Full opinion text
DECISION AND ORDER DENYING NEW TRIAL ON RACE AND NATIONAL ORIGIN DISCRIMINATION CLAIMS; DENYING DEFENDANT’S MOTION FOR JUDGMENT AS A MATTER OF LAW ON RETALIATION CLAIM; GRANTING DEFENDANT’S MOTION FOR REMITTITUR; AND DENYING MOTION FOR ATTORNEY’S FEES WITHOUT PREJUDICE TO RENEW McMAHON, District Judge. INTRODUCTION On March 10, 2010, following a multiweek trial, a jury found. Starwood Hotels & Resorts Worldwide, Inc. (“Starwood” or “Defendant”) liable to Moisés Mendez (“Plaintiff’), who was employed at the Westin Times Square branch of the hotel management chain, on a single claim. Mr. Mendez’s complaint raised a variety of claims, including discrimination based on national origin (Ecuadorian) and race (Latino) and disability (diverticulitis and diabetes). The jury found for defendant on all of those claims. They found for Mendez on just one claim: that the hotel had impermissibly retaliated against Mendez for engaging in a protected activity (complaining about the harassment that underlay his other claims). The purported retaliation consisted of installing a hidden camera above his work station, where it remained for eight days before co-workers found and disabled it. Defendant claimed that the camera was installed to help management investigate Mendez’s claims about vandalism at his work station and locker, but the jury obviously rejected that defense. For this single transgression, the jury awarded Mendez $1 million in compensatory damages and $2 million in punitive damages. On April 7, 2010, Starwood moved, pursuant to Federal Rule of Civil Procedure 50(b), for entry of judgment as a matter of law in its favor, arguing principally that (1) the jury’s verdict was based upon “surmise and conjecture,” and (2) that installation of the hidden camera in and of itself was legally insufficient to constitute actionable retaliation. (See Docket No. 117.) In the alternative, Starwood asked this Court to remit the jury’s award of damages or order a new trial on the issue of retaliation, pursuant to Federal Rule of Civil Procedure 59. (Id.) Two weeks later, on April 21, 2010, Plaintiff, who had opposed both of Star-wood’s post-trial motions, moved for an award of attorneys’ fees. (See Docket No. 121.) Shortly thereafter, on April 26, 2010, the Court notified the parties, pursuant to Federal Rule of Civil Procedure 59(d), that it was sua sponte considering directing a new trial on the issue of racial/national origin discrimination — as to which the jury had found in favor of defendant — on the ground that the jury’s verdict in favor of Defendant on that claim was against the weight of the evidence. (See Docket No. 128.) The parties were ordered to address this issue in supplemental briefs. After an exhaustive review of the trial record and consideration of the parties’ presentations, the court (1) declines to order a new trial on the issue of racial/national origin discrimination; (2) dismisses the motion for judgment as a matter of law on the retaliation claim; (3) grants the motion to remit the damage award on the retaliation claim; and (4) denies the motion for an award of attorneys’ fees without prejudice. FACTS The following statement of facts is drawn from the trial record. Moisés Mendez began working at the Westin as a “food runner” beginning in June 2003. (Tr. 394:21; 408:12-14.) A “food runner” is what it sounds like — an individual who carts food to different areas or banquet halls of the hotel. (Tr. 399:7-11 (Mendez).) For two weeks after he finished the hotel’s orientation program for food runners, Mendez worked a morning shift, from 5:30 a.m. to 1:30 p.m. (Tr. 409:9-14.) By the end of the second week, Mr. Mendez explained that his “body was not taking that schedule” (Tr. 409:16). Intending to quit, he gave notice to the then-executive chef, David Ribbens (Tr. 408:15-17 (identifying Ribbens as the executive chef); 410:4-5 (providing notice to Ribbens)). Five days after he gave notice, Chef Ribbens asked Mendez why he was leaving; when Mendez identified his schedule as the precipitating cause, Chef Ribbens gave plaintiff a different work slot. (Tr. 410:9-20.) Mendez continued to work as a food runner at the Westin for approximately eight months, until he accepted a position as a baker at the hotel in early 2004. (Tr. 408:12-14.) Mr. Mendez continued to work as a baker at the hotel through the date of the trial. (Pl.’s Br. at 1.) As far as the court is aware, he remains employed at the Westin to this day. Between 2004 and 2008, Mendez claims to have been subjected to harassment and a hostile work environment on the grounds of his race and national origin. His retaliation claim at trial related solely to an incident that took place in the spring of 2008, after he filed several complaints with the New York State Division of Human Rights. Mendez also claimed to have been subjected to harassment and a hostile work environment on the ground of disability, and much of the most graphic and disturbing testimony at trial focused on the teasing plaintiff suffered about some sort of fistula or scar on his gut, which resulted from surgery for plaintiffs diverticulitis. This wound was referred to by one or more ribald and insensitive coworkers or supervisors as plaintiffs “mangina.” However, the jury rejected plaintiffs disability discrimination claim and the court did not sua sponte raise the issue of ordering a new trial on that issue. Therefore, this opinion will not catalogue the extensive testimony that relates to plaintiffs disability discrimination claims (including hostile work environment based on disability) — I simply note that this testimony was extensive and disturbing. I. HOSTILE WORK ENVIRONMENT The following timeline is helpful in assessing plaintiffs claim of hostile work environment on the ground of race (Latino) or national origin (Ecuadorian): Timeline of Hostile Work Environment Claim June 2003 Mendez hired as a food runner at the Westin (Tr. 394:21; 408:12-14.) Dec. 2003 Mendez told “No Spanish in the kitchen” (Tr. 413:2-3; Tr. 414:14-17; 631:16-632:5.) Early 2004 Mendez is promoted to baker (Tr. 427:15.) Verbal harassment by Blanco (Tr. 436:8-437:24.) Late 2004 or Threat by Rodriguez mid-2005 (Tr. 531:2-5.) Jan. 2005 Mendez finds three notes in his locker (PX10, PX 102 & PX 103.) April 2006 Threat by Morales (Tr. 531:17-18.) 2006-2007 Other employees told not to speak Spanish in the Service Express Department (Tr. 423:25-424:5.) June 2007 Mendez finds one note in his locker (PX 9.) Rotolo makes a threatening gesture (Tr. 525:16-17.) October 2007 Rotolo: “Ecuadorians are dumbs [sic]” (Tr. 513:8-11; 770:15-18.) December 2007 Writing on oven: “Sir Moisés Miss Baker” (Tr. 651:14; 733:3-7.) June 2008 Kleinman punches Mendez with salad bowl (Tr. 559:7-13; 56-17.) Between 2005 and 2007 Pornography left at Mendez’s work station and locker on multiple occasions (Tr. 501:6-12; 573:3; 725:11-15.) Unidentified Verbal harassment by Blanco, Craddock, Monetta, Morales, Tello, and Seguro (Tr. 453:1-19; 454:11-13; 455:7-456:14.) Unidentified Tello pushes Mendez (Tr. 538-539.) What follows is a summary of the testimony about the above-recited incidents. I have grouped them by the type of harassment or hostility that they purport to evidence. A Prohibitions on Speaking Spanish “No Spanish in the Kitchen” (2003) While he was a food runner, Mendez said that he heard “different languages” being spoken “openly,” “every day” in the kitchen, including “Chinese, Filipino, [and] African.” (Tr. 411:1-16.) Mendez himself spoke Spanish in the kitchen with a number of people in the early days of his employment, when he was a food runner. (Tr. 411:14-412:3.) Mendez testified that Chef Ribbens and Executive Sous Chef Joanne (he did not recall her last name (Tr. 408:22-23)) were present when other languages were spoken in the kitchen. Mendez testified that, in December 2003, Chef Ribbens ordered Mendez and another food runner, Melvin Morales, to stop speaking Spanish in the kitchen. (Tr. 413:2-3.) Specifically, Mendez stated that Chef Ribbens “yelled, No fucking Spanish in the kitchen, with fingers pointed at me.” (Tr. 414:14-17; 631:16-632:5.) Ribbens testified that the incident never occurred (Tr. 2135:16-20), and insisted that he had never instructed Mendez not to speak Spanish in the kitchen (Tr. 2135:21-23). One week after the incident with Chef Ribbens, he was speaking Spanish in the kitchen again, although he was not sure with whom (it might have been Pastry Chef Carla Burrowes). (Tr. 418:15-17.) Mendez stated that when Chef Joanne overheard the exchange, she “reminded me [Mendez] that Mr. Ribbens, my boss, Executive Sous Chef Ribbens told me that I’m not supposed to speak Spanish in the kitchen. She reminded me that I was on the union work probation, that was six months because the hotel was new, and if I kept speaking Spanish in the kitchen, the union would do nothing for me because I was still on job probation.” (Tr. 418:24-419:5.) Burrowes testified and denies that anyone had ever told her not to speak Spanish in the kitchen. (Tr. 2178:2^4.) Regarding the incident with Chef Joanne, Burrowes explained that she understood the chef to be asking that the employees not speak Spanish in front of her, because she didn’t understand what they were saying — not that the speaking of Spanish was prohibited. (Tr. 2183:12-14.) Mendez testified that he and Morales went to human resources (“HR”) shortly after the incident with Chef Ribbens (Tr. 415:1-2), where they spoke with director Nancy Kiska and Assistant Director Maria Lavides. (Tr. 416:6-20.) According to Mendez, they spoke to HR for “about two minutes, maybe less” (Tr. 417:4-5), and Ms. Kiska promised to “follow-up” on their complaint at the close of their conversation (Tr. 418:7-8); when asked whether Kiska ever got back to him, Mendez responded: “Not up to today.” (Tr. 418:12.) After the conversation with Chef Joanne, Mendez approached the Food and Beverage Director of the Westin, John Sheedy. (Tr. 419:25-420:1-4.) Mendez recalls that he was accompanied by several union delegates, including David Motes and Percival Small, when he went to speak with Mr. Sheedy. (Tr. 420:23-2.) Mendez testified that he told Sheedy about his meeting with Kiska (the one Kiska denies having) regarding Chef Ribbens’ proscription on speaking Spanish in the kitchen. (Tr. 421:7-14.) Mendez observed Mr. Sheedy taking notes as he [Mendez] spoke. According to Mendez, Sheedy “advised me [Mendez] to go back to HR to complaint ] to Ms. Kiska again.” (Tr. 421:17-21.) However, Mendez did not return to Kiska’s office after the meeting with Sheedy, because he was “with [union] delegates and they advised me that Ms. Kiska wouldn’t do anything.” (Tr. 421:24-25.) Instead, he and the delegates took the elevator to the eighth floor to complain to the hotel’s general manager, John Sweeney. (Tr. 422:3-15.) Mendez and the delegates told Sweeney “that we went to Ms. Kiska the first time and now we just came from the office of Mr. John Sheedy, the food and beverage director, and then we went to see him.” (Tr. 422:25-423:3.) Mendez testified that Sweeney “talked to us. That’s a long time, but he advised me and my delegates to go back to HR, and he will make sure Ms. Kiska is taking care of this.” (Tr. 423:6-8.) Mendez did not say whether he followed Sweeney’s advice to go back to Kiska. Both Sheedy and Kiska testified at trial. Sheedy claimed that he never spoke with Mendez about the incident. (Tr. 1882:23-1883:9; 1898:16-1899:2.) Kiska denied that she ever met with Mendez, as he claimed; she testified that she first became aware of Mendez’s allegation about not speaking Spanish during trial preparation. (Tr. 1539:1-9.) Kiska also testified that she never spoke with Sheedy regarding Mr. Mendez’s complaint. (Tr. 1539:13— 17.) According to Mendez, neither Sheedy nor Sweeney contacted him after he met with them. However, Mendez believed that Sheedy spoke to Chef Ribbens about the issue, because Ribbens “went next to where 1 [Mendez] was working. He says: Moisés, you went to complain to my boss. You complained to my boss. OK, Moisés. OK.” (Tr. 423:21-23.) Chef Ribbens testified that he had no knowledge of any conversation between Mendez and Sheedy, although he did not specifically deny Mendez’s testimony about an exchange between the two of them. (Tr. 2136:8-12.) Whatever happened, Mendez acknowledged that after these two incidents, neither Chef Ribbens nor Chef Joanne nor anyone else ever told him not to speak Spanish in the workplace. (Tr. 636:18-637:20.) Ban on Spanish in the Service Express Department (2006, 2007) In 2006 and 2007, two to three years after the incidents described above, there was another incident involving a purported instruction not to speak Spanish. (Tr. 74:14-25 (2006); Tr. 78:19-79:24 (2007).) This instruction was not addressed to Mendez, but (according to Mendez) to two other Hispanic employees, Giovanni Toro and Luze Ayala. Toro and Ayala worked in the Service Express Department— which is referred to colloquially as the “command center” — as telephone operators. Mendez testified that both Toro and Ayala told him they were prohibited from speaking Spanish. (Tr. 424:11-22.) Ayala testified at trial. She recounted that four of her managers — Michael Scott, Mary Schlesinger, Kathleen Schafer, and Oswaldo Mera — told her that she could not speak Spanish “in the [Service Express] department.” (Tr. 72:18-24.) The first manager to tell her to stop speaking Spanish in the command center was Michael Scott, who told her sometime during 2006, after he overheard a non-work-related conversation between Ayala and Olga Thomas, another employee. (Tr. 74.) No adverse action was taken against Ayala for speaking Spanish in the workplace. (Tr. 98:23-99:4.) Ayala also heard Scott say that Spanish should not be spoken in the command center on a second occasion in 2006. This time, the offender was Jessica Ocasio, who was speaking to her mother in Spanish over the telephone. (Tr. 76:4-77:11 (discussing the call); Tr. 75:17-19 (identifying that it took place in 2006).) Ayala explained that the command center was not supposed to be used for personal calls. (Tr. 99:11-13.) She did not know whether Ms. Ocasio was disciplined for making personal calls, or for speaking Spanish while doing so. (Tr. 98:17-19). Ocasio, who also testified, confirmed that Scott told her not to speak Spanish while she was making a personal phone call to her mother. (Tr. 121:22-122:8.) Ayala was also told to refrain from speaking Spanish at a meeting on July 30, 2007. (Tr. 78:19-79:24.) The purpose of the meeting was to provide Mary Schlesinger, the new director of the command center, with an opportunity to communicate “the changes that she wanted to do in the department and just general things she wanted to change.” (Tr. 78:19-24.) “Towards the end of the meeting,” Ms. Ayala recalled that Ms. Schlesinger “said that we couldn’t speak Spanish in the command center.” (Tr. 79:20-24 (Ayala); accord 119:17-19 (Ocasio).) Two days after the meeting, Ayala and Toro told Schlesinger “that we felt uncomfortable in regards to the meeting, what she had said towards the end of the meeting [about not speaking Spanish], and she denied it. Then, after she denied it, we kept conversating [sic] back and forth that, you know, we weren’t comfortable that it wasn’t fair, that why could we only speak to guests. It is our native language. And then she said that it was just a misunderstanding.” (Tr. 85:19-25.) According to Ayala, Schlesinger stated that “she would never discipline anyone for speaking Spanish.” (Tr. 102:13-15.) Later in the week, having heard nothing further from Schlesinger, Ayala and several other employees “wrote a letter to Star-wood corporate.” (Tr. 86:12-13; 103:11-15.) The letter was drafted by Giovanni Toro and signed by Toro, Ayala, Jessica Ocasio, Evelyn Berry-Whitby, Tiana Hal-pin, and Janett [sic] Rubio. (Tr. 86:22-23, 129:11.) The letter addressed “how we could not speak Spanish,” which caused her and the other signatories to feel “discriminated [against] because no other languages were mentioned.” (Tr. 86:18.) Ocasio testified that the letter was given to Nancy Kiska. (Tr. 129:17-18.) Kiska recalled receiving the letter. (Tr. 1317:23-25.) However, she testified that she did not receive the letter directly from the employees, but instead saw it when she received copies of complaints filed by the employees with the New York State Division of Human Rights, to which the letter was attached. (Tr. 1510:13-21.) Kiska testified that she “met with everyone in the department [command center]” (Tr. 1321:5-6; see also Tr. 1320:24; 1326:17; 1510:23-1511:1; 1622:10-15) to tell them that the hotel had “no language policy,” and that, “[a]ll of our associates can speak their native language.” (Tr. 1382:17-19.) She also testified that this complaint was the first time she had heard from hotel employees that their managers were prohibiting them from speaking Spanish. (Tr. 1516:3-6.) Kiska’s assistant, Maria Lavides, confirmed that this meeting took place. (Tr. 1732:13.) Hazel Hazzard is a Vice President of the Hotel, Restaurant, and Club Employees Union Local 6, with responsibility for covered employees at the Westin. (Tr. 1654:16-1655:2.) Hazzard learned at some point (she could not recall when) that “in the context of management in a meeting telling employees that they cannot speak English [Spanish], something like that effect.” (Tr. 1657:2-4.) She spoke with Nancy Kiska regarding the complaint, and what followed was “a union meeting with Nancy, human resources present, and the members and we took each member’s statement.” (Tr. 1657:21-22.) At that meeting, Hazzard recalled “Nancy saying that it’s against Starwood policy for any one of her managers to imply that employee can’t speak in their own language.” (Tr. 1658:2-4.) Hazzard also testified that, aside from this incident, she had received no other employee complaints regarding the speaking of Spanish or any other language. (Tr. 1658:19-25.) Ocasio testified that “several days after we gave the complaint to HR,” a manager named Mary “said we could [speak Spanish].” (Tr. 136:13-18.) The record, fairly read, reveals that Mendez was told not to speak Spanish on one or two occasions very early in his employment (well beyond the statute of limitations applicable to this lawsuit), and one of these two incidents was understood differently by Mendez’s co-worker (who was present) than it was by Mendez. It also reveals that at a later time, when Spanish-speaking employees other than Mendez were told not to speak Spanish, they complained to management and the directive was immediately revoked. B. Name-Calling Mendez testified that he was subject to verbal harassment over the course of his employment once he became baker in April 2004. (Tr. 427:15 (identifying Mendez’s start date as a baker).) Charlie Blanco (2004) Much of the harassment came from another cook named Charlie Blanco, who was the union delegate for the kitchen workers. In the first months of 2004, Blanco, a cook at the Westin, called him a “fucking Ecuadorian punk” while the two men were in Chef Joanne’s office. (Tr. 436:8^137:24; 440:1-9.) Mendez testified that he walked into the office and “Charlie Blanco slammed the door closed with very — with I mean very powerful slam. I mean — and four of us [Mendez, Chef Joanne, Charlie Blanco and Abel Toroshima], we stay inside chefs office and Charlie very upset because somebody told him that I say something about him not being a good delegate or something, a fair delegate, and the next thing I recall is that he says that I was a fucking Ecuadorian punk in a very loud and disrespectful way.” (Tr. 440:3-9.) In response, Mr. Mendez testified that he asked Chef Joanne, “Why you don’t say nothing? And she says, What do you mean? I say, He’s calling me a fucking Ecuadorian punk. And she says, And what that means? I said, Chef, I’m not a fucking Ecuadorian punk. And yeah, she did nothing.” (Tr. 441:14-18.) Mendez initially testified that he “believe[d] that we went to Ms. Kiska or that time, yes, but I’m not a hundred percent sure that I did.” (Tr. 442:23-24.) On redirect, he admitted that he did not report the incident to HR, because “I thought I don’t need to go downstairs because my boss, executive sous chef was present when Charlie Blanco told me that I was a fucking Ecuadorian punk. And I protested to my boss. I mean that was her to report it to Ms. Kiska.” (Tr. 893:17-20.) Mendez testified that that was not the only time Blanco made derogatory comments about him in the context of his national origin. When Mendez had a flare-up of his diverticulitis, he asked Blanco, as the union delegate, to help him convince the Chef that Mendez should go home (Tr. 443:5-19), only to “hear Charlie Blanco making this comments about the Ecuadorian bitch shedding blood and menstruating through his ass. When he says this the sous chef Samuel laughed so loud and he has a red juice in his mouth and he spit all the juice over the working table and Charlie Blanco goes that’s it, that’s it, that’s the bitch’s blood, the Ecuadorian bitch’s blood.” (Tr. 445:3-9.) Mendez was not the only kitchen employee who was the butt of Blanco’s bigoted statements; according to plaintiff, Blanco referred to a black kitchen worker named Samuel, whose last name may be Omar (Mendez was not sure), as “monkey, ape, King Kong.” (Tr. 447:25.) Mendez. recalled that “one specific day I remember that Charlie was frying, deep frying chicken wings and also plantains for the cafeteria. I believe — I’m sure that Samuel, as we call him Sam, he went and take one chicken wing and he says you don’t have to take chicken wings. The monkey eats the bananas.” (Tr. 448:1-5.) Sam told Mendez that he was going to report the incident to HR. (Tr. 449:1-2.) The record does not reveal when it took place. Other Employees Mendez testified that he was called derogatory, anti-Latino names by people other than Blanco (Tr. 452:17-19), including: “Mexican piece of shit, a Mexican burrito, Ecuadorian chihuahua, Ecuadorian Speedy Gonzalez, in many, many different ways.” (Tr. 452:22-24). Two other kitchen workers, Kyle Craddock (who is African American) and Anthony Monetta (Caucasian) would say things like “Mexican, Peruvians, Ecuadorians, Panamanians, the same garbage, the same shit.” (Tr. 453:1-19.) Mendez testified that Chef Ribbens witnessed Craddock and Monetta calling him “burrito” and “Speedy Gonzalez,” and responded by laughing. (Tr. 454:11-13.) Mr. Mendez did not say how many times this happened or provide a date when any such name-calling occurred. Craddock, who testified, denied having referred to Mendez as “Speedy Gonzalez,” “Ecuadorian chihuahua,” “Ecuadorian burrito,” “Ecuadorian quesadilla,” or saying anything “derogatory towards Hispanics in the workplace.” (Tr. 1921:16-25; 1942:10-1943:5.) Craddock also denied ever having said, “Peruvians, Panamanians, and Ecuadorians, all the same shit” or “anything like it.” (Tr. 1922:2-6.) But Ribbens— who initially denied overhearing other employees refer to Mr. Mendez as “Ecuadorian burrito,” “Ecuadorian Chihuahua,” “Speedy Gonzalez,” or a “Mexican piece of shit” (Tr. 2083:1-13) — admitted on cross-examination that he was present when Minetta, Craddock and others called Mendez “Speedy Gonzalez” and “burrito.” (Tr. 2132:3-10.) Mendez, who testified that he never said anything derogatory about any of his coworkers (Tr. 5455:3-4), was also called derogatory Spanish names on several occasions by Melvin Morales, a Puerto Rican coworker. (Tr. 456:24-25 (testimony regarding names); 457:8 (Morales’ ethnicity).) These included asaroso (male prostitute), puñal (gay) and maricón (faggot). (Tr. 455:7-25 (listing the names); 456:24-25 (identifying Morales).) One of Mendez’s coworkers, Theodore (Teddy) Emma-nus, put this testimony in context by testifying that Mendez and Morales were friends, who were “always laughing and you know, together.” (Tr. 1836:25-1837:1.) A Dominican coworker, Pedro Segura, testified that he once heard Mendez call Morales a “fucking Puerto Rican.” Emmanus also said that Mendez made an anti-Hispanic remark (I will have you deported) to Fernando Tello, a Mexican coworker. (Tr. 2218:5-13.) Mendez testified that Tello, a steward at the hotel, told Mendez “boyra [sic] chengar [sic],” (which Mendez translated as “I’m going to fuck your wife,” (Tr. 455:7-456:14)). Mendez also testified that Mr. Morales, Mr. Tello and Pedro Seguro referred to him as “chingao,” which he translated as one who has anal sex. (Tr. 455:21-23 (listing the name); 457:9-19 (identifying the individuals).) Mendez never heard these phrases used to describe any other Hispanic members of the kitchen staff (Tr. 674:2-5), including Pedro Palacio, Abel Toroshima or Charlie Blanco (Tr. 679:2-11). However, Mendez acknowledged that use of the Spanish word for “faggot” was commonplace in the kitchen; he agreed that it was “just a word that people use when they get angry at someone.” (Tr. 676:9-19.) He also testified that he had heard Mr. Morales, Mr. Tello and Mr. Seguro use other Spanish words with sexual connotations— puñal and maricón (gay) and asaroso (male prostitute) — about others, including coworkers who were not Hispanic. (Tr. 678:13-18.) Again, neither the number of times this occurred nor the dates on which it occurred were provided. When asked whether he complained to anyone at the hotel about having been called these names, Mr. Mendez stated that “Well, Kyle Craddock and Anthony Monetta, my boss, executive Chef Ribbens, was present, so — and Chef Joanne so I always complained to her that they were discriminating me based on my race or my nationality or my color.” (Tr. 458:14-17.) Mendez also testified that he spoke to Nancy Kiska or someone else in HR about the situation. Specifically, he stated that “I have the thing in my head, I did talk to her, HR, someone in HR about this.” (Tr. 672:3-8.) Mendez did not recall the specific name of anyone with whom he spoke, nor was he able to identify a date (approximate or otherwise) on which he might have made such a complaint. (Tr. 672:9-15.) Aside from epithets with sexual connotations, Mr. Mendez testified that he overheard Chef Rotolo say, “Ecuadorians are dumbs [sic].” (Tr. 513:8-11; 770:15-18 (acknowledging that Rotolo was having a conversation with Pedro Palacio at the time the comment was made).) The comment was made in the context of a discussion about a soccer match. Mendez reported the insult to Chef Tujaque, one of his supervisors, later that day (Tr. 514:14— 21.) He gave varying testimony about whether he did or did not take his complaint to HR. (Compare Tr. 774:5-10 (did not report) with Tr. 909:21-13 (told Kiska and Hazzard about this insult).) Hazzard denied ever hearing about this incident from Mendez (Tr. 1686:25-1687:2.), as did Chef Tujaque (Tr. 2333:8-11). Chef Rotolo denied that he ever said, “Ecuadorians are dumb.” (Tr. 959:18-21.) Finally, on unspecified dates between 2005 and 2007, someone left pornography on Mendez’s locker and at his workstation. Although Mendez did not specify how many times this occurred, he claimed to have received “many” pieces of pornography in this manner. (Tr. 501:6-12; Tr. 573:3 (describing the volume of incidents); Tr. 725:11-15.) One of those incidents— the only one about which he specifically testified — had national origin connotations. Mendez received a photograph that he described as follows: “There was two men having sex. One of the men was a tall, tall very tall man, white man, and the other person was a midget. And this person, the midget, was having oral sex with this big man, and they put my name in there. And the penis says Ecuadorian and the midget part they put my name, Moises Mendez.” (Tr. 573:4-10.) Mendez testified that he saw one of his coworkers, Melvin Morales, leave the pornography on his work station. (Tr. 503:5-7.) Mendez complained to Chef Ribbens and Nancy Kiska (Tr. 502:24-25), as well as to a man whose surname was either “DiCarlo” or “Carlo,” and who was identified as “the HR manager” or “human resources director or something.” (Tr. 501:24-502:12.) Mendez’s attorney later identified the man in question as Derrick Carlo. (Tr. 572:16-17.) Mendez testified that he gave copies of the pornographic material to both Carlo and Kiska. (Tr. 572:13-15; 573:1-10.) However, Kiska and Chef Ribbens both testified that they did not receive copies of the pornography. (Tr. 1346:20-2*2 (Kiska); Tr. 2127:18-20 (Ribbens).) Carlo recalled receiving one pornographic picture from Mendez (Tr. 2246:18-23), and testified that Mendez suspected that Morales and Tello put that picture on his workstation. (Tr. 2246:18-25; Tr. 2267:8.) In sum, the record reveals that over the course of four years in the kitchen, plaintiff was insulted on more than one, but an unspecified number of occasions, by coworkers. If Mendez is believed, four or five specific incidents involved him being called names that reflected poorly on his Latin or Ecuadorian heritage, including one involving pornography. Other incidents were more scatological in nature, with no indication of either national origin or racial discrimination. Other kitchen workers, including non-Hispanies and nonEcuardorians, were similarly referred to in scatological terms while working. C. Other Incidents of Harassment Notes in Mendez’s Locker Mr. Mendez testified that from time to time he found harassing and unsigned notes in “[t]he locker that I have on the lower level, sir, next to HR’s office.” (Tr. 459:14-15.) One such note (marked PX 9), which he received on either June 15 or 16, 2007 (Tr. 462:13-24), read: “Moses Mendez Stop Crying Mexican Piece of Shit, or Else Fuck You!” (PX 9.) Ana Liza Bay testified that she saw one note that was left for Mr. Mendez in 2007. (Tr. 166:16— 20.) Carlos Urrutia testified that Mendez told him that “somebody left him [Mendez] a very bad note” a couple days after the lock on his locker was damaged. (Tr. 187:22; 187:25-188:1.) Mendez testified that he gave this note to Kiska. He explained to Kiska and Lavides that he did not know who had left it for him. (Tr. 724:14-21.) However, Mendez also testified that Melvin Morales told him that Morales had put the notes in his locker (Tr. 726:13-727:8), although he did not recall when Morales told him that. (Tr. 726:13-727:8.) Mendez told Ms. Kiska about Morales’ confession. (Tr. 728:6-7.) Mendez identified three other notes that he received during a short period in January 2005 — two and a half years before he received PX 9. (Tr. 463:3-22.) All three notes were signed ‘Your buddy.” PX 102, dated January 5, 2005, read: “Por ser el mejor repostero lambón,” which Mendez translated as “for being the best baker kiss ass.” (Tr. 643:25; PX 102.) PX 10, dated January 10, 2005, read “For the best cock sucker.” (PX 10.) PX 103, dated January 10 (no year, but from “Your buddy,” and so likely sent in 2005) read: “For being the best mexiean that crossed the border.” (PX 103.) Mendez was “sure” that he gave copies of these notes to Kiska and Lavides in 2005. (Tr. 725:25-726:4-8.) Mr. Mendez also testified that he gave a copy of PX 9 to Ms. Kiska and Ms. Lavides. Chef Ribbens testified that he did not remember Mendez ever complaining to him about threatening notes being left on his locker. (Tr. 2081:13-15; Tr. 2108:6-8.) Kiska testified that Mendez showed her PX 9 on or around June of 2007 (Tr. 1423:25-1424), but claimed that she never saw the three earlier notes. (Tr. 1424:6-8.) Hazel Hazzard, the Union leader, testified that Mendez sent her a copy of the note marked PX 9 (the 2007 note) with the additional text: “Hazel, I have three more notes like this.” (Tr. 1687:5-17; see also DX 24). Hazzard never saw the other three notes to which Mendez referred. (Tr. 1687:18-19.) The record, fairly read, reveals essentially two instances of harassing notes, and a total of four such notes — three left within a very short period in January 2005, then nothing for two and one half years, and one note left in June 2007. D. Threats in the Workplace (2004/2005, 2007) Mendez testified that his physical safety at the Westin was threatened on three occasions — once in either 2004 or 2005, once in 2006 and once in 2007. Francisco Rodriguez (2004 or 2005) At first, Mendez testified that coworker Francisco Rodriguez made a threat against him sometime in “mid 2005.” (Tr. 530:17-19.) However, during cross examination, Mendez acknowledged that it could have occurred “at the end of 2004.” (Tr. 698:13-15.) Mendez recalled that Francisco Rodriguez “was making soup close to my station, and he is a very violent person. And he started yelling at me in Spanish, Mexican words insulting me. And at the end he says he wish to send my body to Ecuador in a coffin.” (Tr. 531:2-5.) Mendez testified that he “told [Rodriguez] not to say that. I told him that it’s inappropriate, told him things in Spanish that, not to talk to me like that again.” (Tr. 531:8-10.) Mendez complained to Chef Ribbens. (Tr. 531:12-14.) Chef Ribbens denied that Mendez ever reported the Rodriguez incident to him. (Tr. 2081:4-6.) Melvin Morales (2006) Mendez testified that Melvin Morales made a threat against him in or around April 2006. (Tr. 531:17-18.) Mendez was at his station, working overnight. (Tr. 531:21-22.) He stated that Morales “was very upset and yelling, saying words in Spanish, and he went to my station and he told me, Look, Moisés ... (The witness speaks in Spanish) And he was very mean. I mean, his expression was that, yes, he was going to kill me, yes.” (Tr. 532:3-9.) After the exchange, Mendez complained that same night to security. (Tr. 532:17-21.) He testified, “I believe I called the security manager who was Jorge Chico, and security came upstairs. I don’t recall if it was two or three security persons. And Jorge Chico took me downstairs because I was very scared, and he took me downstairs to his office. That night he contacted Ms. Kiska on the phone.” (Tr. 532:21-15.) Mendez confirmed that he spoke to Kiska that night, and “She told me, she promised me that she was going to investigate.” (Tr. 533:12-13.) However, according to plaintiff, Kiska did not follow up with.him after that conversation. (Tr. 533:22-24.) Around the “end of April,” Mendez filed a police report about this incident. (Tr. 535:409.) He then gave a copy of the report to “Mr. DiCarlo, Jeff [Chef] Ribbens and Ms. Kiska.” (Tr. 536:9 (mistakes in original).) Chef Rotolo (2007) Finally, Mendez testified that, “at the end of June 2007,” Chef Rotolo made a “gun gesture” (i.e., made a “gun” with his thumb and forefinger and pointed the forefinger at plaintiff) during a conversation at Mendez’s work station. (Tr. 525:16-17.) According to Mendez, Chef Rotolo asked him “to do something in the other kitchen that it wasn’t on my job description.” (Tr. 525:23-24.) In response, Mendez stated that he “asked him if he’s going to pay me the differential,” as required by union rules when an employee does work that it not in his category. (Tr. 526:1-5.) Rotolo “says, the differential, well, that’s the way you want it Moisés. He pointed at me very close to me with a very angry face, and he says, that’s the way you want it. And he was very, very, with a very angry face.” (Tr. 526:13-16.) Chef Rotolo said nothing about Ecuador or Mendez’s national origin or race during this exchange. (Tr. 783:15-25.) Mendez testified that he complained about Chef Rotolo’s gesture to “two or three” union delegates, as well as to his then-boss, Executive Chef Frank Tujaque. (Tr. 526:23-25.) Kyle Craddock confirmed that he was one of the union delegates to whom Mr. Mendez spoke about the incident. (Tr. 1953:3-8.) Mendez also filed a written complaint with Maria Lavides. (Tr. 528:21-14.) The complaint, which was filed in Spanish, reads: “As you already know, since a long time ago I’ve been a victim of all kinds of verbal, nonverbal, and written harassment. Today, 6/28/2007, chef Antonio Rotolo continues to practice as he makes gestures with his fingers as if he was shooting a gun showing me a very hostile face. You know Mrs. Maria that I am very sick and I only want to work in peace so that I can provide sustenance to my dear family. I beg that you review my situation and end my suffering that this kind of harassment brings me.” (DX 11 (SM-00422).) According to Mendez, no one in management, security or corporate headquarters ever contacted him regarding his complaint. (Tr. 529:25-530:8.) Kiska testified that Maria Lavides investigated Mendez’s complaint (Tr. 1632:16— 17) by interviewing Chef Rotolo. (Tr. 1721:22-1722:3). Predictably, Chef Rotolo denied ever having made a gun gesture at Mendez. (Tr. 962:8-11.) Lavides concluded that, “from the way he moved his hands ... it must have been a misunderstanding in terms of what Mr. Mendez alleged in that written complaint.” (Tr. 1722:7-10.) Mendez testified that he also filed a complaint with the “Ethics Hotline” set up by the hotel, and that he subsequently met with an individual named Tom Mituzas. (Tr. 784:3-13.) At that meeting, Mendez spoke with Mituzas in the presence of a union delegate (Giovanni Toro). (Tr. 784:14-19.) Notes from that meeting were entered into evidence as Defendant’s Exhibit 36. (Tr. 786:14-17.) They do not mention the gun gesture to which Mr. Mendez testified. To summarize, the record revealed three incidents that Mendez perceived as threatening, one in each of the three years prior to the filing of the complaint. In one case, management investigated and concluded that Mendez had overreacted. For two of the incidents there is no evidence of any race or national-origin based motivation whatsoever; in the 2004 incident, the person who uttered the threat referred to plaintiffs country of origin but not in a way that suggests that plaintiff was being threatened because he was from Ecuador. E. Vandalism in the Workplace (2007) Mendez’s Locker (October 2007) Mendez testified that the lock on his locker was damaged in or around October 2007. He filed a report with security regarding the incident. (Tr. 651:1-6; 697:25-198:6 (identifying the date of the security report); 707:17-19 (identifying the date of the incident).) Mendez “had no idea” who might have damaged his locker. (Tr. 733:1-2.) Kiska learned about the damage to Mendez’s locker from the security department. (Tr. 1433:7-8.) She testified that “a couple” of things struck her about the incident when she read the security report: “That security reported to the scene, they looked at the lock; that the lock was still working; that Mr. Mendez had told security that nothing was missing ‘or tampered with; and that the lock itself was still working.” (Tr. 1433:24-1434:3.) She noted that, “Security deemed that there was nothing else to do, that they would close the case. They inspected the lock and the locker and everything was in working order; and that they informed Mendez that if anything else happens, please come back and see them and they will go back up and do a report.” (Tr. 1434:4-8.) Kiska concluded that the marks on Mendez’s lock were not the product of an attempt to break into his locker. Nonetheless, she made an appointment to speak with Mendez about the incident. (Tr. 1434:23-1435:23.) According to Kiska, Mendez never showed up for that meeting. (Tr. 1435:16-23.) Several of Mendez’s co-workers in the kitchen, including Ayala and Urrutia, testified that Mendez discussed the damage to his lock with them. (Tr. 182:6-21.) Chef Rotolo also saw the damage to Mendez’s lock. (Tr. 956:16-957:12.) Nothing in the evidence suggested any racial or national origin overtones to this incident. Oven (December 2007) Mendez also testified that someone wrote the words “Sir Moisés Miss Baker” on the oven where he worked. Mendez did not see who wrote it. (Tr. 651:14; 733:3-7.) During his deposition, Chef Rotolo testified that Mendez showed him this writing on December 29, 2007; during the trial, Rotolo was unable to verify that date. (Tr. 953:21-955:1.) Charlie Blanco testified that the writing on Mendez’s oven read “Moisés Master Baker,” and that he did not “know what master baker means.” (Tr. 358:4-15.) However, after looking at pictures of the writing on Mendez’s oven (PX 96), Blanco conceded that the graffiti read “Sir Moisés Miss Baker.” (Tr. 381:12-14.) Again, there is no other evidence tending to suggest that this graffiti was placed on Mendez’s oven because he was either Latino or Ecuadorian. F. Physical Altercations Mark Kleinman (2008) In addition to these incidents of verbal harassment, threats and vandalism, Mendez claimed that he was subject to actual physical harassment on June 13, 2008, when a co-worker named Mark Kleinman punched him in the face with a salad bowl. (Tr. 559:7-13; 560:6-16 (describing the bowl).) Mendez described the incident as follows: “I was going to my station to start working, sir, and I don’t know, out of nowhere I just see Mark Kleinman holding a steel bowl very close to my face and make a fist. And he hit me so powerful with the bowl on my left side of my face.” (Tr. 560:8-11.) Mendez admitted that he did not report the incident the day it happened. However, a few days later, he gave a written statement about Kleinman’s behavior to Kiska. (Tr. 561:25-562:15 (identifying PX 22 as the written complaint Mendez filed).) Lourdes Shapiro, another HR employee, testified that Mendez “came to my office and gave me a letter with some statements, and I met with Mr. Mendez” regarding the incident. (Tr. 1089:18-19.) Kiska testified about the investigation HR conducted after receiving Mendez’s complaint. (Tr. 1478:15 et seq.) Kiska interviewed both Mendez and Kleinman, along with “several associates,” who were alleged to have been witnesses to the event. (Tr. 1479:3-10.) The witnesses interviewed included two cooks, Daniel McKinley and Mamadou Bakayoko, and an individual named Ricky Ferraro. (Tr. 1479:11-1485:25.) Mendez heard that Kleinman was suspended for one week without pay because of his involvement in the altercation. (Tr. 562:16-24.) Fernando Tello Mr. Mendez also testified about a second physical altercation at work, though he provided no date on which the incident occurred: “One day when I was working on my table. After I finish, I always clean my table, so I have a garbage — a garbage can, a big garbage can. And I was cleaning with my towel, and he just appeared from behind and he pushes the garbage can. It was between me and the table, and he just pushes the — kick the garbage can and he pushes me. And he went — he went through when he has plenty of space on my back to go through.” (Tr. 539:13-19.) There was no additional testimony about this incident. In sum, Mendez testified about one physical altercation that was investigated by management; management punished the individual who allegedly hit Mendez. He testified about a second altercation, but could not place it in time and did not indicate that he ever complained about it. No evidence specifically suggested that either incident occurred because of Mendez’s race or national origin. II. RETALIATION As should be apparent from the above, when something happened that Mendez did not like, he complained about it. He believes that Westin “put a hidden camera over my station so — to spy on me” in retaliation for his numerous complaints, including his filings with the New York State Division on Human Rights. (Tr. 554:14-555:24.) A timeline of the formal complaints Mendez filed is below, and it includes the installation of the camera: Timeline of Formal Complaints and Camera Installation Feb. 27, 2006 Letter of complaint to HR Manager Derrick Carlo regarding harassment and threatening conduct by co-workers (PX 203 (S1VL01104)) Apr. 21, 2006 Police report filed regarding harassment and death threat by Melvin Morales (PX 49) May 5, 2007 Letter of complaint by Mendez and eight co-workers to HR Department regarding harassment by Fernando Tello (DX 164 (SML.02172)) May 18, 2007 Starwood Nat’l EthicsPoint Hotline report of complaint regarding “misconduet”/“possible racial discrimination” (PX 8) May 21, 2007 Discrimination charge filed with State Division of Human Rights (PX 75) June 28, 2007 Letter of complaint to Assistant Director of HR Maria Lavides regarding harassment and threats by Chef Rotolo (PX 11) June 28, 2007 Retaliation charge filed with State Division of Human Rights (PX 76) Aug. 15, 2007 Retaliation charge filed with State Division of Human Rights (PX 14) Sept. 8, 2007 Starwood Nat’l Ethics Point Hotline report of complaint regarding “discrimination or harassment” (PX 13) Sept. 11, 2007 Complaint to Ms. Kiska regarding race/national origin discrimination following vandalism to oven (PX 17) Feb. 6, 2008 Letter of complaint to HR Manager Derrick Carlo regarding harassment and threatening conduct by co-workers (PX 203 (SM_01104)) Late March Hidden camera is installed and 2008 operational for 8 days May 29, 2008 The complaint in this action was filed June 17, 2008 Complaint Letter sent to HR Department regarding being punched in face by Mark Kleinman (PX 22) Kiska testified that she made the decision to install a hidden camera in the kitchen in March of 2008 (Tr. 1269:17-20) “to follow up on his [Mendez’s] complaints.” (Tr. 1270:7.) She testified that she conferred with Union Representative Hazel Hazzard before installing the camera and obtained permission from senior management at the hotel. (Tr. 1455:13-22; 1642:1-1643:25.) Kiska testified that the camera was installed “over the lockers and the oven where he [Mendez] said he was vandalized.” (Tr. 1272:19-20.) Urrutia testified that “where the camera was pointed was right at Moisés actually because he’s secluded away from the main kitchen as far as like a camera and it was on that side.” (Tr. 190:3-6.) Blanco testified that the camera was not “right over” Mendez’s workstation, but it was nearby. (Tr. 355:12-17.) The evidence indicated that the camera was operational for just 8 days (see PX 44) — until, as Kiska testified, some cooks in the kitchen found the camera, “reached up and were able to pull part of it out and they pulled some of the wires out.” (Tr. 1456:13-15.) Kiska could not recall whether they “were able to take out the whole camera,” but noted that “they took out a good part of the camera.” (Tr. 1456:13-16.) Mendez was asked “how did you feel ... when you learned that there was a hidden camera installed in the kitchen?” (Tr. 556:24-25.) He responded, “I feel that they invaded on my privacy, that they were watching me, that they were spying on me to cause me more harm. They don’t investigate my complaints but they were causing me more harm.” (Tr. 557:1-4.) This was the only testimony Mr. Mendez gave about any emotional distress or other damage caused by the installation of the camera. Mendez’s expert witness, Dr. Carlos Ortiz, began treating Mr. Mendez in June 2008, after the camera incident. Dr. Ortiz testified that Mendez “was severely depressed, anxious, having a lot of anxiety attacks and he was very upset” (Tr. 817:14-19); and that plaintiff was in a “daily depressed mood. He felt hopeless. He was having anxiety attacks. He felt lethargic.” (Tr. 836:17-20.) However, neither Dr. Ortiz nor Mendez’s treating physician, Dr. Andrew Chun, testified that Mendez complained of suffering any distress as a result of the installation of the camera. In fact, neither doctor mentioned the word “camera” at all during his testimony. Dr. Ortiz’s testified about distress Mendez felt because of “being called names” and having “notes written and left on locker” — all of which happened before the hotel installed a camera above his workstation. (See, e.g., Tr. 821:18-22; see also Tr. 823:24-824:1; 824:24-825:2; 837:17-18; 825:3-8; 836:15-17). Dr. Ortiz also testified that Mendez felt humiliated about the placement of homosexual pornography at his work station. (Tr. 822:24-824:1.) Not a scintilla of professional testimony connected any of Mendez’s mental distress to the installation of the surveillance camera. DISCUSSION I will begin by addressing defendant’s motion for judgment as a matter of law and then turn to the Court’s sua sponte consideration of whether to order a new trial on the issues of race and/or national origin discrimination. I. JUDGMENT AS A MATTER OF LAW A. Standard of Review “If a party has been fully heard on an issue during a jury trial and the court finds that a reasonable jury would not have a legally sufficient evidentiary basis to find for the party on that issue, the court may ... resolve the issue against the party.” Fed R. Civ. P. 50. In determining whether there was a legally sufficient evidentiary basis for the jury’s conclusion, the Court must “defer[ ] to the jury’s assessment of the evidence and all reasonable inferences the jurors could draw from that evidence,” and “may not itself weigh the credibility of witnesses or consider the weight of the evidence.” Meloff v. N.Y. Life Ins. Co., 240 F.3d 138, 145 (2d Cir.2001) (internal quotation marks omitted). “A movant’s burden in securing Rule 50 relief is particularly heavy after the jury has deliberated in the case and actually returned its verdict.” Cross v. N.Y. City Transit Auth., 417 F.3d 241, 248 (2d Cir.2005). “Under such circumstances, the district court may set aside the verdict only where there is such a complete absence of evidence supporting the verdict that the jury’s findings could only have been the result of sheer surmise and conjecture, or there is such an overwhelming amount of evidence in favor of the movant that reasonable and fair minded men could not arrive at a verdict against him.” Id. (citations, alterations, and internal quotation marks omitted). Defendant has moved for judgment as a matter of law on plaintiffs retaliation claim on four grounds: (1) the secret surveillance of defendant does not constitute retaliation as a matter of law (Def.’s Br. at 5-6); (2) plaintiffs complaints about harassment in the workplace were not protected activity (Def.’s Br. at 6-7); (3) the installation of a hidden surveillance camera and the ensuing surveillance were not sufficiently “serious” to constitute actionable retaliation (Def.’s Br. at 8-9); and (4) plaintiff failed to rebut the Westin’s legitimate, non-retaliatory reason for installing the camera (Def.’s Br. at 13-14). To establish a prima facie case of retaliation, a plaintiff must show: (1) participation in a protected activity known to defendants; (2) an employment action that disadvantaged him; and (3) a causal connection between the protected activity and the adverse employment action. Richardson v. Comm’n on Human Rights & Opportunities, 532 F.3d 114, 123 (2d Cir.2008). Once a plaintiff establishes prima facie retaliation, applying the burden-shifting analysis set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), the defendants must come forward with a “legitimate, nonretaliatory reason for the challenged employment decision.” At that point, the burden shifts back to the plaintiff to demonstrate that defendants’ rationale is “merely a pretext for [the] impermissible retaliation.” Cifra v. G.E. Co., 252 F.3d 205, 216 (2d Cir.2001). B. Adverse Actions Conduct is actionable as retaliation under Title VII only if it is adverse to the plaintiff when judged objectively and in the workplace context. See Burlington Northern and Santa Fe Ry. Co. v. White, 548 U.S. 53, 67-68, 126 S.Ct. 2405, 165 L.Ed.2d 345 (2006). Prior to the Supreme Court’s decision in Burlington, there is little question that the installation of a security camera and the ensuing surveillance would not have constituted an “adverse action” for retaliation purposes, since it did not alter any term or condition of plaintiffs employment (his salary or benefits, job duties, perquisites, etc.). However, in Burlington, the Supreme Court held that several circuits, including our own Second Circuit, had defined “adverse action” too narrowly in the context of Title VII retaliation. The Court ruled that Title VII’s “anti-retaliation provision, unlike the substantive provision, is not limited to discriminatory actions that affect the terms and conditions of employment.” Id. at 63-64, 126 S.Ct. 2405 (citations omitted). But the Court also held that, “The anti-retaliation provision protects an individual not from all retaliation, but from retaliation that produces an injury or harm,” id. at 64, 126 S.Ct. 2405, so that “a plaintiff must show that a reasonable employee would have found the challenged action materially adverse, which in this context means it well might have ‘dissuaded a reasonable worker from making or supporting a charge of discrimination.’ ” Id. at 68, 126 S.Ct. 2405 (quoting Rochon v. Gonzales, 438 F.3d 1211, 1219 (D.C.Cir.2006) (internal citation omitted)). “Petty slights [and] minor annoyances” in the workplace are not actionable as retaliation. Id. The standard for what qualifies as an adverse action under the New York City Human Rights Law, N.Y. City Admin. Code § 8-101 et seq. (“NYCHRL”), is substantively identical to the federal standard. Retaliatory conduct under the NYCHRL need “not result in an ultimate employment action,” but must “be reasonably likely to deter a person from engaging in protected activity.” Id. Defendant argues that “being surveilled by a hidden camera—simply is not, standing alone, an actionable adverse action either under Burlington or the City HRL.” (Def.’s Br. at 9) (citations omitted). In making this argument, defendant relies in part on an unpublished case from the United States District Court for the District of Connecticut: Billue v. Praxair, Inc., No. 05 Civ. 170, 2007 WL 1231841 (D.Conn. Apr. 26, 2007), which in turn relied on a case from this district—Nicastro v. Runyon, 60 F.Supp.2d 181, 186 (S.D.N.Y.1999)—in which a court had held that “surveillance” and “excessive scrutiny” were not “adverse employment actions,” and therefore, could not serve as the basis for a Title VII retaliation claim. Billue, at *7 (citation omitted). Billue was affirmed by the Second Circuit, but by summary order, see Billue v. Praxair, Inc., No. 07 Civ. 2359, 2008 WL 4950991 (2d Cir. Nov. 20, 2008) (summary order); that summary order has no precedential effect on any court, although it has to be deemed some indication of how the Court of Appeals might rule were it to decide the issue in a binding opinion. The case on which Billue relied— Nicastro v. Runyon—was decided before the Supreme Court decided Burlington and significantly expanded the definition of actionable retaliation that had historically been employed in the Second Circuit. After Burlington, Title VII retaliation covers any “employer actions that would have been materially adverse to a reasonable employee or job applicant” — not just those actions that are related to employment, like firing or granting leave. Burlington, 548 U.S. at 67, 126 S.Ct. 2405. Since Burlington, the Eight Circuit has held that “placing an employee under constant surveillance could be evidence of retaliation.” Fercello v. County of Ramsey, 612 F.3d 1069, 1081 (8th Cir.2010) (citation omitted). The Eighth Circuit’s holding comports with the plain language of Burlington, in which the Court wrote that an adverse action is one that “well might have ‘dissuaded a reasonable worker from making or supporting a charge of discrimination.’ ” Id. (citation omitted). For that reason, I do not believe that Billue bars a finding that the secret surveillance of Mendez constituted an adverse employment action. Neither of the other two cases cited in support of defendant’s argument renders its position compelling. Constance v. Pepsi Bottling Co. of N.Y., No. 03 Civ. 5009, 2007 WL 2460688 (E.D.N.Y. Aug. 24, 2007) does not, as defendant states, hold that installation of a hidden camera can never constitute actionable retaliation. Rather, the portion of Constance on which defendant relies states that: “Related to this concern is whether surveillance on the job constitutes an adverse employment action, an issue not raised by defendants. However, it is questionable under the facts of this case whether the use of the investigator ‘affect[s] employment or alter[s] the conditions of the workplace.’ ” 2007 WL 2460688, *36 n. 15 (emphasis added). Likewise. Scott v. Cellco Partnership, No. 06 Civ. 7245, 2007 WL 1051687 (S.D.N.Y. Apr. 3, 2007), an unpublished disposition from another court in this District, says only that the “excessive scrutiny” plaintiff alleged she received in that case (the nature of which was not specified) was insufficient to state a cause of action under Title VII. Id. at *3. There is no mention in the opinion of a camera having been installed over an employee’s workstation after he complained repeatedly about discrimination. Because Kiska’s testimony about obtaining the Union’s permission before installing the camera was unrebutted, Defendant also cites Richardson v. Comm’n on Human Rights & Opportunities, 532 F.3d 114, 124-25 (2d Cir.2008), to argue that an “employer’s exercise of rights allowed under [a] labor agreement with respect to handling of discrimination complaints cannot be retaliation,” as a matter of law. (Def.’s Br. at 12.) In Richardson, the Second Circuit was asked to decide whether Title VII “forbids an election-of-remedies provision in a collective bargaining agreement,” or “in the alternative, whether adherence to that provision constitutes discrimination.” 532 F.3d at 116-17. The court (Walker, J.) answered both questions in the negative. The union contract in Richardson had authorized the “adverse” action in that case (adherence to the election-of-remedies clause in the contract). Richardson followed the Circuit’s holding in United States v. N.Y. City Transit Auth., 97 F.3d 672, 677 (2d Cir.1996), where the Court of Appeals found that “reasonable defensive measures do not violate the anti-retaliation provision of Title VII, even though such steps are adverse to the charging employee and result in differential treatment.” Id. at 677. Nothing in Richardson suggests that employer action that would deter a reasonable employee from complaining about discrimination is not retaliatory simply because the action was, as defendant argues, an “exercise of rights allowed under a labor agreement.” I thus reject Starwood’s contention that the installation of a hidden surveillance camera to surveil an employee who has complained of discrimination can never be retaliatory as a matter of law, because surveillance can never be deemed an adverse employment action. However, the fact that surveillance can be an adverse employment action does not mean that it must be found to be an adverse employment action. Unless being secretly surveilled for eight days (and so knowing that the employer was keeping an eye on him) “well might” dissuade a reasonable employee from exercising his right to complain about discrimination, the surveillance is not actionably adverse, even under Burlington. I do not doubt that different triers of fact could reach different answers to this question, based on the facts in different cases. The complication we encounter in this case is that Mendez himself was not dissuaded by the secret surveillance from exercising his right to complain about discrimination. He filed his June 17, 2008 complaint with HR concerning the Klein-man incident, and he filed this lawsuit, after he learned that his employer was spying on him. Of course, in Burlington, the Supreme Court set forth an objective standard— whether the action is one that would likely deter a reasonable employee from exercising his right to complain about discrimination. It did not select a subjective standard — one that focuses on the defendant’s actual response to the allegedly retaliatory conduct. Howe