Summary
holding that where denial of overtime opportunities was only for a short period, salary was not decreased, he was not terminated, and no benefits were lost, there was no adverse action and the motion might be granted on this ground alone
Summary of this case from Damon v. United Parcel ServiceOpinion
02 Civ. 0985 (HB)
December 3, 2002
OPINION ORDER
The defendant Paul O'Neill, Secretary of the Department of Treasury, brings this motion for summary judgment against the plaintiff, Anthony Como, who sued the Secretary under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e ("Title VII"). Mr. Como was, and I presume still is, a senior inspector for the US Customs Service ("Customs" or "Agency") and brings this action against the Agency for discriminatory and retaliatory acts, all of which took place at the Agency's Offices at 6 World Trade Center ("WTC").
BACKGROUND
On Friday, September 24, 1999, after making preparations to play what he characterized as a practical joke on a fellow inspector who happened to be a Knick fan, the plaintiff left his office. He had either tied a noose around the neck of a statue of Michael Jordan or left with the noose touching a statue of Michael Jordan. Regardless, both the noose and the statue were observable and were observed by those passing by. The noose incident resulted in at least three African-American employees expressing their consternation. The plaintiff is Caucasian. A further result was that the plaintiffs weapon was taken away pending an investigation and concomitantly found to have been improperly stored. Early in October, while investigation into both the noose and weapon incidents was ongoing, the plaintiff was reassigned to the records section, which was in the basement of 6 WTC. The reassignment permitted plaintiff to work but without the need for his weapon. Also, while these investigations were pending, Customs received at least one other complaint of misconduct, a threat allegedly made to a female employee. Later, in May of 2000, the plaintiff was transferred to a mail branch of Customs at Jersey City, New Jersey. The plaintiffs complaints rest primarily on the reassignment and on the treatment by the Agency of the three African Americans, which the plaintiff opines were treated more leniently than he for an offense which he alleges was at least of equal magnitude. The three African Americans allegedly reported the "noose" incident via email, an unauthorized use of their computers. Plaintiff claims the preferred treatment was motivated by racial discrimination. The investigation resulted in one of the three being reprimanded and the reprimand remains in his personnel file. While no further discipline was found to be warranted, the Agency sent out an office-wide email decrying the unauthorized use of computers.
The plaintiff completed his initial interview with his EEOC counselor on March 24, 2000. At that interview the plaintiff signed a form that spelled out the requirement that he had 15 days from the last interview, assuming no satisfactory resolution, to file a discrimination complaint. His last interview was on July 10, 2000. At that time, he discussed the notice with his counselor and reviewed its language. The Notice read in pertinent part as follows:
This is to inform you that because the matter(s) you brought to my attention has/have not been resolved to your satisfaction, you are now entitled to file a discrimination complaint. If you wish to pursue this matter further, and file a formal complaint of discrimination, it must be in writing, signed, and filed, in person or by mail within 15 CALENDAR DAYS AFTER RECEIPT OF THIS NOTICE. (Emphasis in original.)
The plaintiffs complaint in response to the notice was filed on August 18, 2000, some 48 days after July 10, when the 15 days began to run. The complaint was dismissed as untimely. The plaintiff appealed from this dismissal to the EEOC and the EEOC affirmed. His request for reconsideration was also denied. Following that denial, he filed this action.
STANDARD FOR SUMMARY JUDGEMENT
Evidence in support of a motion for summary judgment must be reviewed in a light most favorable to the non-movant. FRCP 56(c), Anderson v. Liberty Lobby, Inc. 477 U.S. 242, 255 (1986). If, when "[v]iewing the evidence produced in the light most favorable to the nonmovant . . . a rational trier could not find for the nonmovant, then there is no genuine issue of material fact and entry of summary judgment is appropriate."Binder v. Long Island Lighting Co., 933 F.2d 187, 191 (2d Cir. 1991). While the burden to demonstrate that no genuine issue of material fact rests solely with the moving party, FDIC v. Giammetti, 34 F.3d 51, 54 (2d Cir. 1994), once the moving party has provided sufficient evidence to support a motion for summary judgment, the opposing party "must set forth specific facts showing that there is a genuine issue for trial" and cannot rest on "mere allegations or denial." Rule 56(e); see Rexnord Holding, Inc. v. Biderman, 21 F.3d 522, 525-36 (2d Cir. 1994). The mere existence of a scintilla of evidence in support of the plaintiffs position" is insufficient to defeat a motion for summary judgment. Anderson, 477 U.S. at 252. An "opponent must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).
ADVERSE JOB ACTION
A prima facie case under Title VII is governed by the test spelled out in McDonnell Douglas Corp v. Green, 411 U.S. 792 (1973). There we find the standard both for a prima facie case and for shifting the burden of going forward to the defendant after a prime facie case has been shown.McDonnell, 411 U.S. at 802. There are four prongs to the prima facie case and plaintiff fails to meet the third prong, the adverse job action requirement. As we read in Galabya v. NYC Board of Education, to satisfy this test, there must be a material adverse change in the terms and conditions of employment. 202 F.3d 636, 640 (2d Cir. 2000). It must be more disruptive than a mere inconvenience or an alteration of job responsibilities. Crady v. Liberty Nat'l Bank and Trust Co. of Indiana, 993 F.2d 132, 136 (7th Cir. 1993). A materially adverse change might be indicated by a "termination of employment, a demotion evidenced by a decrease in wage or salary, a less distinguished title, a material loss of benefits, significantly diminished material responsibilities or other indices . . . unique to a particular situation." Id.; see Wanamaker v. Columbian Rope Co., 108 F.3d 462, 466 (2d Cir. 1997). In this case, despite three serious behavior problems, i.e., the "noose" incident, the "gun" incident and threatening a female co-worker, the result consisted of a transfer to the New Jersey office. If it obviated the overtime opportunities plaintiff was used to, it was only for a short period. His salary was not decreased; he was not terminated; and so far as I can discern, no benefits were lost and he retained his title as a Senior Inspector. In Patrolmen's Benevolent Ass'n of the City of New York v. City of New York, a case decided in October, an adverse employment action was sustained where a plaintiff police officer had been transferred to another precinct, which on first blush sounds much like the case at bar. 310 F.3d 43, 51 (2d Cir. 2002). Upon a closer reading of that case, Espinal, the plaintiff, showed that members of the community in his new precinct were so abusive that he feared for his safety and that the level of mistrust towards him among the other officers in his newly assigned precinct was such that effective police work was impossible. Id. at 51-52. This is hardly our case. In short, the motion might be granted on this ground alone.
DISCRIMINATORY MOTIVATION
Virtually by definition, the lynch pin of a discrimination case is a showing that the action over which the employer is being sued was motivated by discrimination of one kind or another. Typically, once discrimination is shown, the burden of going forward shifts to the defendant to show that the adverse employment action was motivated by considerations other than discriminatory animus, e.g., misconduct by the employee. McDonnell, 411 U.S. at 803. The plaintiff then has the burden, as he does throughout his case, to show that the employer's reasons for the adverse employment action were pretextual, and that in truth, it was a product of discriminatory animus. Id. Here the steps taken by the Agency, when juxtaposed with the plaintiffs behavior bears, no resemblance or connection, as far as I can see, to discrimination. See Griffin v. Ambika Corp., 103 F. Supp.2d 297, 308 (S.D.N.Y. 2000) (conclusory allegations to support alleged pretext for intentional discrimination is insufficient to support an inference of adverse action, particularly when there appears to be legitimate reasons for actions taken against plaintiff). The plaintiff was allegedly the catalyst for disruption of the work at the Agency's offices at 6 WTC; he had violated the practices and procedures with respect to his firearm; he had initiated what may well be an act of race discrimination and he had threatened at least one female co-worker with bodily harm. It is hard to believe that the alleged milder treatment of three African Americans, if in fact it was milder, could under any circumstances excuse his behavior or show discriminatory animus by the defendant. It is also noteworthy that following the conclusion of the investigation with respect to the "noose" incident and the "gun" incident, the plaintiff avoided an additional disciplinary action. Again, plaintiff has failed to raise a material issue of fact to show the Agency's action was motivated by discrimination of any kind, and again, on that ground alone, summary judgment would be appropriate.
STATUTE OF LIMITATIONS
Nonetheless, this decision rests primarily on a procedural ground. Plaintiff had 15 days from the receipt of his "Notice of Right to File a Discrimination Complaint" to file such a complaint. 29 C.F.R. § 1615.106 (a)-(b). It was not until 48 days following that notice, on August 28, 2000, that he filed his complaint. There is little question that he knew what his rights were and the requisite timetable. Indeed, he carried away with him the notice that provides for the 15 day statute of limitations and had discussed the notice with his EEOC counselor. Although plaintiff is quite right that the 15 day period is probably not jurisdictional, and thus, is more akin to a statute of limitation and subject to waiver estoppel and equitable tolling, Briones v. Runyon, 101 F.3d 287, 290 (2d Cir. 1996), none of these remedies is appropriate here.
Let's look at the cases that plaintiff himself relies on, Briones v. Runyon, 101 F.3d 287 (2d Cir. 1996) and Boos v. Runyon, 201 F.3d 178, 181 (2d Cir. 2000). Based primarily on the reasoning in Girard v. Rubin, 62 F.3d 1244 (9th Cir. 1995), the plaintiff in Briones was allowed to go forward despite having missed the statute of limitations. 101 F.3d at 290. In the case relied on by the Briones court, the IRS, who employed Girard, dismissed his complaint for failure to comply with the statute of limitations. 62 F.3d at 1247. The EEOC's Office of Review and Appeals later ruled that the complaint was viable. Id. The 9th Circuit in Girard found that the employing agency may not have a second bite at the apple by arguing lack of timely filing in federal court after failing to prevail at the EEOC. Id. In our case, there is no such inconsistency; the EEOC affirmed the dismissal by Customs. Put another way, in Girard, the EEOC ruled that the claim was timely; in the case at bar, the EEOC dismissed the suit as untimely.
In the Boos case, the issue was mental stability and the Court found that there may be situations in which a person is sufficiently mentally disabled to justify tolling the statute of limitations. 201 F.3d at 184. But even in such a case, Judge Calabresi found that tolling for mental disability is clearly case specific and a hard row to hoe. Id. at 184-85. Here no one has even raised the issue that the plaintiff was mentally incapacitated. The plaintiff complains that he was going through a difficult time with his girlfriend and had trouble collecting his papers in order to file on time. These basically unsupported allegations fail to create an issue of fact. The doctrine of equitable tolling may be applied by courts to prevent unusually harsh results from dismissals when there are excusable reasons for a plaintiffs failure to meet the required time limitation. See, e.g., Tillett v. Carlin, 637 F. Supp.2d 245, 248 (D. Coun. 1985). I find no excusable reasons here, however, for plaintiffs failure. An opinion by the Supreme Court is particularly instructive on this point:
Procedural requirements established by Congress for gaining access to the federal courts are not to be disregarded by courts out of a vague sympathy for particular litigants. As we stated in Mohasco Corp. v. Silver, 447 U.S. 807, 826, 100 S.Ct. 2486, 2497, 64 L.Ed.2d 532 (1980), "[i]n the long run, experience teaches that strict adherence to the procedural requirements specified by the legislature is the best guarantee of evenhanded administration of the law."Baldwin Country Welcome Ctr. v. Brown, 466 U.S. 147, 152 (1984).
CONCLUSION
For the foregoing reasons, defendant's motion for summary judgment is granted. The Clerk is directed to enter judgment for the defendants and to close this case and any other open motions.