Summary
holding that plaintiff exhausted his administrative remedy with respect to hostile work environment claim where the charge alleged racial slurs by plaintiff's supervisor
Summary of this case from KARN v. WILLIAMS ADVANCED MATERIALSOpinion
02-CV-6049.
January 31, 2005
DECISION AND ORDER
INTRODUCTION
Plaintiff, Cliff Robinson ("plaintiff"), brought this action against his former employer, defendant Getinge/Castle, Inc. ("defendant" or "the company"), alleging racial discrimination in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. Plaintiff, an African-American, claims that he was subjected to a hostile work environment and terminated in retaliation for complaining about discrimination.
Currently pending is defendant's motion for summary judgment as to plaintiff's hostile work environment and retaliation claims (Dkt. #18). On July 21, 2004, after hearing oral argument, the Court ruled from the bench and dismissed plaintiff's New York Human Rights Law § 296 claim. This Decision and Order addresses the remaining portions of defendant's motion. For the reasons that follow, defendant's motion is granted, and the complaint is dismissed.
The Court also granted plaintiff's cross-motion for leave to amend the complaint (Dkt. #21). Plaintiff filed an amended complaint on July 22, 2004. The amended complaint, however, purports to assert a claim pursuant to New York Human Rights Law § 296. Because the Court dismissed that claim with prejudice after oral argument based on the doctrine of election of remedies ( see Order dated July 28, 2004, Dkt. #36), plaintiff is precluded from reasserting it in his amended complaint.
FACTUAL BACKGROUND
Unless otherwise noted, the following facts are undisputed. In the fall of 1999, plaintiff, then a twenty-seven year employee of defendant, began recruiting minority employees to participate in a meeting with the NAACP regarding alleged discriminatory employment practices at the company. Plaintiff asked his then-friend and coworker, Jaime Rivera, to join the effort. Rivera, an Hispanic, told plaintiff he was not interested. Defendant maintains that plaintiff would not accept Rivera's answer and repeatedly harassed him. Plaintiff's alleged harassment apparently included racially derogatory slurs. Although plaintiff denied harassment, Rivera lodged several complaints against plaintiff with company management, including a written complaint in December 1999. (Dkt. #18, Ex. N, D44-D45).In January 2000, as a result of his efforts, plaintiff and other employees did participate in a meeting with a local chapter of the NAACP and representative of defendant's management. Plaintiff and other employees raised concerns about the company's hiring practices, alleged hostile work environment, and disparate treatment. (Dkt. #18, Ex. K).
In March 2000, Rivera reported another incident to management in which plaintiff allegedly harassed him. (Dkt. #18, Ex. N, D38, D41). As a result, the company temporarily suspended plaintiff and conducted an investigation. That investigation, which included interviewing at least one corroborating witness, concluded that plaintiff had harassed Rivera. As a result, plaintiff was docked two days' pay and given a written "final" warning that any further harassment or inappropriate behavior directed at any employee would be grounds for his immediate termination. (Dkt. #18, Ex. O).
On October 20, 2000, plaintiff allegedly harassed and assaulted Rivera in one of the company's restrooms. Rivera promptly reported the incident and plaintiff was suspended pending an investigation. Plaintiff denied that he assaulted Rivera. He claimed that Rivera attempted to provoke an incident with him by blocking his exit from the restroom, but that he did not engage with Rivera and left the restroom without incident.
After the investigation, company officials concluded that the plaintiff was guilty of the alleged assault and terminated him. (Dkt. #18, Exs. P Q). Plaintiff challenged his termination through an arbitration proceeding in accordance with the terms of a collective bargaining agreement. Following a hearing, the arbitrator upheld the company's decision to terminate plaintiff for assaulting Rivera, concluding that the "mass of evidence" did not support plaintiff's version of the events. (Dkt. #18, Ex R).
Plaintiff alleges that Rivera, in conspiracy with the company, set him up to be terminated in retaliation for his activities with the NAACP. Plaintiff also contends that he was the victim of a hostile work environment throughout his tenure at the company, which included racial slurs by supervisors and coworkers. Plaintiff alleges that the company never took remedial action with respect to his complaints about the hostile environment. The company denies these allegations.
DISCUSSION
I. Summary Judgment in Discrimination Cases
When deciding a motion for summary judgment brought pursuant to FED. R. CIV. P. 56, a court's responsibility is to determine whether there are issues to be tried. Duse v. Int'l Bus. Machs. Corp., 252 F.3d 151, 158 (2d Cir. 2001). Summary judgment will be granted if the record demonstrates 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 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). "A fact is `material' for these purposes if it `might affect the outcome of the suit under the governing law.' . . . An issue of fact is `genuine' if `the evidence is such that a reasonable jury could return a verdict for the nonmoving party.'" Lovejoy-Wilson v. NOCO Motor Fuel, Inc., 263 F.3d 208, 212 (2d Cir. 2001) (quoting Anderson, 477 U.S. at 248); see also Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
The general principles regarding summary judgment apply equally to discrimination actions. See Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 148 (2000) (quoting St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 524 (1993)) (reiterating "that trial courts should not `treat discrimination differently from other ultimate questions of fact.'"). Although courts should be cautious about granting summary judgment in cases where motive, intent or state of mind are at issue, see Dister v. Cont'l Group, Inc., 859 F.2d 1108, 1114 (2d Cir. 1988), "the salutary purposes of summary judgment — avoiding protracted, expensive and harassing trials — apply no less to discrimination cases than to . . . other areas of litigation." Meiri v. Dacon, 759 F.2d 989, 998 (2d Cir. 1985) (summary judgment rule would be rendered sterile if mere incantation of intent or state of mind would act as a talisman to defeat an otherwise valid motion).
II. Hostile Work Environment Claim
Defendant argues that summary judgment is warranted with respect to plaintiff's hostile work environment claim for a number of reasons. First, the company claims that plaintiff failed to exhaust his administrative remedies. The company also argues that the claim is time-barred. Finally, the company argues that plaintiff failed to submit sufficient admissible evidence that a hostile work environment existed, or that, assuming one did exist, liability could be imputed to it. I agree that summary judgment is warranted.
A. Exhaustion of Administrative Remedies
A plaintiff may bring a claim of discrimination in federal court under Title VII only after filing a timely charge of discrimination with the EEOC or a state administrative agency regarding that claim. Holtz v. Rockefeller Co., 258 F.3d 62, 82-83 (2d Cir. 2001); Legnani v. Alitalia Linee Aeree Italiane, 274 F.3d 683, 686 (2d Cir. 2001) ("Exhaustion of administrative remedies through the EEOC is `an essential element' of the Title VII . . . statutory scheme and, as such, a precondition to bringing such claims in federal court."). The purpose of the exhaustion requirement is to give the administrative agency "the opportunity to investigate, mediate, and take remedial action. . . ." Stewart v. United States Immigration and Naturalization Serv., 762 F.2d 193, 198 (2d Cir. 1985).
The Second Circuit has recognized, however, "that claims that were not asserted before the EEOC may be pursued in a subsequent federal court action if they are reasonably related to those that were filed with the agency." Legnani, 274 F.3d at 686 (internal quotation marks and citation omitted). "A claim is considered reasonably related if the conduct complained of would fall within the scope of the EEOC investigation which can reasonably be expected to grow out of the charge that was made." Fitzgerald v. Henderson, 251 F.3d 345, 359-60 (2d Cir. 2001) (internal quotation marks and citation omitted).
In determining whether a claim is reasonably related to those raised in the administrative charge, the Court should focus on "the factual allegations made in the [EEOC] charge itself, describing the discriminatory conduct about which a plaintiff is grieving." Deravin v. Kerik, 335 F.3d 195, 201 (2d Cir. 2003). Importantly, though, the Court "should not look `merely to the four corners of the often inarticulately framed charge,' but must consider the possible scope of any investigation reasonably flowing from the charge." Dargento v. Bally's Holiday Fitness Ctr., 990 F.Supp. 186, 193 (W.D.N.Y. 1997) (quoting Gomes v. Avco Corp., 964 F.2d 1330, 1334 (2d cir. 1992)). In addition, claims may be reasonably related even if the administrative agency did not actually investigate a specific claim, so long as the agency had an opportunity to do so. Id.
Applying these principles, I find that plaintiff has exhausted at least part of his hostile work environment claim. Plaintiff filed a charge of discrimination with both the New York State Division of Human Rights and the EEOC on January 26, 2001. The words "hostile work environment" appear nowhere in the charge. Plaintiff did allege, however, that he was subjected to racial slurs about African-Americans by his supervisor, Darrell Swanson, from January 2000 until his termination in October of that same year. These allegations are the same allegations that plaintiff asserts in his amended complaint in support of the hostile work environment claim. ( See Dkt. #34, ¶¶ 12-15). To the extent, therefore, that plaintiff's hostile work environment claim is based on supervisor harassment that occurred in 2000, that claim clearly has been exhausted.
Specifically, plaintiff alleged: "During my tenure with the respondent, I was subjected to racial slurs by my Plant Manager, Darrayl Swanson, who is white. On or about January 2000, until my termination, Mr. Swanson had made his views on African-Americans made very clear. He has made statements such as `Martin Luther King Day is nigger day', and `Niggers are coming' when he referred to the NAACP." (Dkt. #18, Ex. S).
Plaintiff's amended complaint, however, contains much broader allegations of a hostile work environment. Plaintiff claims that the hostile work environment began in March 1972, not October 2000. In addition to supervisor harassment, he now asserts that his coworkers harassed him also, and that the company failed to take correction action to remedy the harassment after he lodged complaints with management. He also asserts that he frequently saw derogatory racial comments written on bathroom walls at the plant during his employment. (Dkt. #34, ¶¶ 16-25).
Plaintiff argues that these hostile work environment claims are reasonably related to the those asserted in his administrative charge because the conduct alleged ( i.e. unremedied coworker harassment and a hostile work environment dating back to the 1970's) could reasonably be expected to have fallen within the scope of the agency's investigation. I disagree.
"While Title VII allows for loose pleadings before the EEOC and a complainant need not list every detail of [his] alleged discriminatory treatment, a charge of discrimination needs to provide sufficient specifics to afford the EEOC a reasonable opportunity to fulfill its obligations to investigate the complaint and attempt to mediate a resolution." Briggs v. New York State Dep't of Transp., 233 F.Supp.2d 367, 376 (N.D.N.Y. 2002) (citing Butts v. City of New York Dep't of Hous. Preservation and Dev., 990 F.2d 1397, 1402-1403 (2d Cir. 1993)); see also Cooper v. Xerox Corp., 994 F.Supp. 429, 432 (W.D.N.Y. 1998) ("Specific factual allegations must be made in order for the EEOC to be able to investigate them reasonably."). As the Second Circuit has stated, "[w]ere we to permit . . . vague, general allegations, quite incapable of inviting a meaningful EEOC response, to define the scope of the EEOC investigation and thereby predicate subsequent claims in the federal lawsuit, such allegations would become routine boilerplate and Title VII's investigatory and mediation goals would be defeated." Butts, 990 F.2d at 1403.
I find that nothing in the administrative charge could have alerted the agency to investigate allegations that plaintiff's coworkers created a hostile work environment and that, despite various complaints, the company took no remedial action. The allegations in the charge regarding Swanson's alleged racial slurs are not sufficient to alert the agency to investigate a claim that coworkers created a hostile work environment for which the company should be liable.
A hostile work environment claim based on coworker harassment is legally and factually distinguishable from a claim based on supervisor harassment. See Petrosino v. Bell Atlantic, 385 F.3d 210, 225 (2d Cir. 2004) (discussing variant legal standards that apply to claims of hostile work environment created by supervisors and coworkers). Courts consider different facts and theories of liability to determine whether an employer is liable for a hostile environment created by a supervisor versus a hostile environment created by a coworker. See Pennsylvania State Police v. Suders, ___ U.S. ___, ___, 124 S.Ct. 2342, 2352-53 (2004) (discussing employer liability for supervisor harassment); Whidbee v. Garzarelli Food Specialties, Inc., 223 F.3d 62, 72 (2d Cir. 2000) (discussing employer liability for coworker harassment).
In light of the differing legal and factual considerations at issue, I find that plaintiff's claims of coworker harassment alleged in the complaint are not reasonably related to the claims of supervisor harassment alleged in the administrative charge. See Holtz, 258 F.3d at 84 (claim was not "reasonably related" to claim raised in administrative charge where it did not bear "some factual or legal relation to the allegations in the EEOC charge and would not naturally be addressed in the course of an EEOC investigation); Briggs, 233 F.Supp.2d at 376-77 (plaintiff's coworker harassment claims not exhausted; administrative charge alleged in conclusory fashion only that an unnamed supervisor subjected plaintiff to a sexually offensive hostile work environment); Crespo v. New York City Transit Auth., No. 01-CV-0671, 2002 WL 398805, at *8 (E.D.N.Y. Jan.7, 2002) (rejecting as not exhausted plaintiff's hostile environment claims because they "rely on different facts and embody different legal theories than the discrimination claims raised in the EEOC Charge [and] would not reasonably prompt an investigation into the facts that underlie her claims").
Moreover, plaintiff's claims of a hostile work environment that precede January 2000 are not exhausted. Plaintiff's charge is very specific as to the time period that he was subjected to an alleged hostile work environment. Claims of a hostile environment that stretch back thirty years before this period would not have fallen within the scope of the agency's investigation. See Briggs, 233 F.Supp.2d at 376; Lumhoo v. Home Depot USA, Inc., 229 F.Supp.2d 121, 133-35 (E.D.N.Y. 2002) (where plaintiff's claims of a hostile work environment alleged in administrative charge were limited to a particular time frame, hostile work environment claims that predated that time frame were not "reasonably related" to the charged claims).
The only hostile work environment claim that plaintiff exhausted, therefore, is based on Swanson's alleged harassment in 2000. As to the remainder of that claim, based on conduct before 2000 and coworker harassment, defendant is entitled to summary judgment for failure to exhaust.
B. Timeliness
Pursuant to 42 U.S.C. § 2000e-5(e)(1), plaintiff must file a charge of discrimination under Title VII within three hundred days of the discriminatory conduct. This provision functions as a statute of limitations and bars claims based on acts that occurred more than three hundred days before the administrative charge is filed. See Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 109 (2002).
With respect to a claim for hostile work environment, which by its very nature involves repeated conduct, a claim is timely if one or more acts of harassment occurred within the limitations period. Id. at 116-20. "Provided that an act contributing to the claim occurs within the filing period, the entire time period of the hostile environment may be considered by a court for the purposes of determining liability." Id. at 117. Therefore, when deciding whether a hostile work environment claim is timely, "[a] court's task is to determine whether the acts about which an employee complains are part of the same actionable hostile work environment practice, and if so, whether any fact falls within the statutory time period." Id. at 120.
Applying these principles, it is clear that plaintiff's hostile work environment claim is not timely. Plaintiff filed his charge of discrimination on January 26, 2001. To be timely, therefore, plaintiff must allege and prove at least one act of harassment by Swanson that occurred on or after April 1, 2000. Plaintiff has failed to allege, yet alone produce admissible evidence, that Swanson made any statements or took other action on or after April 1, 2000 to contribute to the alleged hostile work environment. The last date that plaintiff alleges Swanson made any racial slurs was January 2000, which falls beyond the three-hundred day limitations period. (Dkt. #22, ¶ 40). Therefore, defendant is entitled to summary judgment on the hostile work environment claim.
This claim is subject to summary judgment for the additional reason that plaintiff has not produced any admissible evidence that Swanson ever made these statements. FED. R. CIV. P. 56(e) provides that affidavits submitted in opposition to summary judgment must "be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein." Here, however, plaintiff failed to demonstrate any basis for his personal knowledge that Swanson ever made those statements. In fact, at his deposition, he admitted that he did not personally hear Swanson make any racial comments at all. (Dkt. #18, Ex. E, at 20-26, 172-75). Therefore, plaintiff failed to "show affirmatively" that his testimony about Swanson's statements would be admissible at trial. See FED. R. EVID. 602 ("A witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter."); cf. Patterson v. County of Oneida, 375 F.3d 206, 219 (2d Cir. 2004) (assertions made on `information and belief' are insufficient to meet the requirements of Rule 56).
III. Retaliation Claim
Plaintiff alleges that the company unfairly disciplined him in March 2000 and then terminated him in October 2000 in retaliation for having organized and participated in the January 2000 meeting involving the NAACP and management. Plaintiff also alleges that defendant terminated him in retaliation for providing an affidavit in support of a coworker's Title VII action in August 2000. (Dkt. #34, ¶¶ 33-34). Defendant argues that summary judgment is warranted on these claims because plaintiff failed to exhaust his administrative remedies. Alternatively, defendant argues that plaintiff cannot establish a prima facie case of retaliation in light of the fact that an arbitrator upheld the company's decision to terminate him.
With one exception discussed infra, I find that plaintiff exhausted his administrative remedies as to the retaliation claim. I agree with defendant, however, that plaintiff failed to establish a prima facie case of retaliation and that summary judgment is warranted.
A. Exhaustion of Administrative Remedies
It is undisputed that plaintiff did not allege "retaliation" in his original administrative charge. Nevertheless, I find that plaintiff's retaliation claim asserting unlawful disciplinary action and termination based on his involvement with the NAACP is reasonably related to the claims asserted in the charge.
After reviewing the agency's investigation file, including plaintiff's original charge, the company's response, and plaintiff's rebuttal statement, it is clear that the focus of plaintiff's charge and the agency's investigation was the company's motivation for terminating plaintiff in October 2000. The company claimed that plaintiff, who was already under a "final written warning" for an incident involving Rivera in March 2000, was terminated for assaulting Rivera in October 2000. Plaintiff claimed that the March and October 2000 Rivera incidents were merely a pretext for his termination, and that the real reason he was disciplined and eventually terminated was for his involvement in Title VII protected activities, to wit: organizing and participating in a meeting between the NAACP, company management, and employees at which he and others voiced numerous complaints to the company about racial discrimination and disparate treatment.
In his original charge, plaintiff alleged that he and Rivera were both involved in an October 2000 incident, but only he was disciplined or terminated. The company took no action against Rivera. He claims that this was because of plaintiff's "race and color." (Dkt. #18, Ex S, ¶¶ 4-5). In response to the charge of discrimination, the company asserted that plaintiff was terminated for his involvement in the incident because he had been placed on a "final written warning" on March 22, 2000. ( See Respondent's Position Statement, received by the Court July 22, 2004). In an April 3, 2001 rebuttal letter, plaintiff argued that the March 2000 final written warning was "subterfuge for an act of retaliation against claimant for his Title VII complaints with the NAACP" and that he was "wrongfully terminated based on unsubstantiated and fabricated charges" by Rivera. (Dkt. #22, Ex. C).
Under these circumstances, I find that plaintiff's claim of retaliation based on the NAACP meeting is "reasonably related" to plaintiff's claim of unlawful termination based on race. The scope of the agency's investigation would have included inquiry into the company's motivation for terminating plaintiff. I disagree with plaintiff, however, that he exhausted his administrative remedies simply by raising these claims in his rebuttal letter. In this regard, I agree with defendant that the rebuttal letter itself cannot be considered part of the original charge. Nevertheless, the Court cannot ignore the fact that both plaintiff's rebuttal letter and the company's position statement constitute evidence of the scope of agency's investigation. Accordingly, defendant is not entitled to summary judgment for failure to exhaust on plaintiff's retaliation claim based on his activities with the NAACP.
Holtz v. Rockefeller Co., 258 F.3d 62 (2d Cir. 2001) does not require a different result. In Holtz, the Second Circuit held that an unsworn letter filed a year after plaintiff's original charge could not be considered an "amendment" to the original charge so as to enlarge the claims plaintiff asserted therein. Plaintiff's original charge alleged failure to train because of age, sexual harassment, and retaliation. An unsworn letter filed almost a year later alleged new claims of discrimination based on religion and national origin, as well as the failure to promote or transfer and denial of bonus and overtime pay. Plaintiff's subsequently filed federal complaint asserted claims from both the original charge and the unsworn letter. Defendant argued that the "new" claims raised only in the unsworn letter were not exhausted. Plaintiff argued that those claims were not "new" and were exhausted because she raised them in the unsworn letter. The Court held that the unsworn letter could be considered only if it were an amendment to plaintiff's original charge under EEOC regulations. After finding that it could not be an amendment under EEOC regulations, the Court concluded that "these claims were accordingly barred unless `reasonably related' to the allegations in her EEOC charge." Holtz, 258 F.3d at 83 (emphasis added). The Court went on to hold that many of the "new" claims were not reasonably related to the claims in the original charge and dismissed them for failure to exhaust.
Here, however, as discussed above, I find that plaintiff's retaliation claim is reasonably related to the claims raised in plaintiff's original charge. Plaintiff's retaliatory discharge claim could reasonably be expected to grow out of his charge of discrimination. Dargento., 990 F. Supp. at 193 (in determining whether claim is reasonably related to allegations raised in original charge, courts should "consider the possible scope of the any investigation reasonably flowing from the charge."). Therefore, Holtz is not dispositive.
Defendant is entitled to summary judgment, however, on plaintiff's retaliation claim that alleges that he was terminated because he filed an affidavit in support of a coworker's discrimination claim in August 2000. This claim was not exhausted. Plaintiff asserts an entirely different factual basis for his alleged retaliatory discharge. I find that the scope of the investigation that flowed from his original charge could not reasonably be expected to include this claim. The scope of the investigation appears to have focused on the two incidents involving Rivera as the basis for plaintiff's dismissal. It is unreasonable to assume that the agency also would have investigated all other conduct by plaintiff that may have created a retaliatory motive of company. Therefore, defendant is entitled to summary judgment insofar as plaintiff's retaliation claim is based on his August 2000 supporting affidavit.
B. Merits of Retaliation Claim
Claims of retaliation are analyzed under the familiar McDonnell Douglas burden-shifting rules. Richardson v. New York State Dep't of Corr. Servs., 180 F.3d 426, 443 (2d Cir. 1999). To make out a prima facie case of retaliation, the plaintiff must show: (1) that he participated in protected activity; (2) that defendant knew of the protected activity; (3) that plaintiff suffered an adverse employment action; and (4) that a causal connection exists between plaintiff's protected activity and the adverse employment action. Gordon v. New York City Bd. of Educ., 232 F.3d 111, 113 (2d Cir. 2000). Once plaintiff makes out a prima facie case, the burden shifts back to the employer to show that there was a legitimate, non-retaliatory reason for its actions. If the employer meets its burden, the burden shifts back to the plaintiff to show that "there is sufficient potential proof for a reasonable jury to find the proffered legitimate reason merely a pretext for impermissible retaliation." Richardson, 180 F.3d at 443.
The parties do not dispute that plaintiff engaged in protected activity or that the company knew of that activity. The record shows that in late 1999, plaintiff began recruiting fellow minority workers to attend a meeting with the NAACP regarding discrimination in the workplace and the alleged failure to hire minorities. Plaintiff thereafter participated with other employees in the January 2000 meeting with the NAACP. Further, the parties do not dispute that plaintiff suffered an adverse employment action when he was terminated in October 2000.
I agree with defendant, however, that summary judgment is warranted because plaintiff failed establish any causal connection between plaintiff's NAACP activity and the company's decision to terminate him. It is clear that plaintiff's attendance at the NAACP meeting in January 2000 had nothing to do with his termination ten months later.
Defendant's decision to terminate plaintiff was the subject of an arbitration proceeding that plaintiff requested after his termination, pursuant to the parties' collective bargaining agreement. A hearing was conducted at which eight witnesses appeared and testified. Plaintiff was represented by his union during the proceedings. Following the hearing, the arbitrator upheld the company's decision to terminate plaintiff. The arbitrator concluded in a thorough and reasoned thirteen-page decision that the evidence established that the plaintiff was guilty of assaulting Rivera and that the company had `just cause' for terminating him. (Dkt. #18, Ex. R).
It is well-settled in this circuit that "[w]here an employee's ultimate termination depends upon, and is allowed by, a decision of an independent and unbiased arbitrator based on substantial evidence after a fair hearing, the arbitration decision has probative weight regarding the requisite causal link between an employee's termination and the employer's illegal motive." Collins v. New York City Transit Auth., 305 F.3d 113, 115 (2d Cir. 2002). The arbitrator's determination "is highly probative of the absence of discriminatory intent" and "will attenuate a plaintiff's proof of the requisite causal link" between the termination and Title VII protected activity. Id. at 119. To survive a motion for summary judgment, therefore, a Title VII plaintiff alleging discriminatory termination that is upheld after arbitration must present "strong evidence that the [arbitrator's] decision was wrong as a matter of fact — e.g. new evidence not before the tribunal — or that the impartiality of the proceeding was somehow compromised." Id.
Here, plaintiff has not made such a showing. He neither asserts that the arbitration proceeding was biased nor does he provide any "new" evidence that the decision was wrong as a matter of fact. Plaintiff's only contention is that the issues of discrimination and retaliation were not before the arbitrator and therefore the decision should not be credited. This same argument, however, has been rejected repeatedly by courts in this circuit. Brinson v. New York City Transit Auth., 60 F.Supp.2d 23, 30 (E.D.N.Y. 1999), aff'd, 213 F.3d 625 (2d Cir. 2000) ("[I]t is immaterial that the arbitrator did not consider [plaintiff's] claim of discrimination and instead focused on the misconduct charges") (internal quotation marks and citations omitted); see also Davis v. O-At-Ka Milk Prods. Cooperative, Inc., No. 02-CV-936, 2004 WL 2980757, at *4 (W.D.N.Y. Dec. 22, 2004) (rejecting plaintiff's contention that an arbitration decision was irrelevant to claims of racial discrimination because the issue of race was never raised there; "the arbitrator evaluated the factual, nondiscriminatory reasons for the termination that [the employer] advances here for plaintiff's termination, even if claims of retaliation were not presented to the arbitrator."); Tomasino v. Mount Sinai Med. Ctr. and Hosp., No. 97 Civ. 5252, 2003 WL 1193726, at *13 (S.D.N.Y. Mar. 13, 2003) (same).
To the extent that Petrovits v. New York City Transit Auth., No. 95 Civ. 9872, 2003 WL 22349676 (S.D.N.Y. Oct. 15, 2003) holds otherwise, I find that it is distinguishable on its facts. The facts of this case are strikingly similar to those in cases like Collins and Davis, supra, in which the arbitration decision was accorded "great weight."
In addition, there is no evidence here that the arbitrator's decision was wrong. In fact, the evidence presented in this case clearly demonstrates that defendant had a legitimate business reason to terminate plaintiff. Plaintiff's harassment of Rivera is well-documented. Although plaintiff claims that Rivera was "no angel" and provoked the incidents, the evidence establishes a record of harassment by the plaintiff, not vice-versa. Rivera made several complaints to company management about plaintiff's harassing behavior. One such complaint took the form of a formal grievance. The plaintiff's unpaid suspension and final warning in March 2000 followed Rivera's allegations of another incident. His story was corroborated by at least one other witness.
Although plaintiff alleges that the company trumped up these charges or failed to investigate his version of events fully in order to set him up to be terminated, he has offered no evidence to support that theory. Further, the arbitrator found that plaintiff's version of the October 2000 restroom incident was unworthy of belief. The arbitrator credited the evidence and witnesses who testified against plaintiff.
In any event, even absent the arbitrator's decision, I find that plaintiff has produced no evidence other than his own conjecture about the company's motivation and the timing of his termination from which a jury could infer that the company's reasons should be disbelieved. In this regard, plaintiff has failed to demonstrate that the reason the company advanced for terminating him was merely a pretext for impermissible retaliation.
As a practical matter, the question of whether there is a causal connection between the protected activity and the adverse action in the prima facie case merges with the ultimate question of whether the adverse action was a pretext for prohibited retaliation or discrimination. See Connell v. Consol. Edison Co. of N.Y., Inc., 109 F.Supp.2d 202, 208 n. 5 (S.D.N.Y. 2000).
The only evidence that plaintiff produced that supports the notion that he was retaliated against is the fact that he was fired after organizing and participating in the NAACP meeting. This meeting took place ten months before plaintiff was fired. A ten-month period of time between the protected activity and termination, however, weighs against a finding of retaliation. See Fields v. New York State Office of Mental Retardation Developmental Disabilities, 88 F.Supp.2d 4, 8 (N.D.N.Y. 2000) (nine months between protected activity and termination "does not create or permit an inference of discriminatory animus."); Duviella v. Counseling Serv. of Eastern Dist. of New York, No. 00-CV-2424, 2001 WL 1776158, at *19 (E.D.N.Y. Nov. 20, 2001) aff'd, 52 Fed.Appx. 152 (2d Cir. 2002) (termination eight months after complaining about discrimination was insufficient to establish temporal proximity between protected activity and adverse employment action).
Moreover, although the plaintiff attempts to show the intent to retaliate by distinguishing his punishment from the significantly lighter penalties imposed on other employees who committed "serious offenses" (as defined by the collective bargaining agreement), that argument is unsupported. Plaintiff produced no evidence of other examples involving disciplinary events that could be termed an "assault." He cites several instances of horseplay in this effort, but there is a significant difference between horseplay mutually engaged in by employees and an assault by one employee of another. In fact, it appears that the only other evidence of another assault involving two employees that was reported to management occurred in 1993 and resulted in the termination of the employee who attacked the other.
Plaintiff has simply failed to overcome the strong showing put forth here by the company. Plaintiff has failed to demonstrate that "there is sufficient potential proof for a reasonable jury to find the proffered legitimate reason merely a pretext for impermissible retaliation." Richardson, 180 F.3d at 443; see also Holt v. KMI-Cont'l, 95 F.3d 123, 130 (2d Cir. 1996) (affirming grant of summary judgment for defendant on retaliation claim where plaintiff failed to put forth any evidence other than her own personal belief that the defendant's articulated nondiscriminatory reason for employment action was pretextual); Benette v. Cinemark U.S.A., Inc., 295 F.Supp.2d 243, 254 (W.D.N.Y. 2003). Accordingly, the company is entitled to summary judgment on plaintiff's claim of retaliation.
CONCLUSION
Defendant's motion for summary judgment (Dkt. #18) is granted and plaintiff's amended complaint is dismissed with prejudice.
IT IS SO ORDERED.