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holding that a co-worker's conclusory allegation that an employer "did not want blacks in his office" was insufficient to withstand summary judgment
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99-CV-7229 (JG)
May 30, 2003
REGINALD MINUS, Plaintiff Pro Se
ROSLYNN R. MAUSKOPF, United States Attorney, Eastern District of New York, Brooklyn, New York Elliot M. Schachner, Assistant United States Attorney, for Defendant
MEMORANDUM AND ORDER
Plaintiff Reginald Minus brings this action alleging race discrimination in violation of Title VD of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. The defendant has moved for summary judgment. For the following reasons, the defendant's motion is granted.
BACKGROUND
A. FactsMinus, who is African-American, has been employed as a police officer by the Department of Veteran Affairs ("VA") at the VA Medical Center in Brooklyn, New York, since 1994. This position has never required Minus to carry a firearm. However, over the course of Minus's employment with the Department of Defense from 1987 to 1994, Minus obtained a 38 caliber Ruger revolver. According to Minus's deposition testimony, although he was required to return the gun when he left the Department of Defense, he failed to do so and never obtained a license for the weapon.
The gun was still in Minus's possession on the night of April 11, 1997, when he summoned the police to his house in an effort to get his stepson to leave. When the police arrived, they asked Minus's wife whether there were any weapons in the house. She responded in the affirmative. In response to questioning by the police, Minus admitted that the gun was his and that he did not have a permit for it. Minus was then taken to the police station and, in the early morning of April 12, 1997, he was arrested on a charge of criminal possession of a weapon under New York Penal Law § 265.01.
Upon returning to work, Minus met with two of his superiors, Brooklyn VA Chief of Police Harry Schemitz and Detective Lieutenant Frank Corselli, to discuss his arrest. Minus explained what had happened and told them that there would be no disposition of the charge against him until his court appearance.
In May of 1997, Minus applied for a promotion to the position of VA police detective. In June of 1997, Minus applied for a promotion to the position of VA police training officer. Schemitz made the decision not to promote Minus to either position. Instead, he selected Gaspar Madrazo, a Hispanic, for the detective position and Luis Lopez, also a Hispanic, for the training officer position. During his tenure as Chief of Police at the Brooklyn VA, Schemitz promoted six individuals, two of whom were African-American. Of the four other individuals promoted by Schemitz, two were Hispanic and two were white.
On September 29, 1997, in connection with his arrest in April, Minus was convicted on a plea of guilty to a reduced charge of disorderly conduct, in violation of New York Penal Law § 240.20 and fined $200.00.
By letter dated January 30, 1998, the office of the Deputy Assistant Secretary for Security and Law Enforcement of the VA ("Deputy Assistant Secretary"), located in Washington, D.C., requested that Minus complete a "limited background investigation" form. Sometime in early April, 1998, Minus informed Victor Moutal, Acting Personnel Officer for the Brooklyn VA Human Resources Department, by telephone that he would not complete the form. By letter dated April 7, 1998, Veronica Foy, another personnel officer, notified the Deputy Assistant Secretary's office of Minus's refusal. In response, by letter dated May 6, 1998, the Deputy Assistant Secretary's office informed the Brooklyn VA Human Resources Department that Minus was temporarily denied eligibility to work in sensitive positions, including that of police officer. As a result, Martina Parauda, then Acting Associate Director of the Brooklyn VA Medical Center, temporarily assigned Minus to the maintenance unit of the engineering department. Minus's detail to the engineering department was effective May 24, 1998. In August of 1998, the Deputy Assistant Secretary's office informed the Brooklyn VA Human Resources Department that Minus had completed the background investigation form and that he could therefore be returned to his duties as a police officer. By letter dated September 11, 1998, the Human Resources Department informed Minus that effective September 14, 1998, he would be restored to his position as police officer.
B. Procedural History
On January 23, 1998, Minus filed an administrative charge of employment discrimination on the basis of race alleging the following issues: (1) failure to promote; (2) harassment; (3) "training;" and (4) "rights violation." On March 31, 1999, an Equal Employment Opportunity ("EEO") investigator completed her report on Minus's discrimination charge, recommending a finding of no discrimination. The complaint in this case was filed on November 3, 1999, and the administrative action was consequently dismissed.
DISCUSSION
A. The Standard for Summary Judgment
Summary judgment must be granted where "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). In determining whether material facts are in dispute, all ambiguities must be resolved and all reasonable inferences drawn in favor of the non-moving party. Castle Rock Entm't Inc. v. Carol Publ'g Group, 150 F.3d 132, 137 (2d Cir. 1998).
The initial burden is upon the moving party to demonstrate the absence of any genuine issues of material fact Adams v. Department of Juvenile Justice, 143 F.3d 61, 65 (2d Cir. 1998). "When the moving party has carried its burden under Rule 56(c), its opponent must do more than simply show that there is some metaphysical doubt as to the material facts. In the language of the Rule, the nonmoving party must come forward with specific facts showing that there is a genuine issue for trial." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986) (citations and internal quotation marks omitted). The non-moving party cannot survive a properly supported motion for summary judgment by resting on the pleadings "without offering `any significant probative evidence tending to support the complaint.'" Anderson v. Liberty Lobby. Inc., 477 U.S. 242, 249 (1986) (quoting First Nat'l Bank v. Cities Serv. Co., 391 U.S. 253, 290 (1968)).
B. Title VII
Minus claims that the defendant failed to promote him and subjected him to a hostile work environment on the basis of race, in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2OOOeet seq.
Title VII provides, in pertinent part:
It shall be an unlawful employment practice for an employer —
(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his 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).
Under the analysis set forth in the Supreme Court's decision inMcDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), the burden to persuade the trier of fact "that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff." Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). However, the burden of production shifts as follows:
First, the plaintiff has the burden of proving by the 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 rejection." 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.Id at 252-53 (quoting McDonnell Douglas, 411 U.S. at 802 (citation omitted)). Once established, a prima facie case requires judgment for the plaintiff when the employer cannot articulate a nondiscriminatory basis for its decision, since "we presume these acts, if otherwise unexplained, are more likely than not based on the consideration of impermissible factors." Id. at 254 (citation omitted). The plaintiff's burden of establishing a prima facie case of discrimination is de minimis. Kerzer v. Kingly Mfg., 156 F.3d 396, 401 (2d Cir. 1998).
A court must enter summary judgment for the defendant when the plaintiff (1) fails to put forth a prima facie case or (2) fails to present legally sufficient evidence contradicting a well-presented legitimate reason, offered by the defendant, for the adverse employment action. In order to survive a motion for summary judgment, at the third step of the McDonnell Douglas analysis the "plaintiff must put forth adequate evidence to support a rational finding that the legitimate non-discriminatory reasons proffered by the employer were false, and that more likely than not the employee's sex or race was the real reason for the [adverse employment action]." Holt v. KMI-Continental, Inc., 95 F.3d 123, 129 (2d Cir. 1996).
1. The Failure to Promote Claim
In order to establish a prima facie case of Title VII promotion discrimination, a plaintiff must demonstrate that (1) he belongs to a protected class; (2) he applied and was qualified for the job for which the employer was seeking applicants; (3) he was rejected for the position; and (4) the position remained open and the employer continued to seek applicants having the plaintiff's qualifications. Brown v. Coach Stores, 163 F.3d 706, 709 (2d Cir. 1998).
Assuming for the purposes of this motion that Minus has established a prima facie case, under the McDonnell Douglas analysis the burden of production then shifts to the defendant to articulate a legitimate nondiscriminatory reason for its decision not to promote Minus. The defendant contends that its decision not to promote Minus was based not on discriminatory animus, but, rather, on the circumstances surrounding Minus's arrest for unlawful possession of a weapon. Specifically, Schemitz stated that he concluded that Minus's decision not to return the gun to the Department of Defense as he was required to do, and to keep the weapon in violation of the law, demonstrated a critical lack of good judgment, which was essential for the positions to which Minus applied. Schemitz further concluded that, in light of Minus's conduct underlying his arrest, Minus could not be a training officer, since that position required individuals who could serve as role models. With respect to the detective position, Schemitz concluded, also based on the circumstances surrounding Minus's arrest, that Minus did not possess the trustworthiness required for such an important position.
As explained further below, there is evidence that Minus lacked qualities critical to the two positions for which he applied. Thus, it is not clear that he has established a prima facie case.
Since the defendant has proffered a legitimate nondiscriminatory reason for its promotion decision, the burden of production shifts back to Minus to prove by a preponderance of the evidence that the true reason for the defendant's decision was discriminatory animus. Windham v. Time Warner, Inc., 275 F.3d 179, 188 (2d Cir. 2001). Minus provides insufficient evidence to rebut the defendant's nondiscriminatory justification for its decision not to promote him. In his response to the defendant's motion, Minus alleges that: (1) the selection process for both promotions violated VA policy; (2) candidates for promotion were all preselected; (3) Lopez, who was selected for the training officer position, was a "favorite" of Schemitz and Corselli; (4) Madrazo, who was selected for the detective position, had keys to the office where the test administered during the interview was kept; and (5) Minus was denied special training and assignments, both of which are helpful in obtaining promotions. In ruling on a motion for summary judgment, a court will only consider admissible evidence. See Opals on Ice Lingerie v. Body Lines Inc., 320 F.3d 362, 371 (2d Cir. 2003). No admissible evidence is cited in support of these allegations. Indeed, Minus's response to the motion is virtually identical to his complaint. Moreover, even assumingarguendo that these allegations were supported, they do not show that the defendant's stated reasons for its decision not to promote Minus are merely pretext for discrimination.
Minus alleges that Lopez did not meet "the time in grade requirement" for his promotion. Lopez's "Application for Promotion or Reassignment" does not, as Minus contends, support this allegation. The document clearly indicates that the grade of the position applied for was "GS-7/8/9." The personnel officer wrote that Lopez was "[e]ligible at the GS-7 level only." This does not mean that Lopez was ineligible for the position, rather that he was eligible, but only at the position's lowest grade.
In support of his discrimination claims, Minus submitted a sworn affidavit of a co-worker, George McKay, who is also African-American. In that affidavit, McKay attests to his belief that (1) "Schemitz did not want blacks in his office" (McKay Aff. at ¶ 8); (2) "Minus's race and color were factors in not being promoted to police officer and detective" (Id. at ¶ 10); and (3) "[Schemitz] did not want blacks doing anything regarding decision-making" (Id. at ¶ 16). Rule 701(b) of the Federal Rules of Evidence "bars lay opinion testimony that amounts to a naked speculation concerning the motivation for a defendant's adverse employment decision" in a Title VII case, unless the person testifying is involved in the employment decision at issue. Hester v. BIG Corp., 225 F.3d 178, 182-85 (2d Cir. 2000) (vacating the district court's judgment on jury verdict where co-workers were permitted to testify that supervisor's treatment of employee was racially motivated). There is no evidence in this case that McKay was involved in the decision-making process. Therefore, his opinion that Schemitz's decision not to promote Minus was racially motivated is inadmissible.
McKay also states that (1) Madrazo was preselected for the detective position; (2) no African-Americans were invited to Schemitz's birthday party; (3) Schemitz denied him and Minus special assignments and training; and (4) "Schemitz treated all blacks differently than other officers. He would often turn his head the other way when Mr. Minus or I would pass in the hallway." (McKay Aff. at ¶ 17). None of these statements are sufficient to rebut the legitimate, nondiscriminatory reasons proffered by the defendant for its decision not to promote Minus. Moreover, Minus's own deposition testimony undermines any inference that could be drawn from these statements that Schemitz's decision not to promote Minus was motivated by discriminatory animus. In his deposition, Minus admitted that one-third of the promotions Schemitz gave during his tenure went to African-Americans. (Minus Dep. at 14-16.) While it may be true that Schemitz failed to follow VA policy with respect to promotions, and possibly even bore some kind of grudge against Minus, the evidence certainly does not show that Schemitz's stated reasons for his decision not to promote Minus were a pretext for discrimination.
The scant admissible, relevant evidence submitted here by Minus simply falls short of the evidence necessary to rebut a defendant's legitimate nondiscriminatory reason for its employment decision. See, e.g.,Windham, 275 F.3d at 189-90 (evidence employer who had to reduce her staff terminated only African-American employees and manufactured reasons that Caucasian employees or their positions could not be eliminated);BEOC v. Ethan Alien, Inc., 44 F.3d 116, 120 (2d Cir. 1994) (evidence that defendant's stated reason for terminating plaintiff changed over time);Schmitz v. St. Regis Paper Co., 811 F.2d 131, 132-33 (2d Cir. 1987) (per curiam) (shift at trial in justification for terminating plaintiff indicated an after-the-fact rationalization by the defendant that could be sufficient to prove pretext). Minus has produced no evidence from which a rational juror could infer that the defendant's stated reasons for not promoting him were false. Such an inference could have been drawn from evidence showing that non-African-American officers with arrest records have been promoted, or that the defendant does not consider whether candidates for promotion possess good judgment or trustworthiness in determining who to promote. See Holt 95 F.3d at 130 (finding that plaintiff failed to rebut defendant's nondiscriminatory explanation that she was not promoted because she did not have enough experience where she failed to show, "for example, that others with equal or less experience were promoted, or that the defendant had a policy of promoting based on anything other than experience").
2. The Hostile Work Environment Claim
To establish a hostile work environment claim, a plaintiff must demonstrate that "the workplace is permeated with discriminatory intimidation, ridicule and insult that is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment" Harris v. Forklift 510 U.S. 17, 21 (1993) (citations and internal quotation marks omitted). "The conduct alleged must be severe and pervasive enough to create an environment that would reasonably be perceived, and is perceived, as hostile or abusive."Schwapp v. Town of Avon, 118 F.3d 106, 110 (2d Cir. 1997) (internal quotation marks omitted). Ultimately, the existence of an abusive environment in violation of Title VII depends on "all the circumstances, including the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance." National R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 116 (2002) (internal quotation marks omitted). Title VII "does not prohibit all verbal or physical harassment in the workplace; it is directed only at "discrimination . . . because of . . . [race].'" Oncale v. Sundowner Offshore Servs., 523 U.S. 75, 80 (1998) (emphasis in original).
Minus's allegations of discrimination fail to establish the existence of a hostile work environment for two reasons. First, there is insufficient evidence that he was subjected to the treatment about which he complains because of his race. Second, viewing the totality of the workplace conditions, they are neither severe nor pervasive enough to create an abusive work environment.
As stated above, Minus complains that he received insufficient special assignment or training opportunities. Minus further complains that these opportunities were not posted where everyone could see them and that this was a violation of VA policy. However, there is no admissible evidence from which a trier of fact could reasonably infer that Minus was denied these opportunities because of his race. When asked at his deposition for the basis of his belief that he was denied special training on account of his race, Minus replied "because Fin African-American, and I feel because I was African-American I was not notified or sent to training." (Minus Dep. at 90.) Such conclusory and unsupported allegations of discrimination will not withstand a well-supported motion for summary judgment Mack v. Port Auth. of New York and New Jersey, 225 F. Supp.2d 376, 382 (S.D.N.Y. 2002).
In support of Minus's allegation that Schemitz did not want him to know about special assignment and training opportunities, Minus cites an incident where Alphonso McPherson, another African-American officer, who had been invited on a training trip, mentioned the trip to Minus. Schemitz then allegedly said to McPherson, "Due to the fact that you told my news about the training, he [Minus] will be taking your place." (Minus Dep. at 92-93.) While this may be evidence that Schemitz did not want Minus to know about the trip, in light of McPherson's race, it certainly is not evidence that Schemitz was endeavoring to keep these opportunities a secret from Minus because of his race.
Minus alleges that he and his co-workers were being videotaped without their knowledge by a hidden security camera installed by Schemitz. However, Minus admitted that the room in which the camera was installed was used by officers of all races, and therefore this incident does not support the inference that race played any role in the incident. (Minus Dep. at 18-19.) Similarly, the allegation that Schemitz's failure to post these opportunities, in violation of VA policy, fails to give rise to any inference of discrimination given that the failure to do so effected employees of all races.
Minus also fails to show that Schemitz's decision to obtain Minus's arrest report and forward it to Human Resources was motivated by racial animus. During his deposition, Minus admitted that in the past, on the direction of a lieutenant, Minus went to a police precinct to obtain an arrest report of a white VA police officer. (Minus Dep. at 41,137.) Therefore, Minus's unsupported allegation that Schemitz's actions violated VA policy does not give rise to an inference of discrimination.
In his deposition, Minus alleges that Schemitz notified VA Affairs in Washington about his arrest but did not notify VA Affairs when a white officer was arrested in 1998. Minus's allegation that the white officer's arrest report was not forwarded to VA Affairs is based on hearsay. (Minus Dep. at 68-69.)
With respect to Minus's allegation that he was asked by Veteran Affairs in Washington, D.C., to complete a background investigation form because of his race, Minus has presented no evidence in support of this claim. In fact, at his deposition Minus referred to a white officer who was also asked to complete the form. Furthermore, the letter requesting that Minus complete the form provided a legitimate, nondiscriminatory reason for the request, which Minus has failed to rebut. It stated that due to inadequate funding, Minus's original background investigation form had not been processed and, in the interim, the sensitive position questionnaire form Minus had completed was revised. Therefore, the letter explained, the VA needed Minus to complete the updated form.
Minus has also failed to show that race was a factor in his reassignment to the engineering department. In support of this claim, Minus alleges that a white officer, Martin Rattigan, informed Minus that he was not going to fill out the background investigation form. Minus alleges that only he and Roscoe Fountain, another African-American officer, not Rattigan, were detailed to the engineering department for refusing to fill out the form. However, Minus has no admissible evidence that Rattigan told Human Resources that he was refusing to complete the form. Indeed, there is evidence to the contrary. The declaration of Martina Parauda, who was Acting Associate Director of the Brooklyn VA Medical Center at the time, states that Rattigan never informed the Brooklyn VA Medical Center that he refused to complete the form and that Rattigan submitted a completed form in March 1999.
In support of his claims of discrimination, Minus refers to an incident in October of 1997 when Schemitz confiscated souvenir police badges that Minus and several co-workers had ordered by mail Minus alleges, and McKay asserts in his affidavit, that the badges were never returned to Minus or McKay but were returned to the other officers. However, in his deposition, Minus admitted that the badge was returned to him one year after Schemitz left his position as Chief of Police. (Minus Dep. at 130-3L) Moreover, the allegation that the badges were returned to white officers, before Minus received his badge, is unsupported by admissible evidence.
Minus alleges that when he was hospitalized for surgery in September of 1998, Schemitz did not fill out the forms required for Minus to receive his paychecks. However, at his deposition, Minus testified that he was not paid because he had exhausted his sick leave. (Id. at 105-7,) Minus further alleges that when he returned to work, Schemitz told him that the only light duty available was in St. Albans, Queens, but that two white officers were given light duty in Brooklyn. Minus alleges that after complaining to the Labor Relations Officer, he received light duty in Brooklyn. However, in his deposition, Minus testified that he was given light duty in Brooklyn after he submitted a note from his doctor explaining that his injuries could be aggravated if he were required to commute to St. Albans. ( Id. at 108-10.) Furthermore, there is no evidence that at the time that Minus applied for light duty, two white officers, whose documented medical condition enabled them to commute to St. Albans, applied for light duty and were given assignments in Brooklyn.
McKay's affidavit submitted by Minus states that no African-Americans have keys to Schemitz's office and that no African-Americans were invited to Schemitz's birthday party. Even assuming these facts give rise to an inference of discrimination, these conditions are neither severe nor pervasive enough to create an abusive working environment.
Where, as here, the alleged discriminatory conduct at issue was not racially motivated, the conduct cannot give rise to a hostile work environment claim. Woodcock v. Montefiore Med. Ctr., No. 98-CV-4420, 2002 WL 403601, at *6 (E.D.N.Y. Jan. 28, 2002). To the extent that any of the defendant's conduct was racially motivated, it was not sufficiently severe or pervasive to violate Title VII. Accordingly, Minus has failed to establish a hostile work environment claim.
To the extent that Minus's complaint can be read to assert that the allegations upon which his hostile work environment claim is predicated also support a claim that he suffered an adverse employment action in violation of Title VII's prohibition of race discrimination, this claim also fails. In order to show that he suffered an adverse employment action in violation of Title VII, Minus must establish that: (1) he was a member of a protected class; (2) he was qualified for his position; (3) he suffered an adverse employment action; and (4) the action took place in circumstances giving rise to an inference of discrimination. Norville v. Staten Island Univ. Hosp., 196 F.3d 89, 95 (2d Cir. 1999). For the same reasons that Minus is unable to demonstrate that the defendant's conduct was racially motivated, he is unable to show that it took place in circumstances giving rise to an inference of discrimination.
CONCLUSION
For the reasons set forth above, the defendant's motion for summary judgment is granted in full. The Clerk of the Court is advised that this order closes the case.So Ordered.
JUDGMENT
A Memorandum and Order of Honorable John Gleeson, United States District Judge, having been filed on June 3, 2003, granting in full defendant's motion for summary judgment; it isORDERED and ADJUDGED that plaintiff take nothing of the defendant; and that defendant's motion for summary judgment is granted in full.