Opinion
03-CV-0473E(Sc).
January 18, 2005
MEMORANDUM AND ORDER
This decision may be cited in whole or in any part.
Plaintiff Charles D. Burch, Sr. commenced this discrimination action against his former employer, defendant Roswell Park Cancer Institute, on June 20, 2003 alleging discrimination on account of his race in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq., and New York State Human Rights Law ("NYHRL"), N.Y. Exec. Law § 290 et seq. (McKinney 2004). This Court granted plaintiff leave to proceed in forma pauperis on June 24, 2003 and granted plaintiff's Motion for Appointment of Counsel on September 17, 2003. On July 6, 2004 defendant moved for summary judgment pursuant to Rule 56(c) of the Federal Rules of Civil Procedure ("FRCvP") alleging that plaintiff cannot establish a prima facie case of race discrimination and, if plaintiff does establish a prima facie case of race discrimination, he is unable to rebut defendant's non-discriminatory reason for his termination — to wit, theft. For the reasons set forth below, defendant's Motion will be granted.
This Court will analyze plaintiff's federal and state law claims together because the Second Circuit applies federal standards of proof to discrimination claims brought under NYHRL. Mandell v. County of Suffolk, 316 F.3d 368, 377 (2d Cir. 2003); Torres v. Pisano, 116 F.3d 625, 629 n. 1 (2d Cir. 1997) (finding that claims under NYHRL are analytically inseparable from Title VII claims).
The facts, viewed in the light most favorable to plaintiff — the non-moving party —, are found as follows and are undisputed except where otherwise noted. Plaintiff, an African-American male, worked as an H/VAC Mechanic for defendant from October 21, 1976 until his termination on January 22, 2001. Over his almost twenty-five years of employment, plaintiff was elected as a Union Steward several times, totaling nearly seven years of service as a Union Steward. In such capacity, plaintiff became familiar with the policies and procedures applied to the disciplining of employees. In particular, he was aware of the time constraints involved in filing grievances. Plaintiff, however, alleges that, as Union Steward, he realized that these time limitations were more informal than rigid and that employees met with management prior to filing a grievance.
On November 30, 2000 Buffalo Police detectives informed Jenifer Barr, Esq., defendant's Director of Employee Relations, that they intended to arrest plaintiff at Barr's office for possession of defendant's stolen camera worth $5,000. Arrangements were made for plaintiff's appearance and arrest. Plaintiff was escorted from defendant's property by the detectives and was later found guilty of possession of stolen property in the fifth degree.
Plaintiff claims he purchased the camera — which he later pawned — from a street vendor for $50. He alleges that there was no identification on the camera to indicate its origin. Defendant, however, in support of its contention that plaintiff knew the camera belonged to defendant and, as evidence that plaintiff did in fact steal the camera from defendant, asserts that, when detectives informed plaintiff that he was under arrest for possession of a stolen camera, plaintiff replied, "[O]h, the camera from the Simpson building." (Barr Aff. ¶ 8.) Very clearly, he had been aware of that which he possessed and from whence it had come.
Plaintiff claims that the trial demonstrated that the camera had disappeared over Christmas weekend when plaintiff was not on duty in the Simpson building and when security in the building was surprisingly lax.
Barr, on the day that she was informed of plaintiff's possession of the stolen camera, drafted and delivered to plaintiff a letter which suspended him in accordance with defendant's disciplinary procedures due to his violation of defendant's policies as explained in the agreement between defendant and defendant's union employees, such as plaintiff. The letter indicated that plaintiff was suspended from his employment with defendant and would be served a Notice of Discipline within 30 days of the suspension letter. Thirty days later, on December 29, 2000, Barr sent plaintiff a Notice of Discipline which indicated that defendant was proposing a penalty of termination against him for theft and possession of stolen property and that plaintiff should contact defendant to arrange for a settlement meeting. The Notice of Discipline indicated that the proposed penalty of termination would take effect fourteen calendar days from the date of service of the Notice of Discipline, subject to plaintiff's right to grieve the proposed penalty by submitting the Disciplinary Grievance Form enclosed therewith within said fourteen days. It is undisputed that plaintiff did not submit the Disciplinary Grievance Form within the fourteen days.
Plaintiff, upon receiving the suspension letter, contacted his union representative, Joseph Jones, and asked him to arrange for a meeting with Barr and himself. Plaintiff claims that he made this request because he did not know of anyone to have been immediately suspended for theft and wanted an opportunity to explain himself. Based on his experience as a Union Steward, he thought a meeting with Barr would be automatically granted. Jones, who had been a Union Officer for over ten years and had been the Chair of the Grievance Committee for almost four years, said that it was "unusual" for plaintiff to not receive the requested meeting because the Notice of Discipline allows the employee to arrange a settlement meeting within seven days and "all disciplinary problems [are] discussed at a settlement meeting prior to the filing of grievances." (Jones Aff. ¶¶ 6-8.) Jones further asserts that untimely grievances are "regular[ly]" heard when the employee and Union representatives have made it clear that the employee was attempting to reach a settlement short of grievance. ( Id. at ¶ 14.) Defendant, in response, asserts that plaintiff was terminated for theft and possession of stolen property, as indicated in the notice of discipline. (Def.'s Reply Mem. Supp. Mot. Summ. J. at 4-5.) Additionally, defendant claims that plaintiff's failure to timely grieve "merely resulted in the recommended punishment for theft and possession of stolen property being carried out", but was not the reason for his termination. ( Id. at 5.)
Plaintiff contends that he knows of at least two white employees who, although they had admitted stealing from defendant and did not file their grievances on time, were not terminated but were given the opportunity to negotiate a disciplinary action less than termination. Plaintiff identifies Samuel Curto and Mark Urbanski as the two white employees who had been treated more favorably than was plaintiff — to wit, each was given an opportunity to negotiate for a lesser discipline than termination without having to file a grievance — although they had admitted to stealing from defendant. Defendant responds by claiming that both Curto and Urbanski were disciplined under different management and the value of the property taken by Curto and Urbanski is significantly less than that allegedly possessed by plaintiff — viz., Curto was charged with stealing several boxes of collectable sports cards and Urbanski was charged with stealing ten plastic garbage bags, while plaintiff was charged with stealing and unlawfully possessing a $5,000 camera. Plaintiff claims that Curto, like plaintiff, was an H/VAC mechanic who admitted to theft, never filed a grievance and was given an extensive meeting to negotiate a settlement, such that Curto was not terminated. Curto admits that he was not immediately suspended, was able to arrange a settlement meeting and received a punishment of suspension and loss of four weeks' pay. Curto never filed a grievance and was suspended nearly six months after his original Notice of Discipline. According to Curto, plaintiff "is the only person immediately suspended [for theft] and the only person under notice of discipline * * * who was not granted an agency settlement meeting when requested." (Curto Aff. ¶ 8.) Defendant contends that this alleged difference in treatment is due to the value of the item plaintiff allegedly stole from defendant and to the fact that Barr had not been the person to discipline Curto and Urbanski.
Plaintiff claims that a third white employee, Frank Coniglio, was also treated more favorably than plaintiff, although he has no evidence proving such. Defendant claims that Coniglio had resigned before the Notice of Discipline letter was sent to him as part of the settlement agreement so that he could keep his pension.
Curto and plaintiff had the same job description and received the same pay.
Plaintiff was not given an opportunity to negotiate for a lesser discipline with Barr although he contacted Jones daily to request a settlement meeting with Barr — and Jones requested such of Barr — and although such meetings, according to plaintiff, Jones and Curto, were the de facto procedure. Even after receiving a Notice of Discipline letter, plaintiff believed that he was entitled to and would receive a meeting with Barr. No such meeting occurred and plaintiff filed his grievance on January 20, 2001, nearly a week tardily. He was terminated on January 22, 2001.
Summary judgment may be granted if the evidence offered shows 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. FRCvP 56(c). There is no genuine issue for trial unless the evidence offered favoring the non-moving party would be sufficient to sustain a jury's verdict for that party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Thus, when reasonable minds could not differ as to the outcome of an issue, summary judgment is appropriate on that issue. Id. at 251-252. The moving party initially bears the burden of showing that no genuine issue of material fact is present but the opposing party must then "set forth specific facts showing that there is a genuine issue for trial." Id. at 250. If the non-moving party fails to establish, after a reasonable opportunity for discovery, the existence of an element essential to that party's claim and on which it will bear the burden of proof at trial, summary judgment is appropriate because such failure to establish an essential element of the case renders all other facts immaterial. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-323 (1986).
When assessing the record in making a summary judgment determination, a court must view all ambiguities and factual inferences in the light most favorable to the non-moving party. Adickes v. S.H. Kress Co., 398 U.S. 144, 157 (1970). However, the non-moving party "cannot defeat the motion by relying on the allegations in his pleading, or on conclusory statements, or on mere assertions that affidavits supporting the motion are not credible." FRCvP 56(e); Gottlieb v. County of Orange, 84 F.3d 511, 518 (2d Cir. 1996).
Of course, the summary judgment standard applies with the same force in discrimination cases as it does in other cases. See Ashton v. Pall Corp., 32 F. Supp. 2d 82, 87 (E.D.N.Y. 1999) ("[T]he salutary purposes of summary judgment — avoiding protracted, expensive and harassing trials — apply no less to discrimination cases than to commercial or other areas of litigation.") (quoting Meiri v. Dacon, 759 F.2d 989, 998 (2d Cir. 1985)). However, courts must be aware of the fact that evidence of discrimination is rarely overt. See Bickerstaff v. Vassar Coll., 196 F.3d 435, 448 (2d Cir. 1999) ("[E]mployers are rarely so cooperative as to include a notation in the personnel file that the [adverse employment action] is for a reason expressly forbidden by law.") (quoting Ramseur v. Chase Manhattan Bank, 865 F.2d 460, 464-465 (2d Cir. 1989)). In addition, courts must "also carefully distinguish between evidence that allows for a reasonable inference of discrimination and evidence that gives rise to mere speculation and conjecture." Ibid. Thus, the issue for the court is "whether the evidence can reasonably and logically give rise to an inference of discrimination under all of the circumstances." Ibid.
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) (2003). In the absence of direct evidence of discrimination, Title VII claims are analyzed pursuant to the burden-shifting framework espoused in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), and its offspring. In bringing a case under Title VII, plaintiff bears the initial burden of making out a prima facie case of discrimination. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 506 (1993) ; Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 252-253 (1981). If the plaintiff succeeds in proving the prima facie case, the burden shifts to the defendant "to articulate some legitimate, nondiscriminatory reason" for the alleged employment action. Burdine, at 253 (quoting McDonnell Douglas, at 802). Finally, "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 253 (quoting McDonnell Douglas, at 804).
To make out a prima facie case of discrimination, plaintiff must allege that he (1) is a member of a protected class, (2) was performing his job satisfactorily, (3) was subjected to an adverse employment action and (4) the adverse employment action occurred under circumstances giving rise to an inference of discrimination. McDonnell Douglas, at 802; Graham v. Long Island Rail Road, 230 F.3d 34, 38 (2d Cir. 2000). In moving for summary judgment, defendant asserts that plaintiff, although a member of a protected class who was discharged, cannot show that he was terminated under circumstances raising an inference of discrimination and thus fails to meet his burden in establishing a prima facie case of discrimination. In the alternative, defendant contends that it is able to articulate a legitimate, non-discriminatory reason for plaintiff's termination — to wit, plaintiff's theft and possession of stolen property. Plaintiff, on the other hand, contends that defendant did not terminate substantially similar white employees for theft and that defendant's allegedly legitimate reason is thus a pretext for discrimination.
To establish the fourth element of the McDonnell Douglas test — whether plaintiff has raised a inference of discrimination by showing that he was subjected to disparate treatment —, plaintiff must show that he was treated differently from employees outside his protected class with whom he was "similarly situated in all material respects." Shumway v. United Parcel Serv., Inc., 118 F.3d 60, 64 (2d Cir. 1997) (citation and quotations omitted). Whether two employees are similarly situated ordinarily presents a question of fact for the jury. Graham, at 39. To satisfy Shumway's "all material respects" standard for being similarly situated, plaintiff must show that his co-employees who were not terminated engaged in comparable conduct and were subject to the same performance evaluation and discipline standards. Id. at 40; Norville v. Staten Island Univ. Hosp., 196 F.3d 89, 96 (2d Cir. 1999). The compared person's conduct need not be identical to that of plaintiff for the two to be similarly situated; the acts need only be of "comparable seriousness." Graham, at 40 (finding that the standard for comparing conduct requires a "reasonably close resemblance of the facts and circumstances of plaintiff's and [the compared person's] cases, rather than a showing that both cases are identical"); see also McDonnell Douglas, at 804 (finding acts of "comparable seriousness" may help to support an inference of discrimination); McGuinness v. Lincoln Hall, 263 F.3d 49, 53-54 (2d Cir. 2001) (finding that the standard is not that to be similarly situated, a plaintiff and another employee must have had "the same employer, worked under the same standards, and engaged in the same conduct"; rather, the situation must be "sufficiently similar to plaintiff's to support at least a minimal inference that the difference of treatment may be attributed to discrimination"). Therefore, what constitutes "all material respects" varies from case to case and must be judged based on (1) whether plaintiff and those he maintains were similarly situated actually were subject to the same workplace standards and (2) whether the conduct for which defendant imposed discipline was of comparable seriousness. Ibid. "In other words, there should be an `objectively identifiable basis for comparability'" and a "company-wide policy uniformly applicable to all members of a group may be [such a] basis for comparing employees". Id. at 40, 42 (quoting Cherry v. Am. Tel. Tel. Co., 47 F.3d 225, 229 (7th Cir. 1995)).
Defendant, relying on Shumway, claims that plaintiff is not similarly situated in all material respects with Curto and Urbanski because (1) Barr was not the Director of Employee Relations who disciplined Curto and Urbanski, (2) plaintiff had been a Union Steward and thus was aware of defendant's clearly outlined policies regarding the consequences of theft, grievance timelines and disciplinary procedures and, most importantly, (3) the value of the stolen property that Curto and Urbanski had possessed was significantly less than the value of the stolen camera that plaintiff had possessed. In Shumway, the Second Circuit held that the female plaintiff forced to resign for violating defendant's anti-fraternization policy was not similarly situated to her male co-workers whom she claimed had violated the same policy but were not so disciplined. The court based its holding on the findings that (1) the allegedly similarly situated co-workers and such plaintiff had different supervisors, (2) at least one male manager who reported to the same supervisor as such plaintiff was asked to resign for the same violation, (3) such plaintiff was aware and had been warned of the anti-fraternization policy, (4) none of the male employees had been in prohibited relationships for as long as such plaintiff or had engaged in harassment as she had after the end of the relationship and (5) none of the male employees had complaints brought against them or lied to supervisors when confronted. Shumway, at 62-64.
Similarly here, plaintiff cannot identify a co-worker who was in possession of stolen property and not terminated by Barr or in possession of stolen property of comparable value to the $5,000 camera. Secondly, like the plaintiff in Shumway, this plaintiff, through his position as Union Steward, was well aware of defendant's policy that the penalty for theft and possession of stolen property is termination. Finally, plaintiff's conduct was not of comparable seriousness to that of Curto and Urbanski — viz., the value of the stolen items Curto and Urbanski had possessed were not similar in degree and significance to the value of the camera that plaintiff had possessed. See Aguirre v. New York State Police, 156 F. Supp. 2d 305, 320 (S.D.N.Y. 2001) (holding that the plaintiffs had not shown that the allegedly similarly situated officers had engaged in conduct similar to that in which plaintiffs' had engaged — to wit, a violent altercation with local uniformed police in a public place — because "[w]hile each of the white officers * * * may have brought discredit to the New York State Police, none of them created a comparable level of friction between state troopers and a local police department").
Plaintiff claims that defendant provided Curto and Urbanski with a chance at avoiding termination through the settlement meetings without providing the same opportunity to plaintiff. With knowledge that the settlement meetings were not guaranteed, however, plaintiff knew that to avoid the possibility of termination — especially in light of the fact that he had not received a settlement meeting — he should have timely filed his grievance. Plaintiff has failed to explain why the tardiness of the grievance should be excused and has failed to provide a legitimate reason for filing his grievance tardily. Curto and Urbanski may not have had to file grievances because they had received meetings with management suggesting that settlement was likely. Plaintiff, however, was not in the same situation — he did not receive a meeting with management which circumstances should have motivated plaintiff to ensure that his grievance was timely filed because he had no alternative method of avoiding termination. Plaintiff, furthermore, acknowledges that his position as Union Steward familiarized him with defendant's policies and procedures and of defendant's disciplinary actions as a result of an employee's theft. As such, plaintiff should have been even more cognizant of defendant's grievance deadlines. Additionally, plaintiff's Union Steward title added to the dissimilarity between him and Curto and Urbanski — neither of whom had ever been elected as Union Steward — because it granted him more knowledge and awareness of defendant's policies and made violations of such — committing theft, possessing stolen property and filing an untimely grievance — even more inexcusable. Finally, defendant does not assert that plaintiff's termination was a result of his tardy grievance: it was plaintiff's theft and possession of stolen property that resulted in his termination. Plaintiff's failure to grieve led to the implementation of the consequence of his theft and possession of stolen property — to wit, termination.
Plaintiff does not provide an "objectively identifiable basis for comparability." See Graham, at 40. First, plaintiff was not subjected to the same workplace standards as were Curto and Urbanski because Barr disciplined plaintiff but not Curto and Urbanski. Secondly, and more importantly, plaintiff's conduct was not of "comparable seriousness" to the conduct of Curto and Urbanski. See Ibid. Stealing a $5,000 camera is significantly different from stealing a few hundred dollars worth of sports cards and even more different from stealing ten plastic garbage bags. Therefore, plaintiff was not similarly situated to Curto and Urbanski because of the untimeliness of his grievance, his position as Union Steward, the fact that their disciplinarians differed and the dissimilarity in their conduct — viz., the theft, which appears to be by plaintiff or at his direction, was substantially different from Curto's and Urbanski's thefts due to the significant difference in the values of the stolen properties. By failing to demonstrate that Curto and Urbanski are similarly situated as a matter of law, plaintiff has failed to put forward sufficient evidence to raise an inference of discrimination and, therefore, cannot establish a prima facie case of discrimination.
Assuming arguendo that plaintiff can show a prima facie case of discrimination, defendant has asserted a non-discriminatory reason for plaintiff's termination — namely, theft. Sergilus v. Covenant House Under 21, 1999 U.S. Dist. LEXIS 14254, at *3 (S.D.N.Y. Sept. 15, 1999) ("Theft is a legitimate, nondiscriminatory reason to discharge an employee."); see also Burdine, at 254-255 (holding that the defendant's evidence need not persuade the court that it was actually motivated by the proffered reason, but only that there is a genuine issue of material fact as to whether it discriminated against plaintiff). There was sufficient evidence from which defendant could conclude that plaintiff had in fact stolen the camera. Plaintiff was found guilty of possession of stolen property and, according to defendant's standards, which it is entitled to employ, the theft appears to be by plaintiff — or at his direction. See Cruz v. Coach Stores, Inc., 202 F.3d 560, 568 (2d Cir. 2000) ("[E]ven if [plaintiff] herself believed that she was acting in self-defense, she has produced no evidence showing that [her employer] believed that to be the case. She therefore has failed to demonstrate that [her employer] viewed the altercation as anything other than an `assault' within the meaning of the company's prohibition.").
This evidence includes the following: (1) plaintiff was in possession of the camera, (2) plaintiff readily admitted that he knew of the item for which he was being arrested and (3) several of defendant's employees present at the time of plaintiff's arrest claim that plaintiff made an admission of guilt. Based on this evidence, defendant had sufficient grounds to believe that plaintiff was guilty of theft.
In response to defendant's legitimate nondiscriminatory reason for terminating plaintiff, plaintiff again offers evidence of Curto and Urbanski as proof that defendant's stated reason is merely pretextual. A showing that similarly situated employees belonging to a different racial group received more favorable treatment can also serve as evidence that the employer's proffered legitimate, non-discriminatory reason for the adverse job action was a pretext for racial discrimination. Graham, at 43; Hargett v. Nat'l Westminster Bank, USA, 78 F.3d 836, 839 (2d Cir. 1996). Plaintiff's evidence, however, does not identify a similarly situated employee and is thus equally flawed and insufficient as pretext evidence. Plaintiff failed to demonstrate that the white employees cited are similarly situated as a matter of law and therefore plaintiff has failed to meet his burden of showing that defendant's non-discriminatory reason for terminating plaintiff was a pretext for racial discrimination. See, e.g., Aguirre, at 321 (finding that plaintiff's failure to identify a similarly situated employee also proves insufficient as pretext evidence). Plaintiff's claims, consequently, will be dismissed and defendant's Motion for Summary Judgment will be granted.
Accordingly, it is hereby ORDERED that defendant's Motion for Summary Judgment is granted, that plaintiff's claims are dismissed and that the Clerk of this Court shall close this action.