| Armstrong v Sensormatic/ADT |
| 2012 NY Slip Op 07758 [100 AD3d 492] |
| November 15, 2012 |
| Appellate Division, First Department |
| Ronald K. Armstrong, Appellant, v Sensormatic/ADT,Respondent. |
—[*1] Ogletree, Deakins, Nash, Smoak & Stewart, P.C., New York (Jennifer Rygiel-Boyd ofcounsel), for respondent.
Order, Supreme Court, Bronx County (Norma Ruiz, J.), entered December 23, 2010, whichgranted defendant's motion for summary judgment dismissing the complaint, unanimouslyaffirmed, without costs.
Plaintiff's deposition testimony and averments contained in an affidavit submitted inopposition to defendant's motion are too ambiguous to raise an issue of fact as to whether he hadengaged in a protected activity by complaining of preferential treatment towards women, or wasterminated in retaliation for that allegedly protected conduct (see Forrest v Jewish Guild for the Blind, 3 NY3d 295, 313 [2004];International Healthcare Exch., Inc. v Global Healthcare Exch., LLC, 470 F Supp 2d 345,357 [SD NY 2007]). Although plaintiff testified that a subordinate had received preferentialtreatment based on her gender and race, he did not testify that he had communicated the allegedlydiscriminatory conduct to defendant's human resources department. Further, none of theaverments relating to the alleged preferential treatment of a female temporary worker are set forthin his deposition testimony. Accordingly, his affidavit "raises only a feigned issue of fact,"insufficient to withstand summary judgment (Schwartz v JPMorgan Chase Bank, N.A., 84 AD3d 575, 577 [1stDept 2011]). The alleged statement by plaintiff's manager that plaintiff "had let the cat out of thebag" about the manager's "discriminatory hiring and favoritism" fails to raise an issue of fact, asplaintiff has not pointed to any cognizable instances of discriminatory conduct or complaintsabout such conduct.
Plaintiff also fails to rebut defendant's evidence that it had terminated him for legitimate,nondiscriminatory reasons—namely, his vulgar and inappropriate messages to coworkers(see Forrest, 3 NY3d at 313; Bendeck v NYU Hosps. Ctr., 77 AD3d 552, 553-554 [1st Dept2010]). Plaintiff's reliance on an alleged statistical case of racial discrimination in defendant'ssales forces is insufficient to raise an issue of fact as to whether defendant's reasons werepretextual. Indeed, the statistical pool on which plaintiff relies is too small to support aninference of discrimination (see Pollis v New Sch. for Social Research, 132 F3d 115,121-122 [2d Cir 1997]).
Plaintiff's failure to promote claim was properly dismissed as time-barred. The continuingviolations doctrine does not apply to toll the running of the statute of limitations on [*2]this claim, as plaintiff has failed to submit sufficient evidence of apattern or practice of discrimination (see Van Zant v KLM Royal Dutch Airlines, 80 F3d708, 713 [2d Cir 1996]; Sculerati v New York Univ., 2003 NY Slip Op 50928[U], *7-8[Sup Ct, NY County 2003]).
We have considered plaintiff's remaining arguments and find them unavailing.Concur—Friedman, J.P., Sweeny, Moskowitz, Freedman and Román, JJ.