this right here,” and another time by

18   referencing a co-worker’s statement that he “wished all you niggers died.” Similarly, Talton

19   testified that another co-worker, Mingo Sanhueza, called him a “nigger” and threatened him

20   physically by shaping his hand in the form of a gun. In addition, Talton testified that Tiberio, his

21   supervisor, called him a “nigger,” and that Tiberio also told him to “get over it” when Talton

22   complained about racial harassment by co-workers. The claim involving Tiberio was consistent

23   with Talton’s May 2006 EEOC charge, in which he alleged that Tiberio had responded to his

24   complaints of racial harassment by telling him to “suck it up and get over it, nigger!”



              7
             Although Rivera named Tiberio as a defendant pursuant to 42 U.S.C. § 1981, he
     produced insufficient evidence that Tiberio helped create a hostile work environment.
                                                    14
 1          The defendants contend that Talton’s hostile work environment claim was properly

 2   dismissed because, among other things, he was unable to provide enough details regarding

 3   Tiberio’s use of any racial slur. We disagree. Although it is true that Talton could not recall

 4   certain details of this incident during his deposition testimony, he provided enough details,

 5   which were supported by contemporaneous evidence in the form of an EEOC charge filed

 6   against Lift Line. A reasonable factfinder could conclude that Tiberio and other RGRTA

 7   employees directed the racial slur at Talton. See Richardson, 180 F.3d at 439–40 (vacating grant

 8   of summary judgment where plaintiff presented detailed evidence that her supervisor and several

 9   co-workers used racial slurs); cf. Singletary v. Mo. Dep’t of Corr., 423 F.3d 886, 893 (8th Cir.

10   2005) (supervisor’s use of racial epithets not sufficient to create racially hostile work

11   environment in violation of Title VII when none of the comments were made directly to African-

12   American employee). We emphasize that “[p]erhaps no single act can more quickly alter the

13   conditions of employment and create an abusive working environment than the use of an

14   unambiguously racial epithet such as ‘nigger’ by a supervisor in the presence of his

15   subordinates.” Richardson, 180 F.3d at 439 (quoting Rodgers, 12 F.3d at 675) (quotation marks

16   omitted). The use of racially offensive language is particularly likely to create a hostile work

17   environment when, as here, it is presented in a “physically threatening” manner. Hayut, 352

18   F.3d at 745.

19          With that in mind, whether the conduct taken together created a work environment that

20   was sufficiently hostile to violate Title VII is a question of fact for the jury. Redd, 678 F.3d at

21   178. Taking the evidence in the light most favorable to Talton and accepting his version of the

22   events as true, we conclude that the District Court erred in dismissing Talton’s hostile work

23   environment claims against RGRTA pursuant to Title VII and against Tiberio pursuant to 42

24   U.S.C. § 1981. See Patterson v. Cnty. of Oneida, 375 F.3d 206, 226 (2d Cir. 2004) (recognizing




                                                      15
 1   that individuals may be held liable under § 1981 for intentionally discriminatory acts, including

 2   those giving rise to a hostile work environment).8

 3          3. Retaliation Claims

 4          Rivera and Talton also appeal the District Court’s dismissal of their retaliation claims.

 5   At the outset, we note that in order to prevail on a retaliation claim, “the plaintiff need not prove

 6   that h[is] underlying complaint of discrimination had merit,” Lore v. City of Syracuse, 670 F.3d

 7   127, 157 (2d Cir. 2012), but only that it was motivated by a “good faith, reasonable belief that

 8   the underlying employment practice was unlawful,” Reed v. A.W. Lawrence & Co., 95 F.3d

 9   1170, 1178 (2d Cir. 1996) (quotation marks omitted). The good faith and reasonableness of the

10   plaintiffs’ beliefs that they were subjected to discrimination is not an issue on this appeal.

11          Title VII’s antiretaliation provision prohibits an employer from discriminating against an

12   employee for opposing any practice made unlawful by Title VII. Burlington Northern, 548 U.S.

13   at 59–60. To establish a prima facie case of unlawful retaliation under Title VII, “an employee

14   must show that (1) []he was engaged in protected activity; (2) the employer was aware of that

15   activity; (3) the employee suffered a materially adverse action; and (4) there was a causal

16   connection between the protected activity and that adverse action.” Lore, 670 F.3d at 157. The

17   requirement of a materially adverse employment action reflects the principle that “Title VII does

18   not protect an employee from ‘all retaliation,’ but only ‘retaliation that produces an injury or
19   harm.’” Tepperwien v. Entergy Nuclear Operations, Inc., 663 F.3d 556, 569 (2d Cir. 2011)

20   (quoting Burlington Northern, 548 U.S. at 67).



            8
               The defendants also raise in a footnote a perfunctory argument that summary judgment
     was nevertheless proper because they were entitled to an affirmative defense under Faragher v.
     City of Boca Raton, 524 U.S. 775 (1998), and Burlington Industries, Inc. v. Ellerth, 524 U.S. 742
     (1998). The defendants state that this Court “is free” to “elect[] to engage in the Faragher/Ellerth
     analysis” in order to uphold the dismissal of the hostile work environment claims on the basis of
     an affirmative defense under those cases even though the District Court did not reach the issue,
     pointing out that we may affirm on any ground supported by the record. However, as defendants
     have provided no argument on this appeal as to why they were entitled to prevail on the basis of
     that defense, we do not reach that issue.
                                                      16
 1          In Burlington Northern, the Supreme Court described a “material adverse action” as

 2   follows: “a plaintiff must show that a reasonable employee would have found the challenged

 3   action materially adverse, which in this context means it well might have dissuaded a reasonable

 4   worker from making or supporting a charge of discrimination.” Burlington Northern, 548 U.S.

 5   at 68 (citation and quotation marks omitted); see also Kessler v. Westchester Cnty. Dep’t of Soc.

 6   Servs., 461 F.3d 199, 207 (2d Cir. 2006) (noting that Burlington Northern announced a different

 7   standard of material adversity than that previously employed in this Circuit in, for example,

 8   Williams v. R.H. Donnelley, Corp., 368 F.3d 123, 128 (2d Cir. 2004)). Still, “[a]ctions that are

 9   ‘trivial harms’ — i.e., ‘those petty slights or minor annoyances that often take place at work and

10   that all employees experience’—are not materially adverse.” Tepperwien, 663 F.3d at 568

11   (quoting Burlington Northern, 548 U.S. at 68).9

12          In reviewing a grant of summary judgment, therefore, we are mindful that material

13   adversity is to be determined objectively, based on the reactions of a reasonable employee.

14   Burlington Northern, 548 U.S. at 69–70. But “‘[c]ontext matters,’ as some actions may take on

15   more or less significance depending on the context,” Tepperwien, 663 F.3d at 568 (quoting

16   Burlington Northern, 548 U.S. at 69), and “[a]lleged acts of retaliation must be evaluated both

17   separately and in the aggregate, as even trivial acts may take on greater significance when they

18   are viewed as part of a larger course of conduct,” id.

19          As a threshold matter, we note that in concluding that both plaintiffs’ retaliation claims

20   should be dismissed because neither “allege[d] any adverse employment action occurring prior

21   to his initial engagement in protected activity,” Rivera, 761 F. Supp. 2d at 58, the District Court,

22   no doubt inadvertently, misstated the applicable law. Title VII does not require that a causal

23   connection exist between a protected activity and an adverse employment action that occurred

24   before that activity. In any event, the defendants do not dispute that both Rivera and Talton


            9
               “[R]etaliation claims under the [New York State Human Rights Law] are generally
     governed by the same standards as federal claims under Title VII.” Schiano v. Quality Payroll
     Sys., Inc., 445 F.3d 597, 609 (2d Cir. 2006).
                                                    17
 1   engaged in protected activity — Rivera by filing a complaint with the NYSDHR,10 and Talton by

 2   complaining to management and filing a series of EEOC charges — and that they at least alleged

 3   that some material adverse employment action occurred thereafter.

 4                  a. Rivera

 5          Despite the District Court’s misstatement, we conclude that Rivera’s retaliation claim

 6   was properly dismissed. Rivera did not present evidence of any discrete actions that “well might

 7   have dissuaded a reasonable worker from making or supporting a charge of discrimination” after

 8   he filed his charge of discrimination with the New York State Department of Human Resources

 9   in March 2007. In urging otherwise, Rivera points to two disciplinary citations he received for

10   insubordination over a two-year period, his assignment to drive particularly “dirty buses,” one

11   late overtime payment, and Lift Line’s one-time refusal to give him a half-day off for a doctor’s

12   appointment.

13          Although there is some dispute about whether Rivera received one or two citations for

14   insubordination,11 he presented no evidence that they reflected anything other than RGRTA’s

15   “enforce[ment] [of] its preexisting disciplinary policies in a reasonable manner.” See Brown v.

16   City of Syracuse, 673 F.3d 141, 150 (2d Cir. 2012) (quotation marks omitted). Rivera testified

17   that one of the citations came about after he refused to attend a meeting with RGRTA managers

18   without his preferred union representative, rather than a union representative who had been

19   selected for him. Rivera also testified that he received the second citation after he again refused


            10
               The NYSDHR appears to have forwarded Rivera’s complaint to the EEOC, noting that
     doing so “creates a complaint separate and apart from the complaint filed with” the NYSHDR.
     In any event, Rivera’s administrative exhaustion of his Title VII claim is not at issue on appeal.
            11
                RGRTA submits that Rivera was suspended for insubordination only once, in 2008,
     after he “refused to participate in an investigatory interview with” his supervisor and other
     RGRTA managers and his union representative, “because he insisted that his legal counsel and
     union business representative also be present.” Rivera acknowledges that he declined to
     participate in an investigation without his attorney and preferred union representative, and that
     he received an insubordination charge for that refusal, but he testified that the “[s]ame thing”
     then happened a second time.
                                                       18
 1   to attend a meeting with one or more of his supervisors. Without more, no reasonable jury could

 2   conclude that these acts of discipline, either alone or in conjunction with the other acts of

 3   retaliation Rivera alleges, represented a departure from Lift Line’s normal disciplinary practices,

4    such that they might have “dissuaded a reasonable worker from making or supporting a charge of

 5   discrimination.” Burlington Northern, 548 U.S. at 68 (quotation marks omitted).12

 6          Accordingly, we affirm the District Court’s grant of summary judgment to the defendants

 7   on Rivera’s retaliation claim.

 8                  b. Talton

 9          By contrast, we disagree with the District Court insofar as it also granted summary

10   judgment to the defendants on Talton’s retaliation claim. Talton presented evidence, in the form

11   of deposition testimony, that Tiberio suggested that he could lose his job for filing complaints of

12   discrimination. Talton’s testimony echoed a previously filed EEOC charge in which he alleged

13   that Tiberio had once indicated “that [Talton] could get fired for the filing of the EEOC charge”

14   and “said that ‘this is you[r] job too.’” A reasonable juror could find both that Tiberio threatened

15   Talton with the loss of his job, and that this threat would “dissuade[] a reasonable worker from

16   making or supporting a charge of discrimination.” Burlington Northern, 548 U.S. at 68

17   (quotation marks omitted).

18          Talton also presented evidence that when he complained to Tiberio about his co-workers’

19   use of racial slurs, Tiberio told him to “suck it up and get over it, nigger!” In our view, such

20   discriminatory harassment from a supervisor may alone suffice to establish an adverse

21   employment action, as “unchecked retaliatory co-worker harassment, if sufficiently severe, may

22   constitute adverse employment action so as to satisfy the [third] prong of the retaliation prima

23   facie case.” Richardson, 180 F.3d at 446.

24


            12
                 In addition, there was no evidence that any of the alleged acts of retaliation had a
     material effect on Rivera’s job or standing. Rivera acknowledged that his pay was not reduced
     after he filed the charge or at any other time during his employment at Lift Line.
                                                      19
 1          In contrast to the evidence of Tiberio’s harassing response to Talton’s complaints was the

 2   evidence of Lift Line’s almost immediate response to Stiggins’s and Ayala’s complaints that

 3   Talton had made disturbing comments and “false accusations” in the workplace. Very shortly

 4   after those complaints were made against Talton, who had recently filed his EEOC charges,

 5   Himmelsbach, the Vice President of Regional Operations for RGRTA, arranged a meeting

 6   during which she admonished Talton. A record of the meeting was maintained in Talton’s

 7   personnel file. Based on the disputed record before us, a reasonable juror could infer that

 8   RGRTA’s swift response to the complaints by Talton’s co-workers was designed to, and did,

 9   send a message that Talton’s employment at Lift Line was in serious jeopardy as a result of the

10   EEOC charges. See Burlington Northern, 548 U.S. at 72–73 (action is materially adverse where

11   plaintiff “fac[es] the choice between retaining her job . . . and filing a discrimination

12   complaint”).

13          Accordingly, we vacate the District Court’s grant of summary judgment in favor of the

14   defendants on Talton’s retaliation claim against RGRTA, and also vacate its grant of summary

15   judgment dismissing Talton’s retaliation claim against Tiberio under Section 1981. See Hicks v.

16   Baines, 593 F.3d 159, 162–64 (2d Cir. 2010) (retaliation claims may also be asserted against

17   individuals pursuant to Section 1981).

18          4. Supplemental Jurisdiction over State Law Claims

19          Because, as discussed above, we vacate the District Court’s dismissal of Talton’s federal

20   claims under Title VII and Section 1981, we also vacate the judgment of the District Court

21   dismissing Talton’s state law claims. “[W]e have held that ‘the discretion to decline

22   supplemental jurisdiction is available only if founded upon an enumerated category of [28

23   U.S.C. § 1367(c)].’” Treglia v. Town of Manlius, 313 F.3d 713, 723 (2d Cir. 2002) (quoting

24   Itar-Tass Russian News Agency v. Russian Kurier, Inc., 140 F.3d 442, 448 (2d Cir. 1998)
25   (alteration in Treglia)). In view of our decision, we see no basis under that statute for declining
26   to exercise supplemental jurisdiction: the state-law discrimination claim does not “raise[] a novel


                                                       20
 1   or complex issue of State law,” does not “substantially predominate[] over the claim or claims

 2   over which the district court has original jurisdiction,” and does not present “exceptional

 3   circumstances” leading to “other compelling reasons for declining jurisdiction.” 28 U.S.C. §

 4   1367(c)(1), (2) & (4). Under these circumstances, “[t]he district court . . . should retain

 5   jurisdiction over the state discrimination claim.” Treglia, 313 F.3d at 723. For the same reasons,

 6   we vacate the summary dismissal of Rivera’s state law hostile work environment claim. But we

 7   affirm the judgment of the District Court dismissing Rivera’s claim of retaliation under state law

 8   for the same reasons that we do so with respect to his federal retaliation claim. See Salamon v.

 9   Our Lady of Victory Hosp., 514 F.3d 217, 226 n.9 (2d Cir. 2008) (“We typically treat Title VII

10   and NYHRL discrimination claims as analytically identical, applying the same standard of proof

11   to both claims.”); Schiano v. Quality Payroll Sys., Inc., 445 F.3d 597, 609 (2d Cir. 2006).

12                                            CONCLUSION

13          For the foregoing reasons, we AFFIRM the District Court’s judgment with respect to

14   Enio Rivera’s claims of retaliation, VACATE the District Court’s judgment with respect to

15   Rivera’s hostile work environment claims and Michael Talton’s claims, and REMAND for

16   further proceedings consistent with this opinion.




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