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refusing to consider new allegation on motion for summary judgment because “a failure to assert a claim until the last minute will inevitably prejudice the defendant”
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98-CV-2436 (ILG)
June 27, 2000
MEMORANDUM AND ORDER
Plaintiff Hilma Rochester ("Rochester") has brought this action against her former employer and the defendant in this suit, Empire Blue Cross and Blue Shield ("Empire"). Plaintiff alleges that Empire unlawfully discriminated against her on the basis of race, sex, and national origin contrary to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. and 42 U.S.C. § 1981. Plaintiff also asserts several state-law claims including defamation, breach of contract, and violations of New York Executive Laws Secs. 296 and 297. Empire responds that its decisions regarding plaintiffs employment were based solely on legitimate business considerations. In the present motion, Empire moves pursuant to Fed.R.Civ.P. Rule 56 for summary judgment and also moves to dismiss the Complaint pursuant to Rule 12 (b)(6). In the alternative, defendant seeks an order pursuant to Rule 15 (a) permitting it to amend its Answer to include the affirmative defense of workers' compensation. For the reasons set forth below, defendant's motion for summary judgment is granted.
Plaintiff has incorrectly named "Blue Cross and Blue Shield" as the defendant in this motion.
BACKGROUND
Empire is a not-for-profit New York corporation, licensed pursuant to Article 43 of the New York State Insurance Law to provide health and insurance benefits to its subscribers. Until the mid-1990s, the computers which supported some of Empire's operations were dependent on tape cartridges. These tapes were stored separately from the computers. The employees at Empire who were responsible for maintaining the tape cartridges, and for loading them onto the computers when the stored data was needed, were referred to as peripheral operators. In 1996, due to technological changes at Empire, all the peripheral operator employees were terminated.Plaintiff is a black woman of Jamaican heritage who began employment with Empire in 1979 as a peripheral operator. In 1982, plaintiff was promoted to the position of lead peripheral operator. According to plaintiff, while she was employed in this position, she was the only operator required to clean tapes, a task normally performed by the peripheral operators.
In her Complaint, plaintiff makes several allegations against Empire. Rochester claims that while she was a lead peripheral operator, she received "excellent" evaluations from her immediate supervisor, Eustace Griffith, but that these ratings were subsequently lowered by management. Compl. ¶ 8. She claims that when Griffith refused to sign an amended evaluation for her, Kenneth Arnold, the shift supervisor, signed Mr. Griffith's name for him. Id. ¶ 9. This, according to plaintiff, was done because of her race and sex. Id. ¶ 10.
Plaintiff also claims in her Complaint that she applied unsuccessfully for various promotions, and that those positions were filled by persons that she had trained and that were less qualified than her. Id. ¶ 11. She asserts that on one occasion, the manager of her department, Cristo Eleopoulos, pulled her application for a promotion. Id. Plaintiff claims she made several complaints about these events, but they were ignored. She also claims that she was told she would not be promoted, although she did not identify who conveyed this information to her. Id. ¶ 12. In March 1987, plaintiff filed an EEOC complaint. Id. ¶ 15. In retaliation for the filing of that complaint, plaintiff claims that her duties were delegated to a male co-worker, Wilbert Perez.
In October 1993, an Empire meeting was held at which her section manager, James Conroy, advised that he was developing a matrix to determine who would be terminated when Empire's computer operation was moved to Staten Island. Id. ¶ 17. Subsequently, Griffiths applied the matrix evaluation to the plaintiff. Ms. Rochester asserts that she scored high enough on that evaluation to retain her position as lead peripheral operator. According to plaintiff, Conroy later lowered her score despite strenuous objections from Griffiths, who refused to sign the amended evaluation. Conroy eventually signed Griffith's name to the evaluation. As a result of her lower evaluation score, plaintiff was demoted to the position of peripheral operator.
Plaintiff provides a different version of these events in her opposition to this motion, which makes no mention of Kenneth Arnold or Cristo Eleopoulos. P1. Opp. Mem. 5-6. Instead of alleging that she was demoted in 1993, in her opposition memorandum, plaintiff claims that:
Sometime in early 1995 Plaintiffs immediate supervisor Eustace Griffiths . . . told her that the section manager Conroy was going to promote Tony Vitali . . . a white male from peripheral operator to lead peripheral operator and that she would be demoted to Vitali's position of peripheral operator. Upon hearing this news Plaintiff made another complaint to Human Resources Department about the pending demotion . . . Plaintiff was demoted on or about 1995 and subsequently terminated in 1996.
This precise wording is also found in an affidavit of the plaintiff dated April 14, 2000, which was included in plaintiffs papers in opposition to this motion. It is curious, to say the least, that the plaintiff refers to herself in the third person in her own affidavit. In addition to the discrepancy regarding the year of her demotion, plaintiffs affidavit adds several embellishments to the Complaint, which makes no mention of Mr. Vitali, nor does it make any reference to a Human Resources Department complaint.
The opening lines of the plaintiffs affidavit read as follows:
"HILMA ROCHESTER, under penalty of perjury submit [sic] this affidavit stating . . . I am a black woman of Jamaican heritage and national origin. She was employed by the defendant. . . from 1979 until 1996 when she was terminated."
References to herself continue to be in the third person throughout the balance of the affidavit. An examination of what purports to be her signature at the end of the document would suggest, given the difference in the type font, that it was pasted on later.
In February 1996, plaintiff was given a notice indicating that her termination would be effective in April 1996. Plaintiff claims that she was the only peripheral operator who was told to leave the premises immediately. In April, all of Empire's peripheral operators were terminated. This group comprised two Asians, two Hispanics, one white male, and the plaintiff. Def. Mot. Ex. B. Plaintiff claims that "other white employees and one black male employee . . . had their grades increased to prevent termination of their employment." Comp. ¶ 17.
In January 1997, plaintiff filed another EEOC charge claiming that her low evaluations were due to the fact that she was a Seventh Day Adventist and was therefore not able to work on Saturdays, an allegation not referred to in her opposition to this motion. Def. Mot. Ex. G. Like the Complaint, the EEOC charge makes no mention of Mr. Vitali, nor does it refer to any Human Resources Department complaint against Mr. Conroy. The charge also states that plaintiffs demotion took place in 1993, not in 1995 as alleged in her opposition papers. The EEOC claim was dismissed on December 29, 1997 and shortly thereafter plaintiff was given notice of her right to sue. Def. Mot Ex. H. Plaintiff filed this action on April 1, 1998.
DISCUSSION
I. Statute of Limitations
In her complaint, plaintiff claims that because of her race, her sex, and her Jamaican ancestry, Empire unlawfully subjected her to adverse employment decisions in violation of Title VII and 42 U.S.C. § 1981. The statute of limitations for claims brought under § 1981 is three years. Jenkins v. Arcade Building Maintenance, 44 F. Supp.2d 524, 529-530 (S.D.N.Y. 1999); Graaf v. North Shore University Hosp., 1 F. Supp.2d 318, 323 (S.D.N.Y. 1998) (citing Keyse v. California Texas Oil Corp., 590 F.2d 45, 47 (2d Cir. 1978)). Plaintiff filed her Complaint on April 1, 1998. Any claims based on the defendant's actions which took place before April 1, 1995 are time-barred. Therefore, what remains of plaintiffs section 1981 claims are her allegations of failing to promote her after 1995 and her allegations relating to termination.
In what is purported to be her affidavit, the plaintiff claims that her demotion occurred at some time during 1995. By contrast, the Complaint alleges that this event took place in 1993, which is beyond the three-year statute of limitations period for her section 1981 claims. Attached as Exhibit A to defendant's reply brief is a document, signed by plaintiff, which clearly indicates that her "reclassification to a lower grade" was effective December 3, 1993. Plaintiffs seemingly sworn assertion to the contrary not only does not create a factual dispute for trial, but raises questions of far more serious import. "The nonmovant cannot escape summary judgment merely by vaguely asserting the existence of some unspecified disputed material facts, or defeat the motion through mere speculation or conjecture," Western World Ins. Co. v. Stack Oil. Inc., 922 F.2d 118, 121 (2d Cir. 1990) (quotations omitted), or by the assertion of facts designed to fit the occasion.
Title VII contains its own internal statute of limitations. Discrimination claims under Title VII must ordinarily be filed with the EEOC within 180 days of the date on which the "alleged unlawful employment practice occurred." 42 U.S.C. § 2000e-5 (e)(1); see 29 U.S.C. § 626 (d)(1). However, if the alleged discrimination took place in a state or locality that has its own antidiscrimination laws and an agency to enforce those laws, then the time period for filing claims with the EEOC is extended to 300 days. 42 U.S.C. § 2000e-5 (e)(1); 29 U.S.C. § 626 (d)(2), 633(b). In this case, the discrimination alleged took place in New York, which has both antidiscrimination laws and an antidiscrimination agency. The 300-day limit therefore applies. Timely filing is a prerequisite to the maintenance of an action in federal court. See Campbell v. Grayline Air Shuttle, 930 F. Supp. 794, 798 (E.D.N.Y. 1996) ("[a]s a condition precedent to bringing a Title VII action, a plaintiff must file a complaint with the [EEOC] within 300 days of the discriminatory act. . ."). Courts in this Circuit have denied claims that were not filed within this period. See Van Zant v. KLM Royal Dutch Airlines, 80 F.3d 708, 712 (2d Cir. 1996); Carrasco v. New York City Off Track Betting Corp., 858 F. Supp. 28, 31-32 (S.D.N Y 1994).
Plaintiffs claims are based on employment actions which occurred between 1982 and April 1996. Compl. ¶ 11, 18. However, plaintiff did not file her administrative charge of discrimination with the EEOC until January 1997. Therefore, the only Title VII claims which are properly before this Court relate to plaintiffs April 25, 1996 termination. All other matters which she alleges, because they occurred outside the 300-day statute of limitations, are timebarred. Moreover, plaintiffs EEOC charge states that the earliest date of alleged violation was April 26, 1996, the day after she was terminated.
Plaintiff argues that the discriminatory conduct suffered was a "continuing violation" which existed from 1982 to 1997, when she filed her EEOC charge. This argument is without merit. The 300-day time period begins when the plaintiff receives notice of the employment decision at issue. See Delaware State College v. Ricks, 449 U.S. 250, 257-58 (1980);Campbell v. Grayline Air Shuttle, 930 F. Supp. 794, 799 (E.D.N.Y. 1996).
Under the continuing violation exception to the Title VII limitations period, if a Title VII plaintiff files an EEOC charge that is timely as to any incident of discrimination in furtherance of an ongoing policy of discrimination, all claims of acts of discrimination under that policy will be timely even if they would be untimely standing alone. Cook v. Pan Am. World Airways, Inc., 771 F.2d 635, 646 (2d Cir. 1985), cert. denied, 474 U.S. 1109, 106 S.Ct. 895, 88 L.Ed.2d 929 (1986). The continuing violation exception applies to cases involving specific discriminatory policies or mechanisms such as discriminatory seniority lists, Cook, 771 F.2d at 646, or discriminatory employment tests, Association Against Discrimination in Employment. Inc. v. Bridgeport, 647 F.2d 256, 274-75 (2d Cir. 1981), cert. denied, 455 U.S. 988, 102 S.Ct. 1611, 71 L.Ed.2d 847 (1982). However, multiple incidents of discrimination, even similar ones, that are not the result of a discriminatory policy or mechanism do not amount to a continuing violation. Lambert v. Genesee Hospital, 10 F.3d 46, 53 (2d Cir. 1993), cert. denied, 114 S.Ct. 1612 (1994). In this case, plaintiff has failed to allege any specific discriminatory policy or mechanism, either written or openly acknowledged, which is required in order for the doctrine to apply. Id. Accordingly, all of plaintiff's Title VII claims are time-barred, except for her termination.
However, even assuming arguendo that all the allegations with respect to plaintiffs claims are properly before this Court, viewing plaintiffs evidence in its most favorable light, there is no genuine issue of material fact because plaintiff has provided no evidence of discrimination.
II. Summary Judgment Standard
Summary judgment under Rule 56 is proper "if the pleadings, depositions, answers to interrogatories, and admissions on file together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." See Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The moving party bears the burden of proof on such motion. See United States v. All Funds, 832 F. Supp. 542, 550-51 (E.D.N.Y. 1993).
If the summary judgment movant satisfies its initial burden of production, the burden of proof shifts to the nonmovant who must demonstrate that a genuine issue of fact exists for trial. Anderson v. Liberty Lobby. Inc., 477 U.S. 242, 250 (1986). A genuine factual issue exists if there is sufficient evidence favoring the nonmovant such that a jury could return a verdict in its favor. Id. The nonmoving party "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co.; Ltd., v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Rule 56(e) "requires the nonmoving party to go beyond the pleadings and by [its] own affidavits, or by the `depositions, answers to interrogatories, and admission on file,' designate `specific facts showing that there is a genuine issue for trial."` Celotex, 477 U.S. at 324. Once the nonmovant has adduced evidence of a genuine issue of material fact, its "allegations [will be] taken as true, and [it] will receive the benefit of the doubt when [its] assertions conflict with those of the movant." Samuels v. Mockry. et al., 77 F.3d 34, 36 (2dCir. 1996).
In employment discrimination cases, courts are particularly cautious about granting summary judgment where intent is at issue. See Schwapp v. Town of Avon, 118 F.3d 106, 110 (2d Cir. 1997). However, even in these cases a "plaintiff must provide more than conclusory allegations of discrimination to defeat a motion for summary judgment." Id.
III. Title VII
A. The Title VII Standard
Under § 703(a) of Title VII, it is an "unlawful employment practice" for an employer:
(1) . . . 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)
Ms. Rochester must first establish a prima facie case of unlawful discrimination by showing that (1) she is a member of a protected class (2) who was qualified for her position (3) who suffered an adverse employment action (4) under circumstances giving rise to an inference of discrimination. See McDonnell-Douglas Corp. v. Green, 411 U.S. at 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973); Shumway v. United Parcel Service. Inc., 118 F.3d 60, 63 (2d Cir. 1997). Second, if the plaintiff establishes a prima facie case, a rebuttable presumption of discrimination arises and the burden then "shifts" to the defendant to articulate a legitimate, nondiscriminatory reason for the employment decision. See Stratton v. Dep't for the Aging for the City of New York, 132 F.3d 869, 879 (2d Cir. 1997). Third, if the defendant articulates a nondiscriminatory reason for his actions, the presumption of discrimination is rebutted and it "simply drops out of the picture." St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 510-11, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993). The plaintiff must then show, without the benefit of any presumptions, that it is more likely than not that the employer's decision was motivated at least in part by a discriminatory reason. Because the defendant has at this point offered a nondiscriminatory reason for its actions, the plaintiff must show that the proffered reason is in reality a pretext for unlawful discrimination. See Fisher v. Vassar College, 114 F.3d 1332, 1337 (2d Cir. 1997). The parties do not dispute that plaintiff is a member of a protected class.
B. Prima Facie Case
Plaintiff cannot make out a prima facie case because she cannot demonstrate that any of the alleged adverse employment actions taken against her occurred under circumstances giving rise to an inference of discrimination. See Carter v. City of New York, 95 Civ. 3560, 1998 WL 760332 *5 (E.D.N.Y. Sept. 9, 1998). Plaintiff argues that an inference of discrimination arises out several alleged facts for which she provides absolutely no support.
Plaintiff may not rely on her own conclusory allegations to defeat a motion for summary judgment. See Gnazzo v. G.D. Searle Co., 973 F.2d 136, 138 (2d Cir. 1992) (the Court must "consider the record in the light most favorable to the non-movant. However, the non-movant may not rest upon the mere allegations or denials of her pleading, but must set forth specific facts showing that there is a genuine issue for trial.") (quotations and citations omitted).
1. Cleaning Tapes
Plaintiff argues that an inference of discrimination arises out of the fact she was the only lead peripheral operator required to clean tapes. P1. Aff. at 2. She claims that is evidence of the fact that she was treated differently than other similarly situated employees who did not share her protected characteristics.
First, this allegation was not made in plaintiffs Complaint or in her EEOC charge and therefore should not be considered because nothing in either filing put Empire on notice of this new allegation. "Although a complaint need not correctly plead every legal theory supporting the claim . . . at the very least, plaintiff must set forth facts that will allow each party to tailor its discovery to prepare an appropriate defense. Because a failure to assert a claim until the last minute will inevitably prejudice the defendant, courts in this District have consistently ruled that it is inappropriate to raise new claims for the first time in submissions in opposition to summary judgment." Beckman v. United States Postal Serv., 79 F. Supp.2d 394, 408 (S.D.N Y 2000); see also Bonnie Co. Fashions. Inc. v. Bankers Trust Co., 170 F.R.D. 111, 119 (S.D.N.Y. 1997) ("it is inappropriate to raise new claims for the first time in submissions in opposition to summary judgment"). Second, plaintiff offers no evidence to support this assertion. Third, plaintiff does not state who the other lead peripheral operators were, or their respective genders, races and national origins. Such a barren allegation cannot give rise to an inference of discrimination.
2. Tony Vitali
Plaintiff alleges that in 1995 she was told by her supervisor, Eustace Griffiths, that Tony Vitali (a white male) was going to be promoted to lead peripheral operator and that she (a black female) was going to be demoted to peripheral operator. P1. Aff. at 2. This does not raise an inference of discrimination. First, this allegation does not appear in the Complaint or in her EEOC charge. Second, plaintiff does not assert that Mr. Vitali was actually promoted, only that she was told that he would be. Third, plaintiff provides absolutely no support for this allegation which is clearly hearsay.
3. Requiring Plaintiff to Leave the Premises
Plaintiff alleges that she, a black female, upon receiving her notice of termination, was told that she would have to leave the premises immediately. By contrast, according to the plaintiff, five other employees who held the same position were also given a notice of termination and were not required to leave until their termination became effective. P1. Aff. at 2. Again, plaintiff provides absolutely no support for this bald allegation, which does not appear in the Complaint or in her EEOC charge. Moreover, even if it were true, that alone would not give rise to any inference of discrimination, especially considering that one of the other peripheral operators who was terminated was also black.
4. Promotion of White Peripheral Operators
Plaintiff claims in her affidavit that "some of the white peripheral operators were promoted to lead peripheral operator to ensure they were not terminated." P1. Aff. at 2. Plaintiff provides no names, no dates and no supporting evidence for this assertion. This is completely insufficient to defeat a motion for summary judgment. See Meiri v. Dacon, 759 F.2d 989, 998 (2d Cir. 1985) ("To allow a party to defeat a motion for summary judgment by offering purely conclusory allegations of discrimination, absent any concrete particulars, would necessitate a trial in all [discrimination] cases.")
Section 1981 provides in relevant part that "[a]ll persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens . . ." 42 U.S.C. § 1981 (a). The term "make and enforce contracts" as used in this section includes "the making, performance, modification, and termination of contracts, and the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship." 42 U.S.C. § 1981 (b).
As previously discussed, many of plaintiffs § 1981 claims fail because they were not brought within the three year period as required by the statute of limitations. In addition, all of plaintiffs § 1981 claims fail on the merits. In order for plaintiff to succeed on her § 1981 claims she must allege that Empire's acts "were purposefully discriminatory . . . and racially motivated." Albert v. Carovano, 851 F.2d 561, 571-72 (2d Cir. 1988) (en banc) (citations omitted). The same elements constitute a claim for employment discrimination under section 1981 as under Title VII. Choudhury v. Polytechnic Institute of New York, 735 F.2d 38, 44 (2d Cir. 1984). Plaintiff has failed to provide any support for her assertions that the actions of the defendants directed toward her were purposefully discriminatory or racially motivated. Therefore, her § 1981 claims are dismissed.
V. Plaintiff's State Law Claims
Plaintiff asserts state law claims for breach of contract, defamation, and employment discrimination under the New York Executive Laws Secs. 296 and 297. Plaintiffs pendent state claims cannot proceed because the District Court's subject matter jurisdiction is based upon an unsustainable federal claim, and the Court declines to exercise supplemental jurisdiction. See 28 U.S.C. § 1367 (c)(3); United Mine Workers v. Gibbs, 383 U.S. 715, 726 (1966) ("Certainly, if the federal claims are dismissed before trial, even though not insubstantial in a jurisdictional sense, the state claims should be dismissed as well");Tops Market. Inc. v. Ouality Markets. Inc., 142 F.3d 90, 102-03 (2d Cir. 1998); Ryan v. Grae Rybicki. P.C., 135 F.3d 867 (E.D.N.Y. 1995).
CONCLUSION
For the foregoing reasons, Empire's motion for summary judgment is granted. SO ORDERED.