Opinion
No. 96 Civ. 9015 (DAB).
August 24, 2004
Ronald M. Joseph, Brooklyn, NY, PRO SE PLAINTIFF.
DANIEL TOPPER, MARTIN B. SCHNABEL, New York City Transit Authority, Brooklyn, New York, ATTORNEYS FOR THE DEFENDANTS.
MEMORANDUM AND OPINION
Plaintiff Ronald M. Joseph ("Plaintiff"), an African-American man, brings this action, pro se, for compensatory and punitive damages and restitution, pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000, et. seq. ("Title VII"). Plaintiff alleges that Defendant Manhattan and Bronx Surface Transit Operating Authority ("Defendant" or "MABSTOA"), discriminated against him on the basis of race by failing to promote him, by terminating his employment, and by imposing unequal terms and conditions on his employment, and that the Defendant unlawfully retaliated against him by discharging him after he complained of the discrimination. Defendant moves for Summary Judgment pursuant to Fed.R.Civ.P. 56. For the following reasons, Defendant's motion is GRANTED.
Plaintiff filed claims under §§ 1981 and 1983 in a separate action, 98 Civ. 4969 (DAB) after withdrawing his § 1983 claims from this case.
I. BACKGROUND
Plaintiff was employed as a bus operator by the Defendant from May 6, 1985 to May 30, 1995. (Topper Aff. Ex. B, Deposition of Ronald Joseph, September 8, 1997, hereinafter "Joseph Dep.," at 13.) Plaintiff's duties included providing passenger service, most frequently on the M10 line, which runs on 7th Avenue and Broadway in Manhattan. (Id. at 15.) Plaintiff was supervised by various dispatchers. (Id. at 16.) During his term of employment, Plaintiff, other drivers, and the dispatchers were collectively supervised by various General Superintendents, including William Odom, Lawrence Lusk, and an individual identified as Kilkenny. (Id.)
Kilkenny's first name is not provided.
Plaintiff took and passed an exam for promotion to the position of Dispatcher in June 1987. (Def.'s 56.1 ¶ 8.) However, Plaintiff learned in January 1989 that he had not been promoted. (Def.'s 56.1. ¶ 9.)
On March 13, 1993, Plaintiff's bus became snowbound during a blizzard. (Pl. Aff. at 6; Pl. Aff. Ex.16 at 1.) Plaintiff was approached by several MABSTOA management personnel; what follows is an issue of some dispute. Plaintiff states that he "lost his footing in the snow as he was exiting; causing him to fall on his back," and was "hurt momentarily after falling." (Pl. Aff. at 6.) Plaintiff also states that he was "suffering from exhaustion from digging throughout the day with the broken police barricade, and again once supervision arrived," and admits that he "used obscenities on a couple of occasions," but that "that speech was not directed at any one." (Id.) In the end, Plaintiff was charged with Gross Insubordination, Intimidating Manner, Use of Profane Language, and Serious Misconduct Detrimental to the Defendant. (Def.'s 56.1 ¶ 16, Ex. 6.) Although MABSTOA initially concluded that Plaintiff should be dismissed, after a hearing, an arbitrator upheld the charges but modified the disciplinary action to a "nine week suspension without pay . . . [and] a one year period of probation for insubordination." (Def.'s 56.1 ¶ 20, Ex. 7; Pl. Aff. Ex. 16 at 5.) The Arbitrator concluded that Plaintiff's conduct "was totally unacceptable and inconsistent with accepted standard of employee conduct," but modified the sanction because Plaintiff "was suffering from physical and emotional exhaustion during the incident," and also in view of Plaintiff's "credible testimony and the extreme conditions on the day in question." (Pl. Aff. Ex. 16 at 5.)
On May 18, 1993, Plaintiff filed an Intake Form with the New York City Commission on Human Rights ("NYCCHR") claiming he had been harassed because of his race. (Pl.'s 56.1, Ex. 29.) On the Intake Form, Plaintiff indicated that he intended his complaint to be filed with the Equal Employment opportunity Commission ("EEOC") as well. (Id.) On July 27, 1993, Plaintiff filed a Verified Complaint with the NYCCHR, claiming "disparate treatment" and denial of "equal terms and conditions of employment because of his race and color." (Def.'s 56.1, Ex. 3.)
The EEOC and the NYCCHR have a work-sharing agreement whereby a filing with the NYCCHR constitutes a "dual-filing" with the EEOC. Charlotten v. The May Dep't Stores Co., No. 97 Civ. 8962, 1998 WL 635547, *3 (S.D.N.Y. Sept. 16, 1998).
In December 1993, Plaintiff was informed he would not be promoted, on the basis of a second promotional exam he took in late 1991. (Joseph Dep. at 84.)
On March 29, 1995, Plaintiff was involved in an accident, wherein his bus struck a parked police car. (Def. 56.1 ¶ 19, Ex. 9; Pl. 56.1 ¶ 19.) As a result, Plaintiff was charged with a "preventable" accident, serious misconduct, and failure to comply with CDL and Vehicle Traffic Law. (Def. 56.1 ¶ 19; Pl. 56.1 ¶ 19.) Plaintiff appealed, and after a hearing, the same Arbitrator that heard Plaintiff's March 1993 appeal upheld the charges but modified the penalty of dismissal to a time-served suspension. (Def. 56.1 ¶ 20; Pl. 56.1 ¶ 20.) The Arbitrator concluded that Defendant MABSTOA "may not have had all the material presented at the Arbitration hearing for their review in assessing [Plaintiff's] condition." (Def. 56.1 Ex. 9 at 2.)
On April 28, 1995, Plaintiff filed a second NYCCHR Intake Form, alleging discrimination and retaliation. (Compl. ¶ 9; Joseph Dep. at 77.)
On May 27, 1995 Plaintiff was involved in an incident with MABSTOA dispatcher Michael Rogers, as a result of which he was charged with insubordination, with a recommended penalty of dismissal. (Def. 56.1 ¶ 21; Pl. 56.1 ¶ 21.) Plaintiff appealed, and arbitration proceedings were conducted by the same arbitrator that had heard Plaintiff's prior appeals from disciplinary actions in March 1993 and March 1995. (Def. 56.1 ¶ 20; Pl. 56.1 ¶ 20.) The Arbitrator upheld the charges and the penalty of dismissal, stating that:
[u]nfortunately, the grievant is no stranger to the disciplinary process. On at least two (2) prior occasions the grievant was before this Impartial Arbitrator. In both of those cases there was an underlying theme — an inability to interact with supervision and to recognize supervision's legitimate role in directing the workforce. In one of those cases, this Arbitrator found the grievant was directly insubordinate to a number of Authority managers and also disrupted service. In that case, the Arbitrator modified the penalty of dismissal and restored the grievant to the payroll with a clear warning that further acts of insubordination would not be tolerated. In the subsequent case, the grievant, when questioned by supervision regarding a preventable accident wherein the grievant struck a standing police car stated, `I might have wanted to hit the police car on a subconscious level.' In that case this Arbitrator modified the proposed penalty of dismissal to a time served suspension and referred the grievant to the Medical Department for further evaluation before returning to duty. In both cases the authority and this Arbitrator provided the grievant with the benefit of the doubt in the sincere hope that the grievant would recognize his responsibility and duty to obey supervisory directives and to further recognize supervision's legitimate role in directing the workforce. For reasons known only to the grievant he has chosen to not heed those warnings and to not timely comply with reasonable supervisory directives. Based on the grievant's past disciplinary record and the instant facts, the Arbitrator is left with no choice but to uphold the penalty as proposed by the Authority.
(Def.'s 56.1, Ex. 11.)
On June 21, 1995, Plaintiff completed and signed a third NYCCHR Intake Form, claiming that he had been terminated in retaliation for filing the 1993 Complaint. (Pl.'s 56.1, Ex. 29.) He subsequently wrote to NYCCHR, requesting that his retaliation claim be "included" in his 1993 EEOC complaint. (Id.)
Plaintiff did not file a formal Complaint with the NYCCHR based on his Intake Form filings on April 18 and June 21, 1995. (Dep. at 77.) In deposition testimony, Plaintiff stated that, although he had filed an official complaint in 1993, when he signed the Intake forms in 1995 he did not know the procedure for filing a retaliation claim, and that NYCCHR staff told him his retaliation claim would be "dealt with," but the agency was backlogged. (Dep. at 81.)
Plaintiff alleges that he visited the NYCCHR on July 19, 1995, and was told that, because of a case backlog, it could take as many as three years before an investigation was commenced. (Pl. Aff. at 1.) In a letter dated August 7, 1995, NYCCHR Human Rights Specialist Alonso Myers wrote Plaintiff: "As was explained to you, an amendment to your original complaint will be dealt with shortly." (Pl. 56.1 Ex. 29 at 8.)
Plaintiff also includes in his 56.1 materials an internal NYHCCR memo from Mr. Myers to an NYHCCR supervisor, stating:
Mr. Joseph filed what he believes is a matter of retaliation recently.
My question is — due to the fact that [h]is original complaint appears to have not been resolved, is this incident report (see attached) a continuation of the same original complaint;? a new complaint;? or, retaliation? And, if it is retaliation, is it written up or drafted in the Amended Complaint format?
(Pl. 56.1 Ex. 29 at 9) (errors and omissions in original.)
In July 1995, Plaintiff met with and attempted to pursue his claims with Mr. Glen Nichtelhauser, of the New York State Department of Human Rights, but was informed that the State Department of Human Rights was precluded from accepting his charges, because Plaintiff had already filed a charge with the NYCCHR. (Pl. Aff. at 2.) Plaintiff sought further information regarding his claim on July 19, 1995. (Id.) He then attempted to withdraw his NYCCHR claim, so that he could file a claim directly with the EEOC. (Id.) Plaintiff visited the EEOC in August 1995, and attempted to file a retaliation charge, but was told that "since EEOC had a work sharing agreement with CCHR, the complaint would automatically be dual filed with EEOC . . . [a]s a result the charge was not accepted by the EEOC." (Id.)
As an attachment to his 56.1 Statement, Plaintiff encloses a form letter from the State Department of Human Rights, notifying him of an appointment "to file a complaint," scheduled for Friday July 14, 1995 at 2:00 PM. (Pl. 56.1 Ex. 29 at 10.)
On November 30, 1995, the NYCCHR rendered a "No Probable Cause" determination with regard to Plaintiff's initial July 27, 1993 Complaint. (Pl.'s Aff. at 2.) On December 29, 1995, Plaintiff wrote an appeal letter to the NYCCHR, requesting a "review [of] the Commission's order . . . [because] the Commission did not address [Plaintiff's] amendments to the complaint on July, 19, 1995." (Pl.'s 56.1, Ex. 29.) Plaintiff received an acknowledgment, dated January 23, 1996, from NYCCHR that Plaintiff's appeal letter had been received, and that it would be "forwarded to all parties involved." (Id.)
Some six months later, on June 11, 1996, Plaintiff was notified by NYCCHR that its previous "No Probable Cause" determination had been affirmed. (Pl.'s Aff. at 2). Plaintiff alleges he requested a "Substantial Weight Review" from the EEOC, but the EEOC did not change its determination and issued Plaintiff a Right to Sue letter on August 2, 1996. (Id.)
Plaintiff attaches to his 56.1 statement a copy of a letter, dated June 27, 1996, requesting a substantial weight review. (Pl. 56.1 Ex. 29 at 11.)
Plaintiff initiated this lawsuit on November 29, 1996. (Id.) In his initial Complaint, Plaintiff alleged Unlawful Termination, Failure to Promote, Unequal Terms and Conditions of Employment, and Retaliation, and alleged that discriminatory acts occurred from November 1987 to January 1996, as well as January 31, 1991, April 2, 1990, March 16, 1993, April 12, 1996, and May 30, 1995. (Initial Compl. At 4.) In his Initial Complaint, Plaintiff stated that he filed a charge with NYHCCR on "7/27/93 Discrimination, 4/28/95 6/21/95 Retaliation." (Id. at 5.)
However, after filing this lawsuit, Plaintiff continued his efforts to amend his NYCCHR complaint. After the NYHCCR concluded its review proceedings, Plaintiff enlisted the assistance of local government officials to attempt to determine the status of his June 21, 1995 retaliation charge. (Id.) Plaintiff was ultimately informed that, "due to a procedural error CCHR would not be able to file an official complaint in the matter." (Pl. Aff. at 2.)
Plaintiff attaches to his 56.1 statement a copy of a letter, dated August 9, 1996, from the Chair/Commissioner of the NYHCCR, acknowledging receipt of a letter requesting response from Council Member Victor L. Robles, dated August 11, 1996. (Pl. 56.1 Ex. 29 at 12.)
In January of 1997, Plaintiff "realized his retaliation claim may be barred due to the lack of it being referenced in the initial Right to Sue letter." On January 7, 1997, Mr. Randolph Wills, NYCCHR Managing Attorney, sent a letter to Mr. Joseph Alvarado at the EEOC, stating in part:
As you know, Mr. Joseph's complaint did not state a retaliation claim, and an amended complaint stating such a claim was never filed. However, Mr. Joseph did allege a timely charge of retaliation against his former employer, as evidenced by the enclosed copy of his intake form. I hope that this will suffice as a basis for EEOC's issuance of a right to sue letter on that claim.
(Pl. 56.1 Ex. 29 at 13.)
Plaintiff alleges that Mr. Alvarado was on vacation for the "majority" of February, and that when Plaintiff was able to address him on February 28, 1997, "Mr. Alvarado decided that Plaintiff would file his complaint the following week, March 5, 1997, and that the case would be dismissed, and a Right To Sue letter would be issued. (Pl. Aff. at 2.) On March 5, 1997, Plaintiff filed a second Complaint with the EEOC, alleging retaliation. (Def.'s 56.1, Ex. 12.) The EEOC dismissed Plaintiff's Complaint as untimely filed; Plaintiff was issued a Right to Sue letter for the retaliation claim on March 19, 1997. (Id., Ex. 13.)
On April 4, 1997, Plaintiff filed an Amended Complaint with this Court, alleging Defendants engaged in discriminatory conduct against him by terminating his employment, failing to promote him, failing to provide equal terms and condition of employment, and retaliation. (Amend. Compl. at 3.) Subsequently, on July 14, 1997, Plaintiff filed a Second Amended Complaint.
The Second Amended Complaint is dated July 9, 1997; however, it was deemed filed and served on Defendant MaBSTOA by Magistrate Judge Andrew J. Peck on July 14, 1997.
Defendant now moves for Summary Judgment, arguing that Plaintiff has failed to meet conditions precedent to filing an action in federal district court, has failed to exhaust administrative processes relating to his claims, and has failed to create a genuine issue of material fact on whether race or retaliation influenced his termination. (Def.'s Mem. Law at 4, 8.)
II. DISCUSSION
A. Summary Judgment Standard
The principles applicable to summary judgment are familiar and well-settled. Summary judgment may be granted only when there is no genuine issue of material fact remaining for trial, and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986); Corselli v. Coughlin, 842 F.2d 23, 25 (2d Cir. 1988). A material fact is one whose resolution would "affect the outcome of the suit under governing law." Anderson, 477 U.S. at 248; Corselli, 842 F.2d at 25. Thus, "[t]he plain language of Rule 56(c) mandates the entry of summary judgment, . . . against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
As a general rule, all ambiguities and all inferences drawn from the underlying facts must be resolved in favor of the party contesting the motion, and all uncertainty as to the existence of a genuine issue for trial must be resolved against the moving party. Knight v. U.S. Fire Ins. Co., 804 F.2d 9, 11 (2d Cir. 1986); LaFond v. General Physics Servs. Corp., 50 F.3d 165, 171 (2d Cir. 1995). As is often stated, "[v]iewing the evidence produced in the light most favorable to the nonmovant, if 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); see also Bay v. Times Mirror Magazines, Inc., 936 F.2d 112, 116 (2d Cir. 1991). Finally, "credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge." Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 150 (2000) (citing Lytle v. Household Mfg., Inc., 494 U.S. 545, 554-55 (1990)).
B. Timeliness
Before initiating a Title VII action in federal court, a complainant must have filed an EEOC complaint and received from the EEOC a "Right to Sue" letter. Butts v. City of New York Dep't of Housing Preservation and Development, 990 F.2d 1397, 1401 (2d Cir. 1993), superceded by statute on other grounds as stated in Hawkins v. 1115 Legal Serv. Care, 163 F.3d 684, 693 (2d Cir. 1998); see also Gomes v. Avco Corp., 984 F.2d 1330, 1332-33 (2d Cir. 1992). "Title VII requires a claimant to file a charge of discrimination with the EEOC within 180 days of the alleged unlawful employment action, or if the claimant has already filed a charge with a state or local equal employment agency, within 300 days of the alleged discriminatory action."Van Zant v. KLM Royal Dutch Airlines, 80 F.3d 708, 712 (2d Cir. 1996); see also 42 U.S.C. § 2000e-5(e). This statutory requirement is analogous to a statute of limitations on claims under Title VII. Id. Thus, the limitation on the time allowed to file an EEOC charge is subject to equitable modification or estoppel. Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 392-98 (1982).
Plaintiff filed an Intake Form with the NYCCHR on May 18, 1993, and a Verified Complaint on July 27, 1993, claiming he had been discriminated against on the basis of race, and alleging, inter alia, that "[Defendant] subjected [Plaintiff] to disparate treatment including, but not limited to, denying [Plaintiff] promotions . . ." (Def.'s 56.1, Ex. 3.) Plaintiff's July 27, 1993 filing (hereinafter "July 1993 EEOC Complaint") is timely only to the extent it is grounded in incidents and events occurring in the 300 day period beginning September 30, 1992 and ending on July 27, 1993. Claims by Plaintiff that are based on incidents or events occurring prior to September 30, 1992 are time-barred.
In Paragraph 5 of his Second Amended Complaint, Plaintiff lists January 31, 1991 (among 5 other specific dates and a single date-range) as a date upon which, to his best recollection, discriminatory acts occurred. It is not clear to what this date refers, as there is no explanation. In any case, any discriminatory act occurring on this date would be time-barred, since it precedes the period covered by Plaintiff's EEOC Complaint.
An employment discrimination claim accrues on the date that the employee "knows or has reason to know of the injury which is the basis of his action." E.g., Cornwell v. Robinson, 23 F.3d 694, 703 (2d Cir. 1994). Plaintiff was denied promotion by Defendants twice — specifically, he learned his first application for promotion had been denied in January 1989; Plaintiff did not learn his second application for promotion had been denied until December 1993 — well after he filed his July 1993 EEOC Complaint.
Plaintiff's claim of discrimination based on the January 1989 denial of promotion is clearly time-barred, since Plaintiff learned he had not been promoted over three years prior to the period covered by his July 1993 EEOC Complaint. (Joseph Dep. at 87, 92.) Plaintiff argues that January 1989 denial of promotion should be treated as part of "a continuing violation." (Pl.'s Aff. at 4.) Under the continuing violation doctrine, when there is evidence of an ongoing discriminatory policy or practice, a claimant may challenge all conduct that is part of the alleged discrimination, including acts that "occurred outside the limitations period." Cornwell v. Robinson, 23 F.3d 694, 704 (2d Cir. 1994). However, because Plaintiff has produced nothing to show that Defendants had in place a specific official policy or mechanism, through which the alleged discrimination took place, the "continuing violation" exception is inapplicable here.Butts, 990 F.2d at 1404.
As noted, Plaintiff learned of the second denial of promotion in December 1993, over four months after he filed his July 1993 EEOC Complaint. Plaintiff argues that, although it occurred subsequent to the July 1993 EEOC Complaint, the denial of promotion in December 1993 was "reasonably related" to the July 1993 EEOC Complaint, and therefore may be considered by this Court.
A district court lacks jurisdiction to hear a Title VII claim that is not included in, or is not "reasonably related" to valid claims contained in the EEOC charge. Butts, 990 F.2d at 1401. The Second Circuit has recognized three types of conduct and claims that are "reasonably related" to claims in a previously-filed EEOC Complaint. First, a new claim is reasonably related to previously-filed claims "where the conduct complained of would fall within the `scope of the EEOC investigation which can reasonably be expected to grow out of the charge of discrimination." Butts, 990 F.2d at 1402 (quoting Smith v. American President Lines, Ltd., 571 F.2d 102, 107 n. 10 (2d Cir. 1978)). Second, claims alleging retaliation for the filing of a charge of discrimination with the EEOC are reasonably related to the discrimination alleged in the charge. Butts, 990 F.2d at 1402. Third, a claim alleging "incidents of discrimination carried out in precisely the same manner alleged in the EEOC charge" may be reasonably related to the claims in the EEOC charge. Id. at 1402-03.
In this case, the alleged failure to promote in December 1993 is not reasonably related to timely allegations in the July 1993 EEOC Complaint. Since the failure-to-promote claims in the July 1993 EEOC Complaint were time-barred, they "cannot serve as predicates for allegations in the complaint said to be reasonably related." Butts, 990 F.2d at 1403. Thus, as the EEOC has not previously considered the December 1993 failure-to-promote claim, this Court lacks jurisdiction over the claim.
Plaintiff does not argue that the December 1993 failure-to-promote claim was timely raised in the Intake Form he filed with NYHCCR in April 28, 1995. In any case, this argument would fail, since the denial of promotion in December 1993 would have occurred more than three-hundred days prior to the April 28, 1995 filing of the Intake Form with NYHCCR.
Accordingly, because Plaintiff's January 1989 failure-to-promote claim is time-barred and the Court is without jurisdiction to consider his December 1993 failure-to-promote, Defendant's Summary Judgment motion is GRANTED.
Plaintiff claims that he was harassed and subjected to a hostile work environment as an employee of Defendant MABSTOA. In support of this claim, Plaintiff submits two documents, inter alia, dated August 30, 1991, and March 26, 1992, as evidence of incidents of racial harassment that support his hostile work environment claim. (Pl. 56.1 at 10; Pl. Aff. Ex. 34.) Plaintiff does not provide further details about these alleged incidents. Plaintiff also does not claim — and does not present any evidence indicating — that any such incidents arose from an ongoing discriminatory policy or practice; indeed, the evidence shows the opposite. A letter from the president of the New York City Transit Authority refers to a specific incident in which a document expressing racial hostility was found on a copy machine. The letter deplores all acts of racism and harassment, and threatens discipline and sanctions against any employee who expresses or furthers racial or ethnic hostility. (Pl. Aff. Ex. 34 at 1.) The other document submitted by Plaintiff is a memo dealing specifically with prevention of racial bias incidents. Without evidence of that the harassment he allegedly suffered arose from an ongoing discriminatory policy or practice, the Court is unable to conclude that any incidents of harassment that took place prior to September 30, 1992 are part of a continuing violation. Butts, 990 F.2d at 1404. Accordingly, the alleged incidents of harassment that took place prior to September 30, 1992 are time-barred, and are not properly relied on for purposes of Plaintiff's harassment claim.
C. Exhaustion
Defendant argues Plaintiff's retaliation and discriminatory termination claims should be dismissed because the Plaintiff failed to exhaust fully his administrative remedies. Defendant notes that Plaintiff's July 1993 EEOC Complaint alleged failure to promote and harassment. Defendant argues that this Court is barred from considering the retaliation and discriminatory termination of employment claims that were first raised in the Intake questionnaires Plaintiff filed on April 28, 1995 and June 21, 1995 because Plaintiff failed to file these claims properly in a formal complaint to the EEOC. Defendant alleges that, because Plaintiff failed to file formal charges, Defendant was "unaware of and was not served with any charges dated April 28, 1995 or June 21, 1995."
Plaintiff admits that he did not file a formal charge with the EEOC after submitting the Intake Questionnaire; however, he argues that his retaliation and wrongful termination claims were not timely filed because Plaintiff was "hampered by reliance on CCHR's misinformation and delay in initiating proceedings." (Pl.'s Aff. at 2-3.)
In appropriate cases, Title VII filing requirements are subject to "waiver, estoppel, and equitable tolling." Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393 (1982). "However, equitable tolling is only appropriate in rare and exceptional circumstance[s], in which a party is prevented in some extraordinary way from exercising his rights." Zerilli-Edelglass v. New York City Transit Authority, 333 F.3d 74, 80 (2d Cir. 2003). "When determining whether equitable tolling is applicable, a district court must consider whether the person seeking application of the equitable tolling doctrine (1) has `acted with reasonable diligence during the time period she seeks to have tolled,' and (2) has proved that the circumstances are so extraordinary that the doctrine should apply."
Zerilli-Edelglass, 333 F.3d at 80-81 (2d Cir. 2003) (tolling not warranted where Plaintiff, having been notified that she was required to file a formal EEOC complaint within 300 days, failed to file the complaint) (quoting Chapman v. ChoiceCare Long Island Term Disability Plan, 288 F.3d 506, 512 (2d Cir. 2002)).
Examination of the procedural history of Plaintiff's retaliation and wrongful termination claims makes apparent that this is an appropriate case for equitable tolling. After filing his original NYCCHR Complaint in July 1993, Plaintiff filed NYHCCR Intake Forms containing retaliation and wrongful termination claims on April 28, 1995 and June 21, 1995. Plaintiff corresponded with NYHCCR to attempt to have the retaliation and wrongful termination claims contained in the 1995 Intake Forms included in his original July 1993 EEOC Complaint. In his deposition, Plaintiff alleged that NYCCHR staff members informed him that his retaliation claim would be "dealt with," but that the agency was backlogged. (Dep. at 81.) By Affidavit, Plaintiff also claims that, upon visiting the NYHCCR, he was told that because of a case backlog, it could take as many as three years before an investigation was commenced. (Pl. Aff. at 1.) Evidence in the record supports both these claims — an internal NYCCHR memorandum shows that a NYHCCR staff member had spoken with Plaintiff and was uncertain whether to amend Plaintiff's original complaint or whether instead to begin a new complaint, (Pl. 56.1 Ex. 29 at 9); in separate correspondence, NYCCHR Human Rights Specialist Alonso Myers informed Plaintiff that, "[a]s was explained to you, an amendment to your original complaint will be dealt with shortly." (Pl. 56.1 Ex. 29 at 8.)
In his Affidavit, Plaintiff also claims that in July 1995 he attempted to pursue his claims with the New York State Department of Human Rights (the "NYSDHR"), but was informed that the State Department of Human Rights was precluded from accepting his charges because Plaintiff had already filed a charge with the NYCCHR. (Pl. Aff. at 2.) That Plaintiff was at least in contact with the NYSDHR is apparent from a form letter from the NYSDHR, notifying Plaintiff of an appointment "to file a complaint," scheduled for Friday July 14, 1995 at 2:00 PM. (Pl. 56.1 Ex. 29 at 10.)
Plaintiff also states in his Affidavit that he visited the EEOC in August 1995 and attempted to file a retaliation charge directly with EEOC, but was told that "since EEOC had a work sharing agreement with CCHR, the complaint would automatically be dual filed with EEOC . . . [a]s a result the charge was not accepted by the EEOC." (Pl. Aff. at 2.)
After the NYCCHR rendered a "No Probable Cause" determination with regard to Plaintiff's initial July 27, 1993 Complaint, on December 29, 1995, Plaintiff wrote an appeal letter to the NYCCHR, requesting a "review [of] the Commission's order . . . [because] the Commission did not address [Plaintiff's] amendments to the complaint on July, 19, 1995." (Pl.'s 56.1, Ex. 29.) Shortly thereafter, the NYCCHR informed Plaintiff that his appeal letter had been received, and that it would be "forwarded to all parties involved." (Id.)
After the NYCCHR affirmed its "No Probable Cause" determination Plaintiff requested a "Substantial Weight Review" by the EEOC. (Pl. 56.1 Ex. 29 at 11.)
Even after Plaintiff initiated this lawsuit, on November 29, 1996, Plaintiff enlisted the assistance of local government officials to attempt to determine the status of his June 21, 1995 retaliation charge, (Pl. 56.1 Ex. 29 at 12.), and was ultimately informed that, "due to a procedural error CCHR would not be able to file an official complaint in the matter." (Pl. Aff. at 2.)
Finally, on January 7, 1997, a Managing Attorney at NYCCHR sent a letter to the EEOC, stating in part that, although "Mr. Joseph's complaint did not state a retaliation claim, and an amended complaint stating such a claim was never filed . . . Mr. Joseph did allege a timely charge of retaliation against his former employer, as evidenced by the enclosed copy of his intake form. I hope that this will suffice as a basis for EEOC's issuance of a right to sue letter on that claim." (Pl. 56.1 Ex. 29 at 13.)
On this record, it is apparent that Plaintiff diligently pursued his retaliation and wrongful termination claims, but was unable to file formal charges because of miscommunications within the NYCCHR, and subsequently between NYCCHR and EEOC. At each stage in the process, Plaintiff diligently pursued his retaliation and unlawful termination claims; it is also apparent that Plaintiff's retaliation claims were not made in a formal charge because of extraordinary circumstances — namely, the fact that Plaintiff was reassured by NYCCHR representatives that the agency was backlogged but that his new claims would be "dealt with" by NYCCHR, that Plaintiff was unable to pursue his claims with state or federal agencies because of work-sharing agreements, that Plaintiff's new claims were incorrectly dismissed as untimely by NYCCHR, and that EEOC did not heed NYCCHR's notification that dismissal for untimeliness was inappropriate.
Although Plaintiff did not file a formal charge alleging retaliation and improper termination, the Court finds it appropriate to toll the statute of limitations from the time Plaintiff filed his Intake Questionnaire. Accordingly,
Tolling the limitations period does not prejudice the Defendant, since Plaintiff's Initial Complaint includes retaliation claims, and specifically states that Plaintiff filed two Retaliation Charges with NYCCHR in 1995. (Initial Complaint at 5.)
Plaintiff's retaliation and wrongful termination claims are not time-barred.
The Second Circuit has pointedly remarked that,
[w]hen state agencies unambiguously waive their statutory right to exclusively process certain discrimination claims, they (and the EEOC) have made an arrangement for the benefit of claimants (as well, presumably, for administrative convenience); the timeliness of a claimant's filing therefore should not be made be depend upon whether one or the other agency follows through on its undertakings under a Worksharing Agreement. It is already difficult enough to understand the deadlines for filing Title VII claims. Claimants who master the intricacies of these deadlines have the right to expect that they will not be panalized by a bureaucrat's noncompliance with the Worksharing Agreement. Ford v. Bernard Fineson Development Center, 81 F.3d 304, 312 (2d Cir. 1996).
D. Intentional Discrimination
Summary judgment may be granted in Title VII actions, but must be applied with caution. Chambers, 43 F.3d at 40; Gallo v. Prudential Residential Serv., 22 F.3d 1219, 1224 (2d Cir. 1994) ("A trial court must be cautious about granting summary judgment to an employer when . . . intent is at issue."). Summary judgment is ordinarily inappropriate in a Title VII action where a plaintiff has established a prima facie case. Smith v. American Express Co., 853 F.2d 151, 154 (2d Cir. 1988). Moreover, since direct evidence of intentional discrimination is usually lacking, "affidavits and depositions must be carefully scrutinized for circumstantial proof which, if believed, would show discrimination." Gallo, 22 F.3d at 1224. Deciding whether summary judgment is appropriate in a particular case depends upon a case-by-case approach, with a court examining the entire record to determine whether the plaintiff could satisfy the "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) (quoting Reeves, 530 U.S. at 143).
Where a plaintiff alleges unlawful employment discrimination under Title VII, the presentation of proof proceeds according to a well-settled framework. See generally McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Plaintiff bears the initial burden of establishing a prima facie case of discrimination by a preponderance of the evidence. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 506 (1993); Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 252 (1981) (citingMcDonnell Douglas Corp., 411 U.S. at 802); see also Fisher v. Vassar College, 114 F.3d 1132, 1335 (2d Cir. 1997),abrogated on other grounds by Reeves, 530 U.S. 133 (2000). The burden of establishing a prima facie case is de minimis. Chambers v. TRM Copy Centers Corp., 43 F.3d 29, 37 (2d Cir. 1994).
The Title VII standard is also applicable to claims arising under the New York Human Rights Law ("HRL"). See Miller Brewing Co. v. State Div of Human Rts., 66 N.Y.2d 937 (1985); Kersul v. Skulls Angels, Inc., 130 Misc. 2d 345 (Sup. Ct. Queens Co. 1985). Accordingly, the Court shall address Plaintiff's Title VII and HRL claims simultaneously.
Section 703(a)(1) of Title VII of the Civil Rights Act of 1964 Provides in relevant part:
It shall be an unlawful employment practice for an employer . . . to discriminate against any individual with respect to [her] compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin. 42 U.S.C. § 2000e-2(a)(1).
To establish a prima facie case of disparate treatment, Plaintiff must show: (1) he is a member of a protected class, (2) he was qualified for the position, (3) he was discharged, and (4) the discharge was made under circumstances giving rise to an inference of unlawful discrimination. Windham v. Time Warner, Inc., 275 F.3d 179, 187 (2d Cir. 2001). The elements of a prima facie case are not meant to be rigid, but rather are intended "to promote the general principle that a Title VII plaintiff must carry the initial burden of offering evidence adequate to raise an inference of discrimination." Meiri, 759 F.2d at 996 (quoting Furnco Constr. Corp. v. Waters, 438 U.S. 567, 577 (1978)).
It a plaintiff is able to establish a prima facie case, he is entitled to a presumption of unlawful discrimination, and the burden shifts to Defendant to articulate a legitimate, non-discriminatory reason for the allegedly discriminatory acts.Burdine, 450 U.S. at 253-54 (quoting McDonnell-Douglas Corp., 411 U.S. at 802) (the defendant's burden is one of production, not persuasion). If the defendant articulates such a reason, the burden then shifts back to the plaintiff to offer evidence that the defendant's stated non-discriminatory reason is merely a pretext for discrimination. Reeves, 530 U.S. at 148. The plaintiff maintains the ultimate burden of persuasion at all times. St Mary's Honor Ctr., 509 U.S. at 507-8; Burdine, 450 U.S. at 252-53.
1. Plaintiff's Prima Facie Case
Plaintiff, who is African-American, is a member of a protected class, and therefore has satisfied the first requirement of hisprima facie case. To meet the second requirement, Plaintiff must show that at the time of any claimed adverse employment action, Plaintiff's job performance was satisfactory.Quarantino, 71 F.3d at 64. "Whether job performance was satisfactory depends on the employer's criteria for the performance of the job — not the standards that may seem reasonable to the jury or judge." Thornley v. Penton Publishing, Inc., 104 F.3d 26, 29 (2d Cir. 1997). In making this determination, it is appropriate for a court to rely on a supervisor's evaluation, so long as the plaintiff is allowed an opportunity to show that the employer's demands for the position were illegitimate, or made in bad faith. Id., at 29; Meiri, 759 at 995. However, Plaintiff is only required to show a basic eligibility for the position, and not the greater showing that he satisfied the employer. Slattery v. Swiss Reinsurance America Corp., 248 F.3d 87 (2d Cir. 2001) ("The qualification prong must not, however, be interpreted in such a way a to shift onto the plaintiff an obligation to anticipate and disprove, in his prima facie case, the employer's proffer of a legitimate, non-discriminatory basis for its decision.")
Plaintiff states he received satisfactory ratings; and was commended on his fine performance on numerous occasions," that he was "qualified for the position which he held," and that he "was terminated despite possessing the necessary qualifications for the position which he held." (Pl. 56.1 at 8.) In support of these statements, Plaintiff submits numerous laudatory notes and letters. (Pl. Aff. Ex. 30.) Such evidence is sufficient to meet the de minimis burden required. Plaintiff was terminated by Defendant in May 1995; thus, Plaintiff has also established the third element, that he suffered an adverse employment action.
Based on evidence it submits of disciplinary action against Plaintiff, Defendant argues at length that Plaintiff was unqualified to be a Bus Operator; however, it is not appropriate to consider Defendant's evidence in determining whether Plaintiff has met his prima facie burden. Graham v. Long Island R.R., 230 F.3d 34, 42 (2d Cir. 2000).
To establish the fourth element of a prima facie case of discriminatory discharge, Plaintiff must show he was fired under circumstances giving rise to an inference of unlawful discrimination. Quarantino, 71 F.3d at 64. Plaintiff allege at length that his termination by Defendant was made on the basis of incomplete and faulty information, some of which was fabricated by Plaintiff's supervisors, (Pl. 56.1 ¶ 21-23; Pl. Aff. at 6), that after Plaintiff was terminated, "his position remained open, and defendant sought and hired persons no more qualified than plaintiff," (Pl. 56.1 at 8), and that other Bus Operators who are not African-American were not discharged despite similar disciplinary and employment histories. (Pl. 56.1 at 10.) These allegations are sufficient to meet the de minimis burden at of Plaintiff's prima facie case. E.g. Meiri v. Dacon, 759 F.2d 989, 996 (2d Cir. 1985) (Employee not required to demonstrate she was replaced by a person outside the protected class to show circumstances giving rise to inference of discrimination case; instead, "the appropriate inquiry should be whether the employer continued to seek applicants to fill the position."). Accordingly, Plaintiff has shown a prima facie of discriminatory termination of employment.
To establish a prima facie case of retaliation under Title VII, Plaintiff must show: 1) that he participated in a protected activity, 2) that the defendant knew of his participation in the protected activity, 3) an adverse employment action, and 4) a causal connection between the protected activity and the adverse employment action. Johnson v. Palma, 931 F.2d 203, 207 (2d Cir. 1991). Plaintiff's burden in establishing his prima facie case of retaliation, as with the unlawful termination claim, is de minimis. Tomka v. Seiler Corp., 66 F.3d 1295, 1308 (2d Cir. 1995).
Plaintiff filed a complaint with the NYCCHR on May 18, 1993, filed grievances against MaBSTOA — including one on May 23, 1995, and voiced complaints relating to the alleged discrimination to his employer on May 27, 1995. (Pl. Aff. at 3.) These are sufficient to establish the first element of a prima facie case of retaliation. Cruz v. Coach Stores, Inc., 202 F.3d 560, 566 (2d Cir. 2000) ("[T]he law is clear that opposition to a Title VII violation need not rise to the level of a formal complaint in order to receive statutory protection."); Sumner v. United States Postal Serv., 899 F.2d 203, 209 (2d Cir. 1990) ("making complaints to management" is a protected activity).
Plaintiff alleges that, as both the May 23, 1995 grievance and the May 27, 1995 protest were discussed at his disciplinary hearing on May 30, 1995, Defendant knew about both. (Pl. Aff. at 3.) Defendant does not dispute its knowledge of the NYCCHR Complaint, nor of Plaintiff's complaints and grievance filings; thus, Plaintiff has established the second prong of his retaliation prima facie case. Plaintiff was terminated on May 27, 1995 — this is clearly an adverse employment action. Accordingly, the first three elements of Plaintiffs prima facie case of retaliation are established.
Defendant argues Plaintiff cannot establish a link between his protected activities and his termination, and that his prima facie case therefore fails on the fourth element. (Def. Mem. at 14.) However, Plaintiff's termination followed shortly after his protected activities; this close temporal proximity is sufficient to meet the de minimus burden of showing a causal connection.Treglia v. Town of Manlius, 313 F.3d 713, 720 (2d Cir. 2002). Accordingly, Plaintiff has also met the minimal requirements of establishing a prima facie case of retaliation.
2. Defendant's reasons for Firing Plaintiff
Defendant argues it legally terminated Plaintiff's employment because of "numerous incidents of misconduct which cumulatively demonstrated his unfitness to continue driving a bus." (Def. Mem. at 11.) In support of its argument, Defendant provides job evaluations and recommendation reports, disciplinary hearing reports, and violation reports. (Def.'s 56.1, Ex. 2, 4, 6-11.)
Specifically, Defendant provides Departmental Evaluation and Recommendation Forms from October 10, 1988 and July 14, 1992. (Def.'s 56.1, Ex. 2, 4.) Both show "Promotion" as the "Purpose of Evaluation;" both recommend against promotion, in view of disciplinary actions. (Id.) The disciplinary actions reflected on the forms include a two-day suspension in October 1989 for "Absenteeism Poor Record," a one-day suspension in April 1990 for Unnecessary Road Calls, a one-day suspension for in September 1990 for "No defect Found, Insubordination," a ten-day suspension in November 1990 for "Threatening supervision, Gross Insubordination," a 28-day suspension in May 1991 for "Passenger Complaint," and a 10-day suspension in September 1991 for "Passenger Complaint." (Id.) Additionally, "Commendations" are marked for April 1990, December 1991, and February 1992.
Defendant also submits documentation of the grievance procedure arising from the March 13, 1993 incident, wherein in Plaintiff was suspended for Gross Insubordination, Misconduct, and Profane Language. (Def.'s 56.1, Ex. 6-7.) Defendant includes the report of an Arbitrator, who heard Defendant's appeal, and upheld the charges.
Additionally, Defendant provides documentation of a Disciplinary proceeding instituted March 29, 1995, in which Plaintiff was dismissed for being involved in an accident that was preventable. (Def.'s 56.1, Ex. 8.) After arbitration, the dismissal was subsequently reduced to a suspension without pay. (Def.'s 56.1, Ex. 9.)
On March 29, 1995, Plaintiff drove a bus into a police car.
The arbitrator concluded that Defendant had not considered all the evidence.
Finally, Defendant submits documentation of dismissal proceedings instituted for Insubordination and Disruption of Service after Plaintiff was involved in a dispute with a dispatcher on May 29, 1995. (Def.'s 56.1, Ex. 10-11.) The Impartial Arbitrator who reviewed Plaintiff's dismissal upheld the charges, stating that:
[u]nfortunately, the grievant is no stranger to the disciplinary process. On at least two (2) prior occasions the grievant was before this Impartial Arbitrator. In both of those cases there was an underlying theme — an inability to interact with supervision and to recognize supervision's legitimate role in directing the workforce. In one of those cases, this Arbitrator found the grievant was directly insubordinate to a number of Authority managers and also disrupted service. In that case, the Arbitrator modified the penalty of dismissal and restored the grievant to the payroll with a clear warning that further acts of insubordination would not be tolerated. In the subsequent case, the grievant, when questioned by supervision regarding a preventable accident wherein the grievant struck a standing police car stated, `I might have wanted to hit the police car on a subconscious level.' In that case this Arbitrator modified the proposed penalty of dismissal to a time served suspension and referred the grievant to the Medical Department for further evaluation before returning to duty. In both cases the authority and this Arbitrator provided the grievant with the benefit of the doubt in the sincere hope that the grievant would recognize his responsibility and duty to obey supervisory directives and to further recognize supervision's legitimate role in directing the workforce. For reasons known only to the grievant he has chosen to not heed those warnings and to not timely comply with reasonable supervisory directives. Based on the grievant's past disciplinary record and the instant facts, the Arbitrator is left with no choice but to uphold the penalty as proposed by the Authority.
(Def.'s 56.1, Ex. 11.)
This evidence is more than sufficient to rebut the inference of discrimination raised by Plaintiff's prima facie case, and satisfies Defendant's burden to produce evidence that Plaintiff was terminated for non-discriminatory reasons.
3. Pretext
Where a plaintiff has alleged that an employer's reasons for an adverse employment action are pretextual, all reasonable inferences must be drawn in favor of the plaintiff's showing of pretext, and a defendant's motion should not be granted if an issue of fact exists, particularly with regard to state of mind or sincerity. Meiri, 759 F.2d at 998. However, where a plaintiff fails to produce evidence to support a reasonable inference of discrimination, "a defendant has the right to judgment without the expense of a trial. Courts must protect defendants from oppressive and meritless litigation." Reich v. New York Hospital, 513 F. Supp. 854, 863 (S.D.N.Y. 1981); also Meiri, 759 F.2d at 998.
Plaintiff argues that Defendant's grounds for terminating his employment were pretextual. (Pl. 56.1 at 9). However, even judging the facts in the light most favorable to Plaintiff, there is insufficient evidence that the reasons proffered by Defendant for terminating Plaintiff's employment were a pretext for discrimination.
Plaintiff argues that in the disciplinary proceedings in May 1995, resulting in his termination, the decision maker relied on a faulty record, because certain entries from July 1988, November 1988, February 1991, and October 1991 should have been expunged from Plaintiff's disciplinary record. (Pl. 56.1 ¶ 6, 23.) However, the arbitrator's report makes clear that Plaintiff was terminated on the basis of disciplinary actions resulting from conduct in March 1993, March 1995, and May 1995. Thus, even were the alleged errors in Plaintiff's record corrected, this would not affect the bases for Defendant's disciplinary decision and sanction of termination.
Plaintiff argues that he received "unfair representation" by the Transit Worker's Union in disciplinary proceedings, (Pl. 56.1 ¶ 4), and that disciplinary proceedings were initiated against him in violation of the terms of Collective Bargaining Agreements. (Pl. 56.1 ¶ 5.) Beyond Plaintiff's bare assertion, there is no evidence in the record to support Plaintiff's claim that the Transit Workers' Union did not adequately represent him at the arbitration hearing. Moreover, even assuming representation by the Transit Workers' Union was deficient, this is irrelevant to whether Defendant discriminated against him on the basis of race by terminating his employment, and whether the reasons proffered by Defendant for firing him were pretextual.
In support of his pretext argument, Plaintiff also claims his supervisors fabricated information, and that disciplinary proceedings arising from the March 1993 incident were therefore tainted. (Pl. 56.1 ¶ 6, Pl. Aff. at 6.) However, after the March 1993 incident, Plaintiff disputed Defendant's decision and the evidence against him before a neutral Arbitrator, who reviewed the disciplinary proceedings and concluded that the Transit Authority had met its burden of proving the charges of Gross Insubordination, Misconduct, and Use of Profane Language. (Pl. 56.1 Ex. 22 at 3.) Plaintiff also disputes the factual basis for his termination in May 1995. However, after a thorough review of the facts and arguments pertaining to the May 1995 decision to terminate Plaintiff, in a six-page report the arbitrator concluded that "the credible testimony supported the notion that the grievant took a `personal' on the day in question in an effort to delay compliance with Surface Line Dispatcher Rogers directive to take a new bus back in service," and concluded that, "based on the credible testimony of [Dispatchers] Rogers and Benjamin, the charges in this matter must be upheld." (Pl. 56.1 Ex. 22 at 5.) The arbitrator's conclusion with regard to Plaintiff's termination "is highly probative of the absence of discriminatory intent in that termination." Collins v. New York City Transit Authority, 305 F.3d 113, 119 (2d Cir. 2002). Beyond his conclusory statements, Plaintiff has not provided any evidence to indicate his supervisors falsified information; therefore, against the substantial probative weight of the arbitrator's conclusions, Plaintiff's claim of false evidence provides no support for his pretext argument.
In support of his claim of pretext, Plaintiff also alleges that after his employment was terminated, "his position remained open, and defendant sought and hired persons no more qualified than plaintiff." (Pl. 56.1 at 8.) Plaintiff attaches an undated newspaper advertisement for MABSTOA Bus Operators. (Pl. Aff. Ex. 31.) The advertisement states that "[a]n applicant pool will be established containing the names of all individuals who submit a complete and legible registration form and registration fee as described below. As Bus Operator vacancies occur, we will randomly choose names from the pool for participation in the selection and hiring process." (Id.) This evidence that Defendant sought candidates for a general applicant pool does not demonstrate that, subsequent to Plaintiff's termination, his position was filled by a person with qualifications (including a disciplinary record) similar to Plaintiff's qualifications.
Finally, Plaintiff alleges that other Bus Operators who were not African-American were not discharged despite similar disciplinary and employment histories. (Pl. Aff. at 3, 5; Pl. 56.1 Ex. 18.). In addition to raising an inference of discrimination, "[a] showing that similarly situated employees belonging to a different racial group received more favorable treatment can also serve as evidence that the employer's proffered legitimate, non-discriminatory reason for the adverse job action was a pretext for racial discrimination." Graham v. Long Island R.R., 230 F.3d 34, 43 (2d Cir. 2000). To establish that he was treated differently from similarly situated co-employees, Plaintiff must show he was "similarly situated in all material respects to the individuals with whom he seeks to compare [him]self." Id. at 39. The "all material respects" standard means Plaintiff must show: (1) his co-employees were subject to the same performance evaluation and disciplinary standards, and (2) the similarly situated and undisciplined employees engaged in conduct comparable to that engaged in by Plaintiff. Id. at 40.
In support of his argument, Plaintiff submits Transcripts of Personnel Action Records for Jack Belkin, Ramon Vilorio, Anibal Agramonte, Eligio Paulino, and David Duryea. (Pl. 56.1 Ex. 18, 28.) The transcripts show single-line entries, reflecting dates, abbreviated notations of incidents, and action taken.
The transcript for Jack Belkin shows that he received warnings for "DISRUPTION TO SERVICE" in 1987 and 1988, was suspended for three occurrences of "preventable accident" from 1988 to 1990, was warned for "VIOL: DOS/AHEAD SCHED" in 1994, received a warning in 1991 for "COMP/LETT-BYPASS STOP," and was subject to "RECLA/CLEA" for "ASSAULT TO CUSTOMER" in 1994. (Pl. 56.1 Ex. 28.)
The transcript for Ramon Vilorio shows that Vilorio received "REINSTRUCT" for "PASS. COMP. RUDE DISCOURTEOUS," "RUDE-DISCOURTEOUS" and "PASSENGER COMPLAINT" in 1980, 1982, 1986, 1988, 1991, and 1993; Vilorio received warnings for "FAILURE TO DISPLAY BADGE," "CHRONIC ABS. PULLING OFF ROAD," "CHRONIC ABS.," and "IMPROPER OPERATION" in 1984, 1985, 1988, and 1990; he was suspended in 1986 for "DISRUPTION OF SERVICE," in October 1986 for "FAILURE TO COMPLY, and in February 1995 for "OPS: SERIOUS DOS." (Id.)
The records submitted by Plaintiff show that Anibal Agramonte was disciplined repeatedly — including warnings, counseling, and suspension — between 1985 and 1991 for absenteeism and leaving the engine running while urinating out the door; in addition, an entry for August 1995 shows Agramonte was counseled for chronic absenteeism. (Id.)
The record entry reads "ABS: CHRONIC."
The transcript for Eligio Paulino shows that Paulino was warned four times — for unsafe operation in 1991, for chronic absenteeism in 1994, for an unspecified violation in 1996, and for chronic absenteeism in 1996; Paulino received a one-day suspension in November 1996 for "Follow Up Ride 1 Hands OPS," "OPS: Ride Seat Belt, 1 Hand OPS," and "OPS: Rude 96-09-1048 96-3582-634@1." (Id.)
The transcript entry reads "OBS: RIDE M480."
The transcript for David Duryea shows that he was warned for absenteeism in 1980. (Id.)
Plaintiff's employment was terminated in May 1995 based on three disciplinary actions — in March 1993 Plaintiff was found guilty of gross insubordination and use of profanity, in March 1995 Plaintiff was found guilty of hitting a fixed object and in May 1995 he was found guilty of insubordination and disruption of service. The violations reflected in the transcripts of Anibal Agramonte, Eligio Paulino, and David Duryea — chronic absenteeism, unsafe operation, and urinating out the door with the bus engine running — are markedly different from the disciplinary violations that resulted in Plaintiff's termination, and therefore those three co-employees cannot be considered "similarly situated" with Plaintiff.
While the penalties for the March 1993 and March 1995 violations were reduced in subsequent proceedings, the finding of guilt was not modified.
In addition, the transcript entries for all five co-employees are completely lacking in detail; thus there is no way to know whether the circumstances underlying the disciplinary actions against them were similar to those that resulted in Plaintiff's discharge. Thus, while there are entries for "DOS" and "DISRUPTION TO SERVICE" in the transcripts for both Jack Belkin and Ramon Vilorio, there is nothing to establish that theconduct of Belkin and Vilorio that resulted in these transcript entries was similar to Plaintiff's conduct. Plaintiff claims in passing that the co-employees to whom he compares himself are "non-Black," but this is not reflected in the evidence he submits. Finally, there is no indication whether the co-employees to whom Plaintiff compares himself were subject to the same disciplinary and performance standards; specifically, it is not clear whether any of the five co-employees operated buses from the same depot as Plaintiff, or whether they were working under the same supervisors as Plaintiff. Accordingly, the evidence is legally insufficient to establish that the co-employees to whom Plaintiff compares himself are "similarly situated."
Accordingly, and particularly in view of the probative value accorded the arbitrator's affirmance of Defendant's proffered non-discriminatory reasons for terminating Plaintiff's employment, Plaintiff has failed to create a genuine issue of material fact as to whether Defendant's reasons for terminating Plaintiff were pretextual. Since Defendant's reasons for terminating Plaintiff were both legitimate and non-discriminatory, Plaintiff's retaliation claim fails as well. Defendant's motion for Summary Judgment on these bases is GRANTED.
E. Harassment and Hostile Work Environment
To succeed on his hostile work environment claim, Plaintiff must establish (1) that his workplace was permeated with discriminatory intimidation sufficiently severe or pervasive to alter the conditions of his work environment, and (2) that a specific basis exists for imputing the conduct that created the hostile environment to the employer. Richardson v. New York State Dept. of Correctional Service, 180 F.3d 426, 436 (2d Cir. 1999). The existence of racial harassment in a hostile work environment is a "mixed question of law and fact" that involves "the application of a legal standard to a particular set of facts;" accordingly, "summary judgment may be granted only when reasonable minds could not differ on the issue." Richardson, 180 F.3d at 437.
Plaintiff alleges that employees of Defendant subjected Plaintiff to "harassment and [a] hostile work environment" by ensuring that Plaintiff did not receive new buses when assigning vehicles. Plaintiff also alleges that employees of Defendant MaBSTOA "used profanity while addressing [Plaintiff], they made comments as far as [Plaintiff's] hair was concerned, they called [Plaintiff] Buckwheat with regard to [Plaintiff's] braids . . . [asked Plaintiff if he walked] the way homeboys walk on the corner[, . . . and if Plaintiff] gave even the slightest indication that [he] was going to violate a rule, the violation was written before [he] even violated a rule, [and stated] we don't make guys like you dispatchers." (Pl.'s 56.1 at 10; Joseph Dep. at 65, 70-72.)
Beyond Plaintiff's assertions in deposition testimony, there is no evidence that Defendant discriminated against him by not issuing him new buses. (Joseph Dep. at 65-70.) Such conclusory allegations of discrimination are insufficient to defeat summary judgment. Meiri, 759 F.2d at 998. Similarly, even assuming MABSTOA employees used profanity while addressing him and made derogatory comments to him, (Joseph Dep. at 70), isolated discriminatory comments alone are insufficient to defeat summary judgment, particularly where Plaintiff has not alleged that the remarks unreasonably interfered with his job performance. E.g., Brown v. Coach Stores, 163 F.3d 706, 713 (2d Cir. 1998). Finally, Plaintiff has provided no evidence that a specific basis exists for imputing this alleged conduct to Defendant.
Accordingly, Plaintiff fails as a matter of law to create a genuine issue of material fact on his hostile work environment claim.
III. CONCLUSION
As Plaintiff's failure to promote claims are time-barred, and his discriminatory termination, retaliation, and hostile work environment claims fail as a matter of law, the Court Defendant's Motion for Summary Judgment is GRANTED. The Clerk of the Court is directed to close the docket in this matter.SO ORDERED.