Opinion
03 Civ. 6605 (HB).
November 30, 2004
OPINION ORDER
Plaintiff Muhamed Pjetrovic ("Pjetrovic") brings this action against his former employer, Merrill Lynch Co., Inc. ("Merrill Lynch") and Knight Electrical Services Corp. ("Knight"). Plaintiff alleges that Merrill Lynch and Knight terminated his employment because of his religious affiliation in violation 42 U.S.C. § 2000e-2 and N.Y. Exec. Law § 296(1)(a). Merrill Lynch moves for summary judgment pursuant to Fed.R.Civ.P. 56. For the reasons set forth below, the motion for summary judgment is DENIED.
I. BACKGROUND
From 1986 to 2001, Pjetrovic was employed as an electrician by various contractors at Merrill Lynch's data processing facility located at 570 Washington Street in lower Manhattan. ("Washington Street"). From September 1996 to 2001, Knight, an electrical contractor, was Pjetrovic's direct employer.
In 1997, Pjetrovic converted and became a devout Muslim. Since then, Pjetrovic wears a kufi (knit skullcap) and prays five times a day. Pjetrovic prayed in the electrical shop with other Muslim coworkers and during breaks.
For at least the last five years, the electrical shop has been located on the third floor at the Washington Street facility. Employees there include the site manger, Tony Orlando ("Orlando"), the foreman, Richard Vigliotti ("Vigliotti"), Vigliotti's boss, Robert Nespoli ("Nespoli"), assistant foreman, Erik Hofmeister ("Hofmeister"), Knight's Director of Field operation, Thomas Dean ("Dean"), the manger of physical security, John O'Connor ("O'Connor"), fellow electrical engineer, Mr. O'Reilly ("O'Reilly"), and head of security, Patrick Kelleher ("Kelleher").
Before September 11, 2001, Pjetrovic had complained to Vigliotti about the removal of a Muslim calendar from his locker, and to Orlando about Orlando's criticism of Pjetrovic's ritual washing in the electrical shop break room sink. (Pl. Dep. at 11:2 — 18:3; 38:6 — 41:18).
A. Pjetrovic's Discharge
After September 11, 2001, thousands of Merrill Lynch employees were relocated from the World Financial Center to Washington Street.
Pjetrovic returned to work on Thursday, September 13, 2001 and worked his regular hours (3 p.m. to 11 p.m.). Sometime on September 13, Pjetrovic and Kris Singhnani ("Singhnani") engaged in a brief argument regarding the events of September 11 in the electrical shop break room. In response to Singhnani's assertion that Muslims were certainly involved in the terrorist attacks, Pjetrovic's listed several entities or groups which could have been involved, including, but not limited to, Chinese, Russians, CIA, and Jews. Merrill Lynch alleges that Pjetrovic previously engaged Reilly in an argument earlier on the same day. During the argument with Reilly, Pjetrovic asserted that the Jews or the United States Government were responsible for the attack on the World Trade Center. Pjetrovic denies ever having a heated discussion during the shift and the foreman, Vigliotti, conceded that he never spoke to Pjetrovic about an argument with Reilly. (Vigliotti Dep. at 39:24 — 40:12).
Reports of Pjetrovic's altercations were made to the Foreman, Vigliotti. In addition, Vigliotti learned from one or more of the electricians that Pjetrovic had been using a Merrill Lynch computer to download information about assault rifles and submachine guns. (Vigliotti Dep. at 40:22 — 41:6). According to Pjetrovic, Vigliotti should not have been surprised because he had been aware of the downloaded materials before September 11 since Pjetrovic placed the downloaded material in plain view in the electrical shop break room on August 23, 2001. (Hofmeister Dep. at 25:23 — 27:3; Singhnani Dep. at 21:4 — 22).
On September 16, 2001, instead of inquiring directly with Pjetrovic about the downloaded materials or the alleged arguments with co-workers, Vigliotti met with his superior Nespoli. On September 16, 2001, Vigliotti reported to Nespoli that Pjetrovic had made statements to employees regarding the terrorist attacks. Merrill Lynch alleges that Vigliotti also reported the use of a Merrill Lynch computer to download weapons information. (Vigliotti Dep. at 44:19 — 45:7). The following morning, September 17, 2001, Nespoli and Vigliotti went to see the site manager, Orlando, where Vigliotti reported the verbal attacks and, allegedly, the materials downloaded by Pjetrovic. (Vigliotti Dep. at 45:16 — 22). After meeting with Nespoli and Vigliotti, Orlando brought the matter to his boss, Murphy, who immediately directed the matter to the Physical Security Department. (Orlando Dep. at 23:14 — 24:2).
Merrill Lynch claims that Orlando simply relayed the information from Vigliotti to O'Connor. (Orlando Dep. at 25:5 — 11; 40:20 — 41:6). Pjetrovic alleges that Orlando did not merely repeat to O'Connor what Vigliotti reported to Orlando, but embellished Vigliotti's report and exaggerated the disruptiveness, even beyond Vigliotti's own exaggerations. (Orlando Dep. at 20:7 — 23:6; O'Connor Dep. at 40:25 — 47:2). It is undisputed that Orlando never revealed the identity of the disruptive worker, and that Orlando explained to O'Connor that the disruptive worker stated, "we were being punished, we had to be punished, God was punishing us," or words to that effect. (O'Connor Dep. at 44:5 — 7; 86:18 — 21). The parties disagree as to whether O'Connor knew Pjetrovic was Muslim or the extent of his religious convictions.
Following Orlando's comments, O'Connor "concurred" with Orlando's decision to remove the problem worker and recommended that Orlando meet with head of security, Kelleher, and that the worker be removed from the building. (O'Connor Dep. at 61:15 — 62:17). Meanwhile, Pjetrovic took his regular days off on September 16 and 17, 2001. On September 18, at the direction of Nespoli and Dean, Pjetrovic met with Dean and Nespoli in the conference room. (Pl. Dep. at 179:9 — 180:10). Without a discussion of the reasons, Dean informed Pjetrovic that he was terminated. (Pl. Dep. at 180:18-25).
II. APPLICABLE STANDARD
A. Summary Judgment Standard Fed.R.Civ.P. 56(c)
A court will not grant a motion for summary judgment unless it determines that there is no genuine issue of material fact and the undisputed facts are sufficient to warrant judgment as a matter of law. Fed.R.Civ.P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Anderson v. Liberty Lobby Inc., 477 U.S. 242, 250 (1986). The party opposing summary judgment "may not rest upon the mere allegations or denials of the adverse party's pleading, but . . . must set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e). In determining whether there is a genuine issue of material fact, the Court must resolve all ambiguities, and draw all inferences, against the moving party. United States v. Diebold, Inc., 369 U.S. 654, 655 (1962) ( per curiam); Donahue v. Windsor Locks Bd. of Fire Comm'rs, 834 F.2d 54, 57 (2d Cir. 1987). It is not the court's role to resolve issues of fact; rather, the court may only determine whether there are issues of fact to be tried. Donohue, 834 F.2d at 58 (citations omitted). However, a disputed issue of material fact alone is insufficient to deny a motion for summary judgment, the disputed issue must be "material to the outcome of the litigation," Knight v. U.S. Fire Ins. Co., 804 F.2d 9, 11 (2d Cir. 1986), and must be backed by evidence that would allow "a rational trier of fact to find for the nonmoving party." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
B. Employment Discrimination
Pursuant to Title VII, an employer may not "discharge any individual, or otherwise to 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)(1). The Supreme Court articulated a three-step burden-shifting framework for reviewing cases brought under Title VII in McDonnell Douglas Corp. v. Green. 411 U.S. 792 (1973). First, under McDonnell Douglas and its progeny, the plaintiff-employee "must establish a prima facie case of discrimination by demonstrating (a) membership in a protected class; (b) qualification for the position; (c) adverse employment action; and, (d) circumstances giving rise to an inference of discrimination." Cruz v. Coach Stores, Inc., 202 F.3d 560, 567 (2d Cir. 2000). Second, if the plaintiff-employee satisfies the four-part prima facie burden, the defendant-employer has the opportunity to "articulate a legitimate, clear, specific and non-discriminatory reason" for its adverse employment decision. Kerzer v. Kingly Mfg., 156 F.3d 396, 401 (2d Cir. 1998). Third, where necessary and appropriate, plaintiff-employee may demonstrate that the defendant employer's explanation was not the actual reason for the plaintiff-employee's dismissal. In other words, "the plaintiff has the ultimate burden to prove that the employer's reason was merely a pretext for discrimination." Holt v. KMI-Continental, Inc., 95 F.3d 123 (2d Cir. 1996).
A discriminatory intent or animus is essential to the ultimate determination of employment discrimination claims and a "trial court must be cautious about granting summary judgment." Gallo v. Prudential Residential Serv., Ltd. P'ship, 22 F.3d 1219, 1224 (2d Cir. 1994); accord Kerzer v. Kingly Mfg., 156 F.3d 396, 400 (2d Cir. 1998) (holding that "in an employment discrimination case when, as here, the employer's intent is at issue, the trial court must be especially cautious about granting summary."). Essentially, the question on summary judgment is "whether the evidence, taken as a whole, supports a sufficient rational inference of discrimination. To get to the jury, it is not enough . . . to disbelieve the employer, the fact-finder must also believe the plaintiff's explanation of intentional discrimination." Weinstock v. Columbia Univ., 224 F.3d 33, 42 (2d Cir. 2000).
C. State Law Claims
As the parties do not contend that Title VII claims and N.Y. Exec. Law § 296(1)(a) standards diverge, we will analyze them together because "the standards of proof applicable to plaintiff's Title VII and N.Y. Exec. Law claims are the same in all relevant respects." Mandell v. County of Suffolk, 316 F.3d 368, 377 (2d Cir. 2003) (collecting cases).
III. DISCUSSION
A. Prima Facie Case for Discrimination
It is undisputed that Pjetrovic's discrimination claim satisfies the first three elements of a prima facie case. The issue is whether the fourth element of Pjetrovic's prima facie claim — that the discharge presents an inference of discrimination — is satisfied. Merrill Lynch claims that neither O'Connor nor Kelleher were aware of Pjetrovic's faith at the time of his termination and, consequently, Pjetrovic failed to satisfy the prima facie burden.
First, Pjetrovic, as a Muslim, is a member of a protected class. See Pasic v. Eztzi's Texas Holding Corp., No. 01 Civ. 1114, 2002 WL 31938854, at *2 (S.D.N.Y. Jan. 9, 2002). Second, the parties agree that Pjetrovic was qualified for his position as an electrical mechanic. See Gregory v. Daly, 243 F.3d 687, 696 (2d Cir. 2001) (holding that plaintiff need only show that he "possesses the basic skills necessary for performance of [the] job."). Third, Pjetrovic was discharged from his job as an electrical mechanic.
To establish an "inference of discrimination," Pjetrovic must produce direct or circumstantial evidence that would enable the trier of fact to conclude his Muslim faith was the reason or a negative factor leading to his discharge. Furnco Constr. Corp. v. Waters, 438 U.S. 567, 577 (1978). Knowledge of a membership in a protected class is an essential aspect in determining whether a plaintiff can "raise an inference of discrimination." Woodman v. WWOR-TV, Inc., 293 F. Supp. 2d 381, 387 (S.D.N.Y. 2003). "A jury cannot infer discrimination from thin air." Lizardo v. Denny's, Inc., 270 F.3d 94, 104 (2d Cir. 2001). However, in limited fact-specific circumstances, the plaintiff is not required to demonstrate that the ultimate decision-maker was aware of the plaintiff's protected class status. Fullard v. City of New York, 274 F. Supp. 2d 347 (S.D.N.Y. 2003); see also Rajcoomar v. TJX Companies, Inc., 319 F. Supp. 2d 430, 436 (S.D.N.Y. 2004). In circumstances where the bias of a subordinate was significantly influential in the final arbiter's decision, knowledge may be imputed upon the decision-maker:
The discriminatory animus of intermediate supervisors who have input in the decision-making process will not give rise to liability if the supervisor with final authority bases an adverse employment action exclusively on an independent evaluation. But the employer will be liable where the decision-maker `rubber stamps' the . . . recommendation of the subordinates; in such cases, we say that the decision-maker acts as a conduit of the subordinates' improper motive.Fullard, 274 F. Supp. 2d at 357 (citations omitted) (emphasis added).
In the present case, Orlando had known Pjetrovic for approximately 15 years and knew he was a Muslim. (Orlando Dep. at 59:3 — 24). Pjetrovic wears a kufi, "a headgear commonly associated with members of that faith," Rodriguez v. Mercado, No. 00 Civ. 8588, 2002 WL 1997885, at *1 n. 3 (S.D.N.Y. Aug. 28, 2002), and prayed five times a day. Furthermore, on at least one occasion, Orlando impugned Pjetrovic about his use of the electrical shop sink. In July 2001, for example, Orlando confronted Pjetrovic about his use of the sink to engage in his ceremonial wash, which entailed flushing his nose and washing his feet. (Pl. Dep. at 12:13 — 15). According to Hofmeister, Orlando "stormed in and began berating Mr. Pjetrovic about use of the sink and demanding that he clean it up." (Hofmeister Dep. at 21:4 — 10). Such a confrontation was an unusual request and described by Hofmeister as "totally inappropriate." (Hofmeister Dep. at 21:10).
The parties do not contest Orlando's involvement, or influence, over the decision to terminate Pjetrovic. Merrill Lynch portrays O'Connor and Kelleher as the ultimate decision makers, but Orlando was clearly an important participant in the decision-making process. Indeed, O'Connor and Kelleher failed to conduct any independent investigation and relied entirely on the facts as presented by Orlando. As such, O'Connor and Kelleher merely rubber-stamped the recommendation of Orlando.
Orlando's discriminatory animus is significant given his ability to terminate Pjetrovic or, at the very least, influence the decision. See Rajcoomar, 319 F. Supp. 2d at 436. Accordingly, "an inference of discrimination" arises from Merrill Lynch and Knight's decision to terminate Pjetrovic and plaintiff establishes a prima facie case for discrimination. Cruz, 202 F.3d at 567. B. Legitimate Non Discriminatory Reason
Merrill Lynch sets forth two legitimate, non-discriminatory, grounds for terminating Pjetrovic. First, Merrill Lynch concluded that Pjetrovic was a security risk based on an electrician's report that Pjetrovic was downloading information about purchasing weapons. In particular, one or more of the electricians reported to Vigliotti, who allegedly reported the information to Orlando, that Pjetrovic had been using a Merrill Lynch computer to download information about purchasing assault rifles and submachine guns. (Vigliotti, 40:22 — 41:6). Second, Merrill Lynch determined that Pjetrovic was a disruptive factor in the work place and his conduct warranted termination. Pjetrovic's conversations regarding potential "Jewish" and "CIA" involvement in the terrorist attacks was significantly inflammatory to warrant several complaints and disruption in the electrical shop.
C. Pretext for Discrimination
When a defendant presents a legitimate, non-discriminatory justification, "[t]he question becomes the same question asked in any other civil case: Has the plaintiff shown, by a preponderance of the evidence, that the defendant is liable for the alleged conduct?" Fisher v. Vassar Coll., 114 F.3d 1332, 1336 (2d Cir. 1997) ( en banc). In the summary judgment context, to prevail:
[T]he plaintiff is not required to show that the employer's proffered reasons were false or played no role in the employment decision, but only that they were not the only reasons and that the prohibited factor was at least one of the motivating factors. The plaintiff's burden in this regard may often be carried by reliance on the evidence comprising the prima facie case, without more. . . . [T]he validity of this defense is ordinarily for the jury to decide at trial rather than for the court to determine on a motion for summary judgment.Holtz v. Rockefeller Co., Inc., 258 F.3d 62, 78, 79 (2d Cir. 2001) (emphasis added) (citations omitted). In short, the defendant's allegations of a legitimate, non-discriminatory justification for his termination (security and disruption), were pretext for discrimination and that religious discrimination was the real reason for his dismissal.
1. Security Risk
Merrill Lynch alleges that Pjetrovic downloaded information about purchasing assault weapons and, therefore, was terminated for safety and security reasons. The facts, however, belie the contention. First, at a threshold level, it is not clear whether Merrill Lynch even considered the downloaded materials before the decision to terminate Pjetrovic. Vigliotti omitted any mention of materials downloaded by Pjetrovic on the "Employee Problem Discussion Sheet" that he prepared following the allegedly inflammatory comments made by Pjetrovic earlier in the day. (Vigliotti Dep. at 72:3 — 73:13). In addition, O'Connor, who received all of his information from Orlando, has no recollection of downloads being brought to his attention until after Pjetrovic was terminated. (O'Connor Dep. at 48:8 — 49:24). In fact, the downloaded materials were not even brought to O'Connor's attention on or before September 17, 2001, the day that Pjetrovic was terminated. (O'Connor Dep. at 66:14 — 67:5; Orlando Dep. at 69:1 — 70:23; Vigliotti Dep. at 57:21 — 60:6).
Second, Orlando stated that he never considered Pjetrovic a security risk before or after September 14. (Orlando Dep. at 65:20 — 25). Therefore, it is not surprising that while Pjetrovic was terminated on September 17, 2001, Merrill Lynch corporate security did not obtain and remove the materials until September 19. Nor did Merrill Lynch conduct any investigation into the alleged downloaded materials. (O'Connor Dep. at 86:19 — 87:6). In fact, the materials that posed a threat were never copied and the location of the materials is unknown to this day. (O'Connor Dep. at 69:14 — 18). If the materials posed such a threat, why did it take the company five days to obtain them and, perhaps more importantly, report the matter to the appropriate law enforcement agency?
Third, Merrill Lynch failed to follow standard procedure in arriving at its decision to terminate Pjetrovic. Even though a "[v]iolation of an organization's internal procedures alone is insufficient to create an inference of discrimination," Sklaver v. Casso-Solar Corp., No. 02-CV-9928, 2004 WL 1381264, at *9 (S.D.N.Y. May 15, 2004), an employer's departure from its own policies and standards "can raise a question as to the good faith of the process where the departure may reasonably affect the decision." Stern v. Trs. of Columbia Univ., 131 F.3d 305, 313 (2d Cir. 1997). Here, Pjetrovic demonstrated that Merrill Lynch neglected to follow its common disciplinary procedures and terminated him summarily.
Fourth, similar materials downloaded by Pjetrovic appeared weeks before September 11, 2001. Pjetrovic, Hofmeister, and Singhnani each remember downloaded materials left in plain view in the shop break room on or about August 23, 2001. (Singhnani Dep. at 21:4 — 22; Hofmeister Dep. at 25:23 — 27:3). One cannot help but wonder why, if they posed such a threat towards the defendants, it took three weeks to act.
Fifth, Pjetrovic was treated differently than similarly situated employees. In general, "a showing that similarly situated employees" belonging to a different religious group "received more favorable treatment can also serve as evidence that the employer's proffered legitimate, nondiscriminatory reason for the adverse job action was a pretext for racial discrimination." Graham v. Long Island R.R., 230 F.3d 34, 43 (2d Cir. 2000) (emphasis). In the instant action, Pjetrovic was treated differently then Patrick McDonald ("McDonald"). Both McDonald and Pjetrovic placed gun related literature for fellow employees to read in plain view in the break room. (Hofmeister Dep. at 18:6 — 18; Singhnani Dep. at 18:20 — 19:13). McDonald placed issues of gun magazines like Guns Ammo and American Rifleman prior to September 11, 2001. Pjetrovic placed rifle-pricing information in a similar location. The only difference between the materials downloaded by Pjetrovic and the magazines appears to be format.
Alone, each of the five instances could be perceived as an anomaly or a result of the chaotic situation that resulted from the terrorist attacks on September 11th. Together, however, these instances suggest that the legitimate, non-discriminatory justification for Pjetrovic's termination was pretext.
2. Disruptive Effect
Similarly, a rational juror could also find that Merrill Lynch's "disruptiveness" justification was merely a pretext for discrimination. Plaintiff presents sufficient evidence that his comments, relied upon by the Defendant, "we were being punished, we had to be punished, God was punishing us" were also merely pretextual.
The evidence suggests, for example, that the "heated conversation" between Singhnani and Plaintiff ended without incident and Singhnani apologized to Plaintiff later in the day (Hofmeister Dep. at 30:15 — 23; Singhnani Dep. at 16:7 — 12). Orlando described the incident very differently, however, when he related the information to his superiors. Orlando exaggerated the nature, topic, and extent of disruption that arose from the discussions between Plaintiff and co-workers in the electrical shop. (Orlando Dep. at 20:7 — 25).
IV. CONCLUSION
Plaintiff withdraws the Second, Fourth and Sixth claims for retaliation against Merrill Lynch (but not Knight) and, pursuant to an agreement with Merrill Lynch, the Seventh Claim for defamation. As for the First, Third, and Fifth claims against Merrill Lynch and all six (6) claims against Knight, after drawing all inferences in favor of the Plaintiff, multiple issues of material fact exist that preclude the grant of Defendant's motion for summary judgment; accordingly, Defendant's motion is hereby DENIED.IT IS SO ORDERED.