Opinion
Civil Action No. 03-5959.
December 22, 2005
MEMORANDUM
Will Carmon filed this action on October 28, 2003 against Norfolk Southern Railway Company. Defendant is an interstate railroad "carrier" within the meaning of the Railway Labor Act, 45 U.S.C. § 151.
Plaintiff makes claims under Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. §§ 2000e et seq., 42 U.S.C. § 1981, and the Pennsylvania Human Relations Act ("PHRA"), 43 Pa. Stat. Ann §§ 955 et seq. Plaintiff claims that defendant subjected him to discrimination and harassment, and finally, terminated him based on his race.
Now before the court is the defendant's Motion for Summary Judgment, made pursuant to Rule 56(c) of the Federal Rules of Civil Procedure. For the reasons that follow, summary judgment is granted in favor of defendant.
Factual Background
Plaintiff became an employee of defendant on June 1, 1999, when Norfolk Southern Railway Company assumed control of his previous employer, Consolidated Rail Corporation. (Pl.'s Ex. A, W. Carmon Depo. at 26-27). He was a conductor on the Lehigh Line, which operates between northern New Jersey and Harrisburg, Pennsylvania. (Id. at 28). Plaintiff was employed as a conductor until February 11, 2002, when he was terminated by defendant. (Comp. at ¶¶ 7, 13). Plaintiff was reinstated to his position, without back pay, on or about December 2002. (Id. at ¶ 14).
In 2001, plaintiff was a member of a class action racial discrimination lawsuit brought by black employees against defendant. (Deft.'s Ex. H, Moore v. Norfolk, Consent Decree). He was not a named plaintiff, but a beneficiary of the class action. He received some settlement proceeds pursuant to a consent decree entered into by defendant and the class in March 2001. (Id.; Pl.'s Ex. A, W. Carmon Depo. at 14).
On January 16, 2002, plaintiff was involved in the derailment of a Norfolk Southern locomotive and voluntarily accepted responsibility for the incident. (Pl.'s Ex. A, W. Carmon Depo. at 115-116). The policy of defendant's Harrisburg Division, where plaintiff was a conductor, required a supervisor to conduct a "rules observation" on the next tour of duty of a conductor involved in such a rules violation. (Deft.'s Ex. D, H. Golden Depo. at 26; Deft.'s. Ex. E, B. Keller Depo. at 24, 64). A "rules observation" entailed an officer's observation and monitoring of an employee's compliance with company rules. This "rules observation" requirement was a local regulation applicable to the Harrisburg Division and was not a system-wide requirement applicable to all twelve divisions of the company. (Deft.'s Ex. D, H. Golden Depo. at 25-26).
On January 17, 2002, after completion of the "rules observation," plaintiff was charged by his supervisor observers with committing seven infractions of defendant's operation and safety rules. (Deft.'s Ex. A, Formal Investigation Tr., January 29, 2002 (Carmon Ex. 8)). Plaintiff admitted to the seven infractions, including: (1) wearing articles of adornment in violation of Safety Rule 1001; (2) failing to maintain copies of the appropriate timetable and hazardous materials regulations and company instructions while working as a conductor on train 21AH516; (3) failing to perform a proper inspection of train 214H415; (4) failing to perform a proper inspection of train 212H116; (5) littering by throwing trash out of a locomotive while pulling into the Rutherford Yard; (6) improperly operating a hand throw switch; and (7) failing to follow a supervisor's instructions to remove all articles of adornment. (Deft.'s Ex. A, W. Carmon Depo. at 48-50, 56, 74-75, 79-80, 96, 100).
Trainmaster Brian Keller observed him commit four violations, including failure to perform proper inspections of train 214H415 and train 212H116, failure to maintain copies of appropriate handbooks and related paperwork, and wearing an article of adornment. (Deft.'s Ex. A, Formal Investigation Tr., January 29, 2002 (Carmon Ex. 8) at 7-8). Keller observed him wearing a pinkie ring on his right pinkie and a wedding band on his left hand, and instructed him to remove the rings. (Id. at 7-8, 15; Deft.'s Ex. A, Formal Investigation Tr., January 29, 2002 (Carmon Ex. 9) at 20). In the presence of Keller, plaintiff promptly removed both rings as instructed, and placed them in his right pocket. (Id.).
Plaintiff contends that when Keller boarded his train for the "rules observation," he made the following statement: "You people are a disgrace to the railroad. You are going to cost us the [Harriman] award." (Deft.'s Ex. A, W. Carmon Depo. at 65). Plaintiff also testified that Keller repeated similar statements on two other occasions. (Id. at 121).
Upon arrival at Harrisburg, Trainmaster Joseph Taverna saw plaintiff throw a piece of trash out the window while he was still on duty. (Deft.'s Ex. A, Formal Investigation Tr., January 29, 2002 (Carmon Ex. 9) at 17). Taverna followed the train to the Rutherford Yard office where he met plaintiff as he disembarked the train. (Id.). While Taverna and plaintiff were standing in the train yard, they were approached by Trainmaster Mike Scacco. When Scacco held out his hand to greet plaintiff, plaintiff removed his glove and Scacco saw that plaintiff was wearing a ring. (Id. at 6-7; Deft.'s Ex. F, A.M. Scacco Depo. at 53-54). According to Scacco, he had not planned to enter a disciplinary charge against plaintiff for violating the policy against adornment while on duty. (Id.) However, when he later learned that plaintiff had been instructed to remove the ring by Trainmaster Keller earlier that same day, he decided to charge plaintiff with failure to follow instructions, which is a serious offense under defendant's disciplinary policy. (Id.; Deft.'s Ex. A, Formal Investigation Tr., January 29, 2002 (Carmon Ex. 9) at 9-12).
Pursuant to General Safety Rule 1001, concerning proper work apparel:
Employees are prohibited from working . . . [w]hile wearing finger rings, earrings, facial rings or other articles of adornment or clothing that may be snagged when an employee handles material, equipment or works around machinery, cars or other equipment.
(Id.). Plaintiff's supervisors testified that the rule was clear in prohibiting employees from wearing finger rings while on duty. Trainmaster Scacco stated" "[T]hat's while you're on duty, you [are] considered working. [U]ntil you mark off in the computer is when your off duty time starts." (Id. at 10). According to Trainmaster Taverna, he observed plaintiff disembark the train with his gloves on and did not see him remove his gloves or put on his ring; thus, plaintiff was wearing his ring even before he dismounted the train. (Id. at 17). Scacco noted that when he brought the rule to plaintiff's attention and instructed him to remove the ring, plaintiff stated that he knew about the rule and was apologetic about having the ring on his finger. (Id. at 8).
Plaintiff's version is as follows: he removed the rings when instructed to do so by Trainmaster Keller; once he arrived at the Harrisburg station and stepped off the engine, he removed his gloves, put on his wedding ring, put his gloves back on, and believed he was relieved of duty even though he had not yet signed off. (Pl.'s Ex. A, W. Carmon Depo. at 84; Deft.'s Ex. A, Formal Investigation Tr., January 29, 2002 (Carmon Ex. 9) at 27). Plaintiff interpreted being told by the yardmaster that he was relieved as meaning that he was no longer subject to General Safety Rule 1001. (Id. at 27). However, plaintiff was still in the work yard and had not signed off duty when he put the ring on. (Pl.'s Ex. A, W. Carmon Depo. at 84-85).
It is not disputed that plaintiff's belief about the safety rule was at odds with his supervisors' interpretation of the rule regarding wearing articles of adornment while on duty. The rule prohibited plaintiff from wearing his rings while on duty, including the period of time between when he disembarked the train and formally signed off duty.
Defendant's Investigation
On January 29, 2002, defendant conducted three separate formal investigations into the seven January 17, 2002 infractions attributed to plaintiff. Howard Golden, Superintendent of Terminals in the Harrisburg Division, was designated by defendant to serve as the hearing officer for the three investigations. (Deft.'s Ex. B, H. Golden Verif. Stmt. at ¶ 8). At each investigation hearing, both plaintiff and defendant were permitted to present evidence regarding plaintiff's alleged misconduct. (Id. at ¶ 9). As the hearing examiner, Golden was responsible for deciding whether plaintiff was guilty of the cited violations and determining what discipline, if any, was appropriate. (Id. at ¶ 11). During the course of the hearings, plaintiff chose to admit responsibility for all seven violations charged. (Deft.'s Ex. A, Formal Investigation Tr., January 29, 2002 (Carmon Ex. 7) at 12; (Carmon Ex. 8) at 21, 24-25, (Carmon Ex. 9) at 27). This was, in part, an apparent strategy in an attempt to obtain a penalty other than discharge, which was known to be possible or probable under the applicable disciplinary policy.
One investigation concerned the derailment and looked into the charge that plaintiff failed to properly operate a hand throw switch at the beginning of his shift. The second investigation concerned the four violations observed during the "rules observation." The third investigation looked into plaintiff's failure to follow instructions and littering as observed by Trainmaster Taverna.
Golden reviewed plaintiff's employment record to assess discipline using defendant's System Teamwork and Responsibility Training (" START") policy. (Deft.'s Ex. B, Golden Verif. Stmt. at ¶ 14; Deft.'s Ex. D, H. Golden Depo. at 50-52). Plaintiff's record showed that he had committed twenty-three operating and safety rules violations within a twenty-five month period. (Id.).
The START disciplinary policy was implemented by defendant on January 1, 2000. (Deft.'s Ex. B, Golden Verif. Stmt. at ¶ 12). The version of the policy in effect at the time the three investigations took place on January 29, 2002, regarding the claims of rules violations, had three levels of offenses: minor, serious, and major. (Id.). Under the START policy, an employee became subject to formal discipline when three minor offenses were committed within the same thirty-six month period. Three minor offenses constituted the first serious offense, and the employee would be disciplined accordingly. A fourth minor offense within the same thirty-six month period constituted a second serious offense. (Id.).
In August 2003, defendant implemented an amended START policy. The policy was more lenient than the policy in effect at the time plaintiff was investigated, reviewed and discharged. Under the amended policy, employees were given four "free" minor offenses before they were subject to discipline. Also, minor offenses lapsed after 12 months instead of 36 months. (Deft.'s Ex. B, Golden Verif. Stmt. at ¶ 15-16).
Discipline for the first serious offense included not more than a thirty day deferred suspension. For a second serious offense committed in the same thirty-six day period an employee was subject to a maximum of thirty day suspension without pay. For three serious offenses within the same thirty-six day period, an employee was subject to discharge. (Id.).
Major offenses, on the other hand, subjected an employee to removal from service pending a formal investigation and to immediate termination if the charges were proven. Major offenses included: altercation, theft, insubordination, violation of the substance abuse policy, weapons on the property, excessive speeding, passing stop signals, major accidents, blatant disregard for the rights of employees or the company, and acts that recklessly endangered the safety of employees or the public. (Id. at ¶ 13).
After reviewing plaintiff's disciplinary record, Golden concluded that plaintiff should be discharged under the START policy. He was terminated on February 11, 2002. (Deft.'s Ex. D, Golden Depo. at 51).
Arbitration Board Review
Plaintiff promptly challenged his termination pursuant to the applicable collective bargaining agreement. (Pl.'s Ex. F, Public Law Board 5191 Award). The case was adjudicated before an arbitration board in October 2002. (Id.). The board consisted of a carrier member, an organization member, and a neutral member. (Id.). Following its independent review of plaintiff's entire employment record and appellate contentions, the arbitration board unanimously affirmed the defendant's conclusions about plaintiff's failure to comply with General Safety Rule 1001, concerning wearing articles of adornment. It found, under the record evidence, that plaintiff's action constituted insubordination. (Id.). The arbitration board ruled, in part, as follows:
Plaintiff was a member of the United Transportation Union ("UTU"), which represents Norfolk Southern employees, including road and yard conductors.
[T]he main thrust of petitioner's appeal is the contention concerning the charge of insubordination. Had the observation at Rutherford been the only factual allegation made regarding non-compliance with Safety Rule 1001, we would agree. The Claimant admitted at the trial he had previously been notified by a Carrier official that wearing rings and other adornments which could snag on locomotives and car equipment was in violation of the rules. His failure to abide by these instructions constituted insubordination.
In their appeal handling, the Carrier asserted Claimant was discharged based on the finding of guilt in this case, plus an evaluation of his prior discipline record which is not distinguished.
(Id.). The arbitration board, however, exercised its power to reduce the discharge penalty and ordered that plaintiff be restored to service without back pay for time loss. (Id.). The board stated:
Our independent review of th[e] record supports Carrier's appraisal. If the Claimant is to reach the level of achievement that the Organization's faith and confidence suggests, he will have to understand and obey the rules promulgated for his own safety. The Board can only hope the discipline administered in this case will enable him to turn the corner of what has been, up to now, a less than brilliant career. We will restore Claimant to service, with seniority unimpaired, without compensation, with the admonition to leave his jewelry at home in the future.
(Id.).
On or about May 2002, prior to the arbitration board's ruling, plaintiff filed a race discrimination charge with the Pennsylvania Human Relations Commission ("PHRC") alleging that he was unlawfully harassed, discharged and retaliated against. (Comp. at ¶ 8). Plaintiff also filed an EEOC charge alleging substantially the same claims. (Id. at ¶ 9). On May 12, 2003, the PHRC notified plaintiff of his right to file an action in court, and on August 6, 2003, the EEOC issued a Notice of Right-to-Sue. (Id. at ¶¶ 10-11).
Legal Standard for Summary Judgment
Under Fed.R.Civ.P. 56(c), summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no issue of material fact and that the moving party is entitled to summary judgment as a matter of law." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Fed.R.Civ.P. 56(c). In order to defeat a motion for summary judgment, disputes must be both 1) material, meaning concerning facts that will affect the outcome of the issue under substantive law, and 2) genuine, meaning the evidence must be such that a reasonable jury could return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Summary judgment is mandated "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex, 477 U.S. at 322-23. In reviewing a motion for summary judgment, the court "does not make credibility determinations and must view facts and inferences in the light most favorable to the party opposing the motion." Seigel Transfer, Inc. v. Carrier Express, Inc., 54 F.3d 1125, 1127 (3d Cir. 1995).
Discussion
Plaintiff claims that he was victimized by a racially hostile work environment, that he was harassed and, ultimately, terminated because of his race. Plaintiff also alleges that he was retaliated against for participation in a class action suit challenging defendant's discriminatory practices. He asserts three causes of action: Section 1981, Title VII, and PHRA.
Discrimination claims brought under Section 1981 and the PHRA are analyzed under the same standards as federal discrimination claims under Title VII. Griffiths v. CIGNA Corp., 988 F.2d 457, 469 n. 10 (3d. Cir. 1993); Conners v. Chrysler Fin. Corp., 160 F. 3d 971, 972 (3d Cir. 1988); (the same analysis is used for Title VII and PHRA claims); O'Brien v. City of Philadelphia, 837 F.Supp. 692, 699 (E.D. Pa. 1993) (legal elements of a Section 1981 claim are identical to those of a Title VII disparate treatment claim).
Claims alleging disparate treatment because of race are examined according to the standards set forth by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). First, the plaintiff must establish a prima facie case of discrimination. If plaintiff establishes a prima facie case, the burden shifts to the defendant to proffer a legitimate, non-discriminatory reason for the adverse employment action. Then, the burden shifts back to the plaintiff, to prove that the claimed non-discriminatory reason proffered by defendant was but a pretext for discrimination. The burden of proving discrimination always rests with the plaintiff.
The material, undisputed facts of this case do not suffice to get plaintiff over the hurdle of the employer's reasons advanced for the discharge decision.
A. Discrimination Claim
To establish a prima face case of discrimination under Title VII, plaintiff must present evidence of the following four elements: (1) plaintiff is a member of a protected class; (2) plaintiff was qualified for the position; (3) plaintiff suffered an adverse employment action; and (4) plaintiff was the subject of an adverse employment action while other similarly situated persons not protected by the class were treated more favorably or that there was some other evidence sufficient to support an inference of unlawful discrimination. McDonnell Douglas Corp., 411 U.S. at 804. The existence of a prima facie case of employment discrimination is a question of law that must be decided by the court. Sarullo v. U.S. Postal Service, 352 F. 3d 789, 797 (2003).
Plaintiff satisfies three elements of a prima facie case of discrimination. Plaintiff is a black male, and thus, a member of a protected class under Title VII. Next, plaintiff was employed by defendant since June 1999, when defendant took over plaintiff's previous employer. There is no dispute that plaintiff was qualified for his position. Lastly, plaintiff suffered an adverse employment action when he was terminated from his position as a conductor.
However, plaintiff has failed to establish a prima facie case because he has not offered evidence that he was treated less favorably or discriminated against because of his race. Plaintiff identifies several employees whom he alleges were treated more favorably than he despite similar violations of the defendant's disciplinary policy, but he has not presented evidence that those employees were comparably similarly situated. To be deemed similarly situated, the individuals with whom a plaintiff seeks to be compared must have "engaged in the same conduct without such differentiating or mitigating circumstances that would distinguish their conduct or the employer's treatment of them for it." Anderson v. Haverford College, 868 F.Supp. 741, 745 (E.D. Pa. 1994) (quoting Mitchell v. Toledo Hosp., 964 F.2d 577, 583 (6th Cir. 1992)).
Plaintiff claims that Keith Nostein, a white conductor, who committed a rule violation derailment similar to plaintiff, was not formally charged for a subsequent air brake violation. (Pl.'s Resp. in Opp'n to Deft.'s Mot. at 11). However, Nostein was cited for an isolated incident, whereas plaintiff was observed committing multiple violations on the tour of duty immediately following the derailment. (Deft.'s Ex. E, B. Keller Depo. at 127-128). There is no evidence that Nostein failed to follow instructions or was insubordinate. Further, there is no evidence that Nostein's history of disciplinary infractions, if any, was comparable to plaintiff's disciplinary record. (Id.).
Plaintiff also identifies Shawn Yocum, a white employee whom he claims regularly wears his wedding ring and refuses to take it off. (Pl.'s Resp. in Opp'n to Deft.'s Mot. at 12). Plaintiff's allegation is based on hearsay testimony by a train engineer, Todd Heller, and is not substantiated by any admissible evidence. Moreover, plaintiff was not discharged for simply wearing his wedding ring. He was initially reprimanded and instructed to remove the ring by Trainsmaster Keller during the "rules observation," and subsequently cited by Trainmaster Scacco for failing to follow instructions. Ultimately, plaintiff was discharged for defying a direct order from his supervisor and for his extensive disciplinary record. (Deft.'s Ex. B, Golden Verif. Stmt. at ¶ 14; Deft.'s Ex. D, H. Golden Depo. at 51-52).
Plaintiff relies on testimony by Union Representative, Jose A. Sanchez, that employees Donald Wildoner and Mike Muth had poor disciplinary records and were treated more favorably than plaintiff. Again, plaintiff cannot establish that either Mr. Wildoner or Mr. Muth was similarly situated, disciplined for the same infractions, or disciplined by the same supervisor. Plaintiff was disciplined under a different START policy than the policy under which Mr. Wildoner and Mr. Muth were disciplined. The amended policy, implemented in 2003, was more lenient than the policy in effect when plaintiff was disciplined and terminated. As noted previously, the amended START policy allowed employees four "free" minor offenses before they were subject to discipline. Also, minor offenses lapsed after 12 months instead of 36 months.
Even assuming plaintiff could establish a prima facie case, defendant has articulated a legitimate, non-discriminatory reason for his termination and the decision-maker, Howard Golden, is a person who is not assigned any discriminatory motive. Plaintiff testified that he did not believe Golden discriminated against him on the basis of race (Pl.'s Ex. A, W. Carmon Depo. at 148). Sanchez also testified that the investigations into the charges against plaintiff were "fair and impartial." (Deft's Ex. G, Sanchez Depo. at 44-45). Sanchez said that he had the "upmost respect" for Golden:
I think that he is one of the fairest individuals in supervision that you can talk to, and even if things do go against you, at least you know that the motivation is strictly . . . so that you can know that you did do something wrong. He is so fair that you know if things go against you, it's because you screwed up in some way, and you need to improve.
(Id.).
Therefore, plaintiff's claim of discrimination fails as a matter of law and summary judgment must be granted in favor of defendant.
B. Retaliation Claim
Plaintiff alleges that defendant retaliated against him because he participated as a member of a class-action suit against Norfolk Southern Railway. (Pl.'s Ex. A, W. Carmon Depo. at 17). Both Title VII and PHRA prohibit discrimination against an employee "for making charges, testifying, assisting, or participating in enforcement proceedings" against an employer. 42 U.S.C. § 2000(e)-3(a).
To establish a claim of discriminatory retaliation under Title VII, a plaintiff must present evidence demonstrating the following: (1) that he engaged in activity protected by Title VII; (2) that the employer took an adverse employment action against him; and (3) that there was a causal connection between his participation in the protected activity and the adverse employment action. Nelson v. Upsala College, 51 F.3d 383, 386 (3d Cir. 1995).
The class suit against defendant was brought on behalf of approximately 3,700 black employees. As a result of the suit, black employees who had applied for, or could have applied for promotions at Norfolk Southern received settlement payments. In 2001, plaintiff received less than $1000 as a result of the settlement.
Plaintiff was not a named plaintiff in the suit nor did he testify in any of its proceedings. (Deft.'s Ex. A, W. Carmon Depo. at 12-13). While plaintiff's participation in the suit was protected activity under Title VII, he has failed to produce any evidence from which a trier of fact could rationally conclude that a causal link exists between plaintiff's opting into a class action lawsuit, with approximately 3,700 other black employees, and his discharge from employment which occurred approximately one year later.
C. Hostile Work Environment Claim
Plaintiff also avers that he was subjected to a hostile work environment because of his race. To establish a hostile work environment claim under Title VII, a plaintiff must demonstrate that: (1) he suffered intentional discrimination because of his race or sex; (2) the discrimination was pervasive and regular; (3) the discrimination detrimentally affected the plaintiff; (4) a reasonable person would have been detrimentally affected by such discrimination; and (5) respondeat superior liability existed. Williams v. Pennsylvania State Police-Bureau of Liquor Control Enforcement, et al., 108 F.Supp.2d 460 (E.D. Pa. 2000). In making this determination, a court must consider the totality of the circumstances, including "the frequency of the discriminatory conduct, its severity, whether it is physically threatening or a mere offensive utterance, and whether it reasonably interfere's with an employee's work performance."Harris v. Forklift Sys. Inc., 510 U.S. 17, 23 (1993).
Plaintiff's hostile work environment claim consists of allegations of isolated instances and statements. In addition to the statement Trainmaster Keller allegedly made during the "rules observation" ("You people are a disgrace to the railroad"), plaintiff alleges that Keller was one of several people commenting to him "you are lucky to be black," referring to his participation in the class action suit and settlement against the defendant. (Pl.'s Ex. A, W. Carmon Depo., at 16).
Plaintiff also alleges that George Kuiper, terminal supervisor for Allentown, made a racially insensitive remark regarding blacks and religion. (Deft.'s Ex. A, W. Carmon Depo. at 107). When the two were discussing unauthorized leave taken by plaintiff, Kuiper allegedly stated: "Don't you people go to church on Wednesday." (Id.).
The allegations plaintiff offers as evidence of a hostile work environment are temporally unrelated and isolated. Plaintiff makes no allegations of discrimination against the decision-makers who cited him for the violation for which plaintiff was discharged or made the decision to terminate his employment, that is, Trainmasters Scacco and Taverna and Superintendent Golden. (Deft.'s Ex. A, W. Carmon Depo. at 148).
Plaintiff also offered the testimony of Norm Hendrickson, a former employee and union representative, and Joyce Robinson, a former employee, as evidence of a discriminatory work climate promoted by defendant. (Pl.'s Resp. in Opp'n to Deft.'s Mot. at 14-16). However, the allegations made by both Hendrickson and Robinson are not of incidents that involved the plaintiff or were even shown to have been known by plaintiff. Plaintiff's allegations are of isolated incidents of harassment and do not constitute a legally cognizable hostile work environment claim. Plaintiff did not leave his job because of the work environment.
In addition, plaintiff conceded that he did not make use of the available administrative remedies offered by defendant to address or remedy the alleged discrimination. (Pl.'s Ex. A, W. Carmon Depo., at 70, 107).
Conclusion
Plaintiff has failed to establish the essential elements of a discrimination claim and a retaliation claim, as well as the existence of a hostile work environment. Based on the undisputed evidence taken in the light most favorable to the plaintiff, he has failed to establish that there is any material issue of fact remaining for jury determination. Accordingly, summary judgment is granted in favor of defendant on all counts.
In view of this disposition, it is not necessary to consider the defendant's contention that most of plaintiff's allegations of racial harassment are time barred.