Opinion
99 Civ. 3597 (SWK).
March 15, 2001.
MEMORANDUM OPINION AND ORDER
Defendant Port Imperial Ferry Corporation, doing business as New York Waterway ("NY Waterway"), moves, pursuant to Federal Rule of Civil Procedure 56, for partial summary judgment as to the retaliatory discharge cause of action. For the reasons set forth below, the motion is granted.
BACKGROUND
Plaintiff William Schuppman ("Schuppman") was employed by N.Y. Waterway as a ferry captain from June 1995 until May 1999. See Plaintiff's Memo. of Law in Opp. ("Pl's Memo.") at 1. On March 3, 1997, Schuppman allegedly slipped and fell down a ladder on one of N.Y. Waterway's ferry boats thereby injuring his left knee. See Complaint at 3. On January 12, 1998, Schuppman's attorney wrote N.Y. Waterway a letter informing them of Schuppman's personal injury claim. See Letter from Jacob Shisha, Esq. to N.Y. Waterway of 1/12/98. Schuppman continued his employment with N.Y. Waterway until on or about May 7, 1999, at which time he was terminated. See Pl's Memo. at 1. Schuppman filed a complaint against N.Y. Waterway on May 17, 1999, seeking damages for injuries resulting from unseaworthiness" and "negligence of the defendants." See Complaint at 3. Schuppman also claimed that N.Y. Waterway had taken retaliatory disciplinary action in an attempt to intimidate and prevent [him] from bringing his cause of action". Id. N.Y. Waterway brought the instant motion to dismiss Schuppman's claim of retaliatory discharge on September 5, 2000.
The Jones Act grants a statutory right to seamen to sue for personal injuries suffered in the course of employment. See 46 U.S.C. § 688.
DISCUSSION
I. Standard for Summary Judgment
Under Rule 56(c) of the Federal Rules of Civil Procedure, summary judgment is appropriate where "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 a judgment as a matter of law." Fed.R.Civ.P. 56(c). The moving party must initially satisfy a burden of demonstrating the absence of a genuine issue of material fact, which can be done merely by pointing to an absence of evidence in support of the nonmoving party's case. Celotex Corp. v. Catrett, 477 U.S. 317, 323-25, (1986). The nonmoving party must then come forward with "specific facts showing that there is a genuine issue for trial," Fed.R.Civ.P. 56 (e), by "a showing sufficient to establish the existence of [every] element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. at 322.
The Court "must resolve all ambiguities and draw all reasonable inferences in favor of the party defending against the motion". Eastway Constr. Corp. v. New York, 762 F.2d 243, 249 (2d Cir. 1985); see also Adickes v. S.H. Kress Co., 398 U.S. 144, 158-59 (1970); Hathaway v. Coughlin, 841 F.2d 48, 50 (2d Cir. 1988); Knight v. United States Fire Ins. Co., 804 F.2d 9, 11 (2d Cir. 1986). But the Court is to inquire whether "there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party," Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986), and to grant summary judgment where the nonmovant's evidence is merely colorable, conclusory, speculative or not significantly probative. See id. at 249-50; Knight v. United States Fire Ins. Co., 804 F.2d at 12, 15; Argus Inc. v. Eastman Kodak Co., 801 F.2d 38, 45 (2d Cir. 1986). To determine whether the nonmoving party has met his or her burden, the court must focus on both the materiality and the genuineness of the factual issues raised by the nonmovant. As to materiality, "it is the substantive law's identification of which facts are critical and which facts are irrelevant that governs." Anderson v. Liberty Lobby, Inc., 477 U.S. at 248. A dispute over irrelevant or unnecessary facts will not preclude summary judgment, see id., but the presence of unresolved factual issues that are material to the outcome of the litigation mandates a denial of the summary judgment motion. See, e.g., Knight v. United States Fire Ins. Co., 804 F.2d at 11-12. In sum, if the court determines that "the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no genuine issue for trial." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quoting First Nat'l Bank of Arizona v. Cities Serv. Co., 391 U.S. 253, 289 (1969)).
II. Retaliatory Discharge of a Maritime Employee
In the absence of a contractual provision specifying a definite term or voyage during which a seaman will be employed, a seaman's employment is terminable at will by either party. See Smith v. Atlas, 653 F.2d 1057, 1060 (5th Cir. 1981). In light of the "protective attitude towards the seamen," however, federal courts have held that "a discharge in retaliation for the seaman's exercise of his legal right to file a personal injury action against the employer constitutes a maritime tort." Smith v. Atlas, 653 F.2d at 1063; see also Meaige v. Hartley Marine Corp., 925 F.2d 700, 702 (4th Cir. 1991); Merchant v. American S.S. Co., 860 F.2d 204, 204 (6th Cir. 1988).
To prevail on a maritime tort claim for wrongful discharge, a seaman must affirmatively establish that the employer's decision was motivated in substantial part by the knowledge that the seaman either intends to file, or has already filed, a personal injury action against the employer. See Smith v. Atlas, 653 F.2d at 1063. In the retaliatory discharge context, courts have held that such a causal connection can be established "directly through evidence of retaliatory animus directed against the plaintiff," Richardson v. New York State Dep't of Correctional Serv., 180 F.3d 426, 444 (2d Cir. 1999) (quoting DeCintio v. Westchester County Med. Ctr., 821 F.2d 111, 115 (2d Cir. 1987)), or "indirectly by showing that the protected activity was followed closely by the discriminatory treatment. . . [or] through other evidence such as disparate treatment of fellow employees who engaged in similar conduct." Id. The eighteen months between N.Y. Waterway's knowledge of Schuppman's claim and his subsequent termination does not support an inference of retaliatory discharge. See Holava-Brown v. General Electric Co., No. 98 Civ. 9661, 1999 WL 642966, at *4 (2d Cir. Aug. 20, 1999) (holding that a period of less than three months between a first complaint and termination infers a causal connection); Holland v. Am. Cyanamid Co., 895 F.2d 80, 85-86 (2d Cir. 1990) (finding that employee who was fired three months after discrimination complaint was filed could not establish a causal connection); Stringfellow v. Wyckoff Heights Med. Ctr., No. 95 Civ. 3041, 1998 WL 760286, at *6 (E.D.N.Y. Sep.9, 1998) (holding plaintiff did not satisfy "causal connection" of his retaliation claim where he was terminated more than four months after he filed a complaint with the EEOC). Schuppman, however, argues that his termination only days after settlement negotiations broke off is proof of N.Y. Waterway's retaliatory motive. See Pl's Memo, at 7. N.Y. Waterway denies that they were aware that "negotiations were even taking place, let alone that they had broken down", see Bostock Aff. ¶ 3, because "[o]nce a claim is made against the company. . . it is forwarded to the insurance company for handling . . .[and there is no] further involvement nor is information provided . . . concerning the status of the claim or any negotiations." Id. at ¶ 7. Moreover, the relevant date for establishing temporal proximity is not when settlement negotiations ended, but rather when the employer knew that the seamen "intend[ed] to file. . . a personal injury action against the employer." Smith v. Atlas 653 F.2d at 1063. Thus, Shuppman has failed to establish a temporal relationship between his Jones Act claim and his termination which would support an inference of a retaliatory motive.
Evidence of disparate treatment may also serve as circumstantial evidence of retaliation. See Sumner v. United States Postal Service, 899 F.2d 203, 209 (2d Cir. 1990) ("The causal connection. . . can be established indirectly with circumstantial evidence, for example,. . . through evidence of disparate treatment of employees who engaged in similar conduct.") Schuppman alleges that "[o]ther captains who ran out of fuel were simply given a letter warning," and that "[o]ther captains who had accidents causing property damage and did not report it were never disciplined." Pl's Memo at 3-4. Schuppman, however, has not established that he was treated differently than other similarly situated captains. There is no evidence, nor does Schuppman allege, that the "other captains" to which he refers had been disciplined — as he had — for two other incidents within the past two years. In short, his allegation of disparate treatment is wholly without merit.
Schuppman has not set forth any direct evidence of discrimination nor has he offered any evidence of temporal proximity or disparate treatment. Therefore, no rational trier of fact could find that N.Y. Waterway's decision was motivated in substantial part by the knowledge that Schuppman intended to file a personal injury action. Accordingly, N.Y. Waterway's motion is grated, and the retaliatory discharge claim is dismissed.
Moreover, even if there were some evidence that N.Y. Waterway's actions were motivated by his Jones Act claim, summary judgment would still be warranted because "an employer may defeat a seamen's action by demonstrating that the personal injury action was not a substantial motivating factor for the discharge." Smith v. Altas, 653 F.2d at 1063.
N.Y. Waterway offers several legitimate, non-retaliatory reasons for Schuppman's discharge. First, on June 25, 1998, Schuppman "came into contact with another vessel" causing $3,798.28 in damages and failed to report the incident in violation of company policy. See Defendant's Local Rule 56.1 Statement at 3. Second, in January of 1999, Schuppman left passengers on the dock who had to wait another hour for the next ferry in contravention of company policy. See id. at 3-4. Finally, on or about April 24, 1999, the vessel Schuppman was captaining ran out of fuel on the Hudson River because he had not complied with N.Y. Waterway's procedure for ascertaining the correct fuel level. See Defendant's Memo at 7. N.Y. Waterway asserts that the foregoing incidents "show a deterioration in Mr. Schuppman's work performance and his attitude toward his job in general" and claims that "due to the fact that many lives were placed in grave risk of danger . . . N.Y. Waterway had no choice but to terminate his employment." Id. at 8.
Schuppman argues that these reasons are pretextual because after "the first two incidents, plaintiff remained as an employee." Pl's Memo. at 7. N.Y. Waterway's termination of Schuppman after the third incident, however, rather than after the first or the second, supports N.Y. Waterway's claim that Schuppman's employment was terminated because his performance was deteriorating. In fact, the letter written after the first incident — the collision with another boat — specifically states that discharge at that time was not warranted "[i]n light of the fact that [Schuppman did] not have any prior similar incidents on [his] record." Letter from Bostock to Schuppman of 7/20/98.
Drawing all reasonable inferences in favor of the non-moving party, the Court finds that the decision to terminate Schuppman was not motivated in substantial part by the knowledge that Schuppman intended to file a Jones Act claim. Schuppman has also failed to rebut N.Y. Waterway's legitimate, non discriminatory reasons for his termination. Therefore, and for all the reasons set forth above, N.Y. Waterway's motion for partial summary judgment is granted.
CONCLUSION
For the reasons set forth above, N.Y. Waterway's motion for partial summary judgment as to the retaliatory discharge is granted and the claim is hereby dismissed. Trial of the remaining claim shall commence on June 18, 2001, at 10:00 a.m. in Room 906, 40 Centre Street, New York, New York. The parties' joint pre-trial order, proposed voir dire, jury charges, and in limine motions must filed and served on or before May 14, 2001.
SO ORDERED.