Opinion
98 Civ. 518 (GEL)
September 26, 2001
Luis A Banez, pro Se, for Plaintiff Luis A Banez
Nicholas J Kaufman, Wilson, Elser. Moskowitz, Edelman Dicker LLP, New York, NY, for Defendant New York Foundling Hospital
OPINION AND ORDER
Plaintiff Luis A. Banez brings this employment discrimination action for wrongful termination on the basis of age and religion against his former employer, the New York Foundling Hospital (the "Hospital"). The action is before the Court on defendant's motion for summary judgment. For the reasons stated below, the motion is granted and judgment will be entered for the defendant.
FACTS
Luis A. Banez is a Catholic man who was hired by the Hospital in 1990 as an accounting clerk At the time of his employment, he was 56 years old, and he was interviewed, and subsequently recommended for employment, by the Hospital's Director of Finance, James Spence, then 50 years old. Banez's job responsibilities included preparing documentation for various government billing programs, assisting during audits and providing account analysis.
Banez has testified that in March 1991. Spence asked him to work overtime to prepare a quaterly Accounts Receivable Aging report tbr submission to the Hospital's Board of Directors. (Banez Aff at 2) There is no dispute that Banez performed the requested overtime work, and that he worked overtime on various occasions over the next several years; however, instead of paving him for overtime, the Hospital compensated him in the form of time off equivalent to overtime hours worked ("comp time"). It insisted then, as it continues to do now, that Hospital policy requires prior authorization for working overtime and only provides for compensation in the form of comp time, absent special circumstances. It points to the Employee Handbook which provides
OVERTIME
Overtime is permitted only in exceptional circumstances and emergencies An employee shall not work overtime without the authorization of a Supervisor and/or Director Employees authorized to work overtime will be compensated by equivalent time off.
(Kaufman Air Ex C at II)
Banez does not seriously dispute the existence of this policy, nor his awareness of it (id. Ex A at 106-08). but has testified that at the time of the request. Spence specifically told him that "[m]oney would not be a problem paying [for] plaintiffs overtime service[s] because [the] order for this project came from the Board of Directors." (Banez Aff at 3, Kaufman Aff Ex. A at 111-12) The record indicates that Banez asked to receive the money value of his earned comp time on three occasions November 1992, September 1994 and December 1996. (Kaufman Aff Ex A at 117-18. Banez. Aff Exs 4. 6). Each time, Banez raised no issue of discrimination, but merely requested to be reimbursed the money value of his comp time so that he could provide financial assistance to his aged mother in the Philippines. (Id) At any rate, the dispute lasted several years, during-which it appears that Banez worked additional overtime hours. Finally, on February 3, 1997, the parties reached an accommodation and Banez received a check in the amount of $4,130.34 for comp time earned between March 18. 1991. and July 5, 1995. (Id. Ex. E.) At the time that he received payment. Banez acknowledged that this money was reimbursement for the comp time he had received for overtime hours worked during that period.
(Id.)
The principal dispute in this action arises-out of Banez's termination more than eight months after his settlement of the overtime issue with the Hospital. The Hospital claims that Banez's eventual termination was a result of a marked deterioration in his job performance, primarily over the previous year, and has produced supporting documentary evidence in the form of "Discussion Reports" issued to Banez at the time of his various infractions, which appear to have been written and filed by Spence. (Kaufman Aff. Exs. F-J) On January 24, 1995, Banez received once such report after accusing a fellow employee of forging a document, a charge that Banez later retracted as mistaken, and for which he eventually apologized. (Id. Ex. F.) On June 9, 1997, Banez was issued another report which alleged that he was spending too much time discussing personal problems with co-workers. thereby neglecting his work. (ID. Ex. G.) Shortly after, on June 17, 1997, he received another report charging that there was "improvement needed in [his] job task," and that he had prepared a report "very poorly." (Id Ex. H.) Finally, on October 6, 1997, the Hospital again issued a report to the plaintiff, citing unsatisfactory job performance and an inability to get along with co-workers. (ID Ex I) That report noted that "Mr Banez['s] performance has taken a sharp decline over the past five months, "and documented an incident in which a poorly prepared report jeopardized a Federal Government contract (Id) Banez was terminated at Spence's recommendation ten days later, on October 16, 1997. at the age of 63 (Id. Ex. J.) Other evidence indicates that Banez filed a grievance in order to have these reports removed from his personnel file, but that his request was denied. (Banez Aff Ex 13)
The Hospital later hired Lau Ngor Ma. then 41 years old, to replace Banez. (Kaufman Rep AtE 20. Kaufman AtE Ex K.)
Banez does not dispute this evidence, but argues that his purportedly poor job performance was not the real reason for firing him. He claims that the Hospital fired him because he complained about the overtime policy, a policy which he believes discriminated against older workers, who unlike younger workers were purportedly never paid for overtime. (Pl. Resp. at 8-9) Despite this bald assertion. Hospital employment records produced by Banez indicate that overtime payments were made to employees both over and under 40 (Banez A.ff. Ex. 12; Kaufman Rep Aff 15, Ex. I.)
Banez also claims that the Hospital terminated him because he is Catholic, and he has testified that on various, unspecified occasions Spence commented to him, in front of co-workers, that he was "always going to [M]ass" and that he "would not be going to Heaven collecting overtime." The record also indicates, however, that the Hospital is a Catholic institution, which "shares the mission of the Roman Catholic Church" (Kaufman Aff. Ex. C at 5), and that it operated a chapel on the premises which Banez has testified he frequently visited during working hours. (Id. Ex. A at 100-04) Banez has testified that neither Spence nor any other supervisor ever prevented Banez from attending services (id. at 386-88), that at no time during his employment at the Hospital did he ever complain to anyone of religious discrimination (id. at 380-82), and that on several occasions he was specifically invited to services at the Hospital's chapel by the resident clergy. (id. at 103.)
The transcript of Plaintiffs deposition documents the following exchange:
Q How has the Foundling [Hospital] discriminated against you based on "religion"?
A Mr. Spence told me a couple of times, in the presence of Mr. DaCosta, that I was always going to [M]ass, which is true, and that I would not be going to Heaven collecting overtime.
Q: Anything else?
A: That's all.
On October 20, 1997, Banez filed a charge of employment discrimination with the Equal Employment Opportunity Commission (the "EEOC"), alleging that the Hospital had discriminated against him on the basis of his religion in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"). (Banez Aff. Ex. I.) On November 6, 1997, the EEOC found no probable cause to believe that plaintiff had been discriminated against on the basis of his religion, and issued a Right to Sue letter. (Id.) On November 25, 1997, Banez filed a second charge of employment discrimination with the EEOC, based on the same facts, alleging retaliatory discharge in violation of the Age Discrimination in Employment Act of 1967 (the "ADEA"). (Id.) On December 30, 1997, the EEOC again found no probable cause to support plaintiffs claim, and issued a second Right to Sue letter. (Id.) Banez tiled his complaint in this action on January 26, 1998, alleging employment discrimination under Title VII and retaliatory discharge in violation of the ADEA. (id.) Following discovery, the Hospital moved for summary judgment on December 26, 2000. (Kaufman Aff Ex. A at 382)
DISCUSSION Standard for Summary Judument
Summary judgment may only be granted when "the pleadings, depositions, answers to interrogtories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law" FED R CIV P 56(b). The party opposing summary judgment "may not rest upon mere allegations or denials, "but must" set forth specific facts showing that there is a genuine issue for trial" Id. 56 (e). To defeat a motion for summary judgment, the non-moving party "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec Indus Co v. Zenith Radio Corp, 475 U.S. 574, 586 1986). "[I]fthe evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Anderson v. Liberty Lobby, Inc., 477 U.S. 242. 249-50 (1986). Similarly, the non-moving party cannot defeat summary judgment by "offering purely conclusory allegations of discrimination," Meiri v. Dacon. 759 F.2d 989. 998 (2d Cir 1985). or by offering evidence in opposition that is merely speculative Dister v. Continental Group Inc, 859 F.2d 1108, 1116-1117 (2d Cir. 1988). Accordingly, to defeat summary judgment, it must set forth "concrete particulars" showing that a trial is needed. R G Group. Inc v. Horn Hardan Co, 751 F.2d 69, 77 (2d Cir. 1984).
Summary judgment motions with respect to claims made under both Title VII and the ADEA are decided under the burden-shifting framework first set forth in McDonnell Douglas Corp v. Green. 411 U.S. 792 (1973) (Title VII) See also Abdu-Brisson v. Delta Air Lines Inc., 239 F.3d 456. 466 (2d Cir 2001) (ADEA) That framework was recently revisited by the Second Circuit in James v. New York Racing Assoc, 233 F.3d 149 (2d Cir 2000). InJames, the Court of Appeals considered the effect of the latest ruling of the Supreme Court, Reeves v. Sanderson Plumbinigs Prods., Inc, 530 U 5. 133. 1205 Ct 2097 (2000). on prior circuit case law, as announced inFisher v. Vassar College, 114 F.3d 1332 (2d Cir 1997) (en banc). The Court's conclusion was that Reeves was entirely consistent with Fisher, and left prior circuit law unchanged, since "both opinions essentially stand for the same propositions." James, 233 F.3d at 156.
Under the analysis applied in Fisher and reaffirmed in tJames, we begin by asking whether the plaintiff has established his "minimal" prima facie case "[T]he burden that must be met by an employment discrimination plaintiff to survive summary judgment motion "at the prima facie stage is de minim[i]s.'" Chambers v. TRM Copy Centers Corp., 43 F.3d 29, 37 (2d Cir. 1994) (citing Dister, 859 F.2d at 1114) A successful prima facie showing "creates a presumption that the employer unlawfully discriminated." Fisher, 114 F.3d at 1335. This presumption "places the burden of production on the employer to proffer a nondiscriminatory reason for its action." Id. at 154. If the employer fails to present such a reason, plaintiff prevails "On the other hand, once the employer "articulates a non-discriminatory reason' for its actions, Fisher, 114 F.3d at 1336, the presumption completely `drops out of the picture.' St Mary's [Honor Ctr v. Hicks], 509 U.S. [502,] 5 10-11 [(1993)]." Id. At that point. "the employer will be entitled to summary judgment unless the plaintiff can point to evidence that reasonably supports a finding of prohibited discrimination." Id.
Once the defendant has provided a non-discriminatory reason for its adverse employment action, the burden shifts to the plaintiff who then bears the burden of showing that the defendant's explanation was pretextual "The probative value of the proof that the employer's explanation is false' is an important factor in determining a summary judgment motion of this sort Reeves. 120 S Ci at 2109 However, evidence casting doubt on the employer's proffered justitication "may or may not-be sufficient" to defeat summary judgment Fisher, 114 F.3d at 1333 Under James and Fisher, even if the plaintiff adequately demonstrates the falsity of the employers explanation for his termination, this is not necessarily enough to survive a motion for summary judgment. As the Court of Appeals pointed out in James, even if a plaintiff succeeded in persuading a jury that his employer's explanations were false, that would not necessarily constitute affirmative evidence that the real reason was prohibited discrimination:
The requirements of the McDonnell Douglas prima facie case are so minimal that they do not necessarily support any inference of discrimination, and there are so many reasons why employers give false reasons for an adverse employment action that evidence contradicting the employer's given reason — without more — does not necessarily give logical support to an inference of discrimination.James. 233 F 3d at 154. Thus, the combination of the prima facie case and some evidence of pretext or may not be enough to survive a motion for summary judgment. The Court's task is to "analyze the particular evidence to determine whether it reasonably supports an inference of the [discrimination plaintiff must prove." Id. at 157. When the employer has proffered an explanation and the plaintiff has attempted to refute it, the Court's responsibility is to "examin[e] the entire record to determine whether the plaintiff could satisfy his `ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff'" Schnabel v. Abramson, 232 F.3d 83, 90 (2d Cir 2000) (citing Reeves, 120 S.Ct. at 2106).
Plantiff charges that he was discriminated against on the basis of his religion (Catholic) and age (63 at the time of his firing) Although he alleges a number of incidents, including purportedly offensive comments relating to his religion made by a supervisor, and the Hospital's failure to pay him overtime wages. the only adverse employment action that he challenges is his tiring. (Banez Aff Ex I) Since the theories of liability asserted by the plaintiff for his age discrimination (retaliatory discharge) and religious discrimination (discriminatory discharge) claims contain different prima facie elements, we will resolve each claim separately.
II. Age Discrimination
Banez's age discrimination claim is essentially one of retaliatory discharge. The Complaint alleges that the Hospital terminated Banez in retaliation for his demanding and receiving payment, rather than comp time, for overtime work performed. (Id.) These allegations do not state a claim for retaliation under the ADEA in and of themselves, since they contain no indication that the Hospital retaliated against Banez for complaining specifically about age discrimination. However, the Complaint further alleges that "[o]nly the younger employees were paid [for overtime]." (Id) Although the connection between these two allegations is not made with crystal clarity, making due allowance for plaintiffs pro se status the implication is reasonably clear. In essence, Banez is alleging that his overtime dispute with the Hospital was part of a systemic policy on its part to deprive older workers of overtime pay Under this theory of liability, his complaints regarding overtime constitute the predicate for a claim of discriminatory discharge under the ADEA since they were effectively complaints about age discrimination.
It is "unlawful for an employer to discriminate against any of his employees" because he opposed any practice made unlawful by [the ADEA] " 29 U.S.C. § 623 (d). To establish a prima facie case of retaliation under this provision of the ADEA, a plaintiff must show "[1] participation in a protected activity known to the defendant [2] an employment action disadvantaging the-plaintiff and [3] a causal connection between the protected activity and the adverse employment action" Slattery v. Swiss Reinsurance America Corp., 248 F.3d 87, 94 (2d (Cir 2001) On the record before this Court, even applying a "de minimis" standard, Banez has failed to establish a prima facie case of retaliatory discharge.
The ADEA prohibits employment discrimination based on age. The "protected class" covered by its provisions are those individuals between 40 and 70 years of age. Fisher, 70 F.3d at 1449-50.
There is no dispute that Banez suffered an adverse employment action (termination). However. Banez has failed to provide even minimal evidence that he participated in any protected activity known to the Hospital. Under Banez's theory of retaliation, the protected activity in which he participated was complaining about age discrimination, but those purported complaints took the form of simple demands for overtime payment allegedly due to him — complaints which, so far as the available evidence indicates never asserted that the Hospital denied him payment because of his age, claimed that the Hospital treated older workers differently from younger in applying its overtime/comp time policy, or mentioned age discrimination in any way (Kaufman Aff Ex A at 117-18, Banez Aff. Exs. 4, 6.) Because Banez uses complaints about overtime pay as a proxy for complaints about age discrimination, this case is different from the garden variety retaliatory discharge claim. In the usual case, evidence that the plaintiff complained about discrimination to his employer automatically establishes that the employer knew about the employee's participation in a protected activity See e.g, Slatterv, 248 F.3d at 95 ("[The defendant] was notified of [the plaintiffs] complaint to the EEOC and [the plaintiffs] protected activity was. therefore, known to the company.") Since the activity itself involves communication either directly with an agent of the defendant, or with someone who communicates the complaint to the defendant, there is usually at least minimal prima facie evidence that the defendant knew of the complaint. Furthermore, in the ordinary case, there is no need for evidence of actual discrimination underlying the complaint, since a claim for retaliation does not depend on the merits of the underlying case for discrimination. Davis, 802 F.2d at 642 ("[A] finding of unlawful retaliation is not dependent on the merits of the underlying discrimination complaint ")
In the present case, there is no question that Banez complained directly to Spence about not receiving overtime pay, and thus that the Hospital was aware of his complaints. Nothing about Banez's requests for overtime, however, marks them as "protected activity." Even assuming for the sake of argument that Banez intended believed that the Hospital discriminated on the basis of age in considering requests for overtime pay, and intended his complaints as objections to that purported policy, there is nothing about Banez's demands for overtime pay that would lead the Hospital to believe that his demands for overtime pay were really complaints about age discrimination. Thus, even at the prima facie stage of the analysis, there must be some additional evidence besides the complaints themselves that would permit a fact finder to infer that the Hospital knew Banez was complaining about age discrimination See e.g., Lone v. ATT Info. Sys. Inc., 733 F. Supp. 188, 205 (S.D.N.Y. 1990) (finding that plaintiff failed to establish prima facie case for retaliation under Title VII where plaintiff only alleged that employer "probably knew" of complaints through office gossip). Although the requirements of a prima facie case are "de minimis," this description should not mask the bedrock principle that summary judgment must be granted unless a genuine issue of material fact exists. Naked allegations of retaliatory motives cannot create a factual dispute capable of defeating summary judgment. Meiri, 759 F 2d at 998 (conclusory allegations based on subjective perceptions are insufficient to defeat summary judgment).
There is no-evidence in this record that the Hospital was aware that Banez's overtime complaints were actually complaints about age discrimination. The record contains no direct evidence that Spence or any other Hospital supervisor with whom Banez communicated recognized his overtime complaints to be complaints of age discrimination Nor has Banez provided an iota of circumstantial evidence that might permit a fact finder to infer the Hospital's knowledge For example, even though the merits of an underlying discrimination claim are ordinarily immaterial to the resolution of a retaliation claim, evidence of actual disparate overtime treatment between older and younger employees could be circumstantial evidence that the Hospital would regard an older worker's persistent complaints about not receiving overtime pay as a complaint about age discrimination.
No such evidence is present here. While Banez points to documents which he claims show that only younger workers received overtime pay, these documents prove precisely the opposite that older workers were indeed paid for overtime (Banez Aff. Ex 12; Kaufman Rep. AIV "15. Ex I) The only evidence of an alleged scheme deprive older workers of overtime pay is Banez's own misleading affidavit testimony listing only those employees under the age of 40 who received overtime pay. while omitting those aged over 40, some of who apparently received substantial overtime pay (Banez Aff at 19) While affidavit testimony may create a material dispute of fact if it is based on personal knowledge of the facts in dispute, testimony not based on personal knowledge and directly contradicted by documentary evidence cannot defeat summary judgment See Danzer v. Norden Systems. Inc, 151 F.3d 50, 57 n. 5 (2d Cir. 1998); Smith v. Am Express Co, 853F.2d 151, 155 (2dCir 1988).
Moreover, there is evidence that Banez's "complaints" about overtime were not in fact complaints at all: Testimonial and other evidence shows that to the extent that Banez "complained" about the Hospital's failure to pay him for overtime, these communications took the form of requests to accommodate his need to provide financial support for his aged mother in the Philippines by reimbursing him for his earned comp time. (Kaufman Aff Ex A at 117-18; Banez Aff Exs. 4, 6) The acknowledgment which Banez signed upon receipt of payment for overtime on February 3, 1997, documents his recognition that the check was for the money value of his comp time. (Kaufman Aff. Ex. E.) At his deposition, although given the chance to disavow this language, Banez did not do so. (Id Ex A at 194-95.) This evidence further supports the inference that to the extent the Hospital was aware of Banez's grievance, it regarded the dispute solely as an issue regarding overtime compensation, and that it attempted to accommodate him a prima facie case for causation.
Even if Banez were able to establish that his requests for overtime pay instead of comp time constituted protected complaints about age discrimination and were so understood by the Hospital, his claim would still fail, since he has failed to establish the required causal connection between those requests and his firing. A plaintit'E may establish a prima facie causal connection either directly "through evidence of retaliatory ammus," or indirectly by "showing that the protected activity was followed by discriminatory treatment." Sumner v. U.S. Postal Serv., 899 F.2d 203, 209 (2d Cir. 1990) The record is devoid of direct evidence that Banez's termination was in retaliation for his demands for overtime payments, which were eventually settled in his favor. Accordingly, Banez relies on the claim that an inference of causation can be drawn from the fact that his tiring followed upon his complaints about the overtime policy.
"[T]emporal proximity can demonstrate a causal nexus," Manoharan v. Columbia Univ., 842 F.2d 590, 593 (2d Cir 1988), however, temporal proximity in the absence of other evidence is often insufficient to prove a prima facie case of retaliation. Compare Hollander v. American Cyanamid Co, 895 F.2d 80, 85-86 (2d Cir 1990) (finding no prima facie causal connection where only evidence was three month lapse between complaint and defendant's attempt to block his employment) with Cosgrove v. Sears. Roebuck Co., 9 F.3d 1033, 1039 (2d Cir. 1993) (prima facie causation established where adverse action took place one month after complaint and employer failed to follow its own procedures for addressing employee deficiencies) and Davis v. State Univ of New York, 802 F.2d 638. 642 (2d Cir. 1986) (finding prima causation where "protected activity was closely followed by adverse actions") Here, Banez's only evidence of causation is the alleged temporal proximity between his receipt of this overtime payment, and the documented reports of his poor job performance leading to his eventual termination
Unlike Cosgrove and Davis, however, where the termination occurred within weeks after complaints about discriminatory practices. the firing here came nearly five years after Banez first demanded overtime pay, and more than eight months after that demand was finally granted and the overtime dispute settled Nor is there any perceptible pattern to the timing of the disciplinary reports on which Banez's tiring was based. Banez's demands for overtime pay were made in 1992. 1994 and 1996 The first report criticizing Banez's job performance issued in 1995, two more in June 1997 (more than four months after the dispute was settled), and the fourth in October 1997. There is thus no clear temporal connection between the overtime dispute and either the tiring itself or the disciplinary actions that preceded it. Nor is there any evidence that the Hospital departed from its normal disciplinary or personnel policies or procedures, so as to support an inference of retaliatory ammus Cf Cosgrove, 9 F 3d at 1039 On these facts, a prima facie case of causation cannot be found.
Finally, even if Banez could establish a prima facie case of retaliatory discharge, the Hospital has provided a legitimate reason for terminating him, namely his deteriorating job performance in the year prior to his termination, supported by substantial documentary evidence. The plaintiff was given four separate "Discussion Reports" documenting various work deficiencies in the years leading up to his termination, three of which occurred in the months immediately prior to his termination. These reports noted various instances in which Banez was derelict in his duties, and the final report documented an instance where Banez's dereliction nearly cost the Hospital a federal government contract. (Kaufman Aff Exs F-J.) The record also indicates that Banez filed a grievance in order to remove these reports from his personnel file, but that his request was denied. (Banez Aff. Ex. 13.)
Nor has Banez demonstrated that the Hospital's proffered reasons for firing him were false Banez has denied that he performed poorly (Banez Aff at 14, 18), and as in almost any case in which job performance is in question. Plaintiffs own testimony that he performed adequately is sufficient to raise a factual question about his competence. Strictly speaking, however, the issue is not plaintiffs actual job performance, but the Hospital's beliefs about his performance. The ADEA does not forbid an employer from making mistakes in the hiring and firing of employees; it only prohibits the employer from terminating employees because they complained about age discrimination An inference of discrimination may be supported by evidence that the employer falsified the reason for the adverse employment action. However, evidence that the asserted basis of the employer's action was factually erroneous is two steps removed from a findini.t of discrimination' the fact finder must first infer that if the employee was in fact competent, the employer likely knew that and is therefore lying about the reason for the adverse action (hardly a certain conclusion), and must then infer from the bad faith of the asserted rationale that the true reason was prohibited discrimination. See Rodriguez v. The American Friends of Hebrew University, Inc, 96 Civ 240, 2000 WL 1877061. at *5 n. 7 (S.D.N.Y Dec. 26, 2000) Here, the case for a finding of pretext is, to say the least, weak. The Hospital has not merely offered conclusory assertions that Banez did not do a good job, but submits documentary proof of his supervisors' contemporaneous perception of his inadequacies. (Kaufman Aff Exs. F-J) Plaintiff thus creates an issue of fact about is actual job performance by denying that he did a poor job, but presents no direct evidence that defendant did notbelieve he did a poor job, and thus very little basis for concluding that the proffered explanation was false, or for inferring a discriminatory ammus.
Having failed both to establish his prima facie case of retaliation, and to rebut the Hospital's legitimate. non-retaliatory reason for terminating him. Banez cannot point to the existence of any material factual dispute with respect to his claim for retaliation. On this record, which shows no explicit complaint about age discrimination, but merely a dispute about whether Banez deserved an exception to the Hospital's overtime policy, and documented instances of poor job performance, for the most part beginning months after the dispute was actually settled in plaintiff's favor, no reasonable fact finder could conclude that Banez was fired in retaliation for protected complaints about purported age discrimination. Accordingly, summary judgment in favor of the defendant must be granted on Banez's claim under the ADEA.
III. Religious Discrimination
Banez's claim of religious discrimination under Title VII is even less substantial, and his failure to satisfy his minimal prima facie burden even more acute. Title VII makes it unlawful for an employer to fire an employee because of his religion 42 U.S.C. § 2000e-2 (a)(1). As with all employment discrimination cases, a prima facie case of discriminatory discharge on the basis of religion requires a showing that the plaintiff "(I) was a member of a protected class; (2) was qualified for the position; (3) was discharged, and (4) the discharge occurred in circumstances giving rise to an inference of discrimination." Rosen v. Thornburgh, 928 F.2d 528, 532 (2d Cir. 1991). Circumstances giving rise to a permissible inference of discriminatory intent include defendant's continuing to seek applicants for plaintiffs position, defendant's criticism of plaintiff's performance in degrading terms, invidious comments about others in plaintiffs protected group, or more favorable treatment of employees not in the protected group. Chambers, 43 F.3d at 37. There is no dispute that Banez was qualified for the position from which he was terminated, since he was hired and retained by the Hospital for seven years, nor is there any dispute that he was discharged in October 1997 However, the record contains only the slightest of evidence permitting an inference that Banez was terminated because of his religion. The record is devoid of evidence of the Hospital's preference for non-Catholic employees. The record also contains no indication of the religious affiliation of the employee hired to replace him. Further Banez failed to provide any statistical or other evidence showing bias on the part of Hospital.
Banez's only evidence that the Hospital terminated him because he was Catholic consists of two purportedly discriminatory comments that he claims were routinely made to him in front of co-workers, by his supervisor, Spence. namely that he was "always going to [M]ass" and that he would not "be going to Heaven collecting overtime." (Kaufman Aff Ex. A at 382; supra fn.2.) Neither comment, on its face, exhibits an overtly discriminatory ammus towards Catholics. The first of these comments, that Banez was "always going to [M]ass" appears to be nothing more than a description of what Banez himself admitted in his own deposition testimony — that he attended religious services, including several in the Hospital's own chapel, during working hours. (Id at 100-04, 382.) "The second comment, that Banez would not "be going to Heaven collecting overtime," seems more related to the overtime dispute than to Banez's religious beliefs or practices.
Assuming arguendo that these remarks might support an inference of religious bias on Spence's part, they are not enough to defeat summary judgment Occasional questionable remarks relating to a prohibited ground of discrimination cannot, in the absence of other indicia of discrimination, support an inference of discrimination. Woroski v. Nashua Corp. 31 F.3d 105, 109-110 (2d Cir. 1994) See also Abdu-Brisson, 239 F 3d at 468; Danzer, 151 F 3d at 56. of course, the absence of affirmative evidence of an intent to discriminate, such as offensive comments, would not automatically require summary judgment. Chambers, 43 F.3d at 37. Direct evidence of intent in employment discrimination cases is often difficult to come by, since it can be expected that those engaged in intentional discrimination will attempt to hide any illegal and reprehensible motivation for their conduct. But Banez offers no other circumstantial evidence that might, even in the absence of overt religious bigotry, support an inference of discrimination by the Hospital
In sharp contrast, as set forth above, the Hospital has proferred a legitimate explanation for tiring Banez, his deteriorating job performance, and has provided ample evidence for its actions. (Kauman Aff Exs. F-J.) In light of this uncontroverted evidence, no reasonable fact finder could infer from these stray comments alone that the Hospital's proferred legitimate reason was pretextual. The remaining evidence, far from supporting any inference of a discriminatory ammus against Catholics, further undercuts any inference of intentional discrimination. It is undisputed that the Hospital publicly proclaims that it "shares the mission of the Roman Catholic Church" (Id. Ex. C at 5), and that the services Banez attended were conducted by Catholic priests in a chapel located on the Hospital premises, with the apparent approval of the Hosptial. (Id. Ex A at 100-04.) Banez has never alleged, nor testified to, any incidents in which he was prevented from attending Mass, nor did he ever complain about religious discrimination, formally or otherwise. (Id. at 380-82, 386-88) There is no evidence in the record regarding the religious composition of the Hospital's work force and no reason to believe it preferred non-Catholic employees, or Catholics who were less devout. A charge of religious discrimination based solely on two ambiguous comments by a supervisor cannot survive summary judgment, where, as here, all other affirmative evidence clearly refutes any inference of religious discrimination. See Woroski 31 F.3d at 109-110.
On the record before the Court, no reasonable fact finder could conclude that the Hospital fired Banez because he was Catholic Summary judgment must accordingly be entered against him on his claim for religious discrimination.
CONCLUSION
Defendants motion for summary judgment is granted in its entirety, and judgment will be entered for defendant
SO ORDERED