Opinion
00 Civ. 8908 (GWG)
February 28, 2002
Gary Dugan, Brooklyn, New York, Plaintiff Pro Se.
Laura Sack, Esq., Kauff, McClain McGuire, New York, New York, Attorney for Defendant.
OPINION AND ORDER
The parties have consented to this matter being adjudicated by a United States Magistrate Judge pursuant to 28 U.S.C. § 636(c).
On November 22, 2000, plaintiff Gary Dugan, proceeding pro se, commenced this action under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. ("Title VII"), against his employer, defendant CBS Broadcasting, Inc. ("CBS"), alleging that CBS intentionally discriminated against him on account of his race during his employment. CBS now moves for summary judgment against Dugan pursuant to Fed.R.Civ.P. 56. For the following reasons, the motion is granted.
FACTUAL BACKGROUND
Dugan's Employment at CBS
Plaintiff Gary Dugan, an African-American, began working for CBS in 1987 in its Security Department. See Transcript of the Deposition of Gary Dugan ("Dugan Dep.") (excerpted in Exhibit A to the Affirmation of Laura Sack, dated August 6, 2001 ("Sack Aff.")) at 22. In 1990, Dugan transferred to the Facilities Department where he worked as a Maintenance mechanic. See id. at 22-23. From the time of that transfer in 1990 until his lay-off in October 1996, Dugan worked in a CBS building located at 51 West 52nd Street ("Blackrock") in New York City. See id. at 28-29.
In 1992, Dugan was promoted to Engineer when one of the other Engineers became ill. See id. at 35. In 1994, Dugan was laid off as an Engineer but was permitted to "bump" (that is, replace) a less senior mechanic. See id. In August and November 1994, Dugan and a co-worker sent written complaints to CBS management alleging that their supervisor, Thomas DiPietro, was discriminating against them and harassing them at work. See id. at 130-31; Affidavit of Darryl Thompkins, dated September 12, 2001 ("Thompkins Aff.") at ¶ 1 Exhibits thereto (unnumbered). After investigating the incident, CBS demoted and transferred DiPietro to another building located at 524 West 57th Street (the "Broadcast Center"). See Dugan Dep. at 130-31. By 1996, Dugan was promoted back to Engineer and was represented for the purposes of collective bargaining by Local 30 of the International Union of Operating Engineers ("Local 30"). See id. at 29.
In 1995, CBS merged with Westinghouse Electric Corporation. See id. at 30. As a consequence of the merger, CBS announced layoffs. See id. According to the collective bargaining agreement between Local 30 and CBS, layoffs were to be determined on the basis of unit seniority. See id. at 29-30; 1994-1997 Agreement Between CBS, Inc. IUOE Local 30, 30-A, 30-B, 30-C Stationary and Refrigeration Engineers, New York ("CBA"), at 10, reproduced as Sack Aff., Exhibit D. Under the terms of this agreement "unit seniority" was defined as seniority on one of three separate lists: 1) Engineers, 2) Mechanics, including Class I and Class II Facilities Specialists ("Facilities Specialists I" and "Facilities Specialists II"), and 3) Apprentice Engineers. See id. at 8; Dugan Dep. at 38, 42, 163. In October 1996, CBS laid off three individuals whom CBS identified as the three least senior Engineers on the Engineers unit seniority list: Jay Silverstein, Angelo Pikoulas, and Dugan. See id. at 31-32; CBS's Rule 56.1 Statement, dated August 15, 2001 ("CBS 56.1 Stmt."), at ¶ 10. Both Silverstein and Pikoulas are white and were more senior than Dugan. See Dugan Dep. at 32, 36. Dugan received eleven weeks of severance pay at the time of his layoff. See id. at 46.
Dugan grieved his lay off. See id. at 44-45. After meeting with Dugan's union representative, Joe Bialkowski, CBS management agreed to allow Dugan to return to work by "bumping" (that is, replacing) Charles Brown, whom they designated the least senior Facilities Specialist. See id. at 45; Affidavit of Edgar J. Yergeau, dated August 1, 2001 ("Yergeau Aff.") at ¶ 2. Because Brown was assigned to the Broadcast Center, Dugan was assigned there as well when he replaced Brown. See Dugan Dep. at 44-45; Yergeau Aff. at ¶ 3. When Bialkowski informed Dugan of the decision to place him at the Broadcast Center, Dugan objected. See Dugan Dep. at 46. He thought that John Williamson, a less senior Facilities Specialist I, should be assigned to the Broadcast Center instead. See id. at 47. He also objected on the grounds that should he start working at the Broadcast Center, he would have to report to DiPietro, about whom he had complained in 1994. See id. Bialkowski relayed Dugan's objections to management and Dugan retained an attorney who relayed his objections to Edgar J. Yergeau, the Senior Vice President, Industrial Relations for CBS. See id. at 48-49. Although Dugan was unpersuaded by management that DiPietro would not be a problem, on the advice of his union representative, he accepted the position at the Broadcast Center. See id. at 48-50.
On approximately November 11 or 12, 1996, Dugan returned to work at CBS. See id. at 50. Donald Forman, whom Dugan did not know previously, worked as Manager of Mechanical Operations at the Broadcast Center. See Transcript of the Deposition of Donald Forman ("Forman Dep.") (excerpted in Exhibit C to Sack Aff.) at 18. Upon returning to work, Dugan was informed that he was being hired as a Facilities Specialist II — a lower paying position than a Facilities Specialist I — pending an evaluation of his performance and that he would be eligible for promotion at the end of the evaluation period. Forman Dep. at 9; Plaintiff[`s] Rule 56.1 Statement of Material Facts ("Dugan 56.1 Stmt.") at ¶¶ 4, 5; Transcript of the Deposition of James Kelly, CBS Director of Facilities Operations ("Kelly Dep.") (excerpted in Exhibit E to Sack Aff.) at 33. This is a common practice for employees newly assigned to the Broadcast Center. Forman Dep. at 6, 9, 26-27, 32, 37. Dugan was also asked to fill out a new job application and W-2 form and take a drug test. Dugan 56.1 Stmt. at ¶ 6. In addition, CBS demanded that he repay seven weeks of the eleven weeks of severance he received when he was laid off on the ground that he was out of work for only four weeks. See Dugan Dep. at 108-09; Memorandum from James J. Kelly to Gary Dugan Re: Repayment of Severance, dated December 26, 1996 ("Kelly Memo"), reproduced as Sack Aff., Exhibit B. Dugan, however, felt that "the minute [he] was sent to take a drug test he was being treated as a new hire" and that he should not have had to repay the excess severance. Dugan 56.1 Stmt. at ¶ 7. After multiple meetings with Facilities Director Kelly, he eventually agreed to repay the excess severance. See Kelly Memo. On January 1, 1997, Dugan took a several week absence from work due to "work-related stress." See Dugan Dep. at 64, 95.
On December 30, 1996, Dugan wrote a letter to Forman, with copies sent to CBS management and Local 30 representatives, informing Forman that Dugan "wish[ed] to file a grievance against [Forman] for failing to practice fair equal opportunity employment." Letter from Gary Dugan to Donald Forman ("Forman Letter"), reproduced in Exhibit B to the Affirmation of Gary Dugan, dated September 13, 2001 ("Dugan Aff."). In the letter, Dugan complained that it was unfair for him to work as a Facilities Specialist II, when the less senior and less qualified employee whom he had replaced, Charles Brown, had worked as a Facilities Specialist I. Id. On January 6, 1997, Dugan wrote a memo to Kelly, again sending copies to CBS management and Local 30 representatives, stating that Dugan was "officially filing a formal complaint against [Kelly] for [h]arassment." Memorandum from Gary Dugan to James Kelly, Re: Formal Harassment Charges, reproduced in Exhibit B to the Dugan Aff. In the letter, Dugan accused Kelly of "badger[ing]" Dugan in an attempt to get Dugan to sign the repayment of severance agreement — a matter, Dugan contended, that "has nothing to do with" Kelly. Id.
In early February 1997, Dugan and his attorney met with members of CBS management and Local 30 to discuss his grievances. See Dugan Dep. at 109-111. At this meeting, CBS agreed to promote Dugan to a Facilities Specialist I, reassign him back to Blackrock and transfer John Williamson, a white Facilities Specialist I, to the Broadcast Center. See Dugan Dep. at 119-20; Yergeau Aff. ¶ 4. However, because CBS would not agree to Dugan's demands for his salary increase to be retroactive to the time he started working at the Broadcast Center, he decided to "file charges against" CBS. See Dugan Dep. at 119. Although he did not agree to drop his complaints, he did accept the offer to be reassigned to Blackrock, where he continues to work today. Dugan Dep. at 186-87; Yergeau Aff. ¶ 4. Thus, with the exception of the four-week period in 1996 for which he received the severance payment, Dugan has been continuously employed at CBS from 1990 to the present. Dugan Dep. at 186-87. The State Division of Human Rights Complaint
On June 6, 1997, Dugan filed a Complaint with the New York State Division of Human Rights ("SDHR"), alleging that he was laid off and denied "bumping rights" in 1996 not because of the downsizing occasioned by the Westinghouse merger, but rather as retaliation for the complaints he filed with CBS management against DiPietro in 1994. See Charges of Discrimination, reproduced in Exhibit B-6 to Dugan's July 31, 2001, letter to District Judge William H. Pauley, III. He also claimed to have received anonymous telephone calls after he was laid off saying such things as "`this is payback.'" See id. After receiving a response from CBS in which it explained that Dugan was laid off along with two senior white engineers because they were the least senior Engineers, the SDHR in October 2000 ruled that:
[t]he evidence is insufficient to support that [CBS] retaliate[d] against [Dugan] for his filing an internal complaint against his former supervisor in 1994. The record supports that [Dugan] as well as other engineers were laid off from their respective employment[s] because of legitimate operational needs. The record shows that currently, out of the nine engineering/mechanical staff who work for [CBS], three are African-Americans. [CBS] has advanced a non[-]discriminatory, business related reason for laying off [Dugan] and re-hiring him four months later in a lower level position. There is no nexus established between [Dugan's] internal discrimination complaint filed in 1994 and his 1996 laid [sic] off . . . The complaint is therefore ordered dismissed and the file is closed.
See Letter Excerpts, attached to Amended Complaint of Gary Dugan, dated December 9, 2000, in the Southern District of New York ("Complaint") at 2-3.
The EEOC Charge and the Instant Complaint
On June 6, 1997, Dugan also filed a charge with the Equal Employment Opportunity Commission ("EEOC"), which has not been made part of the record in this case. On April 12, 1999, the EEOC issued Dugan a "Notice of Right to Sue" letter. On November 6, 2000, Dugan submitted his original complaint in this action to the Pro Se Office. The Complaint was filed on November 22, 2000. On the same date, Chief District Judge Michael B. Mukasey issued an order requiring Dugan, inter alia, to obtain a current "Notice of Right to Sue" letter and to file an amended complaint. On December 8, 2000, the EEOC issued another "Notice of Right to Sue" letter. See Notice of Right to Sue, signed by Spencer H. Lewis, Jr., Director, attached to the Complaint.
On December 11, 2000, Dugan filed the amended complaint with the Court alleging that CBS discriminated against him because of his race. Complaint at 3. The amended complaint alleges discriminatory termination, unequal terms of employment, and retaliation for his filing of internal complaints against DiPietro in 1994. Id. Following discovery, CBS filed the instant motion for summary judgment on August 30, 2001, which included a notice pursuant to Local Civil Rule 56.2 informing Dugan that he must oppose the motion with affidavits or other supporting documentation. Dugan filed his opposition papers on September 24, 2001, which included affidavits, documents, a response to CBS's Rule 56.1 statement and a memorandum of law. In reply, CBS submitted on October 5, 2001, a memorandum of law and a second affidavit of Laura Sack.
DISCUSSION
I. Applicable Legal Principles
A. Summary Judgment Standard
A district court may grant summary judgment only if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). A genuine issue is one that "may reasonably be resolved in favor of either party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986); McPherson v. Coombe, 174 F.3d 276, 280 (2d Cir. 1999). A material issue is a "dispute over facts that might affect the outcome of the suit under the governing law." Anderson, 477 U.S. at 248. Thus, "`[a] reasonably disputed, legally essential issue is both genuine and material" and precludes a finding of summary judgment. McPherson, 174 F.3d at 280 (quoting Graham v. Henderson, 89 F.3d 75, 79 (2d Cir. 1996)).
When determining whether a genuine issue of material fact exists, courts must resolve all ambiguities and draw all factual inferences in favor of the non-moving party. McPherson, 174 F.3d at 280. In addition, the pleadings of a pro se litigant are to be read liberally and interpreted to "`raise the strongest argument that they suggest.'" McPherson,174 F.3d at 280 (quoting Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994)). Nonetheless, "mere speculation and conjecture is insufficient to preclude the granting of the motion." Harlen Assocs. v. Incorporated Village of Mineola, 273 F.3d 494, 499 (2d Cir. 2001).
Although the Second Circuit has noted that "an extra measure of caution" is needed in granting summary judgment in discrimination cases, because direct evidence of discriminatory intent is rare, a finding of summary judgment is nonetheless appropriate for Title VII claims lacking genuine issues of material fact. Holtz v. Rockefeller Co., 258 F.3d 62, 69 (2d Cir. 2001) (citations omitted); accord Abdu-Brisson v. Delta Air Lines, Inc., 239 F.3d 456, 466 (2d Cir.) ("It is now beyond cavil that summary judgment may be appropriate even in the fact-intensive context of discrimination cases."), cert. denied, 122 S. Ct. 460 (2001); Distasio v. Perkin Elmer Corp., 157 F.3d 55, 62 (2d Cir. 1998). Thus, a plaintiff in a Title VII action must still offer "concrete evidence from which a reasonable juror could return a verdict in his favor." Anderson, 477 U.S. at 256.
B. Legal Principles Applicable to Title VII
Title VII makes it unlawful for an employer to "discharge any individual, or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-2(a). The plaintiff carries the initial burden of establishing a prima facie case of discrimination. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 506 (1993); McDonnell Douglas v. Green, 411 U.S. 792, 802 (1973). If the plaintiff establishes a prima facie case, a presumption of discrimination is created and the burden of production shifts to the employer "to articulate some legitimate, nondiscriminatory reason" for the adverse employment action. See Green, 411 U.S. at 802; Farias v. Instructional Sys., Inc., 259 F.3d 91, 98 (2d Cir. 2001); accord St. Mary's Honor Center, 509 U.S. at 506-07. If the employer articulates a non-discriminatory reason for its actions, the presumption of discrimination is eliminated and "the employer will be entitled to summary judgment . . . unless the plaintiff can point to evidence that reasonably supports a finding of prohibited discrimination." James v. New York Racing Ass'n, 233 F.3d 149, 154 (2d Cir. 2000). This is because "`the ultimate burden of persuading the trier of fact that the defendant intentionally discriminated . . . remains at all times with the plaintiff.'" Id. (quoting St. Mary's, 509 U.S. at 507).
Dugan's Complaint alleges that because of his race, he was laid off, suffered unequal terms of employment and was retaliated against for complaining about the conduct of his supervisor. Complaint at 3. His papers also suggest that he is alleging that he was the victim of harassment. See, e.g., Plaintiff's Response to Defendant[`s] Rule 56.1 Statement ("Dugan 56.1 Resp.") at ¶ 33A. Each claim is addressed separately.
II. Dugan's Claims
A. Termination Claim
In order to establish a prima facie case of discriminatory discharge under Title VII, a plaintiff must show that he: 1) is a member in a protected class, 2) was qualified for the position, 3) was terminated from the position and 4) was terminated under circumstances that raise an inference of discrimination. Windham v. Time Warner, Inc., 275 F.3d 179, 187 (2d Cir. 2001). Dugan is African-American and thus is a member of a protected class. See, e.g. Windham, 275 F.3d at 188. CBS has not disputed that Dugan was qualified for his job as Engineer prior to being laid off. Additionally, it is undisputed that CBS laid off Dugan from that job. See, e.g., CBS 56.1 Stmt. at ¶ 10. CBS does dispute, however, that Dugan's termination of employment occurred in circumstances raising an inference of discrimination. See, e.g., Memorandum of Law in Support of Defendant's Motion for Summary Judgment, dated August 15, 2001 ("CBS Mem.") at 10.
In support of his argument that CBS intentionally discriminated against him when it laid him off, Dugan offers essentially just one assertion: that a less senior white Engineer, Charles Brown, remained at CBS at the time of Dugan's lay-off. See Dugan 56.1 Resp. at ¶ 10A; Memorandum of Law In Support of Plaintiff's Opposition Motion of Defendants [sic] Motion for Summary Judgment ("Dugan Mem.") at ¶ 2. In response, CBS asserts that Brown was a Facilities Specialist — not an Engineer — and therefore was on a seniority list different from Dugan's under the provisions of the CBA. See Reply Memorandum of Law in Further Support of Defendant's Motion for Summary Judgment, dated October 4, 2001 ("CBS Reply Mem.") at 2-4.
To support his assertion regarding Brown's status as an Engineer, Dugan offers three pieces of evidence. First he cites his own deposition testimony, see Dugan 56.1 Resp. at 10A, in which he testifies that Brown told him that Brown was hired as an Engineer and that Bialkowski (Dugan's union representative) told Dugan that Bialkowski "sent [Brown] over to [the Broadcast Center] to be an Engineer." See Dugan Dep. at 43-44, reproduced as Dugan Aff., Exhibit E. Second, he cites the Affidavit of Darryl Thompkins, see Dugan 56.1 Resp. at ¶ 10A, in which Thompkins states that he has been "Shop Stewart" [sic] since 1995 and that "[i]t was a known fact that . . . Charlie Brown was hired as a Engineer . . ." Thompkins Aff. ¶¶ 2, 3. Third, he cites the notarized statement of Charlie Brown dated August 10, 2001 ("Brown Stmt."), see Dugan's Resp. at 10A, in which Brown claims that he was a Watch Engineer at the Broadcast Center in 1996 and "was on the Engineer's seniority list" until being laid off (and ultimately replaced by Dugan, when he returned from his own layoff). Brown Stmt., first paragraph (unnumbered).
To support its assertion that CBS considered Brown to be a Facilities Specialist and not an Engineer, CBS has submitted Brown's employment application and his personnel records. The personnel records consistently and repeatedly indicate that Brown was a Facilities Specialist I during the relevant periods in 1996. See Exhibit A to the Dugan Aff. (Bates Stamp Numbers A 00081, A 00126, A 00129); accord Exhibit B to the Affirmation of Laura Sack, dated October 4, 2001 (A 00127, A 00128). Additionally, Brown's own employment application, dated December 8, 1995, under the heading "Position applied for," the description "Facility Specialist" is written. See CBS Employment Application, reproduced in Exhibit A to the Affidavit of Anita Alleyne, Supervisor of Personnel Records for CBS, dated October 3, 2001 ("Alleyne Aff."). A document entitled "Pre-Employment Report on Conflicts of Interest" (reproduced in Exhibit A to the Alleyne Aff.) also indicates that Brown sought employment as a Facilities Specialist I. Finally, CBS submits the affidavit of Edgar J. Yergeau, a Senior Vice President whose responsibilities include the negotiation and administration of collective bargaining agreements with Local 30, in which he states that Brown was "the least senior Facilities Specialist then employed by CBS." See Yergeau Aff. at ¶ 2.
CBS also notes that Dugan's own submissions in opposition to the present motion indicate that Dugan believed that Brown was a Facilities Specialist and not an Engineer as he now claims. In a "transcript" that Dugan made of a secretly recorded a conversation he had with Forman, Dugan asks Forman "Wasn't Mr. Brown hired as a [Facilities] Spec[ialist]-I?" See Dugan Aff., Exhibit B (unnumbered page). Forman replies "Yes." Id. In a transcript of a conversation Dugan had with Kelly on December 27, 1996, Dugan states "I was suppose[d] to be taking Charlie Brown's place, he is a [Facilities] Spec[ialist]-I." Id.
Dugan has submitted a number of "transcripts" of surreptitiously recorded telephone conversations with personnel at CBS. No tape recording of these conversations has been provided. While the Court will consider these transcripts for purposes of this summary judgment motion, it makes no ruling on whether they would be admissible at trial.
At his deposition, however, Dugan claimed that he did not know what Brown's job title was during the pertinent period. Dugan Dep. at 45. Dugan provides no explanation for the discrepancy.
In response to CBS's documentation indicating that Brown was a Facilities Specialist, Dugan asserts that CBS simply falsified the personnel records of Brown to indicate that he was a Facilities Specialist when in fact he was an Engineer. See Dugan Mem. at ¶ 2. Dugan offers no evidence to substantiate this claim, however, other than Brown's own statement in which he asserts that the union representative, Bialkowski, "sent" him to the Broadcast Center as a "license Watch Engineer" and that he was on the "Engineer's seniority list" until his own layoff. Brown, however, does not claim that CBS falsified his personnel records and no explanation is offered as to why Brown's application shows that he applied to be a Facilities Specialist and all CBS records so state.
In order for Dugan to prevail on his claim, he must show not that Brown or his co-workers believed that Brown was on the Engineer's list but rather that CBS — which is alleged to have intentionally discriminated against Dugan by retaining Brown when it laid off Dugan — considered Brown to be on the Engineer's list and thus deliberately passed over Brown in order to lay off Dugan. CBS has offered evidence unequivocally demonstrating that it considered Brown to be a Facilities Specialist. As a result, it was incumbent on Dugan "not [to] rest on mere allegations or denials," but rather to present admissible evidence demonstrating "that there is a genuine issue for trial." Fed.R.Civ.P. 56(e); accord Schwapp v. Town of Avon, 118 F.3d 106, 110 (2d Cir. 1997) ("even in the discrimination context, a plaintiff must provide more than conclusory allegations of discrimination to defeat a motion for summary judgment").
Dugan, however, has offered no evidence from which a jury could conclude that CBS considered Brown to be a Facilities Specialist. Instead, Dugan has offered only his own and other non-management employees' views as to what they personally believed was Brown's job title. These individuals' personal beliefs, however, are not relevant. Consequently, Dugan's deposition testimony in which he stated that he knew Brown was an Engineer because Bialkowski and Brown told him so does not show that CBS considered Brown to be an Engineer. Moreover, Brown and Bialkowski's statements to Dugan are hearsay, as is Thompkins' statement that "it was a known fact" that Brown was an Engineer. Because these statements are hearsay, even if they were relevant, they would be inadmissible for purposes of creating a genuine issue for trial under Fed.R.Civ.P. 56(e).
Brown's notarized statement that he was an Engineer and on the Engineer's seniority list is also insufficient to raise a genuine issue of material fact because it provides no basis to conclude that CBS considered Brown to be an Engineer on the Engineer's seniority list. Had Brown claimed that he believed himself to be on the Engineer's seniority list because he had seen CBS documentation so stating or because a relevant person in CBS management had told him so, Dugan might have been able to raise a genuine issue of material fact. As it is, there is no competent evidence on which a jury could conclude that CBS considered Brown to be an Engineer or maintained his name on the Engineer's seniority list. Accordingly, Dugan's argument that CBS discriminated against him because it laid him off instead of Brown fails.
Dugan has included in his opposition papers a letter dated August 18, 2000, from Susan K. Anderson to Grace Williams of the New York State Division of Human Rights. See Dugan Aff., Exhibit C. With respect to the job titles at issue, this letter is consistent with CBS's own records and the position it has taken in this litigation. The letter, however, includes a document entitled "Response to the July 6, 2000, Request for Information" ("Response"), that contains a listing of job titles inconsistent with the CBS records and with the text of the letter itself. Specifically, the Response switches the titles for Brown and Dugan — listing Brown as an Engineer and Dugan as a Facilities Specialist. See Response at ¶ 1a. Dugan has not argued that this job title listing should be considered in support of his contention that Brown was Engineer and the Court would in any event not deem it sufficient to create a genuine issue of material fact. If the document were to be accepted as evidence that Brown was an Engineer, the portion showing Brown to be a Facilities Specialist would also have to be admitted for completeness, and thus the Response would indicate that Dugan was the least senior Facilities Specialist instead of the least senior Engineer. Moreover, this letter is a non-contemporaneous document and offers no citation to CBS records for its description of Brown and Dugan's job titles.
Apart from his claim that Brown was in fact on the Engineer list, Dugan offers no facts to raise an inference of racial discrimination regarding his 1996 layoff. While his complaint about DiPietro resulted in DiPietro being demoted and transferred to another facility in 1994, Dugan has made no assertions, let alone submitted competent evidence, to indicate that his layoff was in any way the result of racial discrimination. Accordingly, Dugan has not met even the "minimal" burden of showing a prima facie case of race discrimination, McGuinness v. Lincoln Hall, 263 F.3d 49, 53 (2d Cir. 2001), and summary judgment must be granted to CBS on the termination claim.
B. Unequal Terms Claim
Dugan claims that Jay Silverstein — a white engineer with greater seniority who was laid off at the same time as Dugan — received better treatment than Dugan with respect to his layoff and severance package. See Dugan Mem. at ¶ 3. Silverstein was also laid off on October 11, 1996, and rehired by CBS at the Broadcast Center as a Facilities Specialist II (although Silverstein's rehiring occurred in March 1997, several months after Dugan's rehiring). Id. Dugan claims that when Silverstein ultimately returned to his original status as Engineer, he "received retroactive pay in the sum of $2,100.00 to make up his salary for the time he had been a [Facilities] Spec[ialist]-2." Id. Dugan, by contrast, claims he "was denied retro pay." Id. Dugan also notes that Silverstein, in contrast to Dugan, was not required to repay any portion of his severance package to CBS.
A plaintiff in a severance pay case
may make out a prima facie case of employment discrimination by showing that [the plaintiff] is within a protected group; that [the plaintiff] is qualified for the position; that [the plaintiff] was subject to an adverse employment action involving severance pay; and that a similarly situated employee not in the relevant protected group received better treatment.
McGuinness v. Lincoln Hall, 263 F.3d at 53 (citing cases). Dugan appears to meet the first three elements of the prima facie case. He is African-American and thus within a protected group. He was "qualified for the position" in the sense that he was eligible for severance payments. He was also subject to an adverse employment action involving severance when he was laid off and given eleven weeks of severance pay. Arguably, he has also established the final element of the prima facie case because, although Dugan received eleven weeks severance pay when Silverstein only received six, see Alleyne Aff., Exhibit C, Silverstein was not required to repay any of his severance pay when he was rehired. Because Dugan has established a prima facie case, the burden shifts to CBS to articulate a legitimate, non-discriminatory reason for its actions. Green, 411 U.S. at 802.
CBS articulates a simple reason for its differential treatment: Silverstein was not required to repay his severance pay because he was not rehired until five months after his layoff. Thus, Silverstein was in fact on layoff status for the entire six week period for which he received severance pay. See CBS Reply Mem. at 6; Alleyne Aff., Exhibits C and E. By contrast, Dugan received eleven weeks severance pay even though he was only laid off for four weeks. Consequently, CBS required Dugan to repay the seven week portion of the severance pay that was no longer needed because Dugan had been rehired.
Because CBS has articulated a legitimate, non-discriminatory reason for its actions, the burden shifts to Dugan to point to evidence showing that CBS's explanation was false and a mere pretext for discrimination. See, e.g., Farias, 259 F.3d at 298. Dugan, however, has offered nothing to demonstrate that CBS's articulated reason is false and a mere pretext for discrimination. Therefore, he fails to carry his burden of production and CBS is entitled to summary judgment. See James, 233 F.3d at 154.
With respect to Dugan's claim that Silverstein was given $2,100.00 in retroactive pay in order to compensate for the time he spent as a Facilities Specialist II, Dugan offers no factual support for this assertion and thus it is not sufficient to defeat a motion for summary judgment. See Fed.R.Civ.P. 56; Byrnie v. Town of Cromwell, 243 F.3d 93, 101 (2d Cir. 2001) ("`non-moving party may not rely on conclusory allegations or unsubstantiated speculation'") (citation omitted). Even assuming that Dugan did submit competent evidence to support his claim and made out a prima facie case of discrimination, it would still not be enough to defeat CBS's summary judgment motion because CBS has articulated a legitimate non-discriminatory reason for its action: that Silverstein received a salary adjustment in October 1997, retroactive only to July 1997, to reflect that as part of the negotiations between Local 30 and CBS, CBS agreed to upgrade Silverstein to an Engineer, when the Facilities Specialist II position was eliminated. See Alleyne Aff., Exhibit B. As already noted, it is undisputed that Silverstein is the more senior Engineer. See CBS 56.1 Stmt. at ¶ 11; Dugan Dep. at 32, 36. Dugan's mere claim that Silverstein received retroactive pay to compensate him for the time he worked as a Facilities Specialist II, without offering any factual support, is insufficient to counter CBS's explanation and insufficient to raise a genuine issue of material fact supporting Dugan's claim of race discrimination. Accordingly, it cannot defeat CBS's summary judgment motion.
C. Retaliation Claim
Dugan also claims that CBS's placement of Dugan under the supervision of DiPietro when Dugan was rehired was "an act of retaliation" against Dugan. Dugan Mem. at ¶ 6. Although Dugan does not explain in his memorandum of law what event triggered CBS's "retaliation," the Court will assume that Dugan is arguing (as he did to the SDHR) that CBS fired Dugan and subsequently rehired him under DiPietro's supervision in late 1996 as retaliation for Dugan's filing a 1994 internal complaint against DiPietro. See Charges of Discrimination, reproduced in Exhibit B to Dugan's July 31, 2001, letter to Judge Pauley (filed August 6, 2001).
In order to establish a prima facie case of retaliation under Title VII, a plaintiff must show "i) participation in a protected activity known to the defendant; ii) an employment action disadvantaging the plaintiff; and iii) a causal connection between the protected activity and the adverse employment action." Tomka v. Seiler Corp., 66 F.3d 1295, 1308 (2d Cir. 1995). Dugan's internal complaints were protected activity. See, e.g., Matima v. Celli, 228 F.3d 68, 78-79 (2d Cir. 2000) ("[t]he law protects employees in the filing of formal charges of discrimination as well as in the making of informal protests of discrimination, `including making complaints to management . . .'") (citations omitted). The Court also assumes that laying off Dugan and then rehiring and reassigning him to the Broadcast Center, where DiPietro worked, constituted an adverse employment action.
Dugan, however, does not satisfy the causation element of the Title VII retaliation claim. "Proof of a causal connection can be established indirectly by showing that the protected activity was followed closely by the adverse action." Leichter v. St. Vincent's Hosp., 2001 WL 1160748, at *13 (S.D.N.Y. Sept. 28, 2001) (citing Reed v. A.W. Lawrence Co., 95 F.3d 1170, 1178 (2d Cir. 1996)). The Second Circuit has not delineated at what point following the initiation of protected activity the occurrence of an adverse action becomes too attenuated to infer a causal connection, see, e.g., Gorman-Bakos v. Cornell Coop. Extension of Schenectady County, 252 F.3d 545, 554 (2d Cir. 2001), but case law is clear that a lengthy period suggests an absence of causation. See, e.g., Nicastro v. Runyon, 60 F. Supp.2d 181, 185 (S.D.N.Y. 1999) ("[c]laims of retaliation are routinely dismissed when as few as three months elapse between the protected EEO activity and the alleged act of retaliation . . . [s]urely, two-and-one-half years is far too long to warrant an inference of discriminatory retaliation"); Adeniji v. Admin. for Children Servs., 43 F. Supp.2d 407, 433-34 (S.D.N.Y.) (eleven month period between alleged protected activity and alleged adverse employment action too long to infer causation), aff'd, 201 F.3d 430 (2d Cir. 1999); Holtz v. Marcus Theatres Corp., 31 F. Supp.2d 1139, 1147-48 (E.D.Wis. 1999) ("A three-year lapse between the end of [plaintiff's] consensual sexual relationship with [her supervisor] in 1993 and [her manager's] decision regarding the hiring of managers in 1996 stretches the causal chain beyond the point of breaking."); Sykes v. Mt. Sinai Med. Ctr., 937 F. Supp. 270, 276 n. 9 (S.D.N.Y.1996) ("the court finds as a matter of law no close proximity in time exists between the [protected acts "a year or two" earlier] and the discharge sufficient to establish a prima facie case of retaliatory discharge"). The two-year period in this case, coupled with the complete absence of any other indicia of retaliation, would not permit a jury to conclude that there was a causal connection between the two events. Dugan has offered no evidence to support his claim of causation.
Even if Dugan had established a prima face case of retaliation, CBS would still be entitled to summary judgment because it has offered a legitimate, non-discriminatory reasons for its actions and these reasons have not been refuted by Dugan. Specifically, as described in detail above, CBS laid off Dugan following the Westinghouse merger because he was one of the three least senior engineers. CBS rehired and reassigned Dugan to the Broadcast Center only because he was replacing the least senior Facilities Specialist, Charles Brown, and Brown was assigned to the Broadcast Center. CBS Mem. at 15.
Dugan claims that John Williamson, a white employee, should have been reassigned to the Broadcast Center in 1996 instead of Dugan. See Dugan Mem. at ¶ 4. Dugan seems to base this contention on his allegation that because "Mr. Williamson did not obtain his refrigeration licences; therefore he did not meet the qualification to be a [Facilities] Spec[ialist]-I or an Engineer." Id. It is unclear what relevance Williamson's job qualifications have to the issue of Dugan's assignment. In any event, Dugan has cited no admissible evidence to establish this fact and CBS has submitted evidence indicating that at least CBS believed Williamson did have his refrigeration license. See Forman dep. at 27; Williamson's Resume at 1, reproduced as Alleyne Aff., Exhibit D. Dugan also alleges that because Williamson was less senior to him, Williamson should have been reassigned to the Broadcast Center instead of Dugan. See Dugan Mem. at 4.
Even assuming that Dugan's allegations regarding Williamson were sufficient to state a prima facie case of discrimination under a disparate treatment theory, CBS has advanced a legitimate, non-discriminatory reason for its reassigning Dugan to the Broadcast Center: namely that Dugan could not fairly "bump" just any employee but only the least senior Facilities Specialist, who was Brown, and that Brown happened to be assigned to the Broadcast Center. Yergeau Aff. ¶¶ 2-3; CBS Mem. at 15. Dugan offers nothing other than his mere beliefs (and those of Thompkins) to suggest that CBS's proffered reason is but a pretext for unlawful discrimination. Furthermore, his claim of discrimination fails because he received more favorable treatment than all the other individuals who were similarly situated to himself. This is because Dugan was allowed to "bump" a white employee and return to work a month after being laid off when two more senior white engineers — Silverstein and Pikoulas (who were laid off simultaneously with Dugan) — were not.
The CBA itself did not provide for "bumping" rights in this situation. See CBA, reproduced as Sack Aff., Exhibit D.
Finally, Dugan complains that during the period he worked at the Broadcast Center, he was paid at the lower Facilities Specialist II rate while two other employees at the Broadcast Center — Brown and Williamson — were being paid or had been paid at the higher Facilities Specialist I rate. See Dugan Mem. at ¶ 4. Forman and Kelly have testified that this is because Dugan was initially rehired as Facilities Specialist II in the Broadcast Center pending an evaluation of his abilities, after which he would be eligible for a promotion. See Forman Dep. at 6, 9, 37; Kelly Dep. at 33. In addition, Dugan concedes that Silverstein (who is white) was also rehired as a Facilities Specialist II and accordingly paid this lower rate. Dugan Mem. at ¶ 4. Thus, because CBS has offered a legitimate, non-discriminatory reason for its actions and Dugan offers nothing to indicate that this reason was pretextual, CBS is entitled to summary judgment on this claim.
D. Rehiring Claims
Dugan also alleges that CBS discriminated against him in its treatment of him when he was rehired following his layoff. See Dugan Mem. at ¶ 8. Dugan states that he was forced to take a drug test and fill out a new job application. Id. Also, after completing these forms, Dugan was improperly designated as exempt from taxes, "which resulted in him having to pay back over $12,000 in Federal and State taxes." Id. These facts are not disputed by CBS.
Dugan, however, has not offered any evidence that other similarly situated employees were not required to submit to a drug test and to fill out a job application. To the contrary, CBS offers uncontradicted evidence that Silverstein had to fill out a job application and submit to a drug test when he was rehired. See Silverstein's CBS Employment Application and Pre-Employment Consent for Drug Screening Test, reproduced as Alleyne Aff., Exhibit E.
With respect to the tax exemption problem, Dugan seems to concede that the tax problem was probably due to random error and that he had no reason to believe that the person in the payroll department, whom he contacted about this, had "some kind of axe to grind" against him. Dugan Dep. at 190-91. In any event, the Court does not consider the failure to withhold taxes to be a "materially adverse" change in the terms and conditions of Dugan's employment, Galabya v. New York City Bd. of Educ., 202 F.3d 636, 640 (2d Cir. 2000), because Dugan himself had the obligation to verify that the proper amount of tax was being withheld from his own paycheck.
Because Dugan has failed to submit any reason why the rehiring procedures show discriminatory conduct, there is no basis on which a jury could find that he had been discriminated against.
E. Hostile Work Environment Claims
Although not mentioned in the complaint, Dugan alleges in his papers submitted in opposition to the present motion that Kelly and Forman harassed him during his brief period at the Broadcast Center. See, e.g., Dugan Mem. at 5; Forman Letter. He alleges that Kelly's attempts to get Dugan to repay the excess severance pay "was an outright case of harassment" Dugan Mem. at ¶ 5. His basis for this assertion is that "Kelly had absolutely nothing to do with this matter." Id. In the Forman Letter, written shortly after he was rehired, Dugan complained that Forman told Bialkowski that Dugan was not qualified to be a Facilities Specialist I solely based on "the words of other employees." Construing Dugan's complaint to include a harassment claim, CBS is still entitled to summary judgment.
The Second Circuit has set forth the law as it relates to a hostile work environment as follows:
Title VII creates a cause of action based on the presence of a hostile working environment when the workplace is "permeated with discriminatory intimidation, ridicule, and insult that is sufficiently pervasive to alter the conditions of the victim's employment . . . ." Harris v. Forklift Systems, Inc., 510 U.S. 17, 21, 114 S. Ct. 367, 126 L.Ed.2d 295 (1993) (citation and internal quotations omitted). . . . A work environment will be considered hostile if a reasonable person would have found it to be so and if the plaintiff subjectively so perceived it. Gallagher v. Delaney, 139 F.3d 338, 347 (2d Cir.1998). A plaintiff must also demonstrate that she was subjected to the hostility because of her membership in a protected class.
. . . Cf. Oncale v. Sundowner Offshore Services, Inc., et al., 523 U.S. 75, 118 S. Ct. 998, 1002, 140 L.Ed.2d 201 (1998) (the critical issue is whether one sex is subject to more disadvantageous conditions than the other). Isolated, minor acts or occasional episodes do not warrant relief. Kotcher v. Rosa and Sullivan Appliance Center, Inc., 957 F.2d 59, 62 (2d Cir.1992). A plaintiff need not present a list of specific acts. See Torres v. Pisano, 116 F.3d 625, 631 (2d Cir.1997) (allegations of constant harassment confirmed by co-workers sufficient to create a triable issue of fact even where the plaintiff did not remember details of every incident). However, a plaintiff must still prove that the incidents were "sufficiently continuous and concerted" to be considered pervasive, Perry v. Ethan Allen, Inc., 115 F.3d 143, 149 (2d Cir.1997), or that a single episode is "severe enough" to establish a hostile working environment. Richardson v. New York State Dep't of Correctional Service, 180 F.3d 426, 437 (2d Cir.1999) (quoting Torres, 116 F.3d at 631 n. 4).
Brennan v. Metro. Opera Ass'n, 192 F.3d 310, 318 (2d Cir. 1999) The incidents alleged by Dugan, either alone or in combination, do not constitute a hostile work environment under these standards.
Regarding the Kelly allegations, there is no basis for finding Kelly's actions improper. As he stated in his deposition, Kelly was directed to broach the subject of repayment of severance by Sandy Spangenberg of the personnel department and Judy Moldover of CBS's law department. See Deposition of Facilities Director James Kelly at 6, 54 (excerpted as Dugan Aff., Exhibit D and Sack Aff., Exhibit E). Moreover, even the transcript of the conversation secretly recorded by Dugan between him and Kelly (reproduced in Dugan Aff., Exhibit B) does not indicate that Kelly harassed Dugan about the severance issue. Instead, Kelly explains during the conversation that because Dugan was granted eleven weeks severance pay, but was only laid off for four weeks, he would be required to repay the excess seven weeks. To this Dugan responds that he understands what Kelly is saying, but he "never should have been laid off." After Kelly states that that is another issue, Dugan replies "Another issue? Well I'm not signing this." Kelly simply responds "OK." Thus, Kelly was not "harassing" Dugan let alone harassing him because of his race.
Dugan's assertion that Forman harassed him by stating that he was not qualified to be a Facilities Specialist I is also unavailing. As evidenced by the transcript of the conversation between Dugan and Forman that Dugan secretly recorded, Forman explains that because Dugan was unfamiliar with the Broadcast Center, he was going to be hired as a Facilities Specialist II with the chance to be promoted to a Facilities Specialist I, once he had proven himself capable. Indeed, Dugan concedes that Silverstein, a more senior white Engineer laid off concurrently with Dugan, was rehired, like Dugan, as a Facilities Specialist II. See Dugan Mem. at ¶ 3. Dugan provides no evidence of racially motivated harassment.
The Transcript of Tape Recording, dated November 22, 1996, reproduced as Dugan Aff., Exhibit B (pages unnumbered) states in pertinent part as follows:
Forman: Basically you don't meet the qualifications for [a Facilities] Specialist-I here yet though.
Dugan: But I was a Watch Engineer over there [at Blackrock] for three years, three/four years.
Forman: But you haven't got any experience in this building. You don't know the sprinkler system here; you don't know anything about this place yet.
Dugan: I understand that.
Forman: A qualification for being a [Facilities] Spec[ialist]-I here; I'm not saying you're not going to get it.
Dugan: I understand what you are saying.
* * *
Forman: You can't walk in the door here as a [Facilities] Spec[ialist]-I. A [Facilities] Spec[ialist]-I has a higher requirement than a license Engineer.
Dugan: I understand that.
Whatever lack of justification Dugan could show for these incidents and conversations, they certainly do not constitute a hostile work environment. "Conduct that is not severe or pervasive enough to create an objectively hostile or abusive work environment — an environment that a reasonable person would find hostile or abusive — is beyond Title VII's purview." Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993). A reasonable person would not have found Dugan's work environment to be hostile or abusive. In addition, these incidents are not sufficiently pervasive. See Brennan v. Metro. Opera Ass'n, 192 F.3d at 318 ("[i]solated, minor acts or occasional episodes do not warrant relief.")
Finally, Dugan has not demonstrated that any of these acts were motivated because of Dugan's race. Obviously, mistreatment at work is only actionable under Title VII when it occurs because of an employee's race or other protected characteristic. See 42 U.S.C. § 2000e-2; accord Brown v. Henderson, 257 F.3d 246, 252 (2d Cir. 2001). Dugan has not offered any evidence that the alleged harassment was racially motivated. Indeed, he admits that neither Kelly nor Forman, nor anyone else at CBS, besides DiPietro in 1994, ever made racial remarks to him, see Dugan Dep. at 211, and he admitted that he did not know why Kelly would want to harass him. Dugan Dep. at 116. Instead he merely offers his belief that it was in retaliation for his 1994 complaint against DiPietro. Id. As noted previously, a plaintiff's mere belief and allegation of racial discrimination is not enough to defeat a defendant's summary judgment motion in a Title VII case. Byrnie v. Town of Cromwell, 243 F.3d at 101.
CONCLUSION
Because there are no genuine issues of material fact requiring a trial, CBS's motion for summary judgment is granted. The Clerk is requested to enter judgment dismissing the complaint.
SO ORDERED.