Opinion
02 Civ. 3564 (RWS).
December 13, 2006
LOVETT GOULD, Attorneys for Plaintiff, White Plains, NY, By: DRITA NICAJ, ESQ. Of Counsel.
LAW OFFICES OF HARRY WEINBERG, Attorneys for Defendants, New York, NY, By: HARRY WEINBERG, ESQ. Of Counsel.
OPINION
Defendant ABM Co. ("ABM" or the "Defendant") has moved for summary judgment to dismiss the Second Amended Complaint ("SAC") of plaintiff Marcos Morel ("Morel" or the "Plaintiff"), alleging discrimination on the basis of race, color, and national origin in violation of federal, state, and municipal law. For the reasons set forth below, the motion is granted in part and denied in part.
Prior Proceedings
On or about August 16, 2001, Morel filed a discrimination charge against ABM with the Equal Employment Opportunity Commission ("EEOC"), alleging that he had been discriminated against and wrongfully terminated on the basis of race, color and national origin and suffered retaliation for protected activities, all in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. ("Title VII"). Morel received a right to sue letter from the EEOC on March 3, 2002.
Morel filed his original complaint pro se in this Court on May 9, 2002, alleging employment discrimination in violation of Title VII.
By order of March 14, 2003, the Court granted ABM's motion for summary judgment but granted Morel leave to amend his pleadings. An amended complaint was filed pro se on March 19, 2003.
By opinion of October 7, 2003, the Court granted summary judgment in favor of ABM on the grounds of res judicata and collateral estoppel because Morel's wrongful termination claim had been rejected by a labor arbitrator pursuant to a collective bargaining agreement.
The Court of Appeals reversed, Morel v. American Building Maintenance Company, 124 Fed. App'x 671 (2d Cir. 2005), noting that "a negative arbitration decision rendered under a CBA does not preclude a Title VII action by a discharged employee." Id. at 672 (quoting Collins v. N.Y. City Transit Auth., 305 F.3d 113, 199 (2d Cir. 2002)).
Morel retained counsel and filed his SAC on June 22, 2005, adding discrimination and retaliation claims pursuant to 42 U.S.C. § 1981, the New York State Human Rights Law, N.Y. Exec. Law § 290 et seq. (the "SHRL"), and the New York City Human Rights Law, N.Y.C. Admin. Code § 8-101 et seq. (the "CHRL").
Discovery proceeded, and the instant ABM motion for summary judgment was heard and marked fully submitted on April 26, 2006.
The Facts
The facts as set forth below are taken from the parties' Statements of Material Facts pursuant to Local Civil Rule 56.1 and from the record and are not in dispute except as noted below.
ABM was at all times material herein a provider of building maintenance and janitorial services to commercial office buildings within the City of New York.
Morel is a Black Hispanic male from the Dominican Republic who has continuously resided in the United States since 1979. He commenced employment with ABM in or about 1997, and became a permanent employee in June or July 1999.
At all times relevant herein, Morel was a member of Local 32BJ, Service Employees International Union ("Local 32BJ") and the terms and conditions of his employment were subject to a collective bargaining agreement between ABM and Local 32BJ (the "CBA").
The CBA states that ABM and Local 32BJ shall provide for a grievance procedure, and also includes an arbitration provision:
There shall at all times be a Contract Arbitrator to decide all differences arising between the parties as to interpretation, application or performance of any part of this Agreement and such other issues as the parties are expressly required to arbitrate before him under the terms of this Agreement.
(Weinberg Aff. Ex. B, CBA, art. VI, § 1.)
In or about August 1999, Morel was assigned by ABM to 110 East 59th Street and worked there as a porter on the second shift from 6:00 p.m. to 1:30 a.m. until his termination on April 20, 2001. Morel's supervisors at 110 East 59th Street were foremen Dariusz Nicinski ("Nicinski"), a white male of Polish national origin, and Carlos Almadovar ("Almadovar"), a light-skinned Puerto Rican male.
According to Morel, Nicinski assigned work in a discriminatory manner, assigning the most difficult or least desirable tasks to Hispanic and African-American workers while assigning light duties to Polish workers. Morel testified at deposition that Nicinski said that "he would only assign Dominicans to clean toilets." (Weinberg Aff. Ex. K, Morel Dep. at 64.) Morel also has claimed that Nicinski gave Polish workers preference for overtime opportunities, fired Hispanic and African-American employees and replaced them with Polish workers, and permitted Polish workers to socialize on the job while not allowing African-American and Hispanic employees to exchange even brief courtesies. Morel has testified that he overheard Nicinski ask a fellow Polish worker about the skin color of a newly hired employee.
Other ABM employees at 110 East 59th Street also have testified that Nicinski treated them in an abusive and discriminatory manner. Lida Jacome ("Jacome"), a female of Ecuadorian national origin, has worked as a porter at 110 East 59th Street since 1999, and also was supervised by Nicinski. Jacome has testified that Nicinski said "I hate Blacks and Hispanics" in the presence of Morel and other ABM employees (Weinberg Aff. Ex. N, Jacome Dep. at 89), and told her on more than one occasion that she should "quit the job." (Id. at 25.) Jacome has stated that Nicinski "didn't want Hispanic people or Black person [sic] working, so he was always bothering us." (Id. at 22-23.) According to Jacome, on one occasion an employee of building tenant Bloomberg attempted to intercede on her behalf and was told by Nicinski to shut up. As a result of the Bloomberg employee's complaint, Nicinski was no longer permitted to enter that tenant's floors. Jacome has testified that she attended a meeting with ABM managers to complain about Nicinski's discriminatory, abusive, and harassing conduct, and informed those present that Nicinski only harassed Black and Hispanic workers.
Ana Isabel Vega ("Vega"), a female of Colombian national origin, worked at 110 East 59th Street for thirty-three years. Vega testified at deposition that Nicinski addressed Tammy Watson ("Watson"), an African-American ABM employee, as "negra," meaning black in Spanish. According to Vega, when Watson asked Nicinski why he referred to her as "negra" instead of using her given name, Nicinski replied, "you're Black." (Weinberg Aff. Ex. P, Vega Dep. at 40.)
According to Morel, his initial assignment at 110 East 59th Street was collecting garbage and mopping floors. He has claimed that after approximately four or five months, Nicinski assigned him excessive additional duties, including cleaning bathrooms, and began to verbally abuse him. Morel has stated that Nicinski screamed at him, told him to shut up, and repeatedly referred to him as "Dominican man" instead of calling him by name. (Morel Aff. ¶ 6.) Jacome and another employee, Silvio Martinez ("Martinez"), have testified that they observed Nicinski acting aggressively towards Morel, and discriminating against him. (Weinberg Aff. Ex. N, Jacome Dep. at 83; Id. Ex. M, Martinez Dep. at 31.)
On January 28, 2000, Morel filed a grievance with Local 32BJ, stating, "my workload has been increased and I now have an excessive workload. I am also being harassed by the supervisor for no reason." (Nicaj Aff. Ex. E.) Morel withdrew the grievance on February 4, 2000, because he "was told that my working conditions would further deteriorate if I did not." (Morel Aff. ¶ 8.) According to Morel, after he withdrew the grievance Nicinski and Almadovar continued to assign him undesirable tasks and verbally abuse him.
By notice dated June 9, 2000, Morel was suspended for five days for poor work performance in cleaning the bathrooms on the 21st floor, and for using a tenant's telephone and eating tenants' food on the 18th floor. According to Morel, these allegations were fabricated.
On June 12, 2000, Morel filed another grievance in connection with the five-day suspension and reiterated that he felt Nicinski was discriminating against him on account of his race. According to Morel, following the grievance Nicinski and Almadovar continued to harass him on a daily basis, and assigned an excessive workload that forced him to work through his meal break and past the end of his shift without compensation.
On March 22, 2001, more than nine months after he filed his grievance, Morel was notified by Local 32BJ that an arbitration hearing had been scheduled for April 4, 2001. The arbitration hearing was later adjourned and was held on May 29, 2001. In an opinion and award dated August 28, 2001 (the "August 28 Award"), Contract Arbitrator William L. Schecter found that Morel "did in fact fail to fulfill his work assignments properly, but while a disciplinary suspension is warranted, a five-day suspension is excessive. Accordingly, it shall be reduced to three days." (Weinberg Aff. Ex. T, August 28 Award, at 3.) The August 28 Award did not address Morel's harassment and discrimination claims.
On April 13, 2001, following reports of items missing from tenant space in the building, Nicinski and Almadovar conducted bag checks of second-shift ABM employees as they left the building at the end of their shifts. Morel initially refused to permit Nicinski and Almadovar to examine his fannypack unless a Bloomberg security officer or a New York City police officer was present, but ultimately relented and allowed his bag to be examined. Nicinski and Almadovar subsequently reported Morel's behavior to their superiors and were advised that if there was a repeat of his behavior during a subsequent bag check, they should suspend him pending investigation and direct him to report to ABM's main office.
During the bag checks on April 13, 2001, Nicinski and Almadovar discovered two employees, Vega and Theresa Plonska ("Plonska"), a white female of Polish national origin, attempting to exit the building with tenant property. Vega and Plonska both were suspended pending investigation.
On April 20, 2001, Nicinski and Almadovar again conducted bag checks of ABM employees leaving the building at the end of the second shift. As Morel attempted to exit the building at the end of his shift that day, he was asked to open his fannypack and again initially refused to do so unless Bloomberg security or a New York City police officer were present. Morel advised Nicinski and Almadovar that he was leaving the building to call the police and in turn was warned that he would be suspended pending investigation if he left the building. After leaving his fannypack with his co-worker Martinez, who remained in the building with Nicinski and Almadovar, Morel left the building, returning some time later with a New York City police officer. The police officer declined to get involved in this employment matter and advised Morel that his employer had a right to check his bag as he exited the building. Morel subsequently offered to permit Nicinski and Almadovar to check his bag but was told that he had already been suspended pending investigation and that he should leave the building and report to ABM's main office the following day.
Morel has claimed that his employment was terminated, but that no one ever communicated that termination to him, either verbally or in writing.
According to ABM, bag checks are a common practice in the building service industry, and on nights when a routine bag check was done, the bags of every ABM employee exiting the building at the end of the second shift were searched. According to Morel, the bag searches on April 13 and 20, 2001 were conducted in an harassing, abusive, and discriminatory manner towards African-American and Hispanic workers at 110 East 59th Street.
Morel filed a grievance with Local 32BJ regarding his suspension on April 23, 2001, and asked that Nicinski be cited for discrimination and harassment. A May 2, 2001 letter from Local 32BJ to the Office of the Contract Arbitrator requested arbitration and noted that Morel claimed he had been discharged.
Arbitration hearings were held on October 15 and December 4, 2001. Morel was represented by an attorney provided by Local 32BJ, and was provided with a Spanish-English translator. The only witness Morel asked to testify on his behalf was Martinez. Martinez testified at his deposition that he attended the arbitration at Morel's request but departed without testifying because:
the Union didn't want to take responsibility and they didn't warranty that I could keep my job . . . I ask the lawyer that was there defending Marcos . . . [i]f they were guaranteeing my job, I would go as a witness [and when the Union lawyer told me the Union could not guarantee my job] I said "Marcos, I'm very sorry but I cannot be your witness."
(Weinberg Aff. Ex. M, Martinez Dep. at 55.) No evidence has been adduced that any employee of ABM threatened to terminate Martinez if he testified on behalf of Morel at the arbitration.
In an opinion and award dated December 13, 2001 (the "December 13 Award"), Contract Arbitrator John Dorsey found that ABM had just cause to discharge Morel:
I am fully convinced that the Employer did not single out Morel. The testimony and facts show it began the [bag] searches at the direction of the Building Management. Morel was not the first employee searched at either time. All employees leaving on the night of April 12/13 and 19/20 were searched.
I find the Employer fully established it did not discriminate against Morel. He had been properly ordered that along with all other employees he had to submit to having his bag searched and was told the consequences of his refusal. He had no right to refuse to follow his supervisors' orders on April 20, 2001. If he disputed their right to conduct the search, he should have followed their orders and filed a protest in the grievance procedure. When viewed with his prior disciplinary record, that justified his discharge.
(Weinberg Aff. Ex. Y, December 13 Award, at 5-6.) The December 13 Award only addressed the issue of Morel's termination and, like the earlier August 28 Award, did not address Morel's claims that Nicinski had harassed and discriminated against him prior to his termination.
Discussion I. The Standard For Summary Judgment
Pursuant to Rule 56, summary judgment may be granted only if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); SCS Communications, Inc. v. Herrick Co., 360 F.3d 329, 338 (2d Cir. 2004). The court will not try issues of fact on a motion for summary judgment, but rather, will determine "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986).
Summary judgment is appropriate where the moving party has shown that "little or no evidence may be found in support of the nonmoving party's case. When no rational jury could find in favor of the nonmoving party because the evidence to support its case is so slight, there is no genuine issue of material fact and a grant of summary judgment is proper." Gallo v. Prudential Residential Servs., Ltd. P'ship, 22 F.3d 1219, 1223-24 (2d Cir. 1994) (internal citations omitted). If, however, "as to the issue on which summary judgment is sought, there is any evidence in the record from which a reasonable inference could be drawn in favor of the opposing party, summary judgment is improper." Security Ins. Co. of Hartford v. Old Dominion Freight Line, Inc., 391 F.3d 77, 83 (2d Cir. 2004) (quoting Gummo v. Village of Depew, 75 F.3d 98, 107 (2d Cir. 1996)).
The moving party has the burden of showing that there are no material facts in dispute, and the court must resolve all ambiguities and draw all reasonable inferences in favor of the party opposing the motion. Bickhardt v. Ratner, 871 F. Supp. 613 (S.D.N.Y. 1994) (citing Celotex Corp. v. Catrett, 477 U.S. 317 (1986)). Thus, "summary judgment may be granted if, upon reviewing the evidence in the light most favorable to the non-movant, the court determines that there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law." Richardson v. Selsky, 5 F.3d 616, 621 (2d Cir. 1993).
A material fact is one that would "affect the outcome of the suit under the governing law," and a dispute about a genuine issue of material fact occurs if the evidence is such that "a reasonable jury could return a verdict for the nonmoving party."Anderson, 477 U.S. at 248; R.B. Ventures, Ltd. v. Shane, 112 F.3d 54, 57 (2d Cir. 1997).
II. Claims Pursuant To Section 1981, SHRL And CHRL Are Not Time-Barred
In the SAC filed June 22, 2005, Morel added discrimination and retaliation claims pursuant to 42 U.S.C. § 1981, the SHRL, and the CHRL. ABM has contended that these claims should be dismissed as untimely.
The preprinted portions of the complaint and the amended complaint, which were filed pro se by Morel, provided that "Jurisdiction may also be appropriate under 42 U.S.C. §§ 1981, 1983 and 1985(3), as amended by the Civil Rights Act of 1991 . . . and any related claims under New York law."
In general, a plaintiff may amend his or her complaint pursuant to Fed.R.Civ.P. 15(c)(2) to include claims ordinarily time-barred if "`the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading.'"O'Hara v. Weeks Marine, Inc., 294 F.3d 55, 69 (2d Cir. 2002), quoting Fed.R.Civ.P. 15(c)(2); see also Narvarte v. Chase Manhattan Bank, N.A., No. 96 Civ. 8133 (JGK) (SEG), 1998 WL 690059, at *2 (S.D.N.Y. Oct. 2, 1998) (permitting amended claims under 42 U.S.C. 1981, New York Executive Law and New York City Administrative Code which were otherwise time-barred because they related to original complaint); Rodriguez v. Am. Friends of the Hebrew Univ., Inc., No. 96 Civ. 0240 (JGK), 1999 WL 493369, at *3 (S.D.N.Y. July 12, 1999) (same).
Just as in Rodriguez, "the claims the plaintiff now asserts under § 1981 . . . and the state and city human rights laws arise out of precisely the same conduct and occurrences that were alleged in the original complaint." 1999 WL 493369, at *3. Because the SAC relates back to the original complaint filed on May 2, 2002, Morel's added claims pursuant to section 1981, the SHRL and the CHRL are not barred by the relevant statutes of limitation. III. Morel's Disparate Treatment Claims
Morel has alleged that ABM violated his rights under Title VII, section 1981, the SRHL and the CHRL by subjecting him to disparate treatment on the basis of his race, color and national origin. In this Circuit, a plaintiff "may establish a claim of disparate treatment under Title VII either (1) by showing that he has suffered an adverse job action under circumstances giving rise to an inference of discrimination on the basis of race, color, religion, sex, or national origin, or (2) by demonstrating that harassment on one or more of these bases amounted to a hostile work environment." Feingold v. New York, 366 F.3d 138, 149 (2d Cir. 2004) (citing Raniola v. Bratton, 243 F.3d 610, 617 (2d Cir. 2001). This Title VII standard also is used to analyze claims under section 1981 and the SHRL. Whidbee v. Garzarelli Food Specialties, Inc., 223 F.3d 62, 69 (2d Cir. 2000) (analyzing section 1981 claim under Title VII standard); Torres v. Pisano, 116 F.3d 625, 629 n. 1 (2d Cir. 1997) ("[C]laims brought under New York State's Human Rights Law are analytically identical to claims brought under Title VII.").
The Second Circuit and New York state courts traditionally have applied the same standards of liability for claims under the CHRL, see, e.g., Weinstock v. Columbia Univ., 224 F.3d 33, 42 n. 1 (2d Cir. 2000) ("The identical standards apply to employment discrimination claims brought under Title VII . . . and the Administrative Code of the City of New York."); Forrest v. Jewish Guild for the Blind, 765 N.Y.S.2d 326, 332-33 (N.Y.App. Div. 2003) ("[T]he standard for recovery under [the SHRL] is in accord with the federal standards under [Title VII], and the human rights provisions of New York City's Administrative Code mirror the provisions of the [SHRL]." (citations omitted)), but this practice of parallel interpretation has been called into question by the New York City Council's passage in 2005 of the Local Civil Rights Restoration Act, which amended several provisions of the CHRL and emphasized that the CHRL should be "construed independently from similar or identical provisions of New York state or federal statutes." N.Y.C. Local Law No. 85 of 2005, § 1 (Oct. 3, 2005). The amended code directs that the "provisions of this title shall be construed liberally for the accomplishment of the uniquely broad and remedial purposes thereof, regardless of whether federal or New York State civil and human rights laws, including those laws with provisions comparably-worded to provisions of this title, have been so construed." N.Y.C. Admin. Code § 8-130.
For an extensive analysis of the purposes of the Local Civil Rights Restoration Act, written by one of the Act's principal authors, see Craig Gurian, A Return to Eyes on the Prize: Litigating Under the Restored New York City Human Rights Law, 33 Fordham Urb. L.J. 255 (2006) (emphasizing the expansive intent of the CHRL and arguing that courts have failed to interpret it independently from Title VII and the SHRL, instead engaging in "rote parallelism").
At least two New York state courts recently have held that the CHRL holds employers to a higher standard than Title VII and the SHRL, and should be "liberally and independently construed." Jordan v. Bates Adver. Holdings, Inc., 11 Misc. 3d 764, 770 (N.Y.Sup.Ct. 2006); see also Farrugia v. N. Shore Univ. Hosp., No. 102125/03 (RTA), 2006 WL 2337963, at **5-**6 (N.Y.Sup.Ct. June 21, 2006) ("[T]he case law that has developed in interpreting both the [SHRL] and Title VII should merely serve as a base for the [CHRL], not as its ceiling." (quoting Jordan, 11 Misc. 3d at 770-71)). Nevertheless, in the absence of "direct evidence of national origin or gender discrimination," the sameMcDonnell-Douglas burden-shifting analysis used in Title VII and SHRL cases applies to claims of discrimination brought under the CHRL. Farrugia, 2006 WL 2337963, at **8; see also Jordan, 11 Misc. 3d at 771.
A. The Motion To Dismiss Morel's Hostile Work Environment Claim Is Denied
Title VII prohibits employers from, among other conduct, "requiring people to work in a discriminatorily hostile or abusive environment." Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). A hostile work environment claim arises "when the workplace is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment." Id. (internal citations and quotation marks omitted). The Supreme Court has stated that factors to be considered in determining the existence of a hostile work environment include "the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with [the] employee's work performance." Id. at 23. "As a general rule, incidents must be more than `episodic; they must be sufficiently continuous and concerted in order to be deemed pervasive.'" Alfano v. Costello, 294 F.3d 365, 374 (2d Cir. 2002) (quoting Perry v. Ethan Allen, Inc., 115 F.3d 143, 149 (2d Cir. 1997)). However, a single act can create a hostile work environment if it in fact "work[s] a transformation of the plaintiff's workplace." Id.
As the Second Circuit has emphasized:
While the standard for establishing a hostile work environment is high, we have repeatedly cautioned against setting the bar too high, noting that [w]hile a mild, isolated incident does not make a work environment hostile, the test is whether the harassment is of such quality or quantity that a reasonable employee would find the conditions of her employment altered for the worse.Terry v. Ashcroft, 336 F.3d 128, 148 (2d Cir. 2003) (internal quotation marks omitted). "The environment need not be `unendurable' or `intolerable.'" Id. Furthermore, "the fact that the law requires harassment to be severe or pervasive before it can be actionable does not mean that employers are free from liability in all but the most egregious cases." Id. (internal quotation marks omitted).
Morel has offered sufficient evidence to permit a fact-finder to conclude that he suffered from a hostile work environment based on his race, color, and national origin, and that a reasonable employee in his position would have experienced the conditions of his employment as altered for the worse. Morel has alleged that Nicinski routinely harassed and verbally abused him and assigned an excessive workload, while denying him overtime opportunities that were offered only to Polish employees. Morel also has offered evidence that the alleged harassment by Nicinski stemmed from an animosity toward African-American and Hispanic workers (e.g., Nicinski's referring pejoratively to Morel as "Dominican man" and declaring "I hate Blacks and Hispanics."). Accordingly, the motion to dismiss Morel's hostile work environment claim is denied.
B. Morel's Claims Based On Adverse Employment Actions Are Dismissed In Part
A plaintiff may establish a prima facie case of disparate treatment by showing that: (1) he is a member of a protected class; (2) he was qualified for the position he held; (3) he suffered an adverse employment action; and (4) the adverse employment action took place under circumstances that give rise to an inference of discrimination. See McDonnell-Douglas Corp. v. Green, 411 U.S. 792 (1973); Collins v. N.Y. City Transit Auth, 305 F.3d 113, 118 (2d Cir. 2002).
If the plaintiff meets the McDonnell-Douglas burden of establishing a prima facie case, then the burden of production (although not the burden of proof) shifts to the employer to show that any adverse employment actions were taken for legitimate, non-discriminatory reasons. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 509 (1993). Once defendants produce such evidence, "[t]he presumption [raised by the prima facie case] . . . simply drops out of the picture." Id. at 511. At that point, "to defeat summary judgment . . . the plaintiff's admissible evidence must show circumstances that would be sufficient to permit a rational finder of fact to infer that the defendant's employment decision was more likely than not based in whole or in part on discrimination." Stern v. Trustees of Columbia Univ., 131 F.3d 305, 312 (2d Cir. 1997).
It is undisputed that Morel is a member of a protected class and that he was qualified for the position he held. Morel has alleged that the changes in his working conditions and his eventual termination constitute adverse employment actions giving rise to an inference of discriminatory intent. For the reasons that follow, Morel's claims based upon his termination will be dismissed, but his claims based upon his working conditions may go forward.
1. Discriminatory Termination
There is no dispute that Morel's termination was an adverse employment action. Thus, the only question is whether it occurred under circumstances giving rise to an inference of discriminatory intent.In the December 13 Award the arbitrator determined that "the Employer fully established it did not discriminate against Morel." (Weinberg Aff. Ex. Y, December 13 Award, at 5-6.) The December 13 Award noted that if Morel took issue with the propriety or manner of the search, he had an obligation to obey his fore-persons' orders and then to grieve it if he so chose. There is no dispute that on April 13, 2001, when Morel at first refused and then reluctantly submitted to a bag search, he was warned that failure to submit to a search would result in his being suspended pending investigation. Despite this warning, when Nicinski and Almadovar asked to search his bag on April 20, 2001, Morel refused and left the building to find a police officer.
As the Second Circuit noted in remanding this case for further proceedings:
The fact that an adverse arbitral award on an employment discrimination claim does not preclude a Title VII action does not render the award irrelevant to plaintiff's pursuit of judicial relief. See Alexander v. Gardner-Denver Co., 415 U.S. at 60 n. 21 (noting that court may give arbitral decision such weight as it determines appropriate in light of the facts and circumstances of each case). Indeed, this court has stated that an adverse decision by an independent, neutral, and unbiased adjudicator "is highly probative of the absence of discriminatory intent." Collins v. N.Y. City Transit Auth., 305 F.3d at 119. Thus, to survive a motion for summary judgment based on insufficient evidence to raise a triable issue of fact, a plaintiff who has failed in arbitration "must present strong evidence that the decision was wrong as a matter of fact — e.g. new evidence not before the tribunal" — or that the impartiality of the proceeding was somehow compromised.Id. at *3-*4.
There is no showing that the impartiality of the arbitration proceeding was compromised in any way. During his deposition, Morel acknowledged that he was represented by Union counsel at the arbitration and that he was given a full and fair opportunity to testify as to all of his claims and to present evidence. In addition, Morel acknowledged that he had the opportunity to call witnesses but did not do so. Martinez, the one witness whom Plaintiff desired to call, refused to testify because the Union would not "guarantee" his job.
Although the testimony of Martinez, Jacome, and Vega constitutes "new evidence that was not before the tribunal," it does nothing to negate the arbitrator's conclusion in the December 13 Award. The deposition evidence of these individuals confirmed that in April 2001, ABM opted to conduct bag searches as employees left the building at the conclusion of the second shift and that Morel was terminated for his refusal to submit to such search on multiple occasions. Although Morel continues to claim that he was somehow "singled out" by Nicinski, his witnesses confirmed that they and other employees were also subject to bag searches that are common in the building service industry. Two other ABM employees — one of whom, Plonska, is white — were terminated when searches revealed they were attempting to leave the building with tenant property. Morel has not demonstrated that his discharge occurred under circumstances giving rise to an inference of discrimination, and thus he has not made the required prima facie case of discriminatory termination.
Even if Morel could establish a prima facie case of discriminatory termination, ABM has put forth a legitimate, non-discriminatory reason for his discharge. Employees in the building services industry frequently are given access to tenant space that is not accessible to the general public. Bag checks are commonly used to prevent and deter theft. Morel's failure and refusal to submit to a bag check upon exiting his place of employment is a legitimate reason for taking disciplinary action. Although Morel has urged that this practice was conducted in a discriminatory fashion, no evidence has been adduced to that effect beyond his unsupported assertion to establish that ABM's reason was pre-textual.
2. Discriminatory Working Conditions
Morel has established a prima facie case of disparate treatment based on his workload. In addition to outright termination, materially adverse employment actions include "a demotion evidenced by a decrease in wage or salary, a less distinguished title, a material loss of benefits, significantly diminished material responsibilities, or other indices . . . unique to a particular situation." Galabya v. N.Y. City Bd. Of Educ., 202 F.3d 636, 640 (2d Cir. 2000) (quoting Crady v. Liberty Nat'l Bank Trust Co. Of Ind., 993 F.2d 132, 136 (7th Cir. 1993)). The "assignment of a disproportionately heavy workload" also may constitute an adverse employment action. Feingold, 366 F.3d at 152-53.Morel testified at deposition that Nicinski assigned work in a discriminatory manner, giving the most difficult or least desirable tasks to Hispanic and African-American workers, while denying them overtime opportunities that were offered instead to less senior Polish employees. Morel further testified that after four or five months on the job he was assigned significantly more work than his white co-workers and that his excessive workload, which realistically should have been assigned to two porters, forced him to work through his meal break and past his shift without additional compensation. As previously noted, Nicinski is alleged to have remarked that he hated African-American and Hispanic workers, and that he "would only assign Dominicans to clean toilets." Viewing the facts in the light most favorable to Morel, a reasonable fact finder could conclude that Morel was assigned a disproportionately heavy workload as a result of discriminatory intent.
IV. The Retaliation Claims Are Dismissed
Title VII prohibits an employer from discriminating against an employee who takes action in opposition to an unlawful employment practice. See 42 U.S.C. § 2000e-3(a). In order to establish aprima facie case of retaliation under Title VII, a plaintiff must show:
(1) that [he] was engaged in protected activity by opposing a practice made unlawful by Title VII; (2) that the employer was aware of that activity; (3) that [he] suffered adverse employment action; and (4) that there was a causal connection between the protected activity and the adverse action.Holtz v. Rockefeller Co., 258 F.3d 62, 79 (2d Cir. 2001) (internal citation omitted).
Morel has claimed that he was retaliated against in response to his grievances filed January 28, 2000 and June 12, 2000. Because ABM has met its burden on summary judgment of pointing out an absence of evidence to support a finding of retaliation, these claims must be dismissed.
Morel has alleged that following his grievance of January 28, 2000, Nicinski and Almadovar continued to harass him, assigned an excessive and undesirable workload, and gave him a write-up, which resulted in his five-day suspension on June 9, 2000. This grievance cannot form the basis for a retaliation claim for two reasons. First, there is no showing that ABM was aware of the grievance. Morel filed the grievance with his union, but was persuaded to withdraw the grievance on February 4, 2000, after he was told that it might adversely affect his working conditions. No evidence has been presented that the grievance was ever forwarded to the employer, or that Nicinski or Almadovar were otherwise notified that a grievance had been filed.
Second, there is no showing of a causal relationship between the January 28 grievance and any adverse employment action. A plaintiff can demonstrate a causal connection in three ways: "(1) direct proof of retaliatory animus directed against the Plaintiff, (2) disparate treatment of similarly situated employees, or (3) that the retaliatory action occurred close in time to the protected activities." McNair v. N.Y. City Health and Hosps. Corp., 160 F. Supp. 2d 610, 604 (S.D.N.Y. 2001). Morel's own deposition testimony shows that his working conditions did not change in any significant way after he filed the grievance. Indeed, Morel alleges that he filed the grievance to complain about an increased workload and harassment by Nicinski and Almadovar. Because these alleged adverse employment actions predated the grievance, their mere continuance afterward can not support a finding of retaliation. As to the write-up leading to Morel's suspension on June 9, 2000, no direct evidence has been presented of a causal connection with the January 28 grievance, and the length of time separating the two does not warrant the inference of a causal connection. See Ashok v. Barnhart, 289 F. Supp. 2d 305, 314 (E.D.N.Y. 2003) ("[T]he interval between a protected activity and an adverse action that results in a finding of retaliation is generally no more than several months."); Carr v. WestLB Admin., Inc., 171 F. Supp. 2d 302 (S.D.N.Y. 2001) (no causation found in light of four-month lapse of time between retaliatory and protected activity).
Morel filed another grievance on June 12, 2000. It is undisputed that ABM was aware of this grievance, as an arbitration hearing was held on May 29, 2001, resulting in the August 28 Award that reduced Morel's five-day suspension to three days. However, as with the January 28 grievance, no evidence has been presented that there was a causal relationship between the June 12 grievance and any adverse employment action, including any alleged change in working conditions or Morel's termination, which occurred more than ten months after the June 12 grievance was filed. For these reasons, Morel's retaliation claims should be dismissed. Conclusion
For the reasons stated above, Defendants' motion for summary judgment is granted in part and denied in part. Morel's disparate treatment claims pursuant to Title VII, section 1981, the SHRL and the CHRL based upon a hostile work environment and the assignment of a disproportionately heavy workload may go forward, and all other claims are dismissed.
It is so ordered.