Opinion
00 CV 6730 (ARR)
June 24, 2003
OPINION AND ORDER
Plaintiff, Noe Garcia, brings this action for racial and national origin discrimination against his former employer, Pathmark Stores, Inc. ("Pathmark"), and his former union, United Food and Commercial Workers International Union Local 1500, AFL-CIO ("Local 1500," or "the Union"), under Title VII, 42 U.S.C. § 1981, the New York State Human Rights Law ("NYSHRL"), and the New York City Human Rights Law ("NYCHRL"). Plaintiff also alleges that Pathmark violated the disability discrimination provisions of the state and city Human Rights Laws. Both defendants have moved for summary judgment. For the reasons set forth below, defendant Pathmark's motion is granted in part and denied in part, and the Union's motion is granted in its entirety.
BACKGROUND
The following is a summary of the parties' pertinent factual contentions and the record evidence in support of these contentions. The facts in the record are discussed more fully in the sections analyzing plaintiff's legal claims.
Plaintiff is a Hispanic male of El Salvadoran national origin. In July 1994 plaintiff began working as a part-time produce clerk at Pathmark's Whitestone store in Queens, New York. Shortly after being hired, plaintiff became a member of Local 1500.
Plaintiff testified that he was happy at Pathmark for a approximately a year, Pl. Dep. at 52, after which a new store manager took over and, according to plaintiff, "everything became a race issue." Id. After this manager arrived, plaintiff asked to be assigned to different departments in order to "learn more about the industry." Pl. Dep. at 54. Plaintiff was then placed in the maintenance department and later in a position as a cashier, neither of which plaintiff liked. Plaintiff testified that after several months in the maintenance department, he asked to be moved again, but that he was not transferred out of the department until after he had been there for approximately a year. Plaintiff stated that although he did not at first view the transfer to maintenance as discriminatory, he came to so view it when his requests to re-transfer were ignored.
Plaintiff testified that within the produce department, he was regularly given unpleasant tasks, such as washing and trimming the vegetables, that non-Hispanic employees were not routinely given. Plaintiff admitted that all produce clerks performed all of the tasks in produce at one time or another.
On at least two occasions plaintiff was brought up on disciplinary charges, once for allegedly punching out of work too late and another time for allegedly taking an unauthorized break. Plaintiff filed a grievance with the Union both times. On each occasion, the Union handled the grievance and the discipline was overturned. Plaintiff credits the Union with the successful result of the rest-break grievance, but not with the successful result of the time-card grievance. Plaintiff contends that latter result was "not because of anything the union did," Pl. 56.1 Statement, but merely because the facts clearly showed plaintiff to be in the right. Plaintiff testified that white employees routinely engaged in rule infractions with impunity.
Plaintiff testified that on one occasion, the produce manager, Mike Driscoll, told him that immigrants were supposed to work harder. Plaintiff also stated that Mr. Driscoll or another manager sometimes "cursed him out" and insulted him. On one occasion, in August 1997, the schedule posted above the produce manager's desk contained graffiti directed at plaintiff and another immigrant worker, Kamal Mohammed. This graffiti included the following remarks: "Go back to your country," "Kiss my ass," "Noe and Mohammed, Do America a favor, take the boat one way to Africa no return," and "Mohammed — I packed out 500 boxes!! and everybody else 4 boxes!!" Pl. Ex. 2. Plaintiff contends that the latter remark "pokes fun at Mohammed's complaints about the extra work imposed on immigrants." Pl. Mem. at 7. The schedule also contains the phrase "Cookie Monster," which plaintiff asserts in his memorandum was an ethnic slur based on his "Afro" hairstyle. Pl. Mem. at 8. In his deposition, plaintiff stated that coworkers called him "Cookie Monster" because of the Afro and because he liked cookies and milk. Pl. Dep. at 81. The graffiti contains a drawing of a head with bushy hair, which plaintiff argues is ethnically demeaning. Pl. Mem. at 7. Plaintiff asserts that this schedule was left on display for a week, above the produce manager's desk. Plaintiff testified that he left the schedule posted to see if his managers would do anything about it; eventually, plaintiff stated, he took it down himself. Plaintiff complained about the schedule in a December 5, 1997 meeting with management and Union officials, but did not produce a copy of the schedule until an August 20, 1998 meeting with the same individuals.
In opposition to the instant motion, plaintiff also attaches a schedule from July 1997 on which are written the statements "I'm not racist," "Please don't hate me because I'm white," "Kamal Jock," "Miguel te amo — Noe" (which is Spanish for "I love you Miguel — Noe"), and "Mike loves Noe." Pl. Ex. 2. Plaintiff asserts that the first two comments poke fun at plaintiff's and Kamal Mohammed's complaints of discrimination; that the phrase Kamal Jock is a version of "camel jockey," a derogatory term for Middle Easterners; and that the phrase "Mike loves Noe" ridicules plaintiff's complaints of discrimination to Mike Driscoll, his supervisor. In its reply brief, Pathmark contends that reliance on this document is inappropriate because it was not provided to defendants until after the completion of plaintiff's deposition. The document is not referred to anywhere in the deposition or elsewhere in the record.
When asked at his deposition to state what discriminatory remarks, in addition to "asshole" and "idiot," were directed at him, plaintiff identified only the comment from Driscoll that immigrants should work harder, and the statement of another produce worker, Evon Lamagna, that "all immigrants [should] go back to their country." Pl. Dep. at 89-90. Plaintiff testified that Lamagna made this remark "on one occasion." Pl. Dep. at 89.
Plaintiff complained to Pathmark and to the Union about his alleged discriminatory treatment. As a result, meetings attended by Pathmark managers, plaintiff, and Union representatives were held in 1997, 1998, and 1999. Although plaintiff does not contest that on none of these occasions were any of plaintiff's complaints substantiated by the Union or by Pathmark, plaintiff does challenge the thoroughness and good-faith of the investigations. Plaintiff asserts that Pathmark merely "rubber-stamped and approved the decisions of its managers," Pl. Rule 56.1 Statement at 3, ¶ 12, and that the Union did not conduct any investigation of his complaints or interview any witnesses but instead told him that "Pathmark could do `whatever they want,'" Id. at 10, ¶ 26.
Plaintiff contends that he made several internal complaints of discrimination in the spring of 1999. In May 1999, plaintiff filed an administrative charge of discrimination with the EEOC. Plaintiff claims that immediately afterwards, Pathmark cut his Sunday hours, for which workers received overtime, as well as his regular hours. Pathmark disputes that his hours were materially reduced, and further claims that any reduction in his hours is attributable to nondiscriminatory explanations, such as Garcia's unavailability because of his school commitments. The evidence in this respect is reviewed in greater detail below.
Plaintiff alleges that he sustained a knee injury while at work in January or February of 2000. On March 31, 2000, Garcia presented John Longo, the general manager, with a note from Champion Medical Services stating that plaintiff was being treated for an injury to his left knee and could not lift more than 10 pounds. Plaintiff contends that Longo told him he would not be able to work unless a doctor stated he could work without restriction. Plaintiff asserts that he spoke to a different Pathmark manager about performing data entry as a form of modified duty, but was met with condescending, and plaintiff believed discriminatory, incredulity about plaintiff's ability to operate a computer. Plaintiff argues that by failing to place him on modified duty, "Pathmark managers were conveying to plaintiff in no uncertain terms that they wanted plaintiff to resign." Pl. Mem. at 11. It is undisputed that plaintiff never returned to work after the March 31, 2000 conversation with Longo. It is also undisputed that plaintiff never contacted the Union about the alleged termination.
In opposing the instant motion, plaintiff asserts that he wanted to remain at Pathmark. In his deposition, however, plaintiff stated just the opposite:
Q: After your conversation on March 30 or 31 with Mr. Longo, did you make any effort to contact Pathmark and inquire about your employment status or whether you could come into work with any kind of restriction or make any other attempt to regain your job?
A: No.
Q: Why?
A: I had been going through so much. Why go back?
. . .
Q: Did you contact the Union . . . asking whether they would intervene to get your job back?
A: No.
Q: You had just determined that you would not seek to get your job back?
A: I no longer wanted to be in that place.
Pl. Dep. at 154-56. For its part, Pathmark contends that it made numerous efforts to contact plaintiff, and to offer him a modified work assignment, and that when he failed to respond to these overtures or otherwise contact the store, management considered him to have abandoned his position.
DISCUSSION
I. Summary Judgment Standard
When a party moves for summary judgment, judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, 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(c). "[T]he burden is upon the moving party to demonstrate that no genuine issue respecting any material fact exists," Gallo v. Prudential Residential Servs., L.P., 22 F.3d 1219, 1223 (2d Cir. 1994). "[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). "On summary judgment the inferences to be drawn from the underlying facts . . . must be viewed in the light most favorable to the party opposing the motion," United States v. Diebold, Inc., 369 U.S. 654, 655 (1962), but the non-moving party "must do more than show there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). In making the necessary showing, "[c]onclusory allegations [by the non-moving party] will not suffice to create a genuine issue." Delaware Hudson Ry. v. Consolidated Rail Corp., 902 F.2d 174, 178 (2d Cir. 1990). A "genuine" issue is one that could be decided in favor of the non-moving party based on the evidence by a reasonable jury. See Liberty Lobby, 477 U.S. at 248. The role of the court in deciding a motion for summary judgment is not to decide issues of fact, but only to determine whether or not they exist. See Rattner v. Netburn, 930 F.2d 204, 209 (2d Cir. 1991).
II. Plaintiff's Claims against Pathmark
1. Substantive Legal Principles
A. Hostile Work Environment
Title VII provides that it is unlawful "to discriminate against any individual with respect to his compensation, terms, privileges, of employment, because of such individual's race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-2 (a)(1). To make out a hostile work environment claim under this law, a plaintiff must show "`(1) that the harassment was `sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment,' and (2) that a specific basis exists for imputing the objectionable conduct to the employer." Alfano v. Costello, 294 F.3d 365, 373 (2d Cir. 2002) (quoting Perry v. Ethan Allen, Inc., 115 F.3d 143, 149 (2d Cir. 1997)). The court employs both an objective and a subjective standard in applying this test: the misconduct shown must be "severe or pervasive enough to create an objectively hostile or abusive work environment," and the victim must also subjectively perceive that environment to be abusive. Alfano, 294 F.3d 374 (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993)).
The plaintiff in a hostile work environment case must show that the workplace was "so severely permeated with discriminatory intimidation, ridicule, and insult that the terms and conditions of her employment were thereby altered." Alfano, 294 F.3d at 373. Generally, these incidents must be sufficiently frequent to be considered pervasive; "isolated acts, unless very serious, do not meet the threshold of severity or pervasiveness." Id. at 374. There is not a fixed number of incidents required to establish a hostile work environment; instead, the court must consider the "circumstances in their totality," including the severity, frequency, and nature of the conduct. Id. at 378; see also Brennan v. Metro. Opera Assoc., 192 F.3d 310, 319 (2d Cir. 1999). ("Whether a work environment is sufficiently abusive to be actionable under Title VII depends on all of the circumstances of a given situation. Considerations include: (1) the frequency of the conduct, (2) the severity of the conduct, (3) whether the conduct is physically threatening or humiliating, or a mere offensive utterance, and (4) whether the conduct unreasonably interferes with the employee's work performance.") (citingHarris, 510 U.S. at 23). Acts that are facially neutral with respect to the plaintiff's protected status may be considered as part of the totality of the circumstances if a reasonable fact-finder could conclude that they were in fact based on that status. Alfano, 294 F.3d at 378.
2. Evidence the Court May Consider
Pathmark argues that the court may not consider the August 1997 schedule containing derogatory remarks because this schedule was posted more than 300 days before Garcia filed his complaint with the EEOC, and more than three years before plaintiff filed the instant lawsuit. Pathmark contends that the 300-day lapse renders claims based on the schedule time-barred under Title VII, and that the three-year lapse renders such claims time-barred under 42 U.S.C. § 1981 and under state and local law. With respect to Title VII, recent Supreme Court authority unequivocally refutes this contention. See Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 117-18 (2002) ("It does not matter, for purposes of the statute, that some of the component acts of the hostile work environment fall outside the statutory time period. Provided that an act contributing to the claim occurs within the filing period, the entire time period of the hostile environment may be considered by a court for the purposes of determining liability."). Furthermore, courts have applied the holding of Morgan to discrimination claims under 42 U.S.C. § 1981 and the New York State Human Rights Law, noting that such claims are governed by the same standards as claims under Title VII. See, e.g., Mack v. Port Auth. of New York and New Jersey, 225 F. Supp.2d 376, 388 (S.D.N.Y. 2002) (applying Morgan to claims under § 1981); Staff v. Pall, 233 F. Supp.2d 516, 527-28 (S.D.N.Y. 2002) (applying Morgan to claims under § 1981 and NYSHRL). New York City Human Rights Law claims are likewise governed by the same standards as Title VII claims, see, e.g., Farias v. Instructional Sys., Inc., 259 F.3d 91, 98 (2d Cir. 2001), and this court perceives no reason whyMorgan should not apply to these claims as well.
Although Garcia cites to Morgan in its response papers, Pathmark simply ignores this case in its reply.
In light of the foregoing authority, the court will consider all of the misconduct alleged by Garcia in evaluating his hostile work environment claim.
3. Application
Even considering the defaced August 1997 schedule, however, plaintiff's hostile work environment claim fails as a matter of law. Although this schedule unquestionably constitutes an instance of national-origin-based hostility directed against plaintiff, the record does not establish that such instances were "more than episodic," as the law requires. Perry, 115 F.3d at 149 (misconduct "must be sufficiently continuous and concerted in order to be deemed pervasive") (citation omitted). On the contrary, the evidence adduced by plaintiff consists precisely of the sort of isolated, sporadic offensive conduct that courts have consistently found lacking. Moreover, the facially neutral actions plaintiff complains of add nothing to his claim, because, as discussed below, the record contains insufficient evidence to permit the inference that these actions were motivated by discriminatory animus.
Of all the examples of misconduct cited by plaintiff, only four, at most, are facially discriminatory: the comment by plaintiff's supervisor Driscoll that "immigrants are supposed to work harder," Pl. Dep. at 90, the offensive graffiti on July and August 1997 schedules, and the remark of plaintiff's coworker Evon Lamagna that "all immigrants should go back to their country," id. Of these, only one, the comment made by plaintiff's supervisor, is clearly imputable to Pathmark. Assuming arguendo that the Pathmark may be charged with knowledge of the other incidents, the court nevertheless finds that these four sets of slurs, made over the course of four plus years, fall well short of the standard of severity or pervasiveness that courts have required. Compare Alfano, 294 F.3d at 379 (concluding that five sexually harassing incidents over four years were insufficient to support a finding of a hostile work environment, and reviewing numerous decisions from other circuits in which more incidents over a shorter period were likewise deemed insufficient), and McCoy v. City of New York, 131 F. Supp.2d 363, 374 (E.D.N.Y. 2001) (finding insufficient four sets of incidents, including display of noose and racially offensive images, over ten months) with Schwapp v. Town of Avon, 118 F.3d 106 (2d Cir. 1997), cited in Alfano, 294 F.3d at 380 ("[I]n Schwapp . . ., we held that the plaintiff had created a triable issue of fact based on ten to twelve instances of explicitly racist conduct in twenty months, where most of the incidents involved racial jokes and epithets that insulted blacks, Puerto Ricans, and people of Middle Eastern origin."). Not only is the complained of conduct here comparatively mild and infrequent, but also there is no evidence that the derisive remarks were accompanied with physically intimidating or threatening behavior, or that the remarks unreasonably interfered with plaintiff's ability to do his job. In sum, while it is true that there is no "mathematically precise test" for determining when a work environment is hostile see Richardson v. New York State Dep't of Corr. Servs., 180 F.3d 426, 439 (2d Cir. 1999) (quotingHarris, 510 U.S. at 22), the above incidents are simply too infrequent and too mild for a reasonable juror to find that they "would negatively alter the conditions of a reasonable employee." Id.
Pathmark objects to the court's consideration of the July 1997 schedule on the grounds that it was not produced in discovery. The court need not resolve this issue because plaintiff cannot establish a hostile work environment even with this evidence in the mix.
The date of Driscoll's and Lamagna's comments is unclear, as is the date when the allegedly hostile work environment began. As mentioned, plaintiff alleges that he was happy at Pathmark for approximately a year following his hiring in July 1994. It is therefore safe to assume that the comments took place sometime after mid-1995. Plaintiff stopped working in March 2000.
Plaintiff also alleges numerous other actions that he claims were discriminatory. Unlike the above incidents, none of this alleged misconduct expressly involves plaintiff's or anyone else's race or national origin. One of plaintiff's chief complaints is that, "in contrast to his coworkers who were not Hispanic," Pl. Mem. at 4, he was assigned to do what he perceived to be the least desirable tasks, such as dumping water buckets, cleaning the back room, and "doing the greens," or washing and trimming the vegetables. Plaintiff concedes, however, that all of these tasks were within his job description, and that all of the produce clerks did all of the tasks in produce at one time or another. Plaintiff also concedes that "doing the greens," the task about which he seems most aggrieved, was an "important" task. Pl. Dep. at 68. These concessions militate against a finding that his assignment to these tasks was "severe," much less that it was physically threatening or unreasonably interfered with his performance of his job: the tasks were his job.
Similarly, plaintiff complains of his assignment to the maintenance department and to the cash register. Although in his opposition to the instant motion plaintiff asserts that he was assigned to the these positions against his will, Pl. 56.1 Statement at 2, ¶ 7; 8, ¶¶ 11-12, his deposition testimony establishes, at a minimum, that plaintiff asked to be assigned to departments other than produce in order to "learn more about the industry." Pl. Dep. at 53-54. Plaintiff testified:
I came to this guy [the new store manager] and I said to him something like, you know, I want to learn more about the industry or the business. I'd like to work in another department. He said, I'll see what I can do. . . .
The next week he comes to me, he says, I got another department for you. Yeah, okay. Starting this day, you are in the maintenance department. . . . You clean the garbage, that's what you do. I said, okay.Id. As for plaintiff's assignment to the cash register, his deposition testimony was as follows:
A: While I was in maintenance, they also trained me to be a cashier.
Q: Did you want to learn that?
A: Yeah I did, because, you know, it's something new to learn.
Q: And you wanted to learn more about the industry, right?
A: Yeah, yeah.
Pl. Dep. at 119. The record thus establishes that plaintiff asked to be transferred from the produce department, and that his request was granted. Regardless of whether plaintiff specifically requested to be placed in maintenance or at the cash register, and regardless of whether plaintiff later found these positions to be not to his liking, the record provides no support whatsoever for plaintiff's assertion that his assignment to these positions constituted either a "demot[ion]," Pl. 56.1 Statement at 2, ¶ 7, or a failure to promote him, Pl. Mem. at 14 n. 8. As with "doing the greens," there is no suggestion in the record that these tasks were beyond the scope of plaintiff's employment, or that Pathmark could not permissibly assign plaintiff to them.
Plaintiff admitted at his deposition that he never asked specifically to be promoted but considered his constant complaints about "doing the greens" and about working the register to be promotion requests. Pl. Dep. at 256.
More fundamentally, plaintiff has failed to point to sufficient evidence for a rational factfinder to conclude that his assignment to any of these tasks — both outside the produce department and within it — was due to his race or national origin, and not to some other factor. An isolated comment from a single supervisor that immigrants are supposed to work harder simply does not permit the inference that plaintiff's work assignments over several years resulted from the desire on the part of management to unduly burden immigrant employees. If this evidentiary link is attenuated, the connection between the graffiti on the schedules and the comment of plaintiff's coworker Lamagna, on the one hand, and plaintiff's assignment to purportedly unpleasant tasks, on the other, is nonexistent. Put another way, the record does not provide a "circumstantial basis for inferring that the facially discriminatory neutral incidents" — in this case, plaintiff's work assignments — "were actually discriminatory." Manessis v. New York City Dep't of Transp., 02 Civ. 359 (SAS), 2003 WL 2899969, at *6 (S.D.N.Y. Feb. 10, 2003).
The same holds true for all of the other facially neutral conduct plaintiff complains of: the refusal to permit plaintiff to wear a hat, the requirement that plaintiff wear a tie, the two impositions of discipline (both later rescinded) for minor infractions, the yelling at plaintiff's coworkers for writing supportive letters on his behalf, the supposed refusal to accommodate plaintiff's knee injury (addressed below), the apparent surprise on behalf of a manager upon learning that plaintiff knew how to use a computer, even the hurling of insults at plaintiff such as "asshole" and "idiot." The record simply does not permit the inference that any of this supposedly harsh, nasty, or unfair behavior was visited upon plaintiff because he was an immigrant from El Salvador. In finding these neutral incidents to be lacking in probative value as evidence of discrimination, the court is mindful of the warning of the Second Circuit in Alfano:
Of course, much of this behavior, such as the refusal to permit plaintiff to wear a hat, could hardly be deemed severe even if it were racially motivated.
Everyone can be characterized by sex, race, ethnicity, or (real or perceived) disability; and many bosses are harsh, unjust, and rude. It is therefore important in hostile work environment cases to exclude from consideration personnel decisions that lack a linkage or correlation to the claimed ground of discrimination. Otherwise, the federal courts will become a court of personnel appeals.Id. at 377; see also Manessis, 2003 WL 289969, at *8 ("[W]hile [plaintiff] recites a litany of perceived slights and abuses, many of the alleged harassing acts cannot be considered in the hostile environment analysis because [plaintiff] has not shown that the alleged harassment was based upon his [protected] status.") (quoting Bowman v. Shawnee State Univ., 220 F.3d 456, 464 (6th Cir. 2000)).
Because no reasonable jury could conclude that plaintiff suffered a hostile work environment based on his race or national origin, this aspect of his complaint is therefore dismissed.
B. Constructive Discharge/Disability Discrimination
Plaintiff attempts to create an issue of fact out of Mr. Longo's alleged statement, following plaintiff's alleged knee injury, that plaintiff would have to work with no restrictions or not at all. Plaintiff relies on two distinct theories in this endeavor. First, plaintiff contends that he was constructively discharged, inasmuch as Mr. Longo's "cold" response to plaintiff's request for modified duty, as well as a the alleged surprise of a different manager that plaintiff could use a computer, "convey[ed] to plaintiff in no uncertain terms that they wanted plaintiff to resign." Pl. Mem. at 26, 27. This claim is wholly meritless. Neither the foregoing comments nor anything else in the record demonstrates that Pathmark intentionally created a work environment "so difficult or unpleasant that a reasonable person in the [plaintiff]'s shoes would have felt compelled to resign." Kirsch v. Fleet Street, Ltd., 148 F.3d 149, 161 (2d Cir. 1998).
Plaintiff initially expressed some uncertainty as to the identity of this manager, Pl. Dep. at 95-96, but later stated that it was Tim O'Neil, who plaintiff testified was present with Longo when plaintiff offered the doctor's note.
Plaintiff also asserts that the alleged refusal to place him on modified duty constituted disability discrimination. Because plaintiff does not contend that he was actually discharged because of his alleged disability, and because his constructive discharge claim is meritless, this claim may only be based on a failure to accommodate theory. While a "no restrictions" work policy might indeed violate the reasonable accommodation requirements of state and local law, these laws offer plaintiff no protection, as he voluntarily quit his job. As the deposition testimony quoted above unequivocally establishes, plaintiff simply turned around and walked away at Longo's initial alleged rejection of his request for modified duty. Although plaintiff contests the veracity and good faith of the efforts that Pathmark made to contact him (efforts reflected in competent record evidence), it is undisputed that plaintiff made no effort, individually or with the assistance of the Union, to return to work or even to contact Pathmark after this single encounter. In view of this unreasonable behavior for someone who allegedly wanted to maintain his job, plaintiff cannot now be heard to claim that Pathmark did reasonably accommodate him. His disability claim is dismissed.
C. Retaliation
Retaliation claims are examined under the familiar burden-shifting analysis established in McDonnell Douglas v. Green, 411 U.S. 792 (1973).See Richardson, 180 F.3d at 443. Describing the operation of this standard in the context of a motion for summary judgment, the Second Circuit has stated:
[T]he plaintiff must first demonstrate a prima facie case of retaliation, after which the defendant has the burden of pointing to evidence that there was a legitimate, nonretaliatory reason for the complained of action. If the defendant meets its burden, the plaintiff must demonstrate that there is sufficient potential proof for a reasonable jury to find the proffered legitimate reason merely a pretext for impermissible retaliation.Id.
"To establish a prima facie case of retaliation, a plaintiff must show that (1) she was engaged in an activity protected under Title VII; (2) the employer was aware of plaintiff's participation in the protected activity; (3) the employer took adverse action against plaintiff; and (4) a causal connection existed between the plaintiff's protected activity and the adverse action taken by the employer." Raniola v. Bratton, 243 F.3d 610, 624 (2nd Cir. 2001): see also Richardson, 180 F.3d at 443.
The primary basis for plaintiff's retaliation claim, and the only substantial one, is his contention that his regular and Sunday hours were reduced after he filed a complaint with the EEOC in May 1999. Pathmark argues that plaintiff has neither shown that his hours were in fact "materially" reduced, nor established any causal connection between any reduction that may have occurred and the filing of the EEOC complaint.
Plaintiff asserts in his memorandum that his retaliation claim is also based on other denials of hours "for discriminatory reasons," verbal and written harassment, and the denial of modified duty following plaintiff's knee injury. Pl. Mem. at 23. Plaintiff does not bother to demonstrate any connection between these alleged actions and any instances of protected activity on his part, but merely asserts in wholly conclusory fashion that these actions were "forms of retaliation." Id. In any event, and quite apart from the dubious proposition that any of this alleged conduct even constituted an adverse employment action, the record reveals no such causal connection.
It is undisputed that Pathmark received notice of plaintiff's complaint on June 4, 1999. The following figures are also undisputed: from January through May 1999, plaintiff worked an average of 15.23 regular hours per week and a total of 76 Sunday hours; for the remaining seven months of 1999, plaintiff worked an average of 13.55 regular hours per week and a total of 49 Sunday hours. The evidence thus unequivocally shows that plaintiff's regular and Sunday hours were reduced in the hours immediately following his complaint to the EEOC. There is no question but that a reduction in hours with attendant loss of wages constitutes a core adverse employment action for Title VII purposes. See, e.g., Morris v. Lindau, 196 F.3d 102, 110 (2d Cir. 1999) ("Adverse employment actions include discharge, refusal to hire, refusal to promote, demotion, reduction in pay, and reprimand."). There is also no question but that the reduction in hours, which corresponds directly in time to the period following plaintiff's complaint, permits an inference of causation. See, e.g., Manoharan v. Columbia Univ. College of Physicians Surgeons, 842 F.2d 590, 593 (2d Cir. 1998) ("[A] causal connection can be established indirectly by showing that the protected activity was followed closely in time by the adverse action."). Applying these simple principles, the court finds sufficient evidence in the record for a jury to find that Pathmark reduced plaintiff's hours in retaliation for his EEOC complaint.
The court rejects Pathmark's suggestion that because the amount of money involved is small, the reduction in pay is not "material." Not surprisingly, this assertion is not supported by a citation to any authority. Garcia may well be unable to prove significant damages at trial, but this issue has no bearing on Pathmark's liability.
Pathmark makes numerous arguments to avoid this outcome. Pathmark's main contention is that plaintiff's Sunday hours in the seven weeks preceding the EEOC complaint were actually substantially fewer than those in the seven weeks following the complaint, a fact that supposedly rebuts any inference of retaliation. Two factors undermine the weight of this argument, at least for summary judgment purposes. First is plaintiff's assertion that he made numerous internal complaints of discrimination to Pathmark management in April and May 1999. Pathmark does not apparently contest this allegation, the veracity of which cannot in any event be resolved on summary judgment. If credited, the assertion would permit an even stronger inference of retaliation, as the decrease in Sunday hours in April and May 1999 was even more dramatic than the overall decrease in remainder of the year.
Second, even if the reduction in plaintiff's hours is not deemed to begin until seven weeks after his EEOC complaint, this lapse of time between protected activity and adverse action is still well within the range of time periods that courts have found sufficiently short so as to permit an inference of causation. See, e.g., Gorman-Bakos v. Cornell Corp. Extension, 252 F.3d 545, 54 (2d Cir. 2001) (noting that Second Circuit "has not drawn a bright line to define the outer limits beyond which a temporal relationship is too attenuated to establish a casual relationship," but finding three-month lapse sufficient to establish causal connection and citing numerous cases in which even longer lapses sufficed).
The court also rejects the argument that because plaintiff was not contractually entitled to Sunday hours, he cannot complain that these were reduced. It is well-established that even discretionary employment decisions may not be made in retaliation for the exercise of federally protected rights. See Mt. Healthy Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 283 (1977) ("Even though he could have been discharged for no reason whatever, . . . he may nonetheless establish a claim to reinstatement if the decision not to rehire him was made [for retaliatory reasons.]")). Finally, Pathmark's arguments that the real reasons plaintiff's hours decreased were his own unavailability, the fluctuating needs of the business, and the availability of other employees are not supported by sufficient evidence to deny summary judgment, and thus constitute arguments more appropriately made to a jury.
II. Plaintiff's Claims against the Union
Plaintiff contends that the Union violated Title VII by breaching the duty of fair representation it owed to him. Review of the all but nonexistent evidence in the record support to this claim makes clear that the Union is entitled to summary judgment.
"It is well established that a union's breach of its duty of fair representation may render it liable under Title VII." Cooper v. Wyeth Averst Lederle, 106 F. Supp.2d 479, 498 (S.D.N.Y. 2000) (citing Goodman v. Lukens Steel Co., 482 U.S. 656, 667-69 (1987)). "Title VII provides a proper foundation for a DFR lawsuit in two situations: (1) where a plaintiff alleges that the union has failed to assist in the processing of a grievance grounded in an employer's underlying discrimination; and/or (2) where the underlying grievance does not involve actionable discrimination, but the union itself acted discriminatorily in failing to prosecute the grievance." Id. (citations omitted).
Although it is not clear from plaintiff's papers which of these two theories he is relying on, it is clear that the record offers no support for either. Plaintiff's evidence in support of this claim consists entirely of vague, general allegations in his deposition testimony that "union reps," usually unspecified, failed to respond to his constant grievances with sufficient alacrity. The following excerpt summarizes and typifies plaintiff's allegations:
I had been complaining to whoever the rep for that area at the time was and they all had the same philosophy[:] ignore, be belligerent, and you will go away. The problem was I wasn't going away. . . .
. . .
You call them, leave a message, they don't respond. You call them again, now they respond but with an attitude of why are you bothering me with this. I already told you, [Pathmark] can do whatever they want. They want to put you on the register, there is nothing we can do. They want to put you on the greens, there is nothing we can do. They can put you anywhere you want. They won't give you Sunday hours, they can do that. They are having problems with money or something. They are cutting hours. Excuses, excuses, excuses.
. . .
Don't get me wrong, eventually, they would respond but it was very seldom. You had to push. Everything was a struggle. Everything. It wasn't, okay, so they are doing this to you. Okay, we are going to see what you can do. We can try and try but, you know, maybe we should approach this in a different way. Nothing like that.
Pl. Dep. at 266-67.
Notwithstanding these generalized scattershot assertions, competent evidence in the record reflects that Local 1500 successfully prosecuted one if not two of plaintiff's grievances; investigated his discrimination grievance and, after interviewing witnesses, found it unsubstantiated; and informed him that his complaints about his work assignments were unwarranted under the collective bargaining agreement. Plaintiff's rebuttal that "the witnesses informed me that the union never spoke to them" is hearsay, and his comment that "all of these witnesses observed the discrimination" is not based on personal knowledge and in any event is so vague as to be meaningless. Pl. 56.1 Statement at 10, ¶ 29.
In short, plaintiff has not pointed to any specific conduct on the part of the Union to overcome the high degree of deference the court must accord to the Union's performance. See Air Line Pilots Ass'n Int'l v. O'Neill, 499 U.S. 65, 78 (1991). Given that plaintiff's complaints of harassment were, as discussed, meritless, the Union can hardly be faulted for failing to pursue these grievances more vigorously than it did. To the extent plaintiff is claiming that the Union's failure to pursue his grievances was based on discriminatory animus, there is not a shred of evidence, direct or circumstantial, to support this proposition. When asked at his deposition to point to such evidence, plaintiff's only response was that Union officials "knew I was from El Salvador." Pl. Dep. at 306. This is clearly insufficient to support an inference of discrimination. Finally, plaintiff also contends that the Union retaliated against him, but he does not specify, and the court does not perceive, the factual basis for this claim, which is hereby dismissed.
Plaintiff does not contend that Local 1500 discriminated against him on the basis of disability.
For the foregoing reasons, the Union's is entitled to summary judgment on all claims against it.
CONCLUSION
For the foregoing reasons, defendant Local 1500's motion for summary judgment is granted in its entirety, and all claims against it are dismissed with prejudice. Defendant Pathmark's motion is denied with respect to plaintiff's claim of retaliation and granted in all other respects. The parties are directed to contact Magistrate Judge Chrein to schedule a settlement conference. If efforts to resolve the case prove unsuccessful, the parties are directed to seek Magistrate Judge Chrein's assistance with the creation of a pre-trial order.