Summary
applying Grady's same-actor inference where plaintiff was fired by same person who had hired him three months earlier
Summary of this case from Aratari v. Genesee County Sheriff's OfficeOpinion
99-CV-0171E(M)
December 18, 2001
MEMORANDUM and ORDER
Plaintiff commenced this action March 9, 1999 alleging violations of Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq., and the New York Human Rights Law ("HRL"), N.Y. Exec. Law §§ 290 et seq., in that he had been harassed and terminated because of his national origin. Presently before this Court is a motion by defendants brought pursuant to Rule 56 of the Federal Rules of Civil Procedure ("FRCvP") for summary judgment on all of plaintiff's claims. For the reasons listed below, such motion will be granted.
Except as otherwise noted, the following facts are undisputed and, when appropriate, construed in a light favorable to plaintiff. Plaintiff was initially hired by Modern Landfill some time in 1986 or 1987 as an on-site truck driver by Rusty Innis. Szostak Aff. at ¶ 5. At the time he was hired, Marshall Hibbard was plaintiff's immediate supervisor. Am. Compl. at ¶ 10. Plaintiff claims that almost immediately after being hired he was subjected to harassment, discrimination and unequal pay because he is of Polish ancestry. Id. at ¶ 11. In or about November 1994, plaintiff resigned his employment with Modern because he was demoted as a supervisor. Id. at ¶ 16.
Both parties stipulated that plaintiff's claims for damages shall not include conduct which occurred during plaintiff's prior employment with defendant ending in 1994 because such would be barred by the statute of limitations.
Some time during 1996, after having been personally asked by Hibbard, plaintiff returned to his employment at Modern. Am. Compl. at ¶ 17. He was hired as a heavy equipment operator at "C" rate yet other individuals who were hired to perform the same task were paid at the higher "B" or "A" rates. Ibid. Plaintiff alleges that upon returning to work he was constantly subjected to ethnic slurs by Hibbard. Pl.'s Statement of Facts at 1. When plaintiff asked for a raise some time in 1996 he was told by Hibbard that he "was not going to pay a Pollack any more than he had to." Ibid. Plaintiff claims that not a day went by when Hibbard didn't refer to him as either a "stupid Pollack" or any other of a number of derogatory terms based on his national origin. Id. at 1-2.
Plaintiff's counsel David Rodriguez, Esq. of Siegel, Kelleher Kahn, did not observe the common practice of assigning numbers to either the pages or paragraphs in plaintiff's statement of facts. Therefore, this Court will assign numbers to such pages, starting with the page following the cover as page 1 and numbering consecutively thereafter.
Defendants point out that plaintiff's nickname around town is "The Pollack" and plaintiff admits such. Defendant also points out that plaintiff himself engages in the liberal use of profanity and racial slurs toward the black and Hispanic workers at Modern and that, as would be expected, workers at Modern typically do use coarse language. Defs.' Mem. in Supp. of Mot. for Summ. J. at 4-5.
Plaintiff admitted in his deposition that he was referred to as "The Pollack" on occasion by social acquaintances and that he was not offended by such. Szostak Dep. at 169-170, 195-196. In plaintiff's opposition to this motion however, he asserts that he does not have any nicknames and that his friends refer to him as "Jim or James." Szostak Aff. at ¶ 4. To the extent that plaintiff seeks to defeat defendant's summary judgment motion by creating material issues of fact by contradicting his prior deposition testimony, such will not be allowed. Trans-Orient Marine Corp. v. Star Trading Marine Inc., 925 F.2d 566, 572 (2d Cir. 1991).
On July 3, 1997 plaintiff was told to work overtime but refused to do so because he had a prior personal engagement. Upon his refusal, Hibbard told plaintiff that if he were to leave he would be fired. Defs.' Mem. in Supp. Of Mot'n for Summ. J. at 10. Modern had a policy whereby seasonal workers such as plaintiff could be required to work overtime if asked and plaintiff acknowledged such policy when hired — viz., he indicated that he would work overtime if asked. Id. at 4. Plaintiff continued in his refusal to work overtime and, consequently, was fired. Id. at 12. Plaintiff and Hibbard had known each other for decades and had had a good relationship prior to the July 3, 1997 incident, although plaintiff disputes such fact. Plaintiff claims that, despite Modern's mandatory overtime policy, no other employee has been fired for refusal to work overtime. Am. Compl. at ¶ 21.
Plaintiff returned to work on Monday July 7, 1993 with a concealed micro-cassette recorder in an effort to secretly obtain evidence of Hibbard calling him a Pollack. When the tape was played at plaintiff's deposition, Hibbard never used the word Pollack despite plaintiff's persistent efforts to get him to do so. Szostak Dep. at 326-330. Plaintiff received a notice of a right to sue from the Equal Employment Opportunity Commission, and this suit followed.
The only party who did use the word "Pollack" was plaintiff who used the term at least twice on the tape.
FRCvP Rule 56(c) states that summary judgment "shall be rendered forthwith if 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." The party seeking summary judgment bears the burden of demonstrating to the court the "lack of a genuine, triable issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986). A fact is material if it "might affect the outcome of the suit under the governing law" and is genuine if it "is such that a reasonable jury return a verdict for the nonmoving party." Anderson v. Liberty Lobby, 477 U.S. 242, 247-248 (1986). When ruling on a motion for summary judgment the court must view the facts in the "light most favorable to the opposing party." Adkins v. Kress Co., 398 U.S. 144, 157 (1970). However, the opposing party may not rest upon conclusory statements in his pleadings, but rather is required to "set forth specific facts showing that there is a genuine issue for trial." FRCvP 56(e). Although "caution must be exercised in granting summary judgment where intent in genuinely in issue, summary judgment remains available to reject discrimination claims in cases lacking genuine issues of material fact." Chambers v. TRM Copy Center Corp., 43 F.3d 29, 40 (2d Cir. 1994).
Internal citations omitted.
Title VII states that "[i]t shall be an unlawful employment practice for an employer * * * 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)(1). Title VII is not intended to be a general civility code. Faragher v. City of Boca Raton, 524 U.S. 775, 778 (1998). If a plaintiff can point to direct evidence that discrimination influenced an employment decision then the burden shifts to the defendant to show by a preponderance of the evidence that it would have made the same decision even in the absence of discrimination. Price Waterhouse v. Hopkins, 490 U.S. 228, 252, 253 (1989). If, as is often the case, a plaintiff cannot point to direct evidence of discrimination, courts are to instead evaluate the claim in accordance with the burden shifting analysis as set out in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1972), and its progeny.
Plaintiff also brings claims under the HRL; however, because the standards thereunder are the same as for Title VII, this claim will not be discussed separately. Ferrante v. American Lung Association, 90 N.Y.2d 623, 629 (1997); Van Zant v. KLM Royal Dutch Airlines, 80 F.3d 708, 714-715 (2d Cir. 1996).
As a preliminary matter this Court notes that plaintiff brought his Title VII claim against Hibbard and Richard Washuta, the President of Modern, in their individual capacities. Individuals may not be held personally liable under Title VII and such claims will be dismissed. Tomka v. Seiler Corp., 66 F.3d 1295, 1313 (2d Cir. 1995).
Individuals may be held liable under the HRL; however, this Court will grant Hibbard and Washuta's motion for summary judgment on plaintiff's HRL claims against them individually, for the same reason that this Court will grant Modern's motion for summary judgment on plaintiff's Title VII claim.
Plaintiff argues that he has presented sufficient direct evidence so that this case can be evaluated per Price Waterhouse. Pl.'s Mem. in Opp'n to Defs.' Mot'n for Summ. J. at 4-5. As support for this argument he points to the fact that he was constantly subjected to discriminatory remarks about his national origin and that he was disciplined in ways that his non-Polish co-workers were not. The facts fall far short of meeting the evidentary threshold necessary for plaintiff's case to be evaluated under Price Waterhouse. In Price Waterhouse, a sexual discrimination case brought under Title VII, there were actual written evaluations of that plaintiff which indisputably set out that she was denied a promotion because of her sex. Id. at 234-237. Plaintiff's proof here does not reach that level so this Court will evaluate his claim under the test set out in McDonnell Douglas and its progeny where:
"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." Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 252-253 (1981).
Internal citations and punctuation omitted.
In order to prove a prima facie case of national origin discrimination, plaintiff must show that he is a member of the class to be protected, he is qualified for the job, he was discharged and the discharge occurred under circumstances giving rise to an inference of discrimination based on national origin. Lopez v. S.B. Thomas, Inc., 831 F.3d 1184, 1188 (2d Cir. 1987). Defendants do not dispute the first three elements; plaintiff is Polish, he was qualified and he was discharged. Defendants do however argue that plaintiff has not made a prima facie showing that the discharge gives rise to an inference of discrimination based upon national origin.
When evaluating plaintiff's claim of national origin discrimination here, this Court takes notice of the fact that plaintiff was fired by Hibbard, the same person who hired him only three months prior. This strongly suggests that invidious discrimination was unlikely. Grady v. Affiliated Cent., Inc., 130 F.3d 553, 560 (2d Cir. 1997). The Second Circuit Court of Appeals has reasoned that in such a situation "it is difficult to impute to [him] an invidious motivation that would be inconsistent with the decision to hire." Ibid. Plaintiff argues against this Court's application of what has become known as the "same-actor" inference by the Fourth Circuit Court of Appeals — Proud v. Stone, 945 F.2d 796, 797 (4th Cir. 1991) — on the ground that plaintiff was not hired by Hibbard, but rather was hired by Innis some time in 1986 or 1987. As noted supra, plaintiff was terminated from Modern in 1994 and was rehired in 1996.
This Court is of the opinion that, whether plaintiff is classified as a new hire or as a "rehire," the fact remains that he would not have been working at Modern at the time he alleges he was discriminated against by Hibbard had it not been for Hibbard. Therefore, defendants should receive the full benefit of the same-actor inference — to wit, it is highly unlikely that Hibbard discriminated against plaintiff because of his nationality.
The only evidence which plaintiff submits to show that he was discriminated against because of his national origin is that he was constantly referred to as "the Pollack." Notwithstanding such ambience, there is a dispute as to whether plaintiff disliked this reference; this Court notes that "the mere utterance of a racial epithet is not indicia of discrimination under Title VII." Boyd v. State Farm Ins. Co, 158 F.3d 326, 329 (5th Cir. 1998). This fact and the "same-actor" inference to which defendant is entitled do not create a genuine issue of material fact as to whether plaintiff was fired because of his national origin. Therefore summary judgment will be granted on plaintiff's claim that he was terminated because of his national origin.
Accordingly, it is hereby ORDERED that defendants' motion for summary judgment on plaintiff's Title VII and HRL claims is hereby granted and that this case be closed.