Opinion
No. 01 Civ. 4374 (SAS)
July 8, 2002
MEMORANDUM OPINION AND ORDER
On May 1, 2001, James Windsor, proceeding pro se, sued his former employer, Tishman Speyer Properties, L.P. ("Tishman Speyer"), under the Civil Rights Act of 1964, 42 U.S.C. § 2000e to 2000e-17 ("Title VII"). See Complaint ("Compl.") at 1 (unnumbered introductory paragraph). Windsor alleges that his former supervisor failed to rehire him because of his race (African-American). See id. ¶ 4. Windsor also alleges that he was subjected to unequal terms and conditions of employment because of his race. See id. Defendant now moves for summary judgment. For the reasons discussed below, the motion is granted.
Defendant is incorrectly named in the caption as "Rockefeller Ctr/Tishman Speyer." See Answer at 1 (unnumbered introductory paragraph).
Windsor has also sued Tishman Speyer under the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621-34, and the Americans with Disabilities Act of 1990 ("ADA"), 42 U.S.C. § 12112-17. This court lacks jurisdiction over these claims because Windsor failed to file these charges with the Equal Employment Opportunity Commission ("EEOC"). See 29 U.S.C. §. 626(d) (ADEA claim must first be filed with the EEOC before the federal courts can gain jurisdiction); 42 U.S.C. § 12117(a) (requiring same procedure for ADA claims).
In addition, a plaintiff must be "at least 40 years of age" to bring a claim of age discrimination, and Windsor was 35 years old when the alleged acts of discrimination took place. 29 U.S.C. § 631(a); see 11/1/01 Deposition of James Windsor ("11/1/01 Windsor Dep."), Ex. A to 1/2/02 Declaration of Kenneth A. Margolis, counsel for the defendant ("Margolis Decl."), at 4 (stating that Windsor was born on July 26, 1965). Furthermore, Windsor has admitted that he has no disability and included the ADA claim in his pleadings by mistake. See id. at 26.
I. FACTS
A. Background
In November of 1999, Joan Fields, an Assistant Manager for Tishman Speyer, hired Windsor to work as a janitor at Rockefeller Center in New York City during the holiday season. See 12/27/01 Affidavit of Joan Fields in Support of Defendant's Motion for Summary Judgment ("Fields Aff.") ¶ 4. Fields was responsible for the hiring and oversight of Tishman Speyer's janitorial staff at Rockefeller Center. See id. ¶ 2. When Windsor was hired, Fields informed him that his job was temporary and his employment would end in January. See 11/1/01 Windsor Dep. at 69. "[I]f [Windsor's] work was good[,]" Fields would rehire him to work during the "vacation relief" period. Id.
The "vacation relief" period was designated as April to September of each year according to the collective bargaining agreement between Tishman Speyer and Local 32-BJ of the Service Employees International Union ("the Union"). See Fields Aff. ¶ 3.
In April 2000, Fields rehired Windsor. See id. at 70; see also Fields Aff. ¶ 4. Windsor understood that his job was only temporary, but Fields later said she would rehire him for the upcoming holiday season. See 11/28/01 Deposition of James Windsor ("11/28/01 Windsor Dep."), Ex. A to Margolis Decl., at 8. Windsor's employment concluded at the end of the vacation relief period, around mid-August. See 1/28/02 Affidavit of James Windsor in Opposition to Defendant's Motion for Summary Judgment ("Windsor Aff.") at 5 (original unnumbered).
There is some conflicting evidence about when Windsor was terminated. While plaintiff claims he was terminated in mid-August, which I must assume to be true on a motion for summary judgment, defendant offers some evidence that Fields terminated Windsor on September 8, 2000. See Fields Aff. ¶ 4. This conflicts with Fields's testimony that Windsor was absent only one day during the week ending September 17, 2000. See id. ¶ 7.
In November 2000, Windsor contacted Fields to ask about the availability of work during the holiday season. See 11/28/01 Windsor Dep. at 10-11. Fields told Windsor that he would not be rehired because of his prior problems with "lateness." Id. Four months later, in February 2001, Windsor filed a "Charge of Discrimination" with the EEOC alleging that Fields refused to rehire him because of his race. See 2/2/01 Charge of Discrimination to EEOC ("Charge of Discrimination"), Ex. B to Margolis Decl. The EEOC issued a right-to-sue letter on April 20, 2001. See 4/20/01 EEOC Dismissal and Notice of Rights Letter to Windsor ("EEOC Letter"), Ex. C to Margolis Decl. Windsor brought this action on May 1, 2001.
B. Evidence
1. Failure to Rehire
Windsor offers the following evidence in support of his claim that Fields failed to rehire him because of his race. First, co-workers informed Windsor that very few African-Americans were ever hired to work at Tishman Speyer, and Windsor's own observation of the racial composition of the workforce at Rockefeller Center confirmed this information. See 11/1/01 Windsor Dep. at 81-82. Second, on one occasion, Fields told Windsor not to "wear [his] pants hanging down below [his] waist [,]" and Windsor understood this to be a reference to the stereotypical dress of African-American youth. Windsor Aff. at 2. Third, Windsor claims that Fields chastised him for saying "good morning" to his co-workers, but she did not rebuke employees of other races for similar conduct. 11/1/01 Windsor Dep. at 73. Fourth, Windsor alleges that black employees at Rockefeller Center received the worst shift assignments and attained few, if any, management positions. See Windsor Aff. at 6.
Some of the plaintiff's evidence of discrimination is presented in the form of hearsay statements by non-Tishman Speyer employees. See Windsor Aff. at 5; see generally Fed.R.Evid. 802 (providing for the exclusion of hearsay evidence). On a motion for summary judgment, a court may only consider evidence that would be "admissible at trial. See Fed.R.Civ.P. 56(e).
2. Unequal Terms and Conditions
With respect to his claims of unequal terms and conditions of his employment, Windsor proffers the following evidence. Windsor alleges that one of his supervisors, Phil Vale, forced him to join the Union or be fired. See 11/1/01 Windsor Dep. at 30, 32; see also Windsor Aff. at 5. As a result, Windsor paid dues to the Union. See 11/1/01 Windsor Dep. at 22. To the best of his knowledge, none of Windsor's Caucasian or Hispanic co-workers were forced to join the Union or face termination. See id. at 89.
II. STANDARD OF REVIEW
Rule 56 of the Federal Rules of Civil Procedure provides for summary judgment "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." Fed.R.Civ.P. 56(c). "An issue of fact is `material' for these purposes if it `might affect the outcome of a suit under the governing law[,]' [while] [a]n issue of fact is `genuine' if `the evidence is such that a reasonable jury could return a verdict for the nonmoving party.'" Konikoff v. Prudential Ins. Co. of Am., 234 F.3d 92, 97 (2d Cir. 2000) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)).
"In assessing the record to determine whether genuine issues of material fact are in dispute, a court must view the evidence in the light most favorable to the non-movant." Figueroa v. City of New York, 198 F. Supp.2d 555, 562 (S.D.N.Y. 2002) (quotation marks and citations omitted). "Although the moving party bears the initial burden of establishing that there are no genuine issues of material fact, once such showing is made, the non-movant must `set forth specific facts showing that there is a genuine issue for trial.'" Weinstock v. Columbia Univ., 224 F.3d 33, 41 (2d Cir. 2000) (quoting Anderson, 477 U.S. at 256).
However, the non-moving party may not "rest upon. . . mere allegations or denials." St. Pierre v. Dyer, 208 F.3d 394, 404 (2d Cir. 2000). "Statements that are devoid of any specifics, but replete with conclusions, are insufficient to defeat a properly supported motion for summary judgment." Bickerstaff v. Vassar Coll., 196 F.3d 435, 452 (2d Cir. 1999); see also Scotto v. Almenas, 143 F.3d 105, 114 (2d Cir. 1998) ("If the evidence presented by the non-moving party is merely colorable, or is not significantly probative, summary judgment may be granted.") (quotation marks, citations, and alterations omitted).
"`The salutary purposes of summary judgment — avoiding protracted, expensive and harassing trials — apply no less to discrimination cases than to. . . other areas of litigation.'" Abdu-Brisson v. Delta Air Lines, Inc., 239 F.3d 456, 466 (2d Cir. 2001) (quoting Meiri v. Dacon, 759 F.2d 989, 998 (2d Cir. 1985)). Summary judgment is only appropriate if the plaintiff has failed to produce sufficient evidence for a rational juror to find in his favor. See Windham v. Time Warner, Inc., 275 F.3d 179, 187 (2d Cir. 2001).
III. ANALYSIS
Windsor claims that he was subjected to "[u]nequal working conditions [,] [t]ermination" and a "[f]ailure to [re]hire" by Tishman Speyer because of his race, in violation of Title VII. Compl. ¶ 4. The governing statute states, in pertinent part, that:
It shall be an unlawful employment practice for an employer to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his terms [or] conditions. . . of employment, because of such individual's race. . .42 U.S.C. § 2000e-2(a).
When there is only circumstantial evidence of such discrimination, the court applies the framework set forth in McDonnell Douglas v. Green, 411 U.S. 792 (1973). See Tappe v. Alliance Capital Mgmt. L.P., 198 F. Supp.2d 368, 372-373 (S.D.N.Y. 2001). This requires the plaintiff to make out a prima facie case of discrimination by showing: 1) membership in a protected class; 2) qualification for the position held; 3) an adverse employment action; and 4) circumstances raising an inference of discrimination. See id. at 373 (citing Farias v. Instructional Sys., Inc., 259 F.3d 91, 98 (2d Cir. 2001)). The burden for this prima facie showing is "minimal." Bickerstaff, 196 F.3d at 446.
If the prima facie case is met, a "presumption of discrimination is created" and the burden "shifts to the defendant to articulate some legitimate, nondiscriminatory reason for the adverse employment action or termination." Farias, 259 F.3d at 98. Finally, "if the defendant meets this burden of production. . . the plaintiff must. . . prov[e] that he was the victim of intentional discrimination." Tappe, 198 F. Supp.2d at 372-373 (citing Farias, 259 F.3d at 98).
Because Windsor is African-American, he is a member of a protected class. Also, Windsor's claims regarding unequal terms and conditions, and failure to (re)hire, constitute adverse actions explicitly provided for in the language of Title VII. See 42 U.S.C. § 2000e-2(a). Thus, with respect to Windsor's prima facie case, the only questions are whether Windsor was qualified for his position and whether Tishman Speyer's actions created an inference of discrimination because of race.
Defendant argues, at length, that plaintiff was not qualified because of his alleged lateness. See Memorandum of Law in Support of Defendant Tishman Speyer's Motion for Summary Judgment ("Def. Mem.") at 14-15. This argument misunderstands the purpose of the qualification prong of the prima facie case. The qualification element is meant only to eliminate the most frivolous cases where a plaintiff is rejected during the hiring process because he is unqualified for the position. See, e.g., Aragon v. Republic Silver State Disposal, Inc., _ F.3d _, 2002 WL 1186253, at *4 (9th Cir. June 5, 2002) (holding no "specific, substantial showing" was necessary for the qualification prong of the prima facie case). "[W]here discharge is at issue and the employer has already hired the employee, the inference of minimal qualification is not difficult to draw." Slattery v. Swiss Reinsurance Am. Corp., 248 F.3d 87, 92 (2d Cir. 2001) (emphasis added). Fields hired Windsor twice for the same position, which shows he was qualified. See 11/1/01 Windsor Dep. at 32; Fields Aff. ¶ 4. At issue then are Windsor's remaining claims of a failure to rehire and unequal working conditions.
Windsor further alleges that his termination was an adverse, discriminatory action by Tishman Speyer. See Compl. ¶ 4. Both parties agree that Windsor's termination in the fall of 2000 was due to the end of the vacation relief period, and therefore does not constitute an adverse employment action. See Fields Aff. ¶ 4; 11/1/01 Windsor Dep. at 70-73.
A. Failure to Rehire
Windsor testified in his deposition that few African-Americans are ever hired by Tishman Speyer. See Windsor Dep. at 81-82. Plaintiff also points to Fields's possibly stereotypical comments to him as further evidence of discriminatory intent. See Windsor Aff. at 2. These allegations are sufficient to create the inference of discrimination necessary to complete plaintiff's prima facie showing.
Tishman Speyer must "articulate some legitimate, non-discriminatory reason" for its failure to rehire Windsor in order to defeat plaintiff's claim. Farias, 259 F.3d at 98. Tishman Speyer proffers Windsor's problems with attendance and punctuality as legitimate grounds for not rehiring him. See Def. Mem. at 14; see also 9/15/00 Fields Memorandum to Windsor's Personnel File ("Fields Mem."), Ex. B to Fields Aff; Fields Notes on Windsor's Performance ("Fields Notes"), Ex. C to Fields Aff. This evidence is sufficient to satisfy Tishman Speyer's burden of going forward.
The burden then returns to plaintiff to prove, by a preponderance of the evidence, that defendant failed to rehire him because of his race. See Farias, 259 F.3d at 98. Plaintiff adduces no evidence of other employees who were late or absent and yet rehired. See Windsor Aff. at 3. Nor does Windsor present any evidence demonstrating that Fields's reasons — plaintiff's lateness and absence — for not rehiring him were a pretext for discrimination. Plaintiff merely denies he was ever late for work, and he does not contest that he was absent during his wife's pregnancy. See Windsor Aff. at 3. The court requires more than "mere allegations or denials" from plaintiff to overcome summary judgment. St. Pierre, 208 F.3d at 404. Defendant produced numerous documents, including payroll records and memoranda on plaintiff's performance, to support its contention that Windsor was not rehired because he was often late and/or absent. See Tishman Speyer Autopay Employee Earnings Records (the "Earnings Records"), Attachment to 5/28/02 Tishman Speyer Letter to the Court; Fields Notes; Fields Mem. According to Fields's affidavit, "[t]his was entirely unacceptable attendance for a temporary or seasonal employee." Fields Aff. ¶ 7. Fields further states that she "spoke to [Windsor] about his poor attendance on several occasions." Id.; see also Fields Mem.
While plaintiff generally points to his perception that few blacks were hired by Fields, he fails to provide any specific evidence to support his claim. See 11/1/01 Windsor Dep. at 81. Plaintiff also claims African-Americans generally work less desirable shifts and few, if any, attain management positions. See Windsor Aff. at 6. These allegations are not, however, evidence of discriminatory intent with regard to Fields's failure to rehire Windsor. In fact, Windsor fails to allege that Fields made any decisions about shift assignments or promotions. This may be enough to raise a minimal, inference of discrimination, but it is not enough to meet plaintiff's ultimate burden. No reasonable jury could find that Fields, who hired Windsor on two previous occasions, decided not to rehire Windsor because of his race. Cf. Grady v. Affiliated Central, Inc., 130 F.3d 553, 560 (2d Cir. 1997) (holding that "when the same person who made the decision to fire was the same person who made the decision to hire, it is difficult to impute to her an invidious motivation" of discrimination). Accordingly, defendant's motion for summary judgment on the failure to rehire claim is granted.
B. Unequal Terms and Conditions
Plaintiff presents evidence that defendant subjected him to unequal terms and conditions of employment. Tishman Speyer manager Phil Vale allegedly forced Windsor to join the Union, while his co-workers were not compelled to join. See 11/1/01 Windsor Dep. at 30, 32, 89; see also Windsor Aff. at 5. Furthermore, when Fields terminated Windsor, she failed to notify the Union Tishman Speyer had forced him to join. See 9/13/00 Tishman Speyer Termination Form for James Windsor ("Termination Form"), Attachment to Defendant's 4/9/02 Letter to the Court.
"One of the most effective methods of establishing discrimination is to compare plaintiff's treatment to the treatment of employees outside the protected class." Bennett v. Watson Wyatt Co., 136 F. Supp.2d 236, 248 (S.D.N.Y. 2001) (citations omitted).
The burden again shifts to the defendant to articulate a non-discriminatory reason for this unequal treatment. Defendant argues that all Tishman Speyer employees must join the Union. See 1999 Commercial Building Agreement with the Union ("Union Agreement"), Attachment to Defendant's 7/1/02 Letter to the Court, art. I, § 2. The Union Agreement specifically "requires membership in the Union by every employee [of Tishman Speyer] as a condition of employment after the thirtieth day of employment." Id.
Plaintiff presents insufficient evidence to meet his ultimate burden of proving intentional discrimination. Once again, Windsor's claims of discrimination are not supported by any witnesses, affidavits or even specific events he himself witnessed. Plaintiff offers only speculation which has been effectively rebutted by the employer's Agreement with the Union. Plaintiff thus failed to proffer evidence that would allow a rational juror to find that defendant subjected him to unequal terms and conditions of his employment because of his race. Defendant's motion must be granted as to this claim.
VI. CONCLUSION
For the reasons discussed above, defendant's motion for summary judgment on all claims is granted. The Clerk of the Court is ordered to close this case.