Opinion
Civil Action No. 99-CV-84-34 (DCT)
August 21, 2001
MEMORANDUM AND ORDER
Ken Bengard brought this suit against his former employer, the United Parcel Service ("UPS"), after he was terminated from his job, a claims of disparate treatment, hostile environment and retaliation on the basis of religion. UPS now moves for summary judgment with respect to all of Bengard's claims.
Background
Ken Bengard, a practicing Jew, began work as an auto mechanic for UPS on September 21, 1992. See Pl.'s Statement of Undisputed Facts Pursuant to Local Rule 56.1 [hereinafter "Pl.'s Facts"] ¶¶ 17-23. From 1992 to May, 1995, Bengard worked at UPS's 43rd Street facility in Manhattan.See Mem. Law Supp. Def.'s Mot. Sum. J. [hereinafter "Def.'s Mem."] at 2. His supervisor at that location was Rich Roller. See Pl.'s Facts ¶ 27. Upon request, Bengard was transferred to UPS's Manhattan North facility in the Bronx in May of 1995. See Def.'s Statement of Undisputed Material Facts Pursuant to Local Rule 56.1 [hereinafter "Def.'s Facts"] ¶¶ 4-5.
Because the Manhattan North facility is one of UPS's smaller facilities, there was and is only one mechanic assigned to each of the two shifts at that facility. See id. ¶ 6. Bengard worked the night shift. See id., ¶ 5.
On February 28, 1997, Bengard's Automotive Fleet Manager, John O'Connell, who supervised Bengard's direct supervisor, Robert Myers, received a complaint from a daytime mechanic that Bengard had left work without completing a repair to a UPS truck, thereby precipitating a delay in the delivery of several UPS packages. See Def.'s Mem. at 2-3. Concluding that Bengard had mishandled the situation, O'Connell notified Bengard that he would be subject to disciplinary action and transferred from the Manhattan North facility back to the 43rd Street facility. See id.
Bengard filed a grievance challenging O'Connell's decision on March 3, 1997. See id. A meeting among UPS management, Bengard and Bengard's supervisor was held within two weeks, at which time it became apparent that there had been a miscommunication concerning Bengard's actions during the February 28 incident. See id. Bengard had, in fact, discharged his duties by attempting unsuccessfully to contact other UPS facilities in order to secure the part needed to complete the repairs. See id. Bengard received an apology from UPS, no disciplinary action was taken against him, and he was transferred back to the Manhattan North facility. See id.
On March 3, 1997, Bengard had also filed a second grievance which alleged that as a condition of being allowed to take a personal holiday on Yom Kippur in September, 1996, six months earlier, he had been told by his supervisor that the latter did not observe Yom Kippur, and if Bengard wanted that holiday off, he would have to answer a question about it.See Def.'s Ex. B. He had not complained to UPS management about the incident prior to this occasion. See Def.'s Mem. at 2-3. Bengard followed up this complaint with a March 6, 1997 letter to Terry McLoughlin, the Employee Relations Manager, wherein he again complained about the alleged September, 1996 incident, as well as about several others: (1) that hourly and management people at UPS had referred to him as "the Jew"; (2) that during a Christmas party in December, 1995, O'Connell had embarrassed him by asking him what "Shabbat Shalom" meant; (3) that in 1994, O'Connell had compared him to a "whore with big tits"; (4) that, on one occasion, Automotive Supervisor Richard Roller had referred to him as "Rabbi Schneerson" or "Rabbi Shlomo" following the June, 1994 death of Hasidic Rabbi Schneerson; (5) that Roller had commented that he does not invite Bengard to his neighborhood because his neighbor is a Nazi descendent and has German shepherds for dogs; (6) that Roller made inappropriate sexual gestures toward Bengard, i.e., holding his right hand to his groin area; (7) that once in October, 1995, Bengard received his paycheck six days late; and (8) that he was excluded from meetings. See id. This marked the first time that Bengard had complained to UPS about these allegations. See id.
In addition to these incidents, Bengard now also notes several others: (1) while he was still working in the 43rd Street facility, an unknown source left a yarmulke at his workstation, see id.; (2) prior to March, 1997, he was denied overtime and subject to increased supervision and discipline as a result of his religion; see id.; (3) Robert Mancca, another Jewish employee who had worked at the 43rd Street station, was referred to as "the other Jew" and Bengard's "brother," Pl.'s Facts ¶¶ 32-33; (4) Robert Myers was generally very cold to Bengard and showed his dislike for Bengard, see id. ¶ 40; (5) Rich Roller would organize football games without including Bengard, see id. ¶ 41; (6) Bengard was placed in front of Rich Roller's office to do his work as a form of punishment, see id. ¶ 44; (7) Rich Roller made the comment, "this fucking Jew is lucky to have a job," see id. ¶ 49; and (8) Bengard was ridiculed and referred to "like a homosexual," see Pl.'s Mem. at 5.
Responding to Bengard's March, 1997 complaints, UPS undertook an investigation by interviewing Bengard and the supervisors whose conduct he had complained of in his letter, i.e., O'Connell, Myers and Roller. Def.'s Mem. at 4. The three supervisors were separately questioned about Bengard's allegations and required to prepare a written statement about the allegations directed at each of them. See Repl. Mem. Law Supp. Def.'s Mot. Sum. J. [hereinafter "Def.'s Repl."] at 3. UPS management thereupon concluded that some of the comments alleged by Bengard to have been made were, in fact, made. See Def.'s Mem. at 4. The three supervisors were then talked to, reprimanded and counseled. See id. O'Connell and Myers, who had supervisory power over Bengard at the time of the complaint were reassigned from the automotive department to the "less prestigious" carwash department. See Def.'s Repl. at 3. Before assigning Bengard a new supervisor, District Automotive Manager Karl Hudson checked with Bengard to be sure that person he had chosen, Mike Rocci, was acceptable to Bengard. See Def.'s Mem. at 14. In response to Bengard's claims that other mechanics had referred to Bengard as "the Jew," Hudson convened Bengard's fellow mechanics in small groups to instruct them on UPS's zero tolerance policy with respect to discrimination and harassment. See Def.'s Repl. at 3. Finally, Hudson and several other UPS managers provided Bengard with their telephone numbers so that Bengard could bring any further problems to their attention immediately. See id. at 4. Over the course of March and April, 1997, UPS management met with Bengard several times to assure him that his complaint was being investigated and taken very seriously. See Def.'s Mem. at 5.
Between April, 1997 and October 6, 1998, the date on which he was terminated, Bengard continued to work at the Manhattan North facility and made no further complaints of discrimination or retaliation. In September, 1998, Vernon Lee, the Automotive Fleet Manager overseeing the Manhattan North UPS facility, who had no record of having been involved in any anti-Semitic or otherwise hostile conduct in reference to Bengard, told Hudson that he had received an anonymous call informing him that Bengard was repairing private cars on company time. See id. at 6. In response to this tip, UPS Security Manager Christopher Wheeler arranged to have the mechanic shop at Manhattan North secretly videotaped during Bengard's shifts on September 17 and October 2, 1998. See id. The videotape confirmed the substance of the call — Bengard was repairing private vehicles on company time. See id. Bengard's time entries for these dates were thereafter retrieved, and it was proven conclusively that he had falsely recorded on his time cards that he was repairing UPS vehicles when, in fact, he was working on a personal automobile. See id. Bengard did not and does not contest that he falsified his time card or that he worked on company time. See id. He was terminated for dishonesty on October 6, 1998. See id.
Bengard did complain about verbal abuse in an August 20, 1998 letter, but there is no indication that the underlying conduct involved anything of a discriminatory nature. The letter will be discussed in more detail below.
On June 16, 1999, Bengard filed a claim with the EEOC, alleging retaliation and discrimination on the basis of his religion. See id. at 7. The EEOC issued a right-to-sue letter. This action followed.
Discussion (1)
UPS contends, first, that to the extent that Bengard's hostile environment claim is premised on conduct occurring more than 300 days prior to the filing of his EEOC complaint on June 16, 1999, it is time-barred. See 42 U.S.C. § 2000e-5(e) (2000); Butts v. City of New York Dep't of Hous. Pres. Dev., 990 F.2d 1397, 1401 (2d Cir. 1993). The 300-day rule would, therefore, allow a claim premised only on conduct occurring on or after August 20, 1998. of the numerous incidents alleged in Bengard's complaint, UPS contends, only his termination occurred within the relevant time period.
Bengard responds in several ways. First, he appears to concede the time problem:
The defendants accurately state the law with respect to the filing of a timely EEOC charge. Accordingly, Bengard's claim that his termination was discriminatory and as a result of retaliation is in fact timely. This is not disputed. However the defendants seek to preclude Bengard from raising the numerous incidents which occurred during his employment but beyond 300 days preceding Bengard's filing of his EEOC complaint. It should be clear however that the plaintiff cannot seek economic damages from any incidents that occurred prior to Bengard's filing of the EEOC complaint except those economic damages which directly resulted from his unlawful termination. All of the other incidents that Bengard complains of must be considered for what they are and in the context of his employment.
Pl.'s Mem. at 8-9 (citation to UPS's brief omitted). It certainly appears from this portion of Bengard's brief that he is conceding the untimeliness of his hostile environment claim, which is conspicuously absent when Bengard argues, correctly, that his disparate treatment and retaliation claims that stem from his termination are timely. His statement that he is seeking economic damages only for his termination would also appear to be a withdrawal of his hostile environment claim, which would have sought economic damages on the basis of those very acts which Bengard admits are time-barred.
Yet, later in brief, in a section entitled "Plaintiff, Ken Bengard's Claims Constitute a Prima Facie Case of Discrimination and Retaliation," Bengard, after noting the four elements of the McDonnell Douglas burden-shifting framework, see infra, proceeds to make the following curious sequence of statements:
The only disputed element at issue here is whether Bengard's termination in October, 1998 took place under circumstances giving rise to an inference of discrimination. All prior incidents must be considered as background in order to show that there was indeed a hostile work environment as a result of unlawful discrimination. The acts that the defendants are seeking to bar plaintiff from proceeding are not simply a "handful of isolated incidents." Even if Plaintiff sought relief from these "untimely" claims he would be permitted to use them under the "continuous violation" rule.See Pl.'s Mem. at 9. Bengard then goes on for a good two pages explaining why the "continuous violation" rule applies to this case. See id. at 10-11.
The construction "[e]ven if Plaintiff sought relief from these "untimely' claims," (emphasis added) suggests that Bengard is not actually seeking such relief. Yet the placing of the word "untimely" in quotation marks suggests that Bengard may be skeptical that these claims are indeed untimely. Furthermore, it is not common practice in legal writing to spend two full pages of a brief addressing why a hypothetical claim that Bengard is withdrawing would actually be valid, if he were not withdrawing it. Thus, although it is not entirely the province or the practice of this court to engage in close readings of represented litigants' motion papers in order to second guess what would appear to be a decision to withdraw a claim they have made, in these peculiar circumstances, further reflection seems warranted, if only to be assured upon the point that no continuing violation, in fact, exists.
"When a plaintiff experiences a `continuous practice and policy of discrimination' . . . the commencement of the statute of limitations period may be delayed until the last discriminatory act in furtherance of it." Cornwell v. Robinson, 23 F.3d 694, 704 (2d Cir. 1994) (citations omitted). "[A] continuing violation may be found where there is proof of specific ongoing discriminatory policies or practice, or where specific and related instances of discrimination are permitted by the employer to continue unremedied for so long as to amount to a discriminatory policy or practice." Id. of course, for the continuing violation doctrine to apply, "[t]here must be proof of at least one instance of discriminatory practice within the filing period." Jones v. City of Syracuse, No. 91-CV-1220, 1996 WL 481555 at 3 (N.D.N.Y.); see LaBeach v. Nestle Co., 658 F. Supp. 676, 687 (S.D.N.Y. 1987); West, 45 F.3d at 755. "As a general rule, courts in the Second Circuit have viewed continuing violation arguments with disfavor," Curtis v. Airborne Freight Corp., 87 F. Supp.2d 234, 244 (S.D.N.Y. 2000); Wilkins v. New York City Dept. of Probation, 2001 WL 262601 at 3 (S.D.N Y March 15, 2001); see also, e.g. Rose v. Port Auth. of New York and New Jersey, 13 F. Supp.2d 516, 520 (S.D.N.Y. 1998); Riedinger v. D'Amicantino, 974 F. Supp. 322, 325 (S.D.N.Y. 1997); Lloyd v. WABC-TV, 879 F. Supp. 394, 399 (S.D.N.Y. 1995); Blesedell v. Mobil Oil Co., 708 F. Supp. 1408, 1415 (S.D.N.Y. 1989)
Bengard contends that a continuing violation exists under the doctrine enunciated by the Seventh Circuit in Garrison v. Burke, 165 F.3d 565, 569-570 (7th Cir. 1999). That doctrine is really the Fifth Circuit's test first enunciated in Berry v. Bd. of Supervisors of Louisiana State Univ., 715 F.2d 971 (5th Cir. 1983), which has since been adopted by several other circuits, see West v. Philadelphia Electric. Co., 45 F.3d 744, 754 n. 9 (3d Cir. 1995); Selan v. Kiley, 969 F.2d 560, 565-66 n. 7 (7th Cir. 1992); Sabree v. United Brotherhood of Carpenters and Joiners, 921 F.2d 396, 404 (1st Cir. 1990); Roberts v. Gadsden Mem. Hosp., 835 F.2d 793, 800 (11th Cir. 1988), as well as by many district courts within this circuit, see Brown v. Middaugh, 41 F. Supp.2d 172, 181 (N.D.N.Y. 1999); Beattie v. Farnsworth Middle School, No. 98-CV-0399, 1998 WL 1769747 at 4 (N.D.N.Y. Dec. 9, 1998);Riedinger v. D'Amicantino, 974 F. Supp. 322, 326 (S.D.N.Y. 1997); Johnson v. Nyack Hosp., 891 F. Supp. 155 (S.D.N.Y. 1995), aff'd. 86 F.3d 8 (2d Cir. 1996); Brown v. Time. Inc., No. 95 Civ. 10081, 1997 WL 231143 (S.D.N.Y. May 7, 1997); Davis v. City Univ. of New York, No. 94 Civ. 7277, 1996 WL 243256 (S.D.N.Y. May 9, 1996); Flynn v. Goldman, Sachs Co., No. 91 Civ. 0035, 1993 WL 336957 (S.D.N.Y. Sept. 3, 1993). The test asks the court to consider three factors: 1. subject matter (whether the alleged acts involved the same type of discrimination); 2. frequency (whether the alleged acts are recurring or are more in the nature of isolated incidents); and 3. degree of permanence (whether the alleged acts have the degree of permanence which should trigger an employee's awareness and duty to assert his or her rights) See Johnson, 891 F. Supp. 155, 163 (S.D.N.Y. 1995)
To apply the first prong of the test, we must first be perfectly clear what the acts that fall within the 300-day period might be, so that it is then possible to compare them with the acts that occurred prior to that period:
Up to March, 1997 Bengard was subjected to many references to him as "the Jew." Therefore at least up until 1997 Mr. Bengard's religion played a role at his work place. From March, 1997 through his termination in October, 1998, Bengard also claims that he was subjected to particular scrutiny that other employees were not subjected to. In fact in August, 1998, Bengard wrote to Tom McGuire complaining of this extension of humiliation and harassment which was in Bengards [sic] opinion a continuing pattern of abuse. In his letter Bengard said that he was only following Mr. McGuire's advice to inform him promptly of any situation that arose at his workplace which made him feel harassed, abused or disrespected. Obviously, Bengard's reference was in fact to management's prior advice in 1997 that he should report incidents which cause him concern.
Pl.'s Mem. at 23. The letter is dated August 20, 1998, see Def.'s Mem. at 22, which is the precise cutoff date for the 300-day period. The letter falls within the 300 days. However, the fact that it falls within this period is legally insignificant for at least two reasons.
First, the letter itself is not a discriminatory act. It is simply a complaint by Bengard. As such, it cannot possibly be deemed the last discriminatory act that occurred. Rather, the acts to which it makes reference would constitute the last discriminatory acts, and those are enumerated in Bengard's complaint. Unfortunately for Bengard, they clearly occurred prior to the cutoff date:
Bengard points to the Ninth Circuit's decision in Draper v. Coeur Rochester, Inc., 147 F.3d 1104, 1108-09 (9th Cir. 1998), where the court reversed the grant of summary judgment in favor of the defendant on plaintiff's Title VII claims after finding a continuing violation. The only act falling within the 300-day period in that case was the plaintiff's complaint of discrimination to her supervisor, yet the court found that the complaint sufficed to establish a continuing violation. However, there is a significant difference between the complaint inDraper and the letter here. "Assuming the truthfulness of Draper's version of the facts," the Ninth Circuit wrote, "Anelli's snide laughter and humiliating response to her allegations of harassment could reasonably have been perceived by her as an act of hostility that was clearly related to the authority he customarily exercised over her and to his prior, as well as his future, discriminatory treatment of her." Id. No such spin can be put on Bengard's August 20 letter.
22. On or about June 19, 1998, Plaintiff was repeatedly verbally abused by Mr. Michael Rocci in front of co-workers. Mr. Rocci stated that Plaintiff was "out of his mind," implying Plaintiff was crazy.
23. In addition, Mr. Rocci was yelling at Plaintiff and raising his finger several inches from Plaintiff's face. Apparently in an attempt to provoke Plaintiff.
24. Upon information and belief, the Plaintiff was the only employee in his department to be subjected to such conditions of employment.
25. On or about June 26, 1998, Mr. Michael Rocci again repeatedly verbally abused Plaintiff. With Karl Hudson, Mr. Rocci proceeded to question Plaintiff. Plaintiff did not respond as he was still insulted from the prior conversation on June 19, 1998. In addition, Plaintiff was intimidated and scared since his supervisor was harassing him. Due to Plaintiff's lack of response, Mr. Rocci stated that he "didn't care if" Plaintiff went to bed with Karl, he better answer his questions.
Pl.'s Compl., Def.'s Ex. B, attached to Regan Decl.
Second, even if these acts had occurred within the 300-day period, they would still fail to satisfy the first requirement of the Berry test, viz., that they be related in terms of their subject matter. Acts that are related are to be "distinguished from unrelated if deplorable manifestations of individual prejudice." Johnson, 891 F. Supp. at 164. In this case, the acts alleged are not only not the same type of discrimination as the religious discrimination endured by Bengard earlier in his tenure at work, but it is also not even apparent, given the vagueness of the complaint, whether the acts constituted any sort of discrimination at all. Bengard alleges that Rocci and possibly Hudson verbally abused him. It is clear from the content that Rocci and Hudson must have verbally abused Bengard in regards to some subject matter. That subject matter could have been pretextual, perhaps, but Bengard has not related any of the accompanying facts and circumstances of his interactions with Rocci and Hudson. Without such information, his claims are nothing more than conclusory allegations of discrimination. There is no good reason to think that his religion had anything to do with Rocci calling him insane or suggesting that he go to bed with Hudson. Courts have found no continuing violation to exist when the pre — and post-300-day conduct was much more related than it appears to be in the case at bar. See Beattie, 1998 WL 1769747 at 4 (finding, in a sexual harassment case, no continuing violation and the first prong of theBerry test unsatisfied where "[c]onduct beyond the statute of limitations allegedly involved physical touching and supervisor inaction, while conduct within the 300 day window involved psychological intimidation and active retaliation").
The lack of connection between these acts and the instances of religious discrimination to which Bengard had been subjected earlier is also relevant to the Berry test's second prong, the issue of frequency. Prior to these incidents involving Rocci and Hudson, the last incident to which Rocci's complaint makes reference is being asked to answer a question about the Jewish religion in response to requesting a day off for the Yom Kippur holiday. See Pl.'s Compl. ¶¶ 19-20. The complaint alleges that this incident happened in September, 1996, see Pl.'s Compl. ¶ 19, almost two years prior to these June, 1998 occurrences. Moreover, although Bengard alleges that he was referred to as "the Jew" and called "the Jew" throughout his tenure with UPS, see Pl.'s Facts ¶ 35, his deposition makes clear that his coworkers referred to him as "the Jew" only while he was working at UPS's 43rd Street facility, from which he was transferred in May, 1995:
Q. After you were transferred to the Manhattan North facility, were you referred to as "The Jew"? Did you hear people refer to you as "the Jew"?
A. From where?
Q. Wherever.
A. Wherever. Yes.
Q. Did anybody at the Manhattan North building refer to you as "the Jew""
A. I wouldn't say people that worked over there. Sometimes we had mechanics coming up picking up parts or doing things like that from 43rd Street. No, but people that I worked with in Manhattan North and not so much the Automotive Department, other departments really respect me for who I was and they weren't, no, so much calling me a Jew, no.
Q. So it was more people from the 43rd Street station?
A. Correct. Correct. It was like a stigma. Everytime they came up, it was, you know, they would follow up with it.
Q. What would they say to you, for example?
A. If somebody would come up into the building and there's not a lot of people working in the building at the night shift, they would call and say, "Did anybody see the Jew? Where is he? We're looking for him." Looking for me, if I was in the shop or, you know, on the line or something like that, doing something where somebody couldn't find me, they would actually say, "Did anybody see the Jew?"
Def.'s Ex. C. attached to Regan Decl. at 133-34. In addition, as UPS points out, Bengard "essentially worked alone as the only night mechanic at the Manhattan North facility." Def.'s Repl. at 9, n. 11. The lack of co-workers and supervisors is evidenced by the fact that UPS had to equip a secret videotape to catch him fixing non-UPS vehicles on UPS time. It is difficult to have a hostile work environment when a plaintiff is the only one in his work environment. In short, the evidence in the record shows that whatever anti-Semitic remarks and conduct were directed at Bengard when he worked at the 43rd Street facility did not persist with any frequency at all after his transfer to the Manhattan North facility and appear to have ceased entirely around or even well before his complaints to UPS in March, 1997 and UPS's reassignment of his supervisors in the wake of those complaints.
The third prong of the Berry test asks the following question: "Does the act have the degree of permanence which should trigger an employee's awareness and duty to assert his or her rights. . .?" Berry, 715 F.2d at 981. Phrased differently, "the third of the Berry factors limits the scope of this otherwise boundless exception to the statute of limitations by permitting suit on a continuing violation theory only if the circumstances are such that a reasonable person in the plaintiff's position would not have sued earlier." Johnson, 891 F. Supp. at 165. Here, on the one hand, the conduct that had occurred prior to the 300-day period preceding the filing of Bengard's EEOC Complaint was not permanent at all, insofar as Bengard did not suffer any change in his employment status during this time. But on the other hand, Bengard was well aware that he had been a victim of religious discrimination. His March, 1997 complaint to UPS management testified to his awareness of this fact. Yet, he waited until June of 1999, a long time after the discriminatory conduct had abated and when no new discriminatory conduct had occurred, to file his EEOC charges.
The only other act that Bengard can rely on to show a continuing violation is his termination itself. Clearly, the termination falls within the statutory period. The problem, however, is twofold. First, whether or not the termination relates in terms of its subject matter to the religious discrimination faced by Bengard prior to March, 1997 is questionable, or rather, it is the very essence of his disparate treatment claim. If his disparate treatment claim can survive summary judgment, then it is at least arguable that religious discrimination motivated his termination, and that termination would, therefore, arguably be related in its subject matter to the earlier incidences of religious discrimination. If, on the other hand, his disparate treatment claim is unsound, then the termination cannot be a product of religious discrimination and would, therefore, be unrelated in its subject matter to the instances of religious discrimination.
The reader will have to be patient to discover how the disparate treatment claim is resolved. However, no such patience is required to resolve the viability of the continuing violation theory. This is because there is a second, irremediable problem with viewing the termination as part of a continuing violation: the utter absence of continuity. The last act of religious discrimination occurred before March, 1997; the termination occurred in October of 1998. Over a year and a half transpired quite uneventfully between these two dates. In Cornwell, where the Second Circuit found a continuing violation, there was a three-year gap where the plaintiff there suffered no harassment, but this gap, unlike the one here, was easily explicable:
The district court found that defendants' personnel policies discriminated on the basis of gender and that Cornwell suffered race and gender-based harassment that DFY and its supervisory personnel permitted to continue. It found that in 1986 Cornwell suffered the same kinds of harassment at the hands of some of the same [youth division aides ("YDAs")], and under the aegis of some of the same supervisory personnel, as in 1981-1983. The court found that the only reason that the harassment had not continued in the interim between February 1983 and March 1986 was Cornwell's absence on account of the illness precipitated by the first set of incidents. Against that background of DFY's gender-discriminatory policies and the hostile work environment created by those male YDAs who sought to rid MacCormick of female YDAs, the court properly concluded that the acts of discrimination and harassment by the individual defendants constituted a continuing wrong that did not end until April 1986, when Cornwell was finally driven from MacCormick for good. Cornwell's original complaint, filed in June of that year, was therefore timely.Cornwell, 23 F.3d at 704. The one-and-a-half-year gap in the case at bar has no similar explanation. The explanation that appears most obvious on this record, in fact, is that UPS responded to Bengard's original complaints of discrimination and put a stop to the underlying conduct. Bengard has not adduced any evidence to rebut UPS's suggestion that this is what happened in this case. Perhaps, if the October, 1998 termination had involved conduct more unambiguous and more similar in type to Bengard's early complaints (another reference to "the Jew," for example), there would have been some slight reason to be given pause by Bengard's claim of a continuing violation. Absent such conduct, a continuing violation clearly does not exist. Summary judgment is consequently granted as to Bengard's hostile environment claim.
If all Bengard is left with is conduct post-dating March, 1997, he clearly cannot hope to make out a hostile environment claim, since isolated or discrete instances of harassment do not constitute a hostile environment claim. See Solomon v. Giorgio Armani Corp., No. 99 Civ. 1838, 2000 U.S. Dist. LEXIS 18879, at 6 (S.D.N.Y. Dec. 21, 2000); Francis v. Chem. Banking Corp., 62 F. Supp.2d 948, 959 (E.D.N.Y. 1999), aff'd, No. 99 Civ. 9231, 2000 U.S. App. LEXIS 11896 (2d Cir. May 24, 2000);Arroyo v. WestLB Admin., Inc., 54 F. Supp.2d 224, 231 (S.D.N.Y. 1999),aff'd without op., 213 F.3d 625 (2d Cir. 2000); Shabat y. Blue Cross Blue Shield, 925 F. Supp. 977 (W.D.N.Y. 1996), aff'd without op., 108 F.3d 1370 (2d Cir. 1997)
(2)
UPS contends that Bengard's complaint of retaliatory discharge fails because of the lack of a protected activity of which the employer was aware and which was causally connected to Bengard's termination. To survive summary judgment on a claim of retaliation, a plaintiff must show the following: (1) that he participated in a protected activity by opposing a practice made unlawful by Title VII; (2) that his employer was aware of that activity; (3) that he suffered an adverse employment action; and (4) that there is a causal connection between the adverse employment action and the protected activity. See Holt v. KMI-Continental, Inc., 95 F.3d 123, 130 (2d Cir. 1996); Van Zant v. KLM Royal Dutch Airlines, 80 F.3d 708, 714 (2d Cir. 1996). There is no dispute in this case that Bengard suffered an adverse employment action, viz., his termination.There are two actions by Bengard that purport to be the protected activity required to make out a retaliation claim. The first are his March and April, 1997 complaints of harassment. The second is his August, 1998 letter to UPS management complaining of verbally abusive treatment at the hands of his supervisors.
While there is no dispute that Bengard's March and April, 1997 religious harassment complaints constitute a protected activity under Title VII, they are simply too chronologically remote from his October, 1998 discharge to satisfy the "causal relationship between protected activity and adverse employment action" requirement. Although the Second Circuit has approved a gap of as long as one year between the protected activity and the retaliatory action, see DeCintio v. Westchester County Med. Ctr., 821 F.2d 111 (2d Cir. 1987), in that case, the court also found other, independent evidence establishing causation, namely, direct evidence of retaliatory animus on the part of the employer hospital in the form of statements indicating the desire to discharge the plaintiff because of his protected conduct, see id. at 115, and there was no evidence of the sort in this case. Thus, insofar as causation can be found on the basis either of indirect evidence, i.e., proximity in time or disparate treatment, or on the basis of direct evidence, i.e., retaliatory animus,id. ("Proof of causal connection can be established indirectly by showing that the protected activity was followed closely by discriminatory treatment, Davis v. State University of New York, 802 F.2d 638, 642 (2d Cir. 1986), or through other evidence such as disparate treatment of fellow employees who engaged in similar conduct,Simmons v. Camden County Board of Education, 757 F.2d 1187, 1188-89 [(11th Cir. 1985)], or directly through evidence of retaliatory ammus directed against a plaintiff by the defendant." (emphasis in original)),DeCintio was a case where disparate treatment and retaliatory animus were present. There is every indication that the year gap, taken alone, would never have been sufficient to show a causal connection.
In fact, in Hollander v. Amer. Cyanamid Co., 895 F.2d 80 (2d Cir. 1990), where the time between the protected activity and the termination was only three months but where the plaintiff submitted no other evidence probative of a causal nexus, the court held that "because of the lack of evidence demonstrating a causal nexus between Hollander's age discrimination complaint and any subsequent action taken towards him by American Cyanamid, we hold that the district court properly granted summary judgment on the retaliation claim." Id. at 86. And inStringfellow v. Wyckoff Heights Medical Center, No. 95 CV 3041, 1998 WL 760286 (E.D.N.Y. 1998), where there was a four-month gap between an EEOC complaint and the plaintiff's termination, without going so far as to say that this gap could support a finding of causation, especially if there were other relevant evidence, the court held that "a lapse in time of this magnitude counsels against a causal connection." Id. at 6.
No decision of which this court is aware has allowed a claim of retaliation to stand where there is, as here, an eighteen-month gap and no other evidence indicative of retaliatory animus. Consequently, the March and April, 1997 religious harassment complaints cannot possibly be causally related to the October 6, 1998 decision to terminate Bengard.
This leaves the letter of August 20, 1998. Here, the gap between the protected activity and the discharge is under two months. However, the letter is not actually a protected activity of which UPS could have been aware. As the Second Circuit has written, "implicit in the requirement that the employer have been aware of the protected activity is the requirement that it understood, or could reasonably have understood, that the plaintiff's opposition was directed at conduct prohibited by Title VII." Galdieri-Ambrosini v. Nat'l Realty Development Corp., 136 F.3d 276, 292 (2d Cir. 1998) (finding that an employee could not show retaliation when her complaint in no way indicated that the treatment she received from her boss was influenced by gender); see also Shin v. ITOCHU, No. 97 Civ. 6235, 1998 U.S. Dist. LEXIS 12464, at 12 (S.D.N.Y. Aug. 12, 1998)
The text of Bengard's letter, sent in response to interactions with Rocci and Hudson where religion was in no apparent way implicated, see supra, said that "UPS should be a place for me and for all to come to work, achieve our goals and strive for new ones — NOT to be humiliated, harassed, threatened and manipulated by someone with authority! Authority in our company should be earned and not to be given to abuse (and in front of others!). When this happens we ALL fail as a team and WE must correct it." See Def.'s Ex. D attached to Regan Decl. The underlying conduct by Rocci that the letter describes has nothing to do with religion or religious discrimination According to the letter, Rocci said that Bengard was "out of [his] mind," implying, in Bengard's view, that Bengard was crazy. Def.'s Ex. D. There is nothing to suggest anti-Semitic remarks, and Bengard does not detail in the record what actually precipitated his altercation with Rocci. Moreover, UPS's counsel, without contradiction, represented at oral argument that the dispute involved Rocci's belief that Bengard had failed to perform a task Rocci had ordered him to perform. See Tr. of Oral Arg. of Aug. 8, 2001. Although the letter includes the statement, "Clearly, these are the actions that we had discussed in the past," see id., even if this is a reference to the March and April, 1997 complaints, Bengard in no way indicates that he is speaking about religious harassment rather than about verbal harassment in general, which seems far more likely given the circumstances, and there is no reason to impute to UPS any consciousness of an unstated religious premise underlying the harassing conduct described in the letter. In short, nothing about the August 20, 1998 letter makes it a protected activity opposing a practice made unlawful by Title VII. For this reason, like the March and April, 1997 complaints, it cannot constitute a premise for a retaliation claim. As such, Bengard cannot make out a prima facie case of retaliation, and his claim of retaliatory discharge is dismissed.
Nor is there reason to think that the reference in the letter to Mike Rocci telling Bengard that "he did not care even if I went to bed with Karl — I better answer his questions" in any way implicates any Title VII category, since it is obviously just a way of suggesting that Bengard is "in bed" with a highranking UPS supervisor, not any reference to homosexuality, which is not a Title VII category in any case.
(3)
Finally, there is Bengard's disparate treatment claim. To make out a claim for disparate treatment, an employee must satisfy the four requirements of the McDonnell Douglas test. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 5. Ct. 1817, 1824 (1973). The plaintiff, under this framework, has the initial burden of establishing a prima facie case of discrimination by showing that: (1) he was a member of a protected group; (2) he was qualified for the position from which he was terminated; (3) he was terminated or suffered an adverse employment action; and (4) the adverse employment action occurred under circumstances giving rise to an inference of discrimination. See id.; Shumway v. United Parcel Serv., Inc., 118 F.3d 60, 63 (2d Cir. 1997)
Should plaintiff succeed in establishing a prima facie case of discrimination, the burden then shifts to defendant to articulate a legitimate, nondiscriminatory reason for its actions. See Texas Dep't. of Community Affairs v. Burdine, 450 U.S. 248, 254, 101 S.Ct. 1089, 1094 (1981). If the defendant meets this burden, then the plaintiff must demonstrate that the proffered reason was a pretext for discrimination.See Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143, 120 S.Ct. 2097, 2106 (2000)
In this case, it is conceded that Bengard is in a protected class and that he was terminated. UPS, however, contends that he either became unqualified for his job by virtue of his prohibited conduct or, reformulated to address the fourth requirement of McDonnell Doulgas test, that his discharge did not occur under circumstances giving rise to an inference of discrimination.
Bengard does not deny that he violated UPS policy which provides that "the use of company time. . . for personal benefit is prohibited," further that UPS expects "honesty with respect to intangible things. . . in the time, effort, and full value of the jobs [our people] perform," and further that "DISHONESTY WILL result in immediate dismissal and possible criminal prosecution to the full extent of the law." See Def.'s Ex. D, attached to Hudson Decl., ¶ 20 (emphasis in original). He does not deny that he committed an act of dishonesty in falsifying his time sheets. However, he claims that similarly situated UPS employees were treated more leniently.
To show disparate treatment, the plaintiff must show that he was "similarly situated in all material respects" to the individuals with whom he seeks to compare himself. Shumway, 118 F.3d at 64. In Shumway, the Second Circuit found that the individuals in question were not similarly situated to the plaintiff because they had different supervisors and because the conduct of comparators was not similar to hers. See id. The Second Circuit has since specified that what constitutes "all material respects" "varies somewhat from case to case" and "must be judged based on (1) whether the plaintiff and those he maintains were similarly situated were subject to the same workplace standards and (2) whether the conduct for which the employer imposed discipline was of comparable seriousness." Graham v. Long Island R.R., 230 F.3d 34, 40 (2d Cir. 2000).
The Shumway court stopped short of adopting as completely controlling the language of Mitchell v. Toledo Hosp., 964 F.2d 577, 583 (6th Cir. 1992), the Sixth Circuit case that not only set forth the "all material respects" standard, which Shumway did adopt, but also specified that a plaintiff and individuals with whom the plaintiffs seek to compare himself must have dealt with the same supervisor, have been subject to the same standards and have engaged in the same conduct without such differentiating or mitigating circumstances that would distinguish their conduct or the employer's treatment of them for it. See Mitchell, 964 F.2d at 583.
The similarly situated employees specified by Bengard are as follows:
Robert Mancca was fired (but later rehired) after Bengard had been working at UPS for approximately six months, i.e., in 1993 (prior to Hudson's August 1995 arrival to the Metro N Y District) for refusing to obey a manager's request that he repair a UPS automobile that had broken down "on the road." Def.'s Mem. at 18.
Mancca and Ronald Fassano were fired (but later rehired) before 1995 (prior to Hudson's August 1995 arrival to the Metro N Y District) for going together to get parts for a UPS automobile, instead of just one person making the trip. Def.'s Mem. at 18.
Chris Esposito, Mancca and Ken Blagrove were fired (but later rehired) in 1994 (prior to Hudson's August 1995 arrival to the Metro N Y District) for failing to leave a UPS facility through the designated exit equipped with metal detectors. Def.'s Mem. at 18.
Esposito was fired (but later rehired) by Hudson for his failure to timely complete UPS documentation with respect to a UPS vehicle that had broken down on the road. Def.'s Mem. at 19.
Vinny Giaone provided an authorized jump-start to a delivery truck disabled on UPS property, which it is UPS policy to permit, and was not fired.
John Lowerer temporarily parked his car in a UPS building and was not fired.
Charles Palermo, who will be discussed in detail below.
It is clear that none of the employees mentioned violated the company's "dishonesty" policy, which would have called for immediate automatic termination. Many were not supervised by Karl Hudson, the man responsible for the decision to fire Bengard. Furthermore, all of the conduct here alleged is clearly less serious than that admitted to by Bengard. Only Robert Mancca's violation — refusing to obey a manager's request to fix a vehicle that had broken down on the road — could be deemed of comparable seriousness to Bengard's actions, but the fact that Mancca was not fired — or rather fired and then rehired for his conduct does not help Bengard's case at all for the very simple reason that Mancca, like Bengard, is Jewish. If anything, then, Mancca's situation hurts Bengard's case.
Again, Charles Palermo will be discussed separately later.
The instance of Charles Palermo merits more detailed consideration. Palermo, like Bengard, was videotaped apparently working on a personal vehicle, yet he was not fired. But there are several important differences between the two cases. First, Hudson was not Palermo's manager and was not involved in any decisions pertaining to Palermo. Palermo's case was investigated: UPS Security Manager Christopher Wheeler conferred with Palermo's Division Manager Gary Wright to ascertain when Palermo typically took his break. Wright informed Wheeler that Palermo's usual practice was to take his break time at or about the time he was depicted on the videotape. Palermo was not required to record the thirty minutes of paid break time to which he was entitled on his time records. Based on these findings, Wheeler concluded that there was no proof that Palermo was on UPS time when depicted on the videotape. See Def.'s Repl. at 5, n. 6.
Karl Hudson, in his deposition, notes that UPS policy prohibits "work on any vehicle on UPS property using UPS time or UPS equipment or material." Pl.'s Mem. at 19. Thus, while an employee on a break could work on a personal vehicle parked off UPS property using non-UPS tools, working on a non-UPS vehicle on UPS property or with UPS tools, even if done on personal time, would result in the employee's being subject to termination. See id. at 19-20. It is not clear from the record whether Palermo was on UPS property or using UPS equipment when he was fixing a personal vehicle. However, Bengard was not terminated for working on a UPS vehicle on personal time. Rather, he was terminated for dishonesty, i.e., falsifying time records, which, as UPS policy said, "will result in immediate dismissal." UPS had no proof that Palermo had falsified any time records. Thus, Palermo's conduct was markedly less serious and differed in at least one important material respect from Bengard's conduct.
Defense counsel represented at oral argument, without contradiction, that UPS employees are required to keep very specific time-sheets, not entirely dissimilar to those kept by many attorneys, which detail precisely how their time is spent. See Tr. of Oral Arg. of Aug. 8, 2001.
As has been noted above, Palermo also had a different supervisor. Thus, different decisionmakers were responsible for handling the two employees and their situations. While this is not dispositive, it is worth noting. More significant, of course, is the fact that Hudson had never been implicated in any anti-Semitic conduct, as detailed above.
Nor has Bengard adduced any other evidence to show that his discharge happened under circumstances giving rise to an inference of discrimination. Karl Hudson, the decisionmaker responsible for Bengard's firing, was the same person responsible for investigating Bengard's earlier complaints of religious discrimination, to which he had responded by reassigning Bengard's supervisors, assigning his former supervisors to less prestigious positions after reprimanding them and taking numerous other precautions to ensure that the problem did not recur. See description of precautions in "Background" section, supra. His response in no way indicated any discriminatory animus toward Bengard on his part.
Bengard's various attempts to fault Hudson's handling of the situation either distort facts, see Pl.'s Mem. at 15 ("It is obvious from Hudson's testimony that he considered at least four (4) individuals if not everyone to have violated the policy against discrimination." It is equally obvious from his testimony that Hudson was simply naming the four primary individuals involved in the harassment incidents, one of whom was, of course, the victim, Bengard himself), or are conclusory and unsupported ("As to the defendants [sic] response to Bengard's claims the record reveals nothing more than a white washing of the blatant discrimination." Id. at 12).
Bengard could, of course, move significantly toward establishing a prima facie case of discrimination if he could show that UPS routinely tolerated employees' fixing personal vehicles on UPS time, and after oral argument was held on the motion, Bengard supplemented the record with deposition excerpts purporting to show precisely this. There are four excerpts that he claims indicate "employees performing non-UPS work while on UPS time." See Letter of August 13, 2001 from Thomas F. Bello, Esq.
The first is deposition testimony from Bengard relating a 1995 incident involving an employee with the first name Thomas but whose last name Bengard does not remember. See Bengard Dep. at 298. According to Bengard, a bagel truck had stalled in front of the UPS building, and the employee was caught by Karl Hudson helping the operator of the truck to restart his vehicle. However, Bengard's deposition testimony, viewed in full, suggests that the incident is inadmissible hearsay and possibly irrelevant as well:
Q. Were you going to mention another instance?
A. Yes, in Manhattan South, there was a day mechanic, a tractor mechanic. His name is Thomas. I don't remember his last name. I will be honest with you, it was an older mechanic. We had heard, again, I wasn't there, but we had heard that Carl [sic] Hudson had caught him working on one of the bagel — I believe it is one of those bagel trucks, you know. The trucks that deliver bagels and stuff like that. I guess it got stuck, and he was trying to help him out, and Carl Hudson had caught him doing that.
Q. A bagel truck got stuck?
A. I believe so. You know, it was some kind of a vendor that got stuck in front of the shop pad. The shop over there has a pretty big pad with gas tanks in the front of the shop. I guess it was over there. I know there is a bagel guy that sells bagels in the corner in the morning. Again, I wasn't there. I don't note details exactly. But that is what we heard, that Karl Hudson had caught him working on, helping the gentlemen out with his vehicle. And again, he was furious and upset.
Q. Who told you this?
A. I don't remember exactly who told me, but it was like a rumor that we all heard.
Q. Thomas, you don't know his last name?
A. I don't know. I know there is two mechanics during the day in Manhattan South. He is a tractor mechanic. He normally works on the tractor trailers.
Q. Is it your testimony that Karl Hudson caught him in the act of working on the truck?
A. It is my testimony that I heard that, we heard a rumor, you know, that Karl Hudson had caught him in the act of repairing the car, and he was very upset at him, yes.
Q. Do you know whether Thomas was disciplined?
A. I'm not sure. I know he wasn't fired. I don't know if he was disciplined.
Q. Do you know whether Thomas, Thomas' time sheets reflected that he was working on a UPS vehicle while he was allegedly fixing the bagel truck?
A. I never saw his timecards.
Q. Is it your belief that the bagel truck, based on what you heard, was stuck on UPS property?
A. Again, I'm not sure exactly the details. I don't know if it was stuck exactly on UPS property or off the property. I'm not really sure.
Bengard Dep. at 298-300. Thus, the incident is based on rumors by unknown individuals, involves events that may or may not have occurred on UPS premises or on UPS time and may or may not have resulted in discipline. In addition to all of this, Karl Hudson explained that the mechanic had provided a jump start to a delivery truck that was stuck on UPS property, and that this was not a violation of UPS policy. See Hudson Dep. at 74. For all these reasons, this incident does not show what it purports to show.
The next deposition excerpt pointed to by plaintiff is two sentences from Bengard's deposition: "They have caught people working or doing stuff, putting stuff on their timecards before that they haven't done. They have caught people in dishonesty situations, and I was the only one fired for it and stayed fired for it for that same reason." Bengard Dep. at 557. Clearly, these are purely conclusory allegations. Bengard does not describe what the situations were, whether they involved fixing vehicles on UPS property or whether they were in any way comparable to his conduct. Without such information, it is impossible to know what he is talking about or whether it is relevant to his case. Such conclusory allegations are insufficient to survive summary judgment.
The next excerpt comes from the deposition of Charles Palermo, where Palermo testifies to having worked on his car outside UPS property on his lunch hour:
Q. Mr. Palermo, have you ever worked on a vehicle, at a UPS garage, at a facility, that did not belong to UPS?
A. Yes, my car.
MS. REGAN: Objection to form. I think that's misleading. At a UPS facility, that implies it was inside a UPS facility. I asked the question be cleaned up. MR. BELLO: We'll polish it up.
Q. Did you ever work on a vehicle that did not belong to UPS inside a UPS facility?
A. No.
Q. Did you ever work on a vehicle that did not belong to UPS outside a UPS facility?
A. Yes.
Q. And what facility did you work on the vehicle at?
A. It was in the street.
MS. REGAN: Outside? You mean —
A. It was out on the street and on part of the sidewalk.
Q. Outside of which facility, 43rd Street?
A. No, no, at Canal Street; 180 Canal Street.
Q. That's in the Bronx?
A. Yes.
Q. Was that your vehicle?
A. Yes, it was.
Q. Was that the 1987 Chevy?
A. Yes.
Q. When you worked on that vehicle, was it between your start time and end time?
A. It was on my lunch hour.
Q. I didn't ask you that.
MS. REGAN: He answered your question and I think — I think that he answered your question.
Q. That was my next question.
A. Yes, it was between the time I started and the time I finished.
Q. Was it on a time that you were either on a break or lunch?
A. Lunch.
Q. Was that a common practice for you to do work on your car while you were on lunch or break?
MS. REGAN: Objection. You can answer.
A. No, it wasn't common practice, no.
Q. About how many times did you do that?
MS. REGAN: Objection. Over the course of his entire —
MR. BELLO: Yeah.
A. I wouldn't know.
Q. About 50, 100?
MS. REGAN: Objection.
A. I would lie if I said any number. I wouldn't know.
Q. Was it more than ten?
A. I really wouldn't know. I wouldn't know. I never counted or anything. I wouldn't know.
Q. Was it more than one?
A. I would say yes.
Q. Was that at least one occasion within the last ten years?
A. One occasion in ten years?
Q. (Nodding.)
A. Yes.
Q. Other than the Canal Place facility, you never worked on your own vehicle? Any other outside facility other than Canal Place?
MS. REGAN: Objection to form.
A. No. I didn't work in any other facility where —
Q. What did you do on the occasion that you just described during your lunch hour?
A. I changed the oil.
MS. REGAN: I'm going to object because I think you're mischaracterizing his testimony now.
Q. Well, you stated that on at least one occasion you worked on your car during your lunch hour?
A. Right.
Q. Are you recalling a specific occasion?
A. I changed the oil on my car. That was the only thing I have been — I'd done there. I don't remember exactly the day.
Q. On one occasion.
A. I've done it more than once, but I don't remember what date it was. I used to work and get out of work after work, when I was working days, and do it then. I don't remember if — when exactly I did it, what the hour or the date or how many.
Palermo Dep. at 35-39. Palermo testifies that on occasion, he would change the oil in his car on his lunch break or after work outside of UPS property, and that this was not a common practice. This is clearly not the kind of conduct for which Bengard was fired.
The final incident is described in Bengard's deposition:
Q. Are you aware of any other such incidents which, you feel are relevant to your termination?
A. Relevant to my termination? I hope that everything we spoke about over here would be relevant, but there was another instant that —
Q. No, I am talking about repairing private vehicles.
A. Right, there was another instant that I observed Joe Gudat at which was a supervisor, he was a supervisor of automotive. And at that time, they, I don't know if they punished him or they put him into the package department. And I came up with another supervisor. am trying to recall his name very, very hard. Um, the only thing can tell you, he drove a Lincoln LSE, and he was an African-American. I am trying to get his name. I am very, very hard. I've been asking around, but it's hard to come up with the name. He had an antifreeze leak, and he, you know, Joe Gudat had him, brought the car into the shop one day. One night they were up there at night, I guess, following up with the package situation and everything. And they proceeded to fill the car with antifreeze, and I will never forget, it was funny because Joe Gudat said, he remarked, he says because the car was all the way into the bay. He remarked why don't you back it up just half the nose up to the door because you don't want anybody to see you. They'll make a big stink out of it. And they proceeded to fill the car with antifreeze, with UPS antifreeze. And they proceeded to repair the car, as far as, to the best of my knowledge.
Q. Was Joe Gudat your supervisor at any time?
A. No, he was not.
Q. Did you report this to anybody?
A. No, I did not.
Q. Why not?
A. Up till 1997, like I told you last meeting that he had, in UPS, it was very, very bad to rat or to inform on somebody above you. It was, the mentality was you don't go and you don't rat on a supervisor or somebody in management. It was like sort of a military atmosphere.
Q. So you never told anybody —
A. I never told anybody, no.
Q. — about this repair?
A. No, I did not.
Q. Was Joe Gudat at work while the car was repaired?
A. He was up there, I guess, evaluating the package performance and stuff like that. I would assume so. He wasn't in my department at any time, at that time.
Q. Did Joe Gudat fill out time sheets?
A. I have no idea.
Q. Do you know what his time sheet reflected on that day, if he filled one out.
A. I have no idea.
Bengard Dep. at 307-09. This incident, while certainly Bengard's best evidence on this point, simply does not establish that UPS had a practice of overlooking violations of its dishonesty policy and allowing employees to fix automobiles on company time. It is a single incident; Bengard does not know whether Gudat was ever disciplined; he is not certain that Gudat was at work at the time; he has no idea whether or not Gudat falsified his time sheet, and most glaringly, he never reported the incident. Thus, unlike Bengard's case, where Vernon Lee brought an anonymous phone call about Bengard to the attention of UPS management, Bengard did not bring the Gudat incident to management's. attention. While his reasons for not doing so may have been perfectly understandable — and may have been the same reasons that led the caller in his case to remain anonymous — UPS management cannot be expected to react to situations of which it remains uninformed.
Thus, each of the four deposition excerpts Bengard brings to the court's attention fails to establish that UPS had any practice of allowing employees to fix their personal vehicles on company time. There are, consequently, no similarly situated individuals treated differently and no other circumstances giving rise to an inference of discrimination. Bengard, then, cannot make out a prima facie case of discrimination. Furthermore, even if he could do so, UPS would be able to adduce a nondiscriminatory reason for its actions, namely Bengard's admitted violation of UPS policy. For these reasons, summary judgment is granted to UPS on Bengard's disparate treatment claim.
Bengard, anticipating this defense, posits a mixed motive analysis, suggesting that Bengard's dismissal was motivated, at least in part, by his religious affiliation. However, this analysis fails for the same reasons that Bengard cannot make out a prima facie case of discrimination, viz., his inability to show that he was fired under circumstances giving rise to an inference of religious discrimination.
Conclusion
Summary judgment is granted to UPS on Bengard's hostile environment claim because the conduct which constitutes the premise for the claim occurred more than 300 days prior to the filing of Bengard's EEOC complaint, and Bengard cannot demonstrate a continuing violation because none of the conduct giving rise to the claim falls within the 300-day period. Summary judgment is granted to UPS on Bengard's retaliatory discharge claim because he cannot show that he engaged in a protected activity known by the employer and causally related to his discharge. Finally, summary judgment is granted to UPS on Bengard's disparate treatment case because he cannot make out a prima facie case of discrimination on the basis of religion. The Clerk of the Court is directed to close the case.