Summary
using Title VII framework to analyze employment discrimination claims under Section 1981 and New York Executive Law § 296
Summary of this case from URIBE v. KELLOGG'S SNACKS/KEEBLER, INC.Opinion
03 Civ. 1896 (THK).
March 21, 2005
MEMORANDUM OPINION AND ORDER
Plaintiff Ruben Carrion brings this action against his former employer, Museum Tower Condominium ("MTC"), his former supervisor, John J. Spellmon ("Spellmon"), his Union, Local 32B-32J Service Employees International Union, AFL-CIO (the "Union" or the "Local"), and the President of his Local, Michael Fishman, claiming that he was terminated from his employment (1) because he is a South American Hispanic, born in Ecuador, (2) in retaliation for voicing complaints about unlawful discrimination, and (3) in breach of a collective bargaining agreement. He further contends that he was discriminated against and denied the duty of fair representation by the Union when it improperly investigated the grievance he filed about his discharge from employment and refused to submit his grievance to arbitration. Plaintiff brings his claims under Section 1981 of the Civil Rights Act of 1866, 42 U.S.C. § 1981, Section 301 of the Labor Management Relations Act ("LMRA"), 29 U.S.C. § 185, the New York State Human Rights Law, N.Y. Exec. Law § 290, et seq., and the New York City Administrative Code § 8-107, et seq., Pretrial discovery has been completed and the Union and employer Defendants have filed motions for summary judgment.
Defendant Spellmon's name is misspelled in the caption of the action as "Spellman."
For the following reasons, the motions are granted.
The parties have consented to trial before this Court pursuant to 28 U.S.C. § 636(c).
BACKGROUND
Plaintiff was employed by MTC, a residential condominium located at 15 West 53rd Street, in the borough of Manhattan, for approximately eighteen years. (See Deposition of Ruben Carrion, dated Mar. 11, 2004 ("Carrion Dep."), at 9, 158, 160.) For the last ten years of his employment, he worked as a doorman on the 7:00 A.M. to 3:00 P.M. shift. MTC employed approximately fifty-four building service employees who were members of the Union. (See Deposition of John J. Spellmon, dated Aug. 24, 2004 ("Spellmon Dep."), at 8; Affidavit of John J. Spellmon, dated Oct. 14, 2004 ("Spellmon Aff."), ¶ 16.) Defendant Spellmon was employed by MTC as the onsite building manager, and had responsibility for supervising and disciplining the building service staff, including Plaintiff. (See Spellmon Dep. at 8, 29, 61, 99.) MTC and the Local were parties to a collective bargaining agreement ("CBA"), which governed the terms and conditions of Plaintiff's employment with MTC. (See Spellmon Dep. at 30, 41, 128, 137; Affidavit of Edward Foti, dated Oct. 15, 2004 ("Foti Aff."), ¶ 3 Ex. 1.) During all relevant times, Edward Foti was employed by the Local as a Union delegate and business agent, whose duties included enforcing the CBA between MTC and the Union. (See Deposition of Edward Foti, dated Sept. 14, 2004 ("Foti Dep."), at 6, 20-22, 26, 30-31.)The CBA prohibits the discharge of employees except for good cause. (See CBA, Ex. 1. to Declaration of Jerald Abrams, Esq., dated Dec. 2, 2004 ("Abrams Decl."), art. XVII, § 3.) It also prohibits discrimination based on race, color or national origin. (See id., art. XVII, § 23.) Violations of the CBA must be contested through a grievance and arbitration process. (See id., art. V.) When a member files a grievance, the Union delegate is charged with investigating the grievance to determine whether it has merit. (See Foti Dep. at 28, 49.) The investigation includes discussing the matter with the member, reviewing the member's personnel file, which is obtained from the employer, and, if appropriate, interviewing witnesses and reviewing other evidence. (See id. at 38-39.) If the Union declines to process a grievance through to arbitration, a member may appeal that decision to the Grievance Appeal Board, which consists of a panel of rank-and-file Union members. (See id. at 42-45.)
During the twelve-year period prior to Plaintiff's termination, he received approximately eight disciplinary notices and warnings. Four of those notices were issued by Plaintiff's former supervisor, Robert D. Sennett ("Sennett"), who is not a Defendant in this action and as to whom Plaintiff does not allege any discriminatory animus.
Although Plaintiff denies having received or been aware of several of these notices, they were present in his personnel file, were addressed to him, and were copied to the Union. The substance of these notices, and Plaintiff's view of their merits, are not relevant to this action, as these disciplinary notices are not the subject of Plaintiff's claim of discrimination. Rather, they are relevant solely as background and as matters which Defendants considered in imposing progressive punishment for later work-related infractions.
In February 1990, Sennett issued a warning to Plaintiff for "arguing at work with his co-workers." (See Spellmon Aff. ¶ 2 Ex. 1.) Plaintiff did not file a grievance concerning this warning. (See Foti Aff. ¶ 8.) During the same month, Sennett issued another warning notice to Plaintiff for his refusing to open the door for Sennett. (See Spellmon Aff. ¶ 3 Ex. 2.) Plaintiff did not file a grievance concerning this warning. (See Foti Aff. ¶ 8.) Plaintiff received a disciplinary warning from Sennett on April 19, 1991, for using abusive language toward his co-workers, including racial, ethnic, and religious slurs. (See Spellmon Aff. ¶ 4.) He did not file a grievance concerning this discipline. (See Foti Aff. ¶ 8.) Plaintiff received a written disciplinary notice and three-day suspension without pay on September 24, 1991, for making discriminatory comments to a co-worker, and for leaving his post. (See Spellmon Aff. ¶ 5 Ex. 4.) The notice indicated that it was "a final warning." (Id.) Plaintiff did not file a grievance concerning this discipline. (See Foti Aff. ¶ 8.)
Plaintiff first received a written disciplinary warning from Spellmon on March 13, 1995, and another one on July 11, 1996, because, in violation of MTC's rules, he failed to use the time clock to record when he took his lunch break and departed from work. (See Carrion Dep. at 63, 118-121; Spellmon Aff. ¶ 6 Exs. 5-6.) He did not file a grievance concerning these warnings. (See Carrion Dep. at 332; Foti Aff. ¶ 8.) Plaintiff concedes that he does not know whether he was given these warnings for discriminatory reasons. (See Carrion Dep. at 333.)
In 1999, Plaintiff received a written warning and one-day suspension for cursing at a co-worker. (See Carrion Dep. at 66-67; Spellmon Dep. at 112; Spellmon Aff. ¶ 7 Ex. 7.) Plaintiff filed a grievance with the Union contesting the suspension, although he made no claim of discrimination. (See Carrion Dep. at 68, 123-28, 245.) The Union processed the grievance to arbitration, and succeeded in having the suspension rescinded. (See id. at 68-71, 128-30.) Plaintiff concedes that the grievance was resolved to his satisfaction. (See id. at 246, 254.)
Despite having the suspension rescinded, Plaintiff claims to have been dissatisfied with the Union's conduct because neither a Union representative nor an employer representative appeared at the arbitration, and, according to Plaintiff, he was unable to voice his complaints to the Union representative. (See Carrion Dep. at 251-52, 254.) Of course, Plaintiff was able to voice his complaints on an earlier occasion since his grievance was heard and processed by the Union, through to arbitration.
On March 8, 2000, Plaintiff received a notice indicating that he was being discharged from employment for placing toilet tissue covered with feces in the wastebasket of the employee bathroom, and for smearing feces on the wall of a bathroom stall. (See Carrion Dep. at 64-65, 72-73, 134-38; Spellmon Dep. at 105-108.) The condition of the bathroom was reported to Spellmon by co-workers of Plaintiff, who had complained on a number of earlier occasions that Plaintiff filled the wastebasket with toilet paper covered with excrement, and also dropped soiled toilet paper on the bathroom floor. (See Spellmon Aff. ¶ 8 Ex. 8.) The employees observed the bathroom prior to Plaintiff using it, saw Plaintiff go into the bathroom, and observed feces-smeared toilet paper in the wastebasket immediately after Plaintiff exited the bathroom. (See Spellmon Dep. at 107-110; Spellmon Aff. ¶ 8; Carrion Dep. at 73.)
Plaintiff filed a grievance about his discharge. According to Foti, Plaintiff's Union delegate and the person responsible for representing Union members and enforcing the CBA, Plaintiff told him that medication he was using, Prevacid, caused him to use excessive toilet paper because it gave him diarrhea. (See Foti Dep. at 62; Carrion Dep. at 83, 257.) Plaintiff further admitted that he placed the toilet paper in the wastebasket. (See Foti Dep. at 62, 85; Foti Aff. ¶ 4.) According to Spellmon, who met with Plaintiff and Foti after he received the complaints, Plaintiff acknowledged that he accidentally got feces on the wall when he was throwing toilet tissue into the wastebasket. Spellmon told him to flush toilet paper down the toilet and he rescinded the termination notice, converting it into a one-week suspension. (See Spellmon Dep. at 108, 110.) By contrast, Plaintiff contends that he told Spellmon and Foti that the toilet overflowed and that he used paper to clean it up, and then put the paper in the wastebasket. Plaintiff contends that the paper contained only urine (see Carrion Dep. at 72-73), but he acknowledges that he told Foti that he took medication which caused him to use a great deal of toilet paper. (See id. at 256-57.) Plaintiff concedes that he did not complain to Foti or anyone else at the Union that he believed his March 2000 suspension to be discriminatory. (See id. at 258.)
The notice Plaintiff received stated that "any further behavior in this manner will lead to your termination of employment at Museum Tower condominium." (Spellman Aff. Ex. 8.)
The Union declined to arbitrate the suspension because Plaintiff was "accused of getting the feces on the wall and in the garbage can," Foti believed that Plaintiff admitted the conduct, and Plaintiff's co-workers confirmed that the conduct had occurred. (See Foti Dep. at 85-86.) Therefore, Foti did not believe that the arbitration would succeed. (See Foti Aff. ¶ 4.) By letter dated March 30, 2000, the Union informed Plaintiff that it would not be taking his grievance to arbitration because it lacked merit, and that he had a right to appeal the Union's decision to the Grievance Appeal Board. (See Carrion Dep. at 262-63.) Plaintiff did not remember filing an appeal with the Grievance Appeal Board. (See id. at 285.)
Plaintiff was suspended on February 26, 2002 for fighting with a delivery truck driver outside the building, and damaging the truck. He was arrested because of the incident. (See id. at 143-52.) Although Plaintiff denies damaging the truck, Spellmon viewed a videotape of the incident, and observed Plaintiff reach into the truck and break something. (See Spellmon Dep. at 113-14.) Plaintiff apologized to Spellmon for the incident and explained that he was "stressed out" because of construction work going on outside the building. He did not file a grievance concerning the suspension. (See Carrion Dep. at 155, 336; Spellmon Dep. at 114-15; Foti Aff. ¶ 8.)
On May 21, 2002, Spellmon was advised by two employees, Luis Puentes (Hispanic) and Ronald Kyles (African-American), that Plaintiff had again placed toilet tissue with feces in the bathroom wastebasket and that this had happened on many other occasions. (See Spellmon Aff. ¶ 9 Ex. 8.) Fuentes and Kyle claimed to have observed the bathroom just prior to Plaintiff using it, observed Plaintiff entering the bathroom, and then observed feces in the wastebasket immediately after Plaintiff exited the bathroom. (See Spellmon Dep. at 116-121, 125; Spellmon Aff. ¶ 9.) The two employees submitted written witness statements regarding the incident. (See Spellmon Aff. ¶ 9 Ex. 8.) In light of the prior suspension for similar conduct, which resulted in a final warning, and the fact that Spellmon had been advised by employees that this was an ongoing problem which they had unsuccessfully tried to remedy by speaking to Plaintiff, Spellmon decided to discharge Plaintiff from his employment.
Plaintiff was called at home to tell him of his discharge, and was advised to bring his Union delegate to work with him to meet with Spellmon. (See Carrion Dep. at 159-60.) Plaintiff met with Foti at the Union headquarters on May 22, 2002. He denied soiling the bathroom, and filed a grievance. (See id. at 164, 170, 274-75; Foti Aff. Ex. 2.) In Plaintiff's presence, Foti spoke to Spellmon on the telephone and then explained to Plaintiff that Spellmon did not want him in the building anymore because of what he did in the bathroom. (See Carrion Dep. at 168-169.). Foti conducted an investigation by reviewing the employee witness statements and Plaintiff's personnel file, which included his prior disciplinary record; he also spoke with the witnesses, who confirmed the accuracy of their written statements. (See Foti Aff. ¶ 7.) Based on the investigation, Plaintiff's prior discipline for the same conduct, and the fact that he believed that Plaintiff had admitted to the same conduct in March 2000, Foti determined that the Union would not succeed at arbitration. (See Foti Dep. at 85-86; Foti Aff. ¶ 7.)
Plaintiff does not remember telling Foti that he believed that his discharge was discriminatory, and the grievance that he signed does not contain an allegation of discrimination. (See Carrion Dep. at 276-77; Foti Aff. Ex. 2.) By letter dated May 28, 2002, the Union informed Plaintiff that it was not taking the discharge grievance to arbitration because it lacked merit, and that he had a right to appeal that decision. (See Carrion Dep. at 283-84.) Plaintiff lodged an appeal, which was heard and rejected. (See id. at 285, 290.)
Plaintiff contends that his employment was terminated because he is a Spanish-speaking Ecuadorian. He contends that Spellmon constantly harassed him by calling him "little Ecuadorian" and saying "you have no green card." (Id. at 24-25, 91.) He also contends that he was terminated (1) in retaliation for filing grievances and complaining about Spellmon's discriminatory conduct, and (2) because Spellmon was aware that he was supporting a particular individual, Guzman, for the position of Union President. (See id. at 176, 180.)
Neither Foti nor Spellmon claims to have been aware that Plaintiff was Ecuadorian. (See Foti Aff. ¶ 11; Spellmon Dep. at 42.)
With respect to the Union, Plaintiff contends that Foti's failure to properly investigate the circumstances of his termination, and the Union's failure to pursue arbitration about his discharge, was discriminatory and violated the duty of fair representation. In addition to alleging discrimination by the Union because he is a Spanish-speaking Ecuadorian, Plaintiff claims that the Union did not proceed to arbitration because Union officials knew that he was supporting Guzman for president of the Union. (See id. at 173-74.)
DISCUSSION
I. Summary Judgment Standard
A motion for summary judgment, under Rule 56(c), Fed.R.Civ.P., may not be granted unless the Court determines that there is no genuine issue of material fact to be tried, and that the facts as to which there is no such issue warrant judgment for the moving party as a matter of law. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S. Ct. 2548, 2552-53 (1986);Patterson v. County of Oneida, 375 F.3d 206, 219 (2d Cir. 2004); Shannon v. N.Y. City Transit Auth., 332 F.3d 95, 98 (2d Cir. 2003). The burden of demonstrating the absence of any genuine dispute as to a material fact rests upon the party seeking summary judgment, see Adickes v. S.H. Kress Co., 398 U.S. 144, 157, 90 S. Ct. 1598, 1608 (1970), but once a properly supported motion for summary judgment has been made, the burden shifts to the nonmoving party to make a sufficient showing to establish the essential elements of that party's case on which it bears the burden of proof at trial. See Hayut v. State Univ. of N.Y., 352 F.3d 733, 743 (2d Cir. 2003) (citingCelotex, 477 U.S. at 322, 106 S. Ct. at 2552). To meet its burden, the non-movant must put forth "specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e). Facts may be set forth in affidavits, but "[a]ffidavits submitted in support of or in opposition to the summary judgment motion must `be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters therein.'"Patterson, 375 F.3d at 219 (quoting Fed.R.Civ.P. 56(c)) (internal quotation marks omitted). Thus, hearsay and conclusory assertions which would not be admissible at trial cannot serve to create a genuine issue for trial. In assessing the record to determine whether there is a genuine issue to be tried as to any material fact, the Court is required to resolve all ambiguities and draw all permissible factual inferences in favor of the party against whom summary judgment is sought. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S. Ct. 2505, 2513 (1986); Patterson, 375 F.3d at 219.
When a case turns on the intent of one party, as employment discrimination claims often do, "trial courts must be especially chary in handing out summary judgment." Chertkova v. Conn. Gen. Life Ins. Co., 92 F.3d 81, 87 (2d Cir. 1996); accord Carlton v. Mystic Transp., Inc., 202 F.3d 129, 134 (2d Cir. 2000);Kerzer v. Kingley Mfg., 156 F.3d 396, 400 (2d Cir. 1998);Chambers v. TRM Copy Ctrs. Corp., 43 F.3d 29, 37 (2d Cir. 1994). Although the trial court is under a duty in such cases to carefully scrutinize the record for circumstantial evidence that could support an inference of discrimination, see Gallo v. Prudential Residential Servs., Ltd. P'ship, 22 F.3d 1219, 1224 (2d Cir. 1994), the "salutary purposes of summary judgment — avoiding protracted, expensive and harassing trials — apply no less to discrimination cases" than to other types of cases. Meiri v. Dacon, 759 F.2d 989, 998 (2d Cir. 1985). Even in Title VII cases, "conclusory allegations of discrimination are insufficient to satisfy the requirements of Rule 56(e)." Meiri, 759 F.2d at 998; accord Schwapp v. Town of Avon, 118 F.3d 106, 110 (2d Cir. 1997); Boyd v. Presbyterian Hosp., 160 F. Supp. 2d 522, 535 (S.D.N.Y. 2001).
II. Plaintiff's Claims Against the Union
Plaintiff has asserted a "hybrid claim" in which he contends that MTC breached the CBA by terminating his employment for discriminatory reasons and without just cause, and the Union breached its duty of fair representation by failing to adequately investigate the circumstances of his discharge and failing to contest his discharge through arbitration. See DelCostello v. Int'l Bhd. of Teamsters, 462 U.S. 151, 164-65, 103 S. Ct. 2281, 2290-91 (1983); White v. White Rose Food, 237 F.3d 174, 178-79 (2d Cir. 2001); Kavowras v. N.Y. Times Co., No. 00 Civ. 5666 (HB), 2004 WL 1672473, at *6 (S.D.N.Y. July 26, 2004). Plaintiff further contends that by their actions, the Union, MTC, and Spellmon discriminated against him in violation of 42 U.S.C. § 1981 and New York State and City law.
A. Governing Legal Standards
The duty of fair representation is akin to a fiduciary relationship, and therefore "a union owes employees a duty to represent them adequately as well as honestly and in good faith."Air Line Pilots Ass'n v. O'Neill, 499 U.S. 65, 75, 111 S. Ct. 1127, 1134 (1991). Put another way, the duty of fair representation "includes a statutory obligation to serve the interests of all members without hostility or discrimination toward any, to exercise [the union's] discretion with complete good faith and honesty, and to avoid arbitrary conduct." Vaca v. Sipes, 386 U.S. 171, 177, 87 S. Ct. 903, 910 (1967); see also Ramey v. Dist. 141, Int'l Ass'n of Machinists, 378 F.3d 269, 276-77 (2d Cir. 2004) (union breaches duty of fair representation when its conduct toward a member is arbitrary, discriminatory, or in bad faith); Cruz v. Local Union No. 3 of the Int'l Bhd. of Elec. Workers, 34 F.3d 1148, 1153 (2d Cir. 1994) (same); Cook v. Pan Am. World Airways, Inc., 771 F.2d 635, 645 (2d Cir. 1985) (to establish violation of duty of fair representation plaintiff "must prove that the union's conduct toward the member of the collective bargaining unit [was] arbitrary, discriminatory, or in bad faith") (internal quotation marks omitted) (quoting Vaca, 386 U.S. at 190, 87 S. Ct. at 916). In processing a grievance, "a union's actions are arbitrary only if, in light of the factual and legal landscape at the time of the union's actions, the union's behavior is so far outside a wide range of reasonableness as to be irrational." Air Line Pilots, 499 U.S. at 67, 111 S. Ct. at 1130 (internal quotation marks omitted). Courts have afforded unions a considerable amount of discretion in grievance matters.
In the context of employee grievances, the duty of fair representation is not a straitjacket which forces unions to pursue grievance remedies under the collective bargaining agreement in every case where an employee has a complaint against the company. . . . A union is accorded considerable discretion in dealing with grievance matters, and it may consider the interests of all its members when deciding whether or not to press claims of an individual employee.Ayala v. Union de Tronquistas de P.R., Local 901, 74 F.3d 344, 345-46 (1st Cir. 1996) (quoting Seymour v. Olin Corp., 666 F.2d 202, 208 (Former 5th Cir. 1982)).
Thus, in addressing a member's claims, a union is required to give
fair and prompt consideration and, if dictated by controlling legal standards, processing on behalf of employees of their claims under contract dispute resolution procedures, although the duty of fair representation is not breached where the union fails to process a meritless grievance, engages in mere negligent conduct, or fails to process a grievance due to error in evaluating the merits of the grievance.Cruz, 34 F.3d at 1153-54 (internal citations omitted) (emphasis added); see also Cook, 771 F.2d at 645 (same); Kavowras, 2004 WL 1672473, at *7 ("[A] union's purported breach cannot be based on mere negligence or tactical errors"). It is well-established that a union member does not have an absolute right to have a grievance taken to arbitration. Although a union's decision about whether to proceed to arbitration may not be arbitrary, it is a discretionary determination to be made by the union. See Vaca, 386 U.S. at 191, 87 S. Ct. at 917; Lewis v. Tuscan Dairy Farms, Inc., 25 F.3d 1138, 1143 (2d Cir. 1994).
A union's breach of the duty of fair representation may render it liable under the anti-discrimination statutes because a union may not discriminate against any of its members on the basis of their race, color, religion, gender or national origin. Although most cases which allege discrimination against a union rely on Title VII of the Civil Rights Act, which explicitly prohibits unions from discriminating against their members, see 42 U.S.C. § 2000e-2 (c), the same principles apply where, as in this action, a plaintiff claims discrimination under 42 U.S.C. § 1981. A union would improperly discriminate and, in doing so, would violate Section 1981, if it refused to file or pursue grievances alleging discrimination by an employer, see Goodman v. Lukens Steel Co., 482 U.S. 656, 669, 107 S. Ct. 2617, 2625 (1987), or if it declined to file the grievance of an employee in a protected category and would file such a grievance by a non-minority group member. See EEOC v. Pipefitters Ass'n Local Union 597, 334 F.3d 656, 661 (7th Cir. 2003). In a Tenth Circuit decision, the court further explicated the applicable standard for evaluating a discrimination/duty of fair representation claim:
Section 1981 provides, in pertinent part, that "[a]ll persons . . . shall have the same right . . . to make and enforce contracts . . . as is enjoyed by white citizens." 42 U.S.C. § 1981(a). In order to establish a violation of Section 1981 against a union, a plaintiff must show intentional discrimination in the enforcement of a labor contract. Cf. Patterson, 375 F.3d at 226 ("A plaintiff pursuing a claimed violation of § 1981 . . . must show that the discrimination was intentional.") (citations omitted).
To establish a prima facie Title VII claim against a union for a breach of its duty of fair representation, a plaintiff must show that (1) the employer violated the collective bargaining agreement with respect to the plaintiff, (2) the union permitted the violation to go unrepaired, thereby breaching the union's duty of fair representation, and (3) there was some indication that the union's actions were motivated by discriminatory animus.York v. Am. Tel. Tel. Co., 95 F.3d 948, 955-56 (10th Cir. 1996); see also Bugg v. Int'l Union of Allied Indus. Workers, Local 507, 674 F. 2d 595, 598 n. 5 (7th Cir. 1982); Ross v. Communication Workers of Am., Local 1110, No. 91 Civ. 6367 (LAP), 1995 WL 351462, at *6 (S.D.N.Y. June 9, 1995).
B. Application to the Union's Conduct
There is no competent evidence to support Plaintiff's contention that the Union acted arbitrarily or in bad faith, or that its failure to seek arbitration with respect to his discharge from employment was in any way motivated by discriminatory animus. Contrary to Plaintiff's conclusory contention, Foti, the Union delegate who made the decision to forego arbitration, did not conduct a "sham investigation," simply taking the word of Spellmon, and did not act in "bad faith," knowing that Plaintiff had continuously asserted discrimination claims against Spellmon. (Plaintiff's Memorandum of Law in Opposition to Defendants' Motion for Summary Judgment ("Pl.'s Mem.") at 13.)
There is no competent evidence to rebut Foti's affidavit and deposition testimony that on the two occasions when Plaintiff was disciplined (first suspended, and then terminated) for unhygienic conduct, he listened to Plaintiff's position about what had occurred, spoke to Spellmon, reviewed Plaintiff's personnel file, reviewed the memoranda of Plaintiff's co-workers who witnessed and complained about the feces-smeared articles in the bathroom, and then spoke directly with the complainants, who confirmed the contents of the memoranda. (See Foti Dep. at 61-63, 83-96; Foti Aff. ¶¶ 4, 7.) In their memoranda, the head porter, Ronald Kyles, and another porter, Luis Puentes, as well as the head concierge, each indicated that there had been repeated occasions when Plaintiff had either placed soiled toilet paper in the wastebasket or had thrown it on the floor, that he had been spoken to about it, and yet he repeated this behavior. (See Spellmon Aff. Ex. 8.) According to Foti, Plaintiff essentially conceded that he had committed the offending conduct at the time of the initial suspension, see Foti Aff. ¶ 4; Foti Dep at 62, and when he was suspended in 2000, Plaintiff was told that similar conduct in the future would lead to his discharge. Moreover, Plaintiff had been suspended on two other occasions, in 1999 and 2002, for other misconduct. Finally, after determining that he did not think that arbitration about the 2002 termination would be successful, Foti spoke to his supervisor, who made the ultimate decision to forego arbitration. (See Foti Dep. at 90-91.) Plaintiff then appeared before the Grievance Appeal Board, comprised of other rank-and-file members of the Union. It too did not recommend taking the grievance to arbitration.
According to Foti, Plaintiff told him that he was taking a medication that caused him to use large quantities of toilet paper, and because he did not want to clog the toilet, he threw it in the wastebasket. Plaintiff acknowledges that he told Foti that he took a medication that caused diarrhea, and thus used a great deal of toilet paper. (See Carrion Dep. at 83-84, 257.) He denies that he ever threw toilet paper on the floor or in the wastebasket (see id. at 84-86), but he concedes that he threw soiled paper in the wastebasket after the toilet overflowed. (See id. at 256.)
It appears that Foti's intervention played some part in Spellmon's decision, in the year 2000, to rescind what had initially been a termination notice and modify it to a suspension, which Plaintiff did not ask the Union to arbitrate.
Plaintiff further suggests that Foti's alleged inadequate investigation may have been influenced by a conflict of interest. Plaintiff contends that the conflict arose because Foti recommended employees for Spellmon to hire, and because Spellmon himself was a member of the Union, and Foti represented him as well as Plaintiff. (See Pl.'s Mem. at 3, 5.) There is no evidence in the record, however, that Spellmon hired employees as a favor to Foti. Spellmon testified that when he was attempting to fill a position, he would call Foti or someone else at the Union to see if the Union had an eligible member. (See Spellmon Dep. at 127.) He was undoubtedly required to do so, since MTC was governed by a collective bargaining agreement. It is true that Spellmon was a member of the Union and was thus represented by Foti with respect to the terms and conditions of his own employment. The Court does not rule out the possibility that, under certain circumstances, that representation might lead to a conflict of interest in the representation of another Union member. There is no evidence, however, that any such conflict compromised Plaintiff's representation. In addressing Plaintiff's grievance, Foti did not have to weigh Spellmon's word against Plaintiff's. Spellmon was not the source of the underlying complaints which led to Plaintiff's termination. Other employees lodged the complaints, and it was on the basis of those written complaints, confirmed in interviews, as well as Plaintiff's prior disciplinary record, that Foti recommended against arbitration. That decision was reviewed and approved by the District Manager of the Union, and the rank-and-file members of the Grievance Appeal Board.
Finally, Plaintiff contends that Foti's investigation was deficient because "the evidence shows that there were many complaints of employees claiming harassment and/or discrimination," and he "never even bothered to perform the simple act of checking Defendant Union's files for past complaints." (Pl.'s Mem. at 7.) Plaintiff has submitted a total of six such grievances. (See Abrams Decl. Ex. 7.) Of those, only one alleged discrimination on the basis of national origin (no others alleged any discrimination), and the national origin of the complainant is clearly not Ecuadorian. Thus, even if there had been a reason to investigate other allegations of discrimination against Spellmon, there is nothing in the record which indicates that such an investigation would have led to any evidence suggesting that Spellmon terminated Plaintiff's employment because of his Ecuadorian national origin, as Plaintiff alleges.
Foti did not view claims of "harassment" to suggest unlawful discrimination because, in his experience, employees who had grievances frequently contended that they were being harassed by their supervisor, with no suggestion of discrimination. (See Foti Dep. at 63, 81.)
In fact, Foti had no reason to look into the one complaint of discrimination against Spellmon. As he testified, he was aware of the allegation and had already concluded that it was unfounded. (See Foti Dep. at 50.) Moreover, according to Foti, Plaintiff never complained that he believed that he was the victim of discrimination, and none of Plaintiff's grievances alleged that he had been discriminated against, so Foti had no reason to investigate other allegations of discrimination. (See id. at 59, 63-64; Abrams Decl. Ex. 9; Defs.' Ex. G.) He did not complain to Foti, the Union delegate, or anyone else at the Union, that his March 2000 suspension, for the first toilet incident, was discriminatory. (See id. at 257-58.) Nor did he complain that he thought he was the victim of discrimination when he grieved his 1999 suspension. (See id. at 242-46.) Moreover, the Union chose to pursue that grievance at arbitration, and had Plaintiff's suspension revoked. In fact, Plaintiff concedes that prior to the termination of his employment, he never filed a grievance or complained to anyone at the Union about discrimination by Spellmon or anyone else. (See Carrion Dep. at 56, 58, 88-89, 295, 296; see also Foti Dep. at 50, 63.) Rather, he only contends that at some unspecified time he told his shop steward, Phillip Hawthorne, that Spellmon constantly harassed him. (See Carrion Dep. at 27-28, 304-07.) Hawthorne had no involvement in processing Plaintiff's grievance about his discharge.
As Spellmon testified, the employee, Abdalla Abdalkwy, who he believed was Egyptian, had been found to have "cut a deal with a dry cleaner," where he would recommend the cleaner to tenants at MTC, and, in turn, would bill his personal cleaning to MTC. (See Spellmon Dep. at 46-47.) Mr. Abdalkwy, who has filed a separate suit alleging discrimination by MTC, submitted an affidavit in this action in which alleges, in a totally conclusory fashion, that he complained about discrimination to the Union, which did nothing to help him, and that the Union's Grievance Appeal Board rubber-stamps denials of grievances by Foti. (See Affidavit of Abdalla Abdalkwy, dated Dec. 1, 2004 ("Abdalkwy Aff."), ¶¶ 5, 9, 11.) Mr. Abdalkwy's conclusory allegations about the Union do not create an issue of fact as to how the Union addressed Plaintiff's grievance, which did not allege discrimination. Moreover, Foti recommended to the Union that it proceed to arbitration with Mr. Abdalkwy's grievance, which he did not believe alleged discrimination, and the case is ongoing. (See Foti Dep. at 53-55.)
Although Plaintiff testified vaguely about possibly complaining to former shop stewards about Spellmon's harassment, at some time in the past, he could not recall making an allegation of discrimination. He first testified that he complained about Spellmon to Phillip Hawthorne on a weekly basis (see Carrion Dep. at 28), and later testified that it was on three or four occasions, and that he mentioned the possibility of discrimination on one occasion, approximately three years before he was fired. (See id. at 303-06.) Hawthorne denies that Plaintiff ever complained to him about discrimination. (See Affidavit of Phillip Hawthorne, dated Oct. 14, 2004 ("Hawthorne Aff."), ¶ 4.) Moreover, Plaintiff never filed any grievances with the Union about any such harassment (see Carrion Dep. at 299-310), which Plaintiff knew to be the appropriate method of seeking redress through the Union. (See id. at 143, 342.) The shop steward is not the agent of the Union, and it was the responsibility of Foti, not Hawthorne, to file grievances for members and to enforce the collective bargaining agreement. (See Memorandum of Law in Support of Defendant Local 32BJ's Motion for Summary Judgment at 7; see also Foti Aff. ¶ 2.) In fact, Plaintiff never asked Hawthorne to do so. According to Plaintiff, he asked Hawthorne to speak to Spellmon about his harassing Plaintiff. (See Carrion Dep. at 307.) He has no personal knowledge of whether Hawthorne ever spoke to Spellmon. (See id.)
Even accepting Plaintiff's present version of what transpired, the only time he said anything to Foti about discrimination was after his employment was terminated, when he told Foti that he thought he had been "set up" because Spellmon did not like him because he is Ecuadorian. (See id. at 170.) In the course of Foti's investigation, however, Spellmon readily conceded that he had not witnessed the conditions in the bathroom and that the complaints came from Plaintiff's co-workers, as had the complaints leading to his earlier suspension. (See Foti Dep. at 63.) Those co-workers confirmed that they were the source of the complaints, and that Plaintiff had soiled the bathroom with feces on multiple occasions. Foti was also aware that Plaintiff had been suspended for similar conduct two years earlier, and had been warned that any further behavior of the same nature would lead to his discharge. Thus, it was entirely reasonable for Foti to conclude that he had acquired all of the relevant facts and that there was a sound, non-discriminatory basis for Plaintiff's discipline.
Foti denies that Plaintiff even made that statement, and Plaintiff's grievance makes no mention of discrimination. In addition, Plaintiff cannot recall complaining about discrimination to the Grievance Appeal Board, comprised of fellow Union members, when he appeared before them after the Union decided to forego arbitration. (See Carrion Dep. at 266-67, 287.)
Plaintiff has not suggested that these co-workers bore any discriminatory animus toward him.
Under these circumstances, there is no basis to conclude that MTC violated the CBA in terminating Plaintiff's employment and, even if reasonable people could disagree about the Union's decision to forego arbitration, it was not "so far outside a wide range reasonableness" as to be arbitrary, irrational, or subject to a claim of bad faith. Air Line Pilots, 499 U.S. at 76-78, 111 S. Ct. at 1134-36; see also Cruz, 34 F.3d at 1153-54 ("The duty of fair representation is not breached where the union fails to process a meritless grievance, engages in mere negligent conduct, or fails to process a grievance due to error in evaluating the merits of the grievance.").
Nor is there any evidence to support Plaintiff's contention that the Union discriminated against him because he is a Spanish-speaking Ecuadorian, when it determined that it would not proceed to arbitration over his discharge from employment. Plaintiff acknowledges that Foti never made any discriminatory remarks to him about being Ecuadorian, and he had no basis to conclude that Foti has a problem with Ecuadorians. (See Carrion Dep. at 97.) Nor did anyone else at the Union do or say anything to lead him to believe that the Union did not like Ecuadorians. (See id. at 314.) Plaintiff testified at his deposition that the sole reason that he believes that the Union treats Spanish-speaking Ecuadorian Union members differently than other Union members is that it declined to take his discharge grievance to arbitration. (See id. at 173, 313-16.) He, in fact, does not know whether the Union treats other members differently (see id. at 347), and has failed to submit any evidence to demonstrate that it does.
Foti and other Union officials had no reason to believe that anything but Plaintiff's behavior was the basis for Plaintiff's discipline. MTC employed progressive discipline throughout Plaintiff's employment. Plaintiff had received more than one "final warning." There is no evidence which supports Plaintiff's entirely conclusory contention that the Union's decision to forego arbitration was in any way discriminatory.
Although Plaintiff also contends that the Union chose not to pursue arbitration because he was supporting Guzman for Union president (see Carrion Dep. at 173), the only evidence to support the contention that Foti or other Union officials knew who he was supporting is Plaintiff's belief of that fact. Plaintiff's beliefs are not competent evidence of the Union's knowledge.
In sum, based upon the record before the Court, no reasonable juror could conclude that the Union's decision not to proceed to arbitration was discriminatory, arbitrary, irrational, or made in bad faith. Accordingly, the Union is entitled to summary judgment on Plaintiff's claims of discrimination and breach of the duty of fair representation.
Although the President of the Local, Michael Fishman, was also named as a Defendant, Plaintiff has acknowledged that he is not pursuing any claims against individual officers and agents of the Union. (see Pl.'s Mem. at 23.) Moreover, " 29 U.S.C. § 185(b) and the caselaw provide a shield of immunity for individual union members in suits for breach of the duty of fair representation." Morris v. Local 819, Int'l Bhd. of Teamsters, 169 F. 3d 782, 784 (2d Cir. 1999) (per curiam).
III. Plaintiffs' Claims Against MTC and Spellmon
Plaintiff contends that his employment was terminated by Spellmon because of discriminatory animus toward him as a South American, Spanish-speaking Ecuadorian, and in retaliation for his complaining to the Union about discriminatory treatment.
A. Discriminatory Termination
1. Applicable Legal Standards
The framework for analyzing § 1981 claims, as well as claims under Section 296 of the New York State Human Rights Law and Section 8-107 of the New York City Human Rights Law, is essentially the same as that applied to claims arising under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e,et seq. See Patterson, 375 F.3d at 225 ("Most of the core substantive standards that apply to claims of discriminatory conduct in violation of Title VII are also applicable to claims of discrimination in employment in violation of § 1981. . . ."); Farias v. Instructional Sys., Inc., 259 F.3d 91, 98 (2d Cir. 2001) (applying burden-shifting rules of Title VII to discrimination claims, including claims under New York City and State law); Cruz v. Coach Stores, Inc., 202 F.3d 560, 565 n. 1 (2d Cir. 2000) ("Our consideration of claims brought under the state and city human rights laws parallels the analysis used in Title VII claims."); Taitt v. Chem. Bank, 849 F.2d 775, 777 (2d Cir. 1988) (elements of claim for retaliatory discharge under § 1981 are the same as required under Title VII); Erhunmwunse v. Edison Parking Corp., 301 F. Supp. 2d 278, 282 (S.D.N.Y. 2004) (Title VII and § 1981 claims analyzed identically); Bass v. NYNEX, No. 02 Civ. 5171 (DLC), 2004 WL 1941088, at *5 (S.D.N.Y. Sept. 1, 2004) (same).
One distinction, however, is that in certain cases a Title VII violation may be established even where a defendant's conduct was negligent, while under § 1981, a plaintiff must show that the discrimination was intentional. See Patterson, 375 F. 3d at 226.
To establish a prima facie case of discrimination, a plaintiff must provide proof that (1) the plaintiff is a member of a protected class, (2) he is qualified for the position, (3) he was subject to an adverse employment action, and (4) circumstances surrounding the action give rise to an inference of discrimination. See Collins v. N.Y. City Transit Auth., 305 F.3d 113, 118 (2d Cir. 2002).
Once the plaintiff satisfies his initial, `minimal,' burden, the burden of production shifts to the employer to articulate some legitimate nondiscriminatory reason for the termination, supported by admissible evidence which, if believed by the trier of fact, would support a finding that unlawful discrimination was not the cause of the employment action. If the employer carries this burden, the burden shifts back to the plaintiff to demonstrate by competent evidence that the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination. The ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff, and if the plaintiff had failed to show that there is evidence that would permit a rational factfinder to infer that the employer's proffered rationale is pretext, summary judgment dismissing the claim is appropriate.Patterson, 375 F.3d at 221 (citations and internal quotation marks omitted); accord Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 252-53, 101 S. Ct. 1089, 1093 (1981);McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04, 93 S. Ct. 1817, 1824-25 (1973); Jetter v. Knothe Corp., 324 F.3d 73, 75-76 (2d Cir. 2003); Luciano v. Olsten Corp., 110 F.3d 210, 215 (2d Cir. 1997).
The burden of establishing a prima facie case of discrimination is de minimis. See Abdu-Brisson v. Delta Air Lines, Inc., 239 F.3d 456, 467 (2d Cir. 2001); Cruz, 202 F.3d at 567.
2. Application to Plaintiff's Case
There is no dispute that (1) Plaintiff, a Spanish-speaking Ecuadorian, is a member of a protected class, (2) he was qualified for his job, and (3) he experienced an adverse employment action when his employment was terminated. Defendants contend, however, that Plaintiff has not established a prima facie case of discrimination because he has not demonstrated that his discharge occurred under circumstances giving rise to an inference of discrimination. (See MTC Memorandum of Law in Support of Motion for Summary Judgment at 3-10.) They point to Plaintiff's acknowledgment that (1) the only other MTC employee he is aware of who was treated similarly is Egyptian, not a Spanish-speaking Ecuadorian (see Carrion Dep. at 45-46); (2) there were other Spanish-speaking South Americans employed by MTC who were not treated as Plaintiff was, and with whom Spellmon got along (see id. at 39-44); (3) Spellmon never said anything derogatory to Plaintiff about Ecuador or being Ecuadorian (see id. at 41); and (4) Plaintiff was unable to see, and really did not know if Spellmon treated other people differently (see id. at 44, 184, 187). In addition, Defendants contend that MTC is a multi-cultural employer, with approximately fifty-four employees of twenty-two different nationalities, several of whom come from predominantly Spanish-speaking countries. (See Spellmon Aff. ¶ 16.) In fact, there are two other employees from Ecuador, one of whom was hired by Spellmon. Neither of these employees has been discharged from employment or has alleged that they have experienced discriminatory treatment. (See id. ¶ 17.)
The Court disagrees with Plaintiff's contention that there is evidence of differential treatment in the record. Plaintiff claims that, unlike his treatment by Spellmon, when another employee was accused of theft, Spellmon investigated and interviewed the employee before terminating his employment. (See Plaintiff's Statement of Disputed Facts in Response to Defendants' Joint 56.1 Statement ("Pl.'s Stmt.") ¶ 11.) Ironically, it is the same employee, who is Egyptian, who Plaintiff contends was treated poorly and was discriminated against. (See Carrion Dep. at 44-45, 49.) More importantly, that employee, as was Plaintiff, was discharged from his job. In addition, Spellmon did investigate the allegations about Plaintiff's bathroom conduct by interviewing the complaining witnesses. They confirmed that Plaintiff had continued to engage in the same conduct for which he had previously been suspended from work.
Plaintiff contends that another employee, who had an absenteeism problem relating to his alcohol consumption, received more lenient treatment. That employee was suspended and then demoted (see Spellmon Dep. at 69-70), and Plaintiff contends that, unlike himself, the other employee was not sent directly to the Union, but was interviewed before he was disciplined. (See Pl.'s Stmt. ¶ 11.) However, the distinction between the type of discipline imposed is meaningless, since the misconduct was not the same and, unlike Plaintiff, the other employee had not been suspended on a prior occasion for the same misconduct, and given a final warning. As for sending Plaintiff directly to the Union, Spellmon testified that "if it's something outrageous . . . as I mentioned previously, a fight, smearing feces, stealing something, I always feel it's best that they go to the union and come back with the union, with their delegate." (Spellmon Dep. at 107.) That Spellmon thought it advisable to speak to Plaintiff in the presence of his Union delegate can hardly be considered discriminatory treatment.
Although Plaintiff believed that Spellmon was friendlier to other employees and treated them better, he conceded that the only other employee he saw Spellmon talking with was Alex Lora, who is Hispanic. (See Carrion Dep. at 43-44.)
Finally, Plaintiff contends that an inference of discrimination has been demonstrated because "[a]ll the alleged incidents surrounding Plaintiff's termination took place shortly after Defendants were informed that Plaintiff's 1999 claims were set for arbitration." (Pl.'s Mem at 19.) Even if that were true, it would not be demonstrative of discriminatory animus, because Plaintiff did not allege in his 1999 grievance that he had been discriminated against.
Although there is a dearth of evidence in the record suggesting that Plaintiff's national origin played any role in Spellmon's decision to terminate his employment, and there is no competent evidence indicating that any non-Ecuadorians were treated more favorably than Plaintiff, Plaintiff has alleged that Spellmon regularly harassed him by saying, "[y]ou're a little Ecuadorian. You're a little alien. You don't even have a green card." (Carrion Dep. at 24), and by making fun of his accent. (See id. at 26.) Given the very minimal burden a plaintiff has in demonstrating aprima facie case of discrimination, in light of the alleged comments the Court will assume that Plaintiff has met that burden.
Spellmon denies making such remarks. (See Spellmon Aff. ¶¶ 18-19.)
Defendants, as well, have met their burden of production by explaining their decision to terminate Plaintiff's employment. In March 2000, Spellmon suspended Plaintiff from work after the head concierge, Tomas O'Neill, had complained on three or four occasions that excrement was found in the bathroom wastebasket, toilet paper with excrement was dropped on the floor, and there was urine on the floor, after Plaintiff used the bathroom. O'Neill also reported that other employees, several of whom were Hispanic, had complained to him on many occasions about the condition of the bathroom after it was used by Plaintiff. O'Neill's memos to Spellmon are in the record. (See Spellmon Aff. Ex. 8.) Spellmon spoke to the complaining witnesses and to Plaintiff and, according to Spellmon, Plaintiff acknowledged that he threw toilet paper with feces in the wastebasket and feces may accidentally have gotten on the bathroom wall. (See Spellmon Dep. at 108, 110.) Foti, Plaintiff's Union delegate, spoke with Plaintiff and the complaining witnesses, as well. According to Foti, Plaintiff conceded that he used large quantities of toilet paper because of medication he took, and he did not always deposit it in the toilet bowl. (See Foti Dep. at 62, 85-86.) As a result of this conduct, Plaintiff was suspended for five days and warned that "any further behavior in this manner will lead to your termination of employment." (Spellmon Aff. Ex. 8, Letter dated Mar. 8, 2000.)
In February 2002, Plaintiff was again suspended, this time for fighting with a delivery man and damaging his truck. See supra at 8. In May 2002, employees in MTC's housekeeping department, Ronald Kyles, who is African-American, and Luis Puentes, who is Hispanic, again found feces-smeared tissue in the wastebasket of the men's room, after it was used by Plaintiff. They advised Spellmon that despite speaking to Plaintiff about his bathroom habits and his promising that it would not happen again, this had occurred on many occasions. Kyles stated in his memo: "I have tried to resolve this without bringing this to Management but it has gotten out of hand." (See Spellmon Aff. Ex. 8, Memo dated May 22, 2002.) After speaking to the complaining employees and Plaintiff's Union delegate, who was with Plaintiff, and taking into account that Plaintiff had been suspended and given a final warning about the same conduct on a prior occasion, and had also been suspended a few months earlier for other misconduct, Spellmon determined that he would terminate Plaintiff's employment.
Defendants have thus offered a non-discriminatory business justification for discharging Plaintiff. The burden therefore shifts to Plaintiff to proffer competent evidence that would permit reasonable jurors to conclude that Plaintiff's sanitary habits and other misconduct were not the true reasons for his discharge, and that they were merely a pretext for discrimination. Plaintiff has not satisfied that burden.
It is not the Court's or a jury's role to substitute its owns views or values for an employer's business determinations and choices, or to "judge the wisdom of a corporation's business decisions." Parcinski v. The Outlet Co., 673 F.2d 34, 37 (2d Cir. 1982); see also Scaria v. Rubin, 117 F.3d 652, 654-55 (2d Cir. 1997) ("This Court does not sit as a super-personnel department that reexamines an entity's business decisions.") (quoting Dale v. Chi. Tribune Co., 797 F.2d 458, 464 (7th Cir. 1986)); Faldetta v. Lockheed Martin Corp., No. 98 Civ. 2614 (RCC), 2000 WL 1682759, at *9 (S.D.N.Y. Nov. 9, 2000) (same). The sole issue to be resolved is whether there was a legitimate business reason for the termination, and whether there is any evidence to suggest that Plaintiff's race or national origin was the real reason he was discharged from employment.
Although Plaintiff now denies that he engaged in the conduct which was the basis for his discharge, resolution of the instant motion does not turn on whether Plaintiff actually did so, nor on his and Spellmon's credibility. Spellmon, the alleged discriminator, does not claim to have witnessed the soiled bathroom. Rather, he received repeated complaints from other employees, among whom were Hispanics and an African-American, about Plaintiff's unacceptable bathroom habits. Those complaints are in the record. Plaintiff has acknowledged that he got along well with the co-employees who lodged the complaints about him, and he does not contend that they bore discriminatory animus toward him. (See Carrion Dep. at 53, 102-05.) Spellmon's concerns about the sanitary conditions under which his subordinates worked, and his responsiveness to their complaints, does not evidence a discriminatory motive.
Moreover, Plaintiff has not offered any competent evidence which suggests that Spellmon treated Spanish-speaking Ecuadorians more harshly than other employees. Spellmon has two other Ecuadorian employees under his supervision, one of whom he hired, and neither of whom was discharged from employment. By contrast, he has discharged or suspended other employees of a variety of ethnic backgrounds. In the year 2000, he suspended seven employees, one of whom was Plaintiff. The others were "Egyptian, Dutch-American, African-American, Greek-American, Puerto Rican and Columbian [sic]." (Spellmon Aff. ¶ 10.) In 2001, he suspended five employees, who were "Haitian, Croatian, Irish-American, Montenegrin, and Italian-American." (Id. ¶ 11.) In 2002, Spellmon suspended three employees, who were "Egyptian, Haitian, and from Kosovo." (Id. ¶ 12.) Between 2000 and 2004, Spellmon terminated the employment of three employees, in addition to Plaintiff — an Egyptian, an Italian, and an Italian-American. (See id. ¶ 15.) In addition, there is no evidence that there were any other employees under Spellmon's supervision who had been placed on a final warning, then committed the same misconduct, and were then treated more leniently than was Plaintiff.
Plaintiff does not contend that Spanish-speaking employees in general were harassed or discriminated against by Spellmon. (See Carrion Dep. at 39, 41.)
In the end, the only evidence of discriminatory animus which Plaintiff has proffered is his contention that Spellmon would regularly refer to him as "little Ecuadorian" and "little alien." Spellmon denies this, and other than Plaintiff's testimony that he complained about Spellmon to his shop steward, Phillip Hawthorne — a contention which Hawthorne denies (see Hawthorne Aff. ¶ 4) — there is no evidence to support the contention. Nevertheless, assuming that Spellmon made such remarks (which do not necessarily reflect discriminatory animus) at some unspecified times during Plaintiff's employment by MTC, there is no evidence that these remarks had any relationship to the decision to discharge Plaintiff, or that his discharge was related in any way to his race, national origin, or ethnicity. See Danzer v. Norden Sys., Inc., 151 F.3d 50, 56 (2d Cir. 1998) (stray remarks alone "cannot get a discrimination suit to a jury"); Woroski v. Nashua Corp., 31 F.3d 105, 109-10 (2d Cir. 1994) (statements evidencing age bias, standing alone, are insufficient to withstand a motion for summary judgment);O'Connor v. Viacom Inc./Viacom Int'l, No. 93 Civ. 2399 (LMM), 1999 WL 194299, at *5 (S.D.N.Y. Apr. 23, 1996) ("Many courts have held that stray remarks in the workplace, by themselves, and without a demonstrated nexus to the complained personnel actions, will not defeat the employer's motion for summary judgment.").
Plaintiff contends that Spellmon was generally unfriendly to him. Yet, he concedes that he is no position to say whether Spellmon was friendlier to other, non-Spanish-speaking, non-Ecuadorian employees.
Based upon the record, no reasonable juror could conclude that Defendants' stated reasons for terminating Plaintiff's employment were false and that the true reason he was discharged from his employment was because he was a Spanish-speaking Ecuadorian. Accordingly, the employer Defendants are entitled to summary judgment on Plaintiff's claims of discrimination under Section 1981 and New York City and State law.
B. Retaliation
It is unlawful for an employer to retaliate against an employee because of the employee's complaints about unlawful discrimination. See Cruz, 202 F.3d at 566 ("The term `protected activity' refers to action taken to protest or oppose statutorily prohibited discrimination."); Harris v. City of New York, No. 03 Civ. 6167 (DLC), 2004 WL 2943101, at *4 (S.D.N.Y. Dec. 21, 2004) ("Title VII and the NYS and City HRL forbid retaliation against an employee for opposing any practice made unlawful by these statutes."). Claims of retaliation are analyzed under the burden-shifting framework of McDonnell Douglas andBurdine.
To establish a prima facie case for retaliation, a plaintiff must demonstrate participation in protected activity known to the defendant, an employment action disadvantaging the person engaged in the protected activity, and a causal connection between the protected activity and the adverse employment action.Cruz, 202 F.3d at 566 (internal quotation marks omitted);accord Gordon v. N.Y. City Bd. of Educ., 232 F. 3d 111, 116 (2d Cir. 2000); Coffey v. Dobbs Int'l Servs., Inc., 170 F.3d 323, 326 (2d Cir. 1999); Thomas v. Bergdorf Goodman, Inc., No. 03 Civ. 3066 (SAS), 2004 WL 2979960, at *7 (S.D.N.Y. Dec. 22, 2004). In order for activity to be protected, "the complainant must put the employer on notice that the complainant believes that discrimination is occurring." Bass, 2004 WL 1941088, at *7 (internal quotation marks omitted); see also Thomas, 2004 WL 2979960, at *10 ("There can be no causal link without any evidence that [the alleged retaliator] knew that plaintiff was claiming race discrimination.").
Proof of causal connection can be established indirectly by showing that the protected activity was followed closely by discriminatory treatment, or through other evidence such as disparate treatment of fellow employees who engaged in similar conduct, or directly through evidence of retaliatory animus directed against a plaintiff by the defendant.DeCintio v. Westchester County Med. Ctr., 821 F.2d 111, 115 (2d Cir. 1987) (citations omitted); accord Gordon, 232 F.3d at 117.
Once a plaintiff has met his burden of proving a prima facie case of retaliation, "[t]he burden then shifts to the defendant to articulate a legitimate, nondiscriminatory reason for its actions. If the defendant meets this burden of production, then the plaintiff has the ultimate burden of persuasion to show that the reasons proffered by the defendant were not the defendant's true reasons, but rather a pretext for [retaliation]," Taitt, 849 F.2d at 777 (citations and internal quotation marks omitted), or, at least, that a retaliatory motive played a part in the adverse employment action. See Gordon, 232 F.3d at 117-18.
In their submissions to the Court, Plaintiff's attorneys contend that Plaintiff was terminated in retaliation for his making "numerous complaints regarding disparate treatment due to his race/ethnicity, and or national origin." (Pl.'s Mem at 22;see also Compl. ¶¶ 71, 82.) More specifically, they argue that "Spellmon wanted to terminate Mr. Carrion, in retaliation for him going to the Union [in 1999] and claiming discrimination." (Pl.'s Mem. at 8.) However, at his deposition, Plaintiff testified that he believed he was terminated because Spellmon knew that he was supporting a particular Hispanic for leadership of his Union, because he was Ecuadorian, and because Spellmon hated him. (See Carrion Dep. at 173-76, 180.) He further testified that when he went to the Union to complain about his discharge, he stated that he believed that he was "set up" because of his race and because Spellmon hated him. He made no mention of retaliatory threats. (See id. at 170.)
As discussed, there is no competent evidence indicating that Spellmon knew or cared about who Plaintiff was supporting in a Union election. Moreover, even if he did, Plaintiff's choice of a particular Union official does not implicate his participation in protected activity in opposition to unlawful discrimination.
The only record support for Plaintiff's retaliation claim is his testimony that Spellmon threatened to fire him for filing a grievance in 1999. However, Plaintiff's filing of grievances with the Union is not "protected activity" under the anti-discrimination statutes unless his grievances raised the issue of discrimination. They did not.
The March 1999 grievance, which Plaintiff points to as precipitating Spellmon's harassment and, ultimately, the termination of his employment (see id. at 90-91; Pl.'s Mem. at 2), related to Plaintiff's one-day suspension for directing a profanity at a co-worker. (See Spellmon Aff. ¶ 7 Ex. 7.) The grievance made no reference to discrimination, and there would have been no reason to do so inasmuch as the suspension was precipitated by a co-employee's complaint about the use of profanity. (See Abrams Decl. Ex. 10.) The grievance was taken to arbitration, but a representative of MTC failed to appear at the arbitration and the suspension was rescinded. (See id.)
Although Plaintiff contends that he was falsely accused of using a profanity, he does not contend that Spellmon made the false accusation. Indeed, Plaintiff does not dispute that one of his co-employees, who was buffing a floor, complained to Spellmon that Plaintiff had addressed a profanity to her. Rather, he contends that she hit his foot with the buffer, and he merely said "oh shit." (Carrion Dep. at 126-27.)
Plaintiff was next disciplined in March 2000, a full year after he filed his 1999 grievance, because of the report that he had left "toilet paper with feces smeared in the waste paper basket," and had smeared feces on the wall in the employees' bathroom. (See Spellmon Aff. Ex. 8; Spellmon Dep. at 107, 109-10.) Plaintiff's unsanitary bathroom conduct had been experienced by employees on other occasions, causing them to complain. (See Spellmon Aff. Ex. 8.) Although Spellmon initially terminated Plaintiff's employment because of the complaints, the termination was rescinded and Plaintiff was suspended for five days after Plaintiff apologized and said that the conduct was accidental. (See Spellmon Dep. at 108.) In his grievance, Plaintiff did not raise any allegations of discrimination, nor did he complain to Foti, or anyone else at the Union, that he believed that his suspension was the result of discrimination by Spellmon. (See Foti Aff. ¶ 5; Carrion Dep. at 258.)
In fact, other than relating the medical issues which, according to Plaintiff, caused him to use excessive amounts of toilet paper, the grievance attributed the complaints by Plaintiff's co-workers to "personal problems" the co-workers had with Plaintiff. (See Abrams Decl. Ex. 9.)
Plaintiff was suspended two years later, on February 26, 2002, for fighting with a delivery truck operator outside the building, and damaging his truck. He was arrested as a result of the incident. (See Carrion Dep. at 144-46.) Spellmon viewed a videotape of part of the incident, which showed Plaintiff reaching into the truck and breaking a blinker. (See Spellmon Dep. at 113-14.) Although Plaintiff takes issue with certain details of the incident, as understood by Defendants, he does not dispute that it occurred, and does not contend that Spellmon precipitated, or was involved in the incident. Plaintiff did not file a grievance over the suspension, and there is no evidence that he complained that the suspension was discriminatory. Indeed, Plaintiff testified at his deposition that he did not know if the suspension was discriminatory. (See Carrion Dep. at 337-38.)
Plaintiff's discharge occurred on May 21, 2002, when complaints were again made by co-employees that Plaintiff had soiled the bathroom.
Thus, contrary to Plaintiff's contention, his Union grievances did not repeatedly raise allegations of discrimination, and did not constitute protected activity under the anti-discrimination statutes. See Bass, 2004 WL 1941088, at *7 ("[Plaintiff] has failed to show that he participated in a protected activity. His only complaints prior to his firing were his oral conversations . . . and his letter . . . [Plaintiff] made no allegations of racial discrimination in either of these communications, raising only general claims that his placement . . . was `unfair.'"). Moreover, the alleged "protected activity" — the filing of the 1999 grievance — had occurred three years before Plaintiff's discharge.
Although Plaintiff contends that he did not complain to the Union because Spellmon threatened that he would fire him, he in fact did complain to the Union by filing several grievances. None of those grievances referred to discriminatory conduct by Spellmon.
The only evidence that comes close to indicating that Plaintiff complained about "discrimination" by Spellmon is his testimony that he told Philip Hawthorne, the Union shop steward at his work location, that Spellmon regularly harassed him by calling him names such as "little Ecuadorian" and "little alien," and by making fun of his accent. (See Carrion Dep. at 24-25, 27-28.) There is no evidence that Plaintiff ever complained to Hawthorne about any other treatment by Spellmon. Initially, Plaintiff could not remember how many times he spoke to Hawthorne about Spellmon, and after some prodding, he testified that he spoke to Hawthorne three or four times. (See Carrion Dep. at 302-06.) Plaintiff could not remember when he spoke to Hawthorne about Spellmon, and was unable to say if he had done so since 1999. (See id. at 309.) Hawthorne denies that Plaintiff ever complained to him about discriminatory treatment by Spellmon (see Hawthorne Aff. ¶ 4), and, therefore, there would have been no reason for Hawthorne to have spoken to Spellmon about the complaints.
Plaintiff did not complain about Spellmon to anyone at MTC or at Brown Harris, the firm which managed the building. (See Carrion Dep. at 34.)
Assuming, for the sake of argument, that Plaintiff did speak to Hawthorne, his shop steward, about Spellmon's name-calling, and assuming that those conversations can be considered "protected activity," there is no evidence of a causal connection between those conversations and Plaintiff's termination. First, even Plaintiff is unsure if he had such conversations with Hawthorne at any time after 1999, which was three years before his employment was terminated. Thus, there has been no showing that the alleged retaliatory conduct followed shortly after Plaintiff engaged in protected activity. Second, there is no competent evidence to suggest that Spellmon was even aware that Plaintiff had spoken to Hawthorne, no less that he had complained that Spellmon was engaging in unlawful discrimination.
Plaintiff argues that the employer-Defendants have conceded that Plaintiff complained about discrimination to his employer because they admitted so in their Answer to the Complaint. (See Compl. ¶ 24; Answer ¶ 24.) What Plaintiff ignores, however, is Defendants' denial of this allegation in other paragraphs of the Answer (see Compl. ¶¶ 62, 71, 82; Answer ¶¶ 62, 71, 82), and the fact that Plaintiff has conceded that he never complained to his employer about discrimination.
Plaintiff has also submitted an affidavit from Mr. Abdalkwy, the former co-worker who was also terminated from his employment and is suing Defendants, who states: "I have heard John Spellmon threaten many employees, including Mr. Carrion, with termination if they filed claims of discrimination with the Union against him. I am aware of Mr. Spellmon's tactics to harass, write up, suspend and terminate employees, including Mr. Carrion, who make complaints about his discriminatory antics." (Abdalkwy Aff. ¶¶ 7-8.) Leaving aside the credibility of Mr. Abdalkwy, whose own litigation provides motivation to criticize Spellmon, and the fact that there is no evidence of any other MTC employees complaining about discrimination, his statement is, on its face, inconsistent with Plaintiff's claim, as well as the evidence. Plaintiff has not claimed the he was threatened with termination if he filed a "discrimination" complaint with the Union, and he never did file a complaint of discrimination with the Union. Rather, Plaintiff contends that after he filed his 1999 grievance, which did not allege discrimination, Spellmon "became worse to [him]" and said "I am going to do something to you. I want to fire you." (Carrion Dep. at 90-91.) In any event, even if Mr. Abdalkwy's affidavit is sufficient to establish the "causal connection" prong of Plaintiff's prima facie case, it does nothing to establish that Plaintiff engaged in protected activity, or that the reason Defendants have offered for his discharge — repeated complaints of co-employees about his sanitary habits, which had been the subject of an earlier, final warning, as well as his other documented misconduct — was false and a pretext for retaliation.
Based upon this record, Plaintiff has failed to establish a prima facie case of unlawful retaliation, and, in any event, no reasonable juror could conclude that Defendants' explanation for terminating Plaintiff's employment was false and that the real reason Plaintiff was discharged was his participation in protected activity. Indeed, there is no basis to conclude that illegal retaliation played any role in his discharge. As discussed, there is little, if any, evidence of protected activity. None of Plaintiff's grievances complained of discriminatory treatment. Moreover, the 1999 grievance, which is alleged to be the precipitating factor in Spellmon's decision to terminate Plaintiff, occurred three years before Plaintiff's employment was terminated, and one year before Plaintiff received his next suspension, based on his co-employees' complaints about his sanitary habits. The only other occasions on which Plaintiff was disciplined, between 1999 and the discharge, were in February 2002, when he engaged in a fight with a deliveryman and damaged his truck, and in May 2002, when several employees again reported that on various occasions he left toilet tissue soiled with feces in the bathroom wastebasket.
Plaintiff's employment was terminated for conduct which had been complained about on numerous occasions by his co-employees, one of who is African-American and others Hispanic, and for which he had been disciplined on an earlier occasion. There is no competent evidence to suggest that Spellmon, the alleged retaliator, was the source of the complaints, or that he precipitated them. Moreover, Plaintiff concedes that he has no reason to impute improper motive to his co-employees.
Accordingly, Defendants are entitled to summary judgment on Plaintiff's claim of unlawful retaliation.
IV. Plaintiff's Breach of Contract Claim
Plaintiff asserts a breach of contract claim against Defendant MTC, alleging that it breached the Collective Bargaining Agreement by unlawfully terminating his employment and otherwise discriminating and retaliating against him. (See Pl.'s Mem. at 17-18.) Defendants contend that any breach of contract claim is preempted by the Labor Management Relations Act.
As an initial matter, it is unclear how Plaintiff's breach of contract claim differs from his discrimination claim, and what claim Plaintiff contends is not preempted by the LMRA. See Compl. ¶ 40 ("Defendant Museum Tower Condominium breached its employment [a]greement with Plaintiff, when it terminated him in bad faith, discriminatorily and for no cause, and in retaliation for engaging in protected activities."); Pl.'s Mem. at 18 ("Defendant employer violated Mr. Carrion's contractual rights. It unlawfully fired him based on discriminatory and retaliatory actions. It did not comply with Article XVII, Section 23 regarding discrimination.").
To the extent that Plaintiff argues that "Defendant employer MTC breached the collective bargaining agreement, and, thus, state and local contract laws are not preempted," (Pl.'s Mem at 17), he is confused and mistaken. Any state law claim for breach of the Collective Bargaining Agreement is preempted by the LMRA. See Caterpillar Inc. v. Williams, 482 U.S. 386, 394, 107 S. Ct. 2425, 2430 (1987) ("[T]he preemptive force of § 301 [of the LMRA] is so powerful as to displace entirely any state cause of action for violation of contracts between an employer and a labor organization. Any such suit is purely a creature of federal law. . . .") (internal quotation marks omitted); Int'l Bhd. of Elec. Workers v. Hechler, 481 U.S. 851, 855-56, 107 S. Ct. 2161, 2165 (1987) (in the ordinary § 301 case, in which a party to a collective bargaining agreement alleges that a provision of the agreement has been violated, the LMRA authorizes federal courts to fashion and apply a body of controlling federal common law);Vera v. Saks Co., 335 F.3d 109, 114 (2d Cir. 2003) ("Thus, when a state claim alleges a violation of a labor contract, the Supreme Court has held that such claim is preempted by section 301 and must instead be resolved by reference to federal law.");McKee v. Transco Prods., Inc., 874 F. 2d 83, 85 (2d Cir. 1989) ("Because plaintiffs claimed that [defendant] breached a collective bargaining agreement, . . . § 301 was properly pled, and . . . appellants cannot now transform this case into a state breach of contract claim."); Cespuglio v. Ward, No. 03 Civ. 8603 (SAS), 2004 WL 1088235, at *3 (S.D.N.Y. May 13, 2004) ("Section 301 of the LMRA governs actions by an employee against an employer for breach of a collective bargaining agreement. Any such action is within the exclusive jurisdiction of federal courts and subject exclusively to federal law, regardless of where it is brought.") (internal quotation marks omitted).
There is little doubt, however, that Plaintiff's claims of discrimination under federal, state and local law are not preempted by the LMRA, and Defendants do not argue otherwise.Cf. Hawaiian Airlines, Inc. v. Norris, 512 U.S. 246, 260, 114 S. Ct. 2239, 2247 (1994) ("[A] state-law cause of action is not pre-empted . . . if it involves rights and obligations that exist independent of the CBA. . . ."); Vera, 335 F.3d at 115 ("[I]f a state prescribes rules or establishes rights and obligations that are independent of a labor contract, actions to enforce such independent rules or rights would not be preempted by section 301."); Wilds v. United Parcel Serv., Inc., 262 F. Supp. 2d 163, 181-83 (S.D.N.Y. 2003) (claim of unlawful termination in violation of the New York City Rights Law does not require interpretation of the collective bargaining agreement and is not preempted by the LMRA); Curtis v. Airborne Freight Corp., No. 98 Civ. 4062 (SAS), 1998 WL 883297, at *6 n. 5 (S.D.N.Y. Dec. 17, 1998) (claims under the New York City Human Rights Law are not preempted by LMRA).
Nevertheless, to the extent that Plaintiff contends that the CBA was violated because Plaintiff was terminated for discriminatory reasons, he merely restates his discrimination claim, and, on that claim, the Court has determined that Plaintiff cannot prevail. Moreover, because Plaintiff has failed to establish that the Union breached its duty of fair representation, the other prong of his hybrid claim — breach of the CBA — cannot succeed. See DelCostello, 462 U.S. at 165, 103 S. Ct. at 2291 ("To prevail against either the company or the Union, . . . [employee-plaintiffs] must not only show that their discharge was contrary to the contract, but must also carry the burden of demonstrating a breach of the duty by the Union.") (internal quotation marks omitted); White, 237 F.3d at 178 ("To establish a hybrid § 301/DFR claim, a plaintiff must prove both (1) that the employer breached a collective bargaining agreement and (2) that the union breached its duty of fair representation. . . .");Kavowras, 2004 WL 1672473, at *6 ("Where it is shown that the union fairly represented the employee, the suit against the employer cannot stand.") (quoting Flynn v. Prudential Ins. Co. of Am., No. 95 Civ. 113 (RPP), 1996 WL 294302, at *5 (S.D.N.Y. June 3, 1996)) (internal quotation marks omitted).
CONCLUSION
For the reasons set forth above, Defendants are entitled to summary judgment on all of Plaintiff's claims. Accordingly, this action shall be dismissed with prejudice. The Clerk of the Court shall enter judgment for Defendants consistent with this Opinion.
SO ORDERED.