Opinion
00 Civ. 3295 (GEL)
February 1, 2002
Roberto Campos-Marquetti, Esq., New York, N Y for Plaintiff Neddie K. Graham.
Jerry S. Goldman, Jerry S. Goldman Associates, P.C., New York, N Y (Peter L. Herb, Jerry S. Goldman Associates, P.C., New York, NY, of counsel) for Defendant Kimber Mfg., Inc.
OPINION AND ORDER
In this employment discrimination action pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. (1982) ("Title VII"), and the New York State Human Rights Law, N.Y. Executive Law §§ 296,297 (McKinney 2001), plaintiff Neddie K. Graham charges his former employer, Kimber Mfg., Inc., with discriminating against him on account of his race and national origin. The amended complaint alleges that Graham was fired from his job as a machinist, which he performed competently, because he is a black man of Jamaican origin. Discovery having been completed, Kimber moves for summary judgment. The motion will be granted in part and denied in part.
DISCUSSION
I. Standards for Summary Judgment
Summary judgment may only be granted 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(b). The party opposing summary judgment "may not rest upon mere allegations or denials," rather it must "set forth specific facts showing that there is a genuine issue for trial." Id. 56(e). To defeat a motion for summary judgment, the non-moving party "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 1986). "[I]f the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50 (1986). Similarly, the non-moving party cannot defeat summary judgment by "offering purely conclusory allegations of discrimination, " Meiri v. Dacon, 759 F.2d 989, 998 (2d Cir. 1985), or by offering evidence in opposition that is merely speculative. See Dister v. Continental Group, Inc., 859 F.2d 1108, 1116-1117 (2d Cir. 1988). Accordingly, to defeat summary judgment, it must set forth "concrete particulars" showing that a trial is needed. R.G. Group. Inc. v. Horn Hardart Co., 751 F.2d 69, 77 (2d Cir. 1984).
II. Employment Discrimination
The framework for analyzing summary judgment motions in employment discrimination claims was recently revisited by the Second Circuit inJames v. New York Racing Assoc., 233 F.3d 149 (2d Cir. 2000). In James, the Court of Appeals considered the effect of the latest ruling of the Supreme Court, Reeves v. Sanderson Plumbings Prods., Inc., 530 U.S. 133, 120 S. Ct. 2097 (2000), on prior circuit case law, as announced in Fisher v. Vassar College, 114 F.3d 1332 (2d Cir. 1997) (en banc). The Court's conclusion was that Reeves was entirely consistent with Fisher, and left prior circuit law unchanged, since "both opinions essentially stand for the same propositions." James, 233 F.3d at 156.
Claims of discrimination under the New York Human Rights Law are evaluated using the same analytic framework as Title VII actions of the federal Civil Rights Act of 1964. See, e.g., Farias v. Instructional Systems, Inc., 259 F.3d 91, 98 (2d Cir. 2001); Cruz v. Coach Stores, Inc., 202 F.3d 560, 565 n. 1 (2d Cir. 2000); Delta Air Lines, Inc. v. New York State Div. of Human Rights, 652 N.Y.S.2d 253, 258 (1st Dep't 1996);Matter of Miller Brewing Co. v. State Div. of Human Rights, 66 N.Y.2d 937, 938 (N.Y. 1985).
Under the analysis applied in Fisher and reaffirmed in James, we begin by asking whether the plaintiff has established the "minimal" prima facie case defined by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). As the Second Circuit explained in James,
This requires no evidence of discrimination. It is satisfied by a showing of "membership in a protected class, qualification for the position, an adverse employment action," and preference for a person not of the protected class.James, 233 F.3d at 153-54. Meeting this test "creates a presumption that the employer unlawfully discriminated." Fisher, 114 F.3d at 1335. This presumption "places the burden of production on the employer to proffer a nondiscriminatory reason for its action." Id. at 154. If the employer fails to present such a reason, plaintiff prevails.
"On the other hand, once the employer "articulates a non-discriminatory reason' for its actions, Fisher, 114 F.3d at 1336, the presumption completely `drops out of the picture.' St. Mary's [Honor Ctr. v. Hicks], 509 U.S. [502,] 510-11 [(1993)]." Id. At that point, "the employer will be entitled to summary judgment . . . unless the plaintiff can point to evidence that reasonably supports a finding of prohibited discrimination." Id. Evidence casting doubt on the employer's proffered justification "may — or may not — be sufficient" to provide this support. Fisher, 114 F.3d at 1333. Thus, when the employer has proffered an explanation and the plaintiff has attempted to refute it, the Court's responsibility is to "examin[e] the entire record to determine whether the plaintiff could satisfy his `ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff'" Schnabel v. Abramson, 232 F.3d 83, 90 (2d Cir. 2000) (citing Reeves, 120 S.Ct. at 2106).
Thus, in addressing defendant's motion, the Court must consider whether plaintiff has met his burden of establishing a prima facie case, and, if so, whether the defendant has adduced evidence of a non-discriminatory reason for any adverse employment action. Ultimately, the question before the Court is whether the record presents sufficient evidence to permit a rational factfinder to find that plaintiff suffered an adverse employment action because of his race or national origin.
III. The Standards Applied
A. The Parties' Contentions
Kimber argues that there was neither adverse employment action nor discrimination. According to Kimber, Graham was originally employed as a calibrator and visual inspector of the firearms it manufactured, and it is undisputed that he performed these functions capably, with no history of disciplinary action, and received several raises. When Kimber's automated production processes improved, however, there was no longer a need for a full-time calibrator/inspector. Rather than lay off Graham, his supervisor, Abdul Jamal, went out of his way to find other work for Graham, and assigned him to the more complex task of "deburring." Jamal assigned another worker, who was experienced in this task, to train Graham, but Graham didn't like the work, was unable or unwilling to perform it, and took to being absent from work. Confronted about his unsatisfactory performance, Graham acknowledged his problems with the job, asked to be reassigned to his no-longer-existing former job title, and quit when told that that job no longer existed. (Def's Ex. K at 85-86, 95; Def's Ex. L at 14-16; Def's Ex. M at 18-19, 24-25; Def's Ex. G.)
The process of "deburring" at Kimber entails operating a machine with precision to remove excess metal or other materials from a machine part that is in the process of being manufactured, and requires the operator use a hand grinder and read a measuring tool. (Def's Ex. K at 76; Def's Supp. Ex. A at 31; Def's Supp. Ex. C at 77.)
Graham, in contrast, argues that Jamal, whom he accuses of racial prejudice, forced him out of his job by reassigning him to a task he could not perform, and failing to provide adequate, or indeed any, training, beyond a few useless words from an experienced worker who could barely speak English. (Def's Supp. Ex. A at 8, 27, 30.) He testifies that Jamal used racially derogatory terms and expressed stereotypes about blacks and Jamaicans, and from the start of his employment subjected him to demeaning and discriminatory treatment by requiring him to chauffeur Jamal on personal errands, either on company or personal time, in Graham's personal car at Graham's expense. His account is supported in some particulars by a former fellow-employee. (Def.'s Supp. Ex. A at 9, 11-21, 24-25, 31, 36, 60, 71, 76; Def's Supp. Ex. Eat 26, 31, 34, 71, 72, 102, 103.)
B. Adverse Employment Action
Kimber argues that Graham has failed to make a prima facie case that he even suffered any adverse employment action, arguing that the record shows that he quit. (Def's Br. at 12-13.) While Kimber offers substantial evidence to support its account of Graham's departure from its employ, it is for a jury to decide the credibility of Kimber's witnesses, and a reasonable factfinder would not be required to accept their testimony.
Kimber argues in passing that Graham has not even established that he is a member of a protected class, citing to a page of his deposition in which he acknowledges that most Jamaicans are of mixed racial background. (Def's Reply Br. at 2 n. 2 Ex. V.) This argument is barely worthy of answer. Since the concept of "race" has no biological basis, the Court cannot and will not classify him as belonging to some particular race. There is no serious dispute on this record that Graham classifies himself as black, that he is at least in part of African descent, and that within American society he would reasonably be perceived as black.
Graham's account has some support in the record. First, the documentary record, such as it is, is hardly conclusive. Graham's employment records do not identify any particular job for which he was hired. (Def's Ex. E.) Kimber has submitted no documentary records establishing that "calibrator/inspector" was an actual job title, rather than simply a task to which employees with machinists' skills could be assigned. The "Employee Warning Notice" signed by Graham states that Graham "will be layed [sic] of[f] from his job," not that Graham quit. (Def's Ex. G.) The "Employee Statement" portion of the form states, in sketchy handwriting and grammar, "My first job that I did for 2 year 11 [months] I did well. Job change could not perform." (Id.) This cryptic statement is open to interpretations consistent with either Graham's or Kimber's account, and cannot be taken as an unequivocal admission or endorsement of Kimber's position.
Moreover, Kem Amin Alladin, a former employee and friend of Graham's, testifies that he heard Jamal say that he wanted to fire Graham, testimony hardly consistent with Kimber' s position that Jamal made extraordinary efforts to avoid laying Graham off when his services were no longer required. (Def's Supp. Ex. E at 77.) Graham testified, moreover, that other employees were assigned the calibration/inspection tasks he formerly performed (Def's Supp. Ex. A 28-29), and Kimber acknowledges that while there was not a need for a full-time person performing this work, there was still at a minimum a few hours a day of such work (Def's Ex. F at 45; Def's Br. at 17) and the task was parceled out to other workers.
Thus, there are genuine issues of material fact with respect to whether Graham quit, was fired, or was put in an untenable assignment that led to his departure and thus constituted "constructive termination." See, e.g., Romano v. Basicnet, Inc., 661 N.Y.S.2d 135 (4th Dep't 1997) (defendant made working conditions so difficult that a reasonable person would feel forced to resign) (citing Fischer v. KPMG Peat Marwick, 607 N.Y.S.2d 309 (1st Dep't 1994)). A reasonable fact-finder could conclude on this record (though of course it could also conclude otherwise) that Graham was hired as a general machinist, primarily assigned to perform a particular task which continued to be performed by others after he left the company, that he was re-assigned to different work beyond his training as a pretext to permit him to be fired, and that he was then fired when he predictably proved unable to perform the work.
C. Race Discrimination
Kimber argues that its work force was a veritable United Nations of races and nationalities, all of whom got along happily and were treated equally. It is undisputed that while Graham was assigned to work on calibration and inspection, he was regarded as a good worker and received several raises. Kimber also points out that Jamal, Graham's supervisor, was himself a person of color of Caribbean origin (apparently of South Asian descent), and cites the testimony of numerous employees to support its account of a non-discriminatory workplace. That view might well prevail at trial.
Graham, however, testifies to specific mistreatment on the basis of race. He swears that Jamal called him a "nigger," told him to "[g]o back to Africa," asserted that "because I'm black I'm below him," and stated that he doesn't "like black people." (Def's Supp. Ex. A 12, 31, 71.) He testifies that he alone was required to get Jamal's permission to go to the bathroom (Id. 13), and made to drive Jamal on errands, which was not part of his job description (Id. 13-22). Alladin supports Graham's version, testifying that Jamal told him that "blacks, they don't like to work, they are less knowledgeable, and he don't like to work with them due to that." (Def's Supp. Ex. E at 26.) He further testifies that Jamal specifically told Graham that he would be fired for incompetence, and that "because he's black he can't learn, his head is hard." (Id. 71-72.) According to Alladin, Jamal "always criticized blacks," including Graham and himself, as well as others. (Id. 31.) Alladin also supports Graham's account of being required to drive Jamal on errands. (Id. 49, 78.)
The record would support a finding that Jamal was the key actor in deciding whether Graham was reassigned, retained, or fired. (Def's Supp. Ex. A at 63; Def's Supp. Ex. C at 76, 80, 90-92; Def's Ex. M at 14, 17, 24, 27.) If believed, these specific accounts of racial animus on Jamal's part would support a finding that Graham was terminated because of his race.
D. National Origin Discrimination
The record with respect to national origin, on the other hand, is quite different. The sole reference to national origin in the record is Graham's brief testimony, in response to a leading question, that Jamal "said Jamaicans are lazy. They don't want to work and [are] always looking for something to steal." (Def's Supp. Ex. A at 76-77.) Although Graham testified that other workers, including Alladin, heard such remarks (Id. 77), no other witness reports hearing any such remarks. Moreover, Graham's own complaint notes that one of the workers who was assigned to take over his former tasks was a "non-Black Jamaican," apparently someone, like Jamal, of East Indian descent. (Compl. ¶ 19; see also Def's Supp. Ex. A at 28.) This fact is surely inconsistent with a finding that Jamal discriminated against Jamaicans as a nationality; if Graham's evidence is believed, any bias on Jamal's part was directed at black Jamaicans only, and thus was predicated on race, not national origin. Since no reasonable factfinder could conclude that Graham was fired because of his national origin, summary judgment for the defendant must be granted on Counts Four and Five.
Counts Three and Six, charging race and national origin discrimination in violation of New York City law, have been withdrawn, presumably because Kimber's plant is located in Yonkers, not in New York City.
E. Pretext
The rulings above already largely dispose of this issue. Kimber has brought forth substantial evidence that, assuming any adverse employment action against Graham is found, such action was taken for legitimate, non-discriminatory reasons, specifically, that the job Graham was hired to perform was no longer necessary, and he proved incompetent at performing the new job he was assigned instead. However, as noted above, Graham does not rest merely on a prima facie showing, but has adduced specific evidence of racial bias that would be sufficient to allow a rational factfinder to conclude that these were not the true reasons for his firing or reassignment. This is not a case in which a factfinder must draw inferences of discrimination from conflicting accounts of whether the plaintiff was or was not a satisfactory employee. Indeed, Kimber does not dispute that Graham was a perfectly satisfactory worker in his initial assignment, and Graham does not dispute that he was unable to perform the job to which he was later assigned. Graham relies not on any presumption, but on direct testimony as to express racial bias, that, if believed, would support a finding of pretext.
In short, Graham presents testimony suggesting that the supervisor who made the decision was a bigot who wanted to fire him because of his race; had no excuse to dismiss him because he was a good worker; and so transferred him from a job that was then assigned to others, to one for which he was not given adequate training, in order to set him up so that he could be fired. Kimber presents evidence suggesting that there was no longer a need for a full-time person in Graham's old job; that the supervisor was not only unbiased, but went to some trouble to have Graham retrained for a new position; and that Graham walked away when he could not master the new job.
This is the kind of dispute that must be resolved by a jury. Depending on which witnesses are believed, a rational jury could find for either side. Summary judgment is therefore denied as to Counts One and Two, which charge racial discrimination in violation of federal and state law.
CONCLUSION
For the reasons set out above, defendant's motion for summary judgment is granted as to Counts Four and Five, and denied as to Counts One and Two.
In accordance with the Court's Individual Practices in Civil Cases, a joint pretrial order is due within 30 days of the filing of this opinion, unless the parties notify chambers within that period that they agree that the case should be referred for mediation or for a settlement conference before a magistrate judge.
SO ORDERED.