Opinion
97 Civ. 9477 (MGC)
September 21, 2000
Josh H. Kardisch, Esq., Bellmore, New York, Attorneys for Plaintiff.
Douglas E. Rowe, Esq., Mineola, New York, Attorney for Defendants.
OPINION
Ben Ekwegbalu complains that his employment with Central Parking System ("Central") was terminated because of his race and national origin. Based on this alleged discrimination, plaintiff asserts claims against Central pursuant to Title VII, 42 U.S.C. § 2000e, et seq., and against all the defendants under New York Human Rights Law, Exec. Law § 290, et seq., the Employment Retirement Income Security Act of 1974, 29 U.S.C. § 1132, et seq., and 42 U.S.C. § 1981, 1981(a), and 1985. Defendants have moved for summary judgment pursuant to Fed.R.Civ.P. 56. For the reasons that follow, the motion is granted.
Plaintiff has withdrawn his Title VII claims against the individual defendants.
UNDISPUTED FACTS
Central owns, operates, and manages parking garages throughout the United States. Plaintiff, a black Nigerian, was hired by Meyers Parking, Central's predecessor, in June of 1992 as assistant manager of Central's Pier 40 garage in New York City. In November of 1994, Central assigned plaintiff to the audit department. As an auditor, plaintiff was required to audit Daily Reports of Business ("DRBs") prepared by parking garage managers at 21 locations. Plaintiff compared the DRBs with the amount of money actually delivered to the bank for deposit in order to verify that the correct amount was deposited. (Gottlin Aff. ¶ 6; Pl. Dep. at 52.) Alfred O'Hara was the audit manager. (Pl. 56.1 Stmt. ¶ 3.) Plaintiff was to report any discrepancies or shortages to O'Hara. (Pl. Dep. at 31.)
Both plaintiff and defendant state that plaintiff began his employment with Meyers Parking in June of 1992. However, the employment records show that plaintiff began his employment on September 1, 1992. (Gottlin Aff. Ex. A.) This discrepancy is not material to this motion. Thus, for purposes of this motion, the date agreed upon by the parties, June 1992, will be treated as plaintiff's starting date.
Central terminated plaintiff's employment after an incident of theft was discovered at the Lincoln garage, one of the garages that plaintiff audited. According to Central policy, DRBs were supposed to be submitted for auditing within forty-eight hours. (Pl. Dep. at 52.) On December 1, 1996, plaintiff contacted the manager of the Lincoln garage to inquire about late delivery of money from the garage. DRBs were also delinquent. On December 9, 1996, plaintiff contacted the manager of the Lincoln garage to request the delinquent DRBs. Plaintiff received the DRBs for December first through third on that day. On December 12, 1996, plaintiff received the DRBs for December 4 through December 6. He discovered that approximately $6,000.00 was missing from the Lincoln garage. On December 13, 1996, plaintiff informed O'Hara of the problem at the Lincoln garage. O'Hara asked plaintiff to investigate the situation. Plaintiff went to the Lincoln garage on December 19, 1996 and discovered that approximately $18,000 was missing. (Kardisch Aff. Ex. H.) Central suspected several employees at the Lincoln garage of theft. (Kardisch Aff. Ex. H.) plaintiff was not accused of participation in the theft. (Pl. Dep. at 79.) But, on January 10, 1997, plaintiff met with O'Hara and Bill Gottlin, Central's Personnel Director, who informed him that his employment was terminated. (Pl. Dep. at 80.)
Defendants contend that plaintiff was terminated for failing to properly and completely perform his audit responsibilities. (Gottlin Aff. ¶ 7, 8; O'Hara Aff. ¶ 7, 8.) Defendants assert that plaintiff should have reported the late arrival of the DRBs from the Lincoln garage to O'Hara sooner and that he should have conducted a field audit sooner. Had such a report been made and such an audit conducted, the theft could have been minimized. (Id.) Plaintiff asserts that he adequately performed his duties as an auditor and that the defendants' explanation for his termination is merely a pretext for racial and ethnic discrimination. As evidence of this claim, plaintiff points to several comments that O'Hara allegedly made to him.
THE ALLEGED STATEMENTS
Plaintiff identifies four derogatory statements about his race and national origin that O'Hara allegedly made to him. (Pl. Dep. at 34-38, 42-43.) Plaintiff testified that sometime before September of 1994, O'Hara told him that he would not be promoted because of his race. (Pl. Dep. at 36.) Plaintiff testified that sometime in 1994, O'Hara asked him if he was related to the Rwandans portrayed on television. (Pl. Dep. at 43.) Plaintiff also testified that in either 1995 or 1996, O'Hara advised him to become a porter because he thought that "Africans should not be in management positions." (Pl. Dep. at 39.) Finally, plaintiff testified that at some time during his employment, O'Hara stated that he does not like the fact that Central employs African-Americans and other minorities in the audit department. (Pl. Dep. at 43-44.)
Following the last statement, plaintiff complained to Tarek Mousa, Central's Director of Operations. (Pl. Dep. at 41.) Plaintiff testified that after he complained to Mousa, O'Hara did not make statements to him about race or national origin. (Id.) Plaintiff does not claim that any other person employed by Central made any racially or ethnically offensive statements at any time.
O'Hara denies that he made any of the alleged statements. (O'Hara Aff. ¶ 13.) In his deposition, O'Hara testified that he advised Gottlin and Huntzinger not to terminate plaintiff's employment. (O'Hara Dep. at 73.) Whether O'Hara made the statements in question or advised against plaintiff's termination are questions of fact which cannot be resolved on summary judgment.
DISCUSSION
A motion for summary judgment should be granted when "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 a judgment as a matter of law." Fed.R.Civ.P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986). The judge's role in summary judgment is not "to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986). In deciding whether a genuine issue exists, a court must "examine the evidence in the light most favorable to the party opposing the motion, and resolve ambiguities and draw reasonable inferences against the moving party." In re Chateaugay Corp., 10 F.3d 944, 957 (2d Cir. 1993). Nonetheless, "Rule 56 mandates the entry of summary judgment . . . against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex, 477 U.S. at 322, 106 S.Ct. at 2552.
I. The Title VII Claim
A. Timeliness
Central contends that plaintiff's discrimination claim under Title VII is time-barred because plaintiff filed his complaint more than 180 days after O'Hara allegedly made a discriminatory statement. The relevant portion of the statute provides that: "[A] charge under this section shall be filed within one hundred and eighty days after the alleged unlawful employment practice occurred." 42 U.S.C. § 2000e-5 (e)(1). Because the adverse employment action complained of is the termination of plaintiff's employment, plaintiff's claim is not time-barred. The discriminatory statements alleged are offered as evidence of Central's discriminatory motive for firing plaintiff. Plaintiff was terminated on January 10, 1997. The EEOC received plaintiff's administrative charge on April 25, 1997, well within the 180-day period following plaintiff's termination. (Rowe Aff. Ex. B.) Thus, plaintiff's claim is not time-barred.
B. The Merits
Title VII claims are evaluated under the burden-shifting analysis developed in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Under this scheme, a plaintiff must first establish a prima facie case of discrimination. If a plaintiff meets this burden, then the burden of production, but not persuasion, shifts to the employer to articulate some legitimate, nondiscriminatory reason for its actions. Plaintiff has the burden of persuasion by a preponderance of the evidence that the legitimate reason offered by the employer is a pretext for discrimination. Id. at 802-04; Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 252-53, 101 S.Ct. 1089, 1093, 67 L.Ed.2d 207 (1981) Plaintiff must produce "sufficient evidence to support a rational finding that . . . more likely than not (discrimination] was the real reason" for his termination. Van Zant v. KLM Royal Dutch Airlines, 80 F.3d 708, 714 (2d Cir. 1996) (quoting Woroski v. Nashua Corp., 31 F.3d 105, 110 (2d Cir. 1994)). Although plaintiff need not present evidence of discrimination independent of his prima facie case, the evidence he presents must be sufficient to show that the reason proffered by the employer for his termination is a pretext for discrimination.Reeves v. Sanderson Plumbing Prods., Inc., 120 S.Ct. 2097, 2109, 147 L. Ed. 2d 105 (2000).
Assuming without deciding that plaintiff has proffered sufficient evidence of discrimination to meet his burden of establishing a prima facie case, he has not proffered sufficient evidence to meet his ultimate burden of showing that the reason Central has given for his termination is a pretext for discrimination. Plaintiff must do more than cast doubt on the correctness of Central's decision to terminate his employment. This is not a suit for wrongful discharge, but of employment discrimination. The jury cannot substitute its business judgment for that of the employer. Plaintiff must proffer evidence from which a rational jury can find that racial or ethnic discrimination played a part in the employer's decision.
Plaintiff contends that the duties of his job did not require him to conduct a field audit, that is, to visit the Lincoln garage and determine that money was being stolen. Thus, plaintiff argues, Central's explanation for his termination, that he should have discovered the theft sooner, is merely a pretext. However, plaintiff admits that he did conduct field audits from time to time. (Pl. Dep. at 57.) Moreover, Central's reason for termination is not only that plaintiff should have conducted a field audit. Central also points to the timing of plaintiff's report to O'Hara. Plaintiff was required to report any irregularities to O'Hara immediately. Yet, he did not report the late DRBs from the Lincoln garage until December 13, 1996, more than a week after he became aware of the problem.
Plaintiff also points to O'Hara's four comments as evidence that Central's proffered reason for his termination is a pretext. The four comments attributed to O'Hara are insufficient to show that the reason for terminating plaintiff is a pretext because plaintiff is unable to show a connection between the statements and his termination. See O'Connor v. Viacom, Inc., 93 Civ. 2399, 1996 WL 194299, at *5 (S.D.N.Y. Apr. 23, 1996) (granting summary judgment because plaintiff presented no evidence that discriminatory remarks were related to adverse employment action). The most recent alleged remark was about one year prior to plaintiff's termination, and plaintiff received satisfactory performance reviews throughout the years in which O'Hara was his supervisor. (Pl. Aff. ¶ 36.) See Campbell v. Alliance Nat'l Inc., 107 F. Supp.2d 234, 247 (S.D.N.Y. 2000) (citing Ezold v. Wolf, Block, Schorr Solis-Cohen, 983 F.2d 509, 545 (3d Cir. 1992) ("Stray remarks by non-decision-makers or by decisionmakers unrelated to the decision process are rarely given great weight, particularly if they were made temporally remote from the date of decision.")).
Any logical connection between O'Hara's comments to plaintiff and plaintiff's termination is further undermined by the racial and ethnic diversity of the audit department supervised by O'Hara. In his deposition, plaintiff testified that when he was employed by Central there were five persons in the audit department, including O'Hara and himself. (Pl. Dep. at 11.) One of the other employees was an African-American who still works with O'Hara in the audit department. (Pl. Dep. at 11, 39; Gottlin Supp. Aff. Ex. A.) Another employee was Romanian, and has since resigned. (Id.) The last was an Indian who still works in the audit department. (Id.) Moreover, it is undisputed that Claudius Riley, a black Jamaican, was promoted to the audit department three days after plaintiff was fired. (Gottlin Supp. Aff. ¶ 4 Ex. A.) An African-American, Hayden Blake, also joined the audit department in January of 1997, within a month after plaintiff's termination. (Id.) On the undisputed facts, plaintiff will be unable to withstand a motion to dismiss at trial.
II. Remaining Claims
New York courts require the same standard of proof for claims brought under the Human Rights Law as for those brought under a Federal Title VII claim. See Kremer v. Chem. Constr. Corp., 456 U.S. 461, 479, 102 S.Ct. 1883, 1896, 72 L.Ed.2d 262 (1982) (noting that the elements of a successful employment discrimination claim under New York and federal law are "virtually identical"); Tomka v. Seiler Corp., 66 F.3d 1295, 1304 n. 4 (2d Cir. 1995). Claims of violations of 42 U.S.C. § 1981, 1981 (a), and 1985 also share the same elements as a claim for employment discrimination under Title VII. Choudhury v. Polytechnic Inst. of New York, 735 F.2d 38, 44 (2d Cir. 1984).
Finally, plaintiff's ERISA claim is that defendant interfered with his pension benefits by terminating him. Although plaintiff does not even address it in his papers, this unsupported claim appears to be that defendants violated § 510 of ERISA. That statute states in pertinent part: "It shall be unlawful for any person to discharge . . . a participant or beneficiary . . . for the purpose of interfering with the attainment of any right to which such participant may become entitled under the plan." 29 U.S.C. § 1140. Plaintiff has provided no evidence of Central's pension plan. Moreover, plaintiff has provided no evidence that defendants terminated him for the purpose of interfering with any pension benefits. Even if plaintiff lost pension benefits as a result of his termination, "[n]o ERISA cause of action lies where the loss of pension benefits was a mere consequence of, but not a motivating factor behind, a termination of employment." Dister v. Continental Group, Inc., 859 F.2d 1108, 1111 (2d Cir. 1988) (quoting Titsch v. Reliance Group, Inc., 548 F. Supp. 983, 985 (S.D.N.Y. 1982).
CONCLUSION
For the foregoing reasons defendants' motion for summary judgment is granted, and this action is dismissed.
SO ORDERED.