Opinion
99 Civ. 2897 (TPG)
August 7, 2001
OPINION
Plaintiff, Dennis Cook, sues his employer, CBS. Plaintiff is a videotape technician at the Operations and Engineering Division of CBS. He filed his first lawsuit against CBS, claiming discriminatory failure to promote and train, on July 1994. The first lawsuit was dismissed on defendant's motion for summary judgment. Plaintiff filed the present lawsuit on March 18, 1999, claiming that CBS continued, after the dismissal of the first lawsuit, to treat him in a racially discriminatory manner, and retaliated against him for filing the first lawsuit. Defendant has moved for summary judgment dismissing the complaint, arguing that it has not discriminated or retaliated against plaintiff. The motion for summary judgment is granted. Defendant has also moved for an award of attorney's fees and costs. The motion for attorney's fees and costs is denied.
Procedural History Plaintiff filed his first lawsuit against CBS on July 8, 1994 claiming race discrimination and intentional infliction of emotional distress. Plaintiff claimed that CBS discriminated against him by failing to promote him to the position of "permanent editor" and refused to give him assignments and training that would allow him to attain the skills required to become a permanent editor. CBS argued that plaintiff was not qualified for the position of permanent editor, and that no discrimination occurred.
CBS moved for summary judgment on June 7, 1996. On May 13, 1997, this court granted the motion, finding that plaintiff had not made out a prima facie case of race discrimination. The court held that plaintiff had failed to introduce evidence that he was qualified for the position of permanent editor or that he was denied any opportunities under circumstances justifying an inference of racism. The court went on to hold that even if plaintiff had made out a prima facie case, CBS had put forth legitimate nondiscriminatory reasons for refusing to promote him: plaintiff had been the subject of complaints, and his supervisors did not believe him to be skilled enough to merit a promotion to permanent editor. The court held that plaintiff had not offered any evidence that the reasons proffered by CBS for not promoting him were pretexual.
The Second Circuit Court of Appeals affirmed this court's judgment on January 22, 1998. Cook v. CBS, Inc., 133 F.3d 906 (2d Cir. 1997).
Facts
Plaintiff is an African-American videotape technician employed in CBS's Operations and Engineering Division ("COE"). Plaintiff is also a member of the International Brotherhood of Electrical Workers Local 1212, which is not a party to this action. Plaintiff's employment at CBS is governed by a collective bargaining agreement between Local 1212 and CBS, and by an unwritten "handshake agreement," which will be discussed in more detail later in this opinion.
COE provides videotape technicians and other technical services to internal CBS clients, such as the CBS Sport Division or News Division, as well as to outside clients, such as the Late Show with David Letterman. Videotape technicians perform a variety of functions. For example, videotape technicians record television shows for later playback on the air and they play back previously recorded tapes at air time. Videotape technicians also record material coming in via satellite and play back the recorded material at the appointed time. Plaintiff describes these duties as the "basic" duties of a videotape technician. Some videotape technicians are also involved in the editing of videotape. One type of videotape editing is known as CMX editing.
Other types of videotape editing, including Avid editing and Profile editing, are also performed by videotape technicians at CBS. Plaintiff describes videotape editing as a "more sophisticated" or "more demanding" duty of a videotape technician. Plaintiff is qualified, to some degree, to perform CMX editing.
Two videotape technicians are required to perform a CMX editing session. The two technicians are informally known as the "lead editor" and the "assist." When plaintiff performs CMX editing, it is in the capacity of an "assist." Plaintiff does not have the editing skills necessary to perform the lead editor function.
Under the terms of the "handshake agreement" referred to above, videotape technicians are entitled to an upgrade to supervisor-level salary when they perform CMX editing functions. If a videotape technician is only temporarily assigned as a CMX editor, he or she will receive a pay upgrade for each day spent performing videotape editing functions. If a technician provides videotape editing services for less than a complete day, his or her salary is upgraded for the entire day. Both lead editors and assists are entitled to this pay upgrade. Permanent CMX editors' salaries are permanently upgraded. At least four African-American CMX editors have had their salaries permanently upgraded in this way. It is not clear whether videotape technicians receive a salary upgrade for performing Avid or Profile editing.
CBS states that it is trying to phase out CMX editing. CMX editing equipment is no longer manufactured, and CBS is discontinuing the use of the CMX equipment it already owns as it acquires more modern editing hardware.
CBS states that as a result of this phase-out, CBS no longer provides training in CMX editing. The last time CBS provided classes in CMX was in 1991.
Training in CMX can also be accomplished by pairing the technician to be trained with an experienced CMX editor. Plaintiff states that he is aware of a number of instances in which videotape technicians were trained in CMX editing by a more experienced mentor, but states that such training occurred a number of years ago. Nevertheless, CMX editing still comprises a substantial amount of the videotape editing work performed at CBS.
CBS provided formal training in Avid editing to 50% of its videotape technicians, including one African-American technician. Plaintiff did not receive Avid training, nor did he request it. CBS provided formal training in Profile editing to all of its videotape technicians. Plaintiff received Profile training, and subsequently received Profile editing assignments.
The Letter of June 2, 1998
Plaintiff's regular work week is Tuesday through Sunday, although he has often requested to be moved to a regular Monday through Friday schedule. From 1994 until August 1998, plaintiff performed videotape technician duties for several different television programs. One of plaintiff's assignments was to perform CMX assist services for the Late Show with David Letterman two or three days per week. In addition to this CMX work, plaintiff was assigned to do a substantial amount of what he describes as "basic" videotape technician duties. Plaintiff performed these duties for the Sunday Morning news program, as well as for other programs.
On June 2, 1998 plaintiff wrote a letter to his supervisor at COE, Donna Selby (formerly Donna Faltitschek) stating that, with regard to CMX editing, plaintiff had not "had the opportunity to develop the level of familiarity I believe is needed" to be eligible for the full range of CMX assignments. The letter stated that, in the past, CBS has provided editing training to technicians by teaming them with senior editors for a period, then giving them relatively simple editing assignments to allow them to practice their skills, and finally giving the technician a regular, recurring editing assignment. To this end, plaintiff requested the following:
1. The person I would like to be "teamed" with, for the purpose of providing me the type of training listed above is Steve Babb.
2. After Step #1 has been performed, I would then request that Mr. Babb, you and I meet to determine where I will be assigned, on an interim basis, so as to allow me to perform functions consistent with my new training that will allow me to be prepared for a full assignment.
3. The full time assignment I will be requesting is to do editing, full time for the David Letterman show. It is important that you understand that I want to do this assignment on a full time, five day a week Monday through Friday) basis.
The letter was copied to plaintiff's union representative, plaintiff's lawyer, and the Vice President of Human Resources at CBS.
Upon receiving the letter, Selby telephoned Bob Fallor, the Late Show's Operations Manager, to ask whether there was an opportunity for plaintiff to perform full-time CMX editing on the show. Fallor told Selby, after speaking with Assistant Directors of the Late Show, that there was no full-time opportunity for plaintiff at the Late Show. The Late Show did hire two Caucasian CMX editors in 1998. However, when the Late Show hired these individuals, it was looking for experienced CMX editors capable of performing the lead editor function.
Selby consulted with CBS's Law Department regarding the contents of plaintiff's June 2, 1998 letter. The Law Department advised Selby that she need not respond to the letter, and that if plaintiff had a complaint about not receiving training, he should grieve it with his union. Selby never contacted plaintiff regarding the letter. The Law Department did not contact plaintiff regarding the letter. The union, although it was copied on the letter, did not contact plaintiff with regard to the letter.
Reorganization of COE
In August of 1998 CBS transferred more than 300 employees, including technicians, associate directors, stage hands and other operations employees, from COE to the News Division. As part of this reorganization, CBS transferred to the News Division those videotape technicians who had regular assignments to news programs. Plaintiff, who had a regular assignment with the news program Sunday Morning, was transferred to the News Division where he continued to work on the Sunday Morning show. As a result of this transfer, plaintiff was no longer assigned to work on the Late Show. Although plaintiff's base salary remained the same, plaintiff no longer received CMX editing assignments, and therefore did not receive the concomitant salary upgrades. In early 1999, plaintiff was transferred back to COE as part of a reduction at the News Division. Nine technicians were transferred to COE at this time, 6 of whom were Caucasian and three of whom were African-American. Plaintiff continued to work on the Sunday Morning show after his transfer back to COE. It continued to be the case that plaintiff was not given CMX assignments. Defendant asserts that this is because CBS simply does not have much CMX work.
The Letter of December 31, 1998
On December 31, 1998, plaintiff's former attorney, Charles Powell, wrote a letter to Robert Ross, CBS's Vice President of East Coast Operations.
The letter stated that CBS's success in the preceding lawsuit was premised on the court's holding that plaintiff had not been denied any training opportunities. The letter stated that since the time of the first lawsuit, however, plaintiff had in fact been denied training and impeded in his professional development, and that as a result, plaintiff felt that he was being discriminated against because of his race, or was being retaliated against for having filed the first lawsuit. The letter closed by stating: "[T]he actions, or lack of action, on behalf of CBS has placed [my client] in the position where he may not have any choice but to pursue these issues in outside forums. I ask that you investigate to see whether anything can be done to change the current outlook of myself and my client." Ross determined that the letter needed to be responded to by a lawyer and forwarded copies of the letter to CBS's Labor Relations Department. Neither Ross nor the Labor Relations Department responded to the letter. The Labor Relations Department erroneously believed that the Law Department had also received a copy of the letter and would respond to it.
Several other facts bear mentioning. Selby claims that at some point Fallor told her that certain Assistant Directors at the David Letterman Show felt uncomfortable with plaintiff, calling him "creepy." Also, Ross has testified that he felt that plaintiff was a "high maintenance employee," which he describes as an employee that requires more monitoring than the average employee.
Discussion
Summary judgment is appropriate when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P 56(c). The burden is on the moving party to demonstrate that no genuine issue of material fact exists. Heyman v. Commerce Indus. Ins. Co., 524 F.2d 1317, 1320 (2d Cir. 1975). All ambiguities must be resolved and all inferences must be drawn in favor of the non-moving party. Eastway Constr. Corp. v. City of New York, 762 F.2d 243, 249 (2d Cir. 1985). When no rational jury could find in favor of the non-moving party because the evidence to support its case is so slight, there is no issue of material fact and a grant of summary judgment is proper. Dister v. Continental Group, Inc., 859 F.2d 1108, 1114 (2d Cir. 1988). A litigant may not defeat a motion for summary judgment solely through "unsupported assertions" or conjecture. Goenaga v. March of Dimes Birth Defects Foundation, 51 F.3d 14, 18 (2d Cir. 1995). A court must be especially cautious about granting summary judgment in a discrimination case in which the employer's intent is at issue. Gallo v. Prudential Residential Services, L.P., 22 F.3d 1219, 1224 (2d Cir. 1994). "Because writings supporting a claim of intentional discrimination are rarely, if ever, found among an employer's corporate papers, affidavits and depositions must be carefully scrutinized for circumstantial proof which, if believed, would show discrimination." Id.
Race Discrimination Claims
Courts apply a three-stage test when evaluating race discrimination claims such as plaintiff's. First, the plaintiff has the burden of proving by a preponderance of the evidence a prima facie case of discrimination. Second, if the plaintiff succeeds in proving the prima facie case, the burden shifts to the defendant to articulate some legitimate, nondiscriminatory reason for the employee's discharge. Third, should the defendant carry this burden, the plaintiff must then have an opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 252-53 (1981); McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973).
To establish a prima facie case for employment discrimination, plaintiff must show: (1) that he belongs to a protected class; (2) that he satisfactorily performed the duties required in his position; (3) that plaintiff was subjected to an adverse employment action; and (4) that the employment action occurred under circumstances giving rise to an inference of discrimination. Stern v. Board of Trustees of Columbia University, 131 F.3d 305, 311 (2d Cir. 1997). The plaintiff's burden at the prima facie stage is de minimis. Chambers v. TRM Copy Centers Corp., 43 F.3d 29, 37 (2d Cir. 1994).
It is undisputed that plaintiff, an African-American, is a member of a protected class. It is also largely undisputed that plaintiff performed satisfactorily as a videotape technician. Plaintiff's brief in opposition to this motion for summary judgment describes adverse employment actions that were allegedly taken against him. Plaintiff claims that by placing him in the News Division, CBS eliminated any opportunity for him to perform CMX work and receive a salary upgrade. He specifically claims that he was improperly removed from his CMX assist position at the Late Show. Plaintiff claims that he has been improperly relegated to the basic duties of a videotape technician.
The court will assume, for the purpose of this motion, that the occurrences listed above were adverse employment actions.
However, plaintiff has made no showing beyond his own conjecture that these adverse employment actions occurred under circumstances giving rise to an inference of racial discrimination. Plaintiff asserts that the "basic" videotape technician assignments are held mostly by African-Americans and that the "more creative work, for which a salary upgrade is provided, are for the most part either denied to African-Americans, or a subtle cap is placed on their filling these jobs." Plaintiff's brief at 10. There is no evidence in the record on this motion to support these assertions.
Plaintiff points to the fact that two Caucasian persons were hired as full-time CMX editors within 18 months of his removal and contends that this is evidence that his removal from the Late Show was discriminatory.
However, no inference of racism arises from the hiring of the two Caucasian editors since plaintiff was not replaced by these individuals; they were clearly hired to perform functions, as lead CMX editors, that plaintiff was unable to perform. Similarly, there is no evidence that plaintiff's assignment to the News Division, which relieved him of CMX editing opportunities, was racially motivated. Plaintiff has not shown that the reorganization and the transfer of large numbers of technicians to the News Division impacted African Americans disproportionately, nor has he shown that anyone responsible for the reorganization or plaintiff's transfer had racial animus generally or toward him in particular. Finally, plaintiff has not shown that his assignment to "basic" videotape technician functions was related to his race. Plaintiff makes the assertion that such tasks are "for the most part" assigned to African Americans, but does not support this assertion with evidence or statistics.
Plaintiff has failed to make out a prima facie case for employment discrimination and has not even demonstrated a triable issue of fact in this regard.
Retaliation Claims
To establish a prima facie case of retaliation, a plaintiff must show that (1) he was engaged in an activity protected under Title VII; (2) the employer was aware of plaintiff's participation in the protected activity; (3) the employer took adverse action against plaintiff; and (4) a causal connection existed between the plaintiff's protected activity and the adverse action taken by the employer. Gordon v. New York City Bd. of Educ., 232 F.3d 111, 116 (2d Cir. 2000). Once a prima facie case of retaliation is established, the burden shifts to the employer to demonstrate that a legitimate, nondiscriminatory reason existed for its action. Sumner v. U.S. Postal Serv., 899 F.2d 203, 209 (2d Cir. 1990). If the employer succeeds in demonstrating the existence of a legitimate, nondiscriminatory reason for its action, the burden shifts back to the plaintiff to establish, through either direct or circumstantial evidence, that the employer's action was, in fact, motivated by discriminatory retaliation. Id.
It is undisputed that the filing of plaintiff's first lawsuit was a protected activity and that CBS knew about the filing of the suit. The court will continue to assume for purposes of this motion that the actions that plaintiff complains of constituted adverse employment actions.
A plaintiff may establish the element of causal connection either indirectly, by showing that the protected activity was closely followed in time by the adverse action, Reed v. A.W. Lawrence Co., Inc., 95 F.3d 1170, 1178 (2d Cir. 1996), or directly through evidence of retaliatory animus directed at the plaintiff by the defendant. DeCintio v. Westchester County Medical Center, 821 F.2d 111, 115 (2d Cir. 1987). Plaintiff has not set forth any evidence of retaliatory animus toward him. Indeed, the evidence shows beyond question that what happened was a reorganization that affected many employees. There is no support whatever for plaintiff's assertion that he was singled out and subjected to either racial discrimination or retaliation. In apparent recognition of this, plaintiff attempts to support the existence of a causal connection for the retaliation claim by pointing to the fact that the actions he complains of occurred "within eight months of the conclusion of his Title VII lawsuit". Plaintiff's brief at 14. Plaintiff filed the first lawsuit on July 8, 1994, and that lawsuit was dismissed on May 13, 1997. The appeal was concluded in January of 1998. The actions that plaintiff complains of occurred in June of 1998 and thereafter. Given the complete absence of evidence of retaliatory motive, this court finds that this is insufficiently close in time to suggest causation.
Plaintiff has not made out a prima facie case for retaliation and has not even demonstrated a triable issue of fact in this regard.
Attorney's Fees and Costs
Defendant included in its notice of motion for summary judgment a request for an award of attorney's fees and costs. Defendant did not brief the issue of attorney's fees and costs in the papers accompanying its motion.
The request for an award of attorney's fees and costs is denied.
Conclusion
Defendant's summary judgment motion is granted and this action is dismissed. Defendant's motion for an award of attorney's fees and costs is denied.
SO ORDERED