Opinion
99 Civ. 11644(HB).
December 29, 2000.
OPINION ORDER
Plaintiff Simon Baez was employed as a porter within the housekeeping department of defendant Yeshiva University for thirteen years until his termination in April of 1999. Plaintiff has brought this action alleging unlawful discrimination on the basis of race and national origin leading to termination of his employment in violation of 42 U.S.C. § 2000e et seq. On October 24, 2000, defendant Yeshiva University ("Yeshiva") moved for summary judgment pursuant to Fed.R.Civ.P. 56. By order dated December 4, 2000, this Court denied defendant's motion without prejudice for failure to comply with Local Civil Rule 56.2. Defendant has now complied with Rule 56.2 and has renewed its motion for summary judgment. Baez has now opposed Yeshiva's motion by affidavit and various exhibits. For the reasons set forth below, defendant's motion is GRANTED.
I. BACKGROUND
Baez commenced employment with the housekeeping department of Yeshiva University in 1986. (Memorandum of Simon Baez, dated May 15, 1999 ("Baez Mem.") at 1). Baez's work responsibilities involved various cleaning tasks, including the emptying of trash bins. (Defendant's Local Rule 56.1 Statement ("Def. Rule 56.1 Stmt.") at ¶ 2). As part of his job, Baez gathered recyclable materials and placed them in a collection truck. (II) On March 26, 1999, Robert Vallespi, Baez's supervisor, directed Baez to place recyclables into the city collection truck. (Def. Rule 56.1 Stmt. at ¶ 3). Baez testified at his deposition that his co-worker, Julio Del Rosario, advised him that he should not perform this task, because neither man was a City employee, and thus, if they suffered an injury in the performance of such a task, their insurance would not cover them. (Deposition of Simon Baez ("Baez Dep.") annexed to the Affidavit of Simon Baez at 12-13). Baez refused to empty the recyclable paper into the city truck, and was immediately suspended without pay until April 14, 1999 by Michael Sperling, a Yeshiva human resources manager. Baez was advised that it was his responsibility to perform all job-related duties required by management as long as he was qualified to do so and such duties did not jeopardize his safety. (Memorandum of Michael Sperling, dated April 6, 1999, annexed to the Affirmation of Gerald Bodner ("Bodner Affm.") at Ex. B). Baez was also reminded that it was his responsibility to complete tasks that he deemed inappropriate and that he had the right to grieve after completing the task. (Id.) The University also took the position that throwing recyclables into a collection truck did not jeopardize Baez's safety and maintains that Baez had willingly completed this task many times in the past. (Id.)
Baez returned to work on April 15, and was again required to throw recyclables into the city collection truck on April 23, 1999. (Def. Rule 56.1 Stmt. at ¶ 6). Again, Baez refused to perform this task and was immediately placed on unpaid suspension pending completion of an investigation. (Id.) On May 18, 1999, Yeshiva terminated Baez's employment effective April 23, 1999. (Id.)
Thereafter, on or about June 17, 1999, Baez filed a Charge of Discrimination against Yeshiva with the Equal Employment Opportunity Commission ("EEOC"). In completing the EEOC Charge, Baez checked the boxes alleging "retaliation" and "other" and explained in an attached memorandum that Yeshiva committed a "violation of Labor's rights" by terminating him for refusing to perform an "illegal operation", i.e., requiring private employees to load a city truck. (EEOC Charge dated June 17, 1999, annexed to Bodner Affm. at Ex. E). However, Baez did not check the boxes to allege discrimination on the basis of race or national origin. The EEOC issued Baez a Notice of Right to Sue on July 6, 1999. (Bodner Affm. at Ex. D). Plaintiffs union, 1199 National Health and Human Service Employees Union ("Union"), filed a grievance and demanded arbitration in accordance with the collective bargaining agreement between the union and Yeshiva. (See Arbitration Opinion and Award at 1, annexed to the Affirmation of Gerald Bodner at Ex. "F"). An arbitration hearing was conducted on December 7, 1999. (Id.) A union representative and union counsel were present. (Id.) The arbitrator determined that Baez was justly terminated. (14. at 6). The instant litigation was commenced on or about October 7, 1999, when Baez filed a complaint alleging that Yeshiva discriminated against him on the basis of his race (Hispanic) and national origin (Dominican Republic). (Compl. at ¶ 7).
II. DISCUSSION
A. Standard of Review on Summary Judgment
Under Federal Rule of Civil Procedure 56(c), summary 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 a judgment as a matter of law." Fed.R.Civ.P. 56(c). Accordingly, the Court's task is not to "weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). To create an issue for trial, there must be sufficient evidence in the record to support a jury verdict in the nonmoving party's favor. See id. To defeat a motion for summary judgment, however, the nonmoving party "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). As the Supreme Court stated in Anderson, "[i]f the evidence is merely colorable, or is not significantly probative, summary judgment may be granted."Anderson, 477 U.S. at 249-50. The nonmoving party may not rest upon mere conclusory allegations or denials, but must set forth "concrete particulars" showing that a trial is needed. National Union Fire Ins. Co. v. Deloach, 708 F. Supp. 1371, 1379 (S.D.N Y 1989) (quoting R.G. Group, Inc. v. Horn Hardart Co., 751 F.2d 69, 77 (2d Cir. 1984) (internal quotations omitted)).
B. McDonnell Douglas Standard
Plaintiff bears the initial burden of proving, by a fair preponderance of the credible evidence, a prima facie case of discrimination. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973); Bickerstaff v. Vassar College, 196 F.3d 435, 446 (2d Cir. 1999). A plaintiff may demonstrate a prima facie case of employment discrimination by proving the four elements of the claim: (1) membership in a protected class; (2) qualification for the position; (3) discharge or other adverse employment action; and (4) circumstances giving rise to an inference of discrimination. See Lapsley v. Columbia Univ.-College of Physicians, 999 F. Supp. 506, 513 (S.D.N.Y. 1998) (citing Shumway v. United Parcel Service, 118 F.3d 60, 63 (2d Cir. 1997)); de la Cruz v. New York City Human Resources Admin. Dep't of Soc. Servs., 82 F.3d 16, 20 (2d Cir. 1996). In order to establish a prima facie case of retaliation under Title VII, an employee must show that: "(1) she was engaged in an activity protected under Title VII; (2) the employer was aware of plaintiffs participation in the protected activity; (3) the employer took adverse action against plaintiff; and (4) a causal connection existed between the plaintiffs protected activity and the adverse action taken by the employer." Cosgrove v. Sears, Roebuck Co., 9 F.3d 1033, 1039 (2d Cir. 1993). In Title VII cases, "[e]stablishment of the prima facie case in effect creates a presumption that the employer unlawfully discriminated against the employee." Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 255 (1981). Generally, "[i]t is the judge, not the jury, who must decide whether [a] plaintiff has satisfied the requirements of McDonnell Douglas's minimal version of a prima facie case".Gordon v. New York City Bd. of Educ., 232 F.3d 111, 116 (2d Cir. 2000) (quoting Sharkey v. Lasmo (AUL Ltd.), 214 F.3d 371, 374 (2d Cir. 2000)).
Once the plaintiff satisfies his or her burden of proving a prima facie case of discrimination, the burden of going forward then shifts to defendant to "articulate some legitimate, nondiscriminatory reason," for the employment decision. McDonnell Douglas, 411 U.S. at 802. If defendant articulates a nondiscriminatory reason for its actions, plaintiff must "be afforded a fair opportunity to show that [defendant's] stated reason . . . was in fact pretext" id. 411 U.S. at 804, or, in other words, "that the presumptively valid reasons . . . were in fact a coverup for a racially discriminatory decision" Id. 411 U.S. at 805. At this stage of the inquiry, however, plaintiff must also satisfy the ultimate burden in the case, the burden of persuading the trier of fact that the defendant intentionally discriminated against plaintiff. of course, at the summary judgment stage, plaintiff need not prove intentional discrimination, rather, "plaintiff may preclude summary judgment by producing evidence from which the trier of fact reasonably could draw an inference of discrimination." Sorlucco v. New York City Police Dep't, 888 F.2d 4, 7 (2d Cir. 1989).
C. Plaintiff Has Failed to Establish a Claim Under Title VII
Baez's claim of retaliation under Title VII must fail because he has not established that he engaged in any activity protected under Title VII. By his complaint, Baez has also alleged discrimination on the basis of race and national origin. In that connection, I note that throughout the course of his deposition, Baez testified repeatedly that he is not alleging racial or national origin discrimination against Yeshiva. Specifically Baez testified that "Yeshiva doesn't discriminate because they have so many different people work[ing] together." (Baez Dep. at 10). When asked whether he was discriminated against, Baez explained "No, no, not discrimination. That's how they abuse, not discrimination." (Baez Dep. at 9). "[I] never claimed that Yeshiva University discriminated against [me]. That's not what [I am] accusing Yeshiva of. They never discriminated against [me], because [I] know that in Yeshiva there are plenty of people with different racial backgrounds and in the 13 years that [I have] been here, [I] never suffered from discrimination. What existed were claims of an abuse of power, the supervisor against [me]." (Baez Dep. at 48-49). Baez insisted that "[n]ever, never [have I] ever thought of discrimination from Yeshiva." (Baez Dep. at 60).
By way of his affidavit, Baez explains that "I never mentioned it was discrimination, but labor harassment." (Baez Affidavit, dated December 15, 2000 at p. 2).
In light of this testimony, it is apparent that Baez seeks to have this Court address the issue of whether he should have been fired for refusing to load a Sanitation Department truck. However, Title VII is not the proper vehicle to seek legal redress for plaintiffs claim. This Court may not second-guess an employer's non-discriminatory business decisions, even if those decisions are illogical or unwise. See. e.g., Mesnick v. General Elec. Co., 950 F.2d 816, 825 (1st Cir. 1991) ("Courts may not sit as super personnel departments, assessing the merits — or even the rationality — of employers' nondiscriminatory business decisions."), cert. denied, 504 U.S. 985 (1992); Dister v. Continental Group, Inc., 859 F.2d 1108, 1116 (2d Cir. 1988) ("[I]t is not the function of a fact-finder to second-guess business decisions . . . [unless] the employer's `business decision' was so lacking in merit as to call into question its genuineness.")
Baez cannot make out a prima facie case under Title VII because he has not produced any evidence to show that Yeshiva acted with discriminatory intent and has indeed disavowed knowledge of any such evidence. In other words, plaintiff has not alleged the existence of circumstances giving rise to an inference of discrimination.
In the context of summary judgment motions, "the plaintiff must establish a genuine issue of material fact either through direct, statistical or circumstantial evidence as to whether the employer's reason for discharging [him] is false and as to whether it is more likely that a discriminatory reason motivated the employer to make the adverse employment decision." Gallo v. Prudential Residential Servs. Ltd. Partnership, 22 F.3d 1219, 1225 (2d Cir. 1994). In this case, Baez has not alleged that similarly situated employees were treated differently, or claimed that racial epithets were directed at him by management. In short, there is nothing in the record from which a finder of fact could infer the existence of discrimination in this case.
Even assuming arguendo that Baez has established a prima facie case of discrimination relative to his termination, this Court notes that Yeshiva has offered a legitimate nondiscriminatory reason for such action: Baez was terminated as a result of insubordination in refusing to complete a routine task on the heels of a clear warning and discipline for an identical infraction only a few weeks prior. Courts in this Circuit have recognized that "blatant employee insubordination is a legitimate reason for terminating employment." Sewell v. New York City Transit Auth., 809 F. Supp. 208 (E.D.N.Y. 1992), aff'd mem. 9 F.3d 1537 (2d Cir. 1993); Edwards v. Interboro Institute, 840 F. Supp. 222, 230 (E.D.N.Y. 1994).
On a motion for summary judgment, the question is whether plaintiff has produced any evidence upon which a reasonable jury could determine at least that a discriminatory reason was more likely than not a motivating factor in defendant's termination of plaintiffs employment or that defendant's proffered explanation in terminating plaintiff is unworthy of belief. Baez cannot prevail because he has not put forth any facts that tend to show that Yeshiva's proffered justification is false or that discrimination more likely than not was a motivating factor in Yeshiva's action.
III. CONCLUSION
For the reasons set forth above, the defendant's motion for summary judgment is GRANTED and plaintiffs complaint is dismissed in its entirety. The Clerk of the Court is instructed to close the case.
SO ORDERED.