06 Civ. 2558 (KNF).
March 25, 2008
MEMORANDUM AND ORDER
Stylianos Prokopiou ("Prokopiou") brings this action against the Long Island Rail Road Company ("LIRR"), pursuant to Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e- 2000e-17 ("Title VII"), alleging employment discrimination based on national origin. Before the Court is the defendant's motion for summary judgment, made pursuant to Fed.R.Civ.P. 56. The plaintiff opposes the motion.
Prokopiou failed to comply with Local Civil Rule 56.1(d) of this court, requiring that: "Each statement by the movant or opponent pursuant to Rule 56.1(a) and (b), including each statement controverting any statement of material fact, must be followed by citation to evidence which would be admissible, set forth as required by Federal Rule of Civil Procedure 56(e)." (emphasis in the original). In its Local Civil Rule 56.1 statement, LIRR presented 26 statements of material facts about which it contends no genuine issues exist to be tried, followed by citation to competent evidence in the record. LIRR's statement No. 17 was not supported by citation to any competent evidence because it relied on a deficient Declaration by Michael D. Chirillo and its accompanying Exhibit C. Local Civil Rule 56.1(c) provides: "Each numbered paragraph in the statement of material facts set forth in the statement required to be served by the moving party will be deemed to be admitted for purposes of the motion unless specifically controverted by a correspondingly numbered paragraph in the statement required to be served by the opposing party." (emphasis in the original). Prokopiou admitted six statements fully and 16 statements with exceptions, without making citation to competent evidence. He indicated he "can neither admit nor deny" statement Nos. 17, 19 and 21. Prokopiou denied, without making citation to any competent evidence, statement Nos. 22, 23, 24, 26 and 27. Consequently, the statements of material facts, about which LIRR contends no genuine issue exists to be tried, are deemed to be admitted by Prokopiou, for the purposes of the instant motion. The facts recited here are drawn from LIRR's Local Civil Rule 56.1(a) statement.
The following facts are undisputed:
Prokopiou is of Cypriot Greek origin. Since he commenced employment with LIRR as an electrician, on October 18, 2000, Prokopiou has been represented by the International Brotherhood of Electrical Workers ("IBEW"). In 1992, LIRR and IBEW signed a letter of understanding ("LOU"), setting forth the procedure for administering an Electronics Shop Qualification Test ("ESQT"). According to that LOU, an electrician was required to apply for a higher position with LIRR and obtain such a position prior to taking the ESQT. Failure to pass the ESQT resulted in the loss of the obtained position. The procedure set forth in the LOU applied to all employees in LIRR's Electronics Shop and its Maintenance of Equipment Department, where Prokopiou was employed. LIRR and IBEW instituted the procedure so that LIRR would not waste resources by administering tests, and its employees would not waste time taking tests which would not provide them with a promotion or any economic benefit. The procedure adopted by LIRR and IBEW, through the LOU, was not based upon any employee's national origin.
The success of an employee's application for a higher position with LIRR was based solely on seniority; thus passing the ESQT had no bearing on whether any employee's application for a higher position would be successful. Prokopiou was never prevented by LIRR from applying for a position and no employee with less seniority than he was awarded a position for which Prokopiou applied. Prokopiou was never denied a position based on his national origin.
In 2006, Prokopiou applied for and obtained a higher position with LIRR. In accordance with the LOU between LIRR and IBEW, Prokopiou took and passed the ESQT, after he obtained the higher position. Only one employee, Neil Holst ("Holst"), whose national origin is unknown to Prokopiou, took the ESQT without obtaining a position first. Hoist did not receive a promotion or a pay raise after he passed the test. No person has ever indicated to Prokopiou that he was not allowed to take the ESQT, before applying for a position, because of his national origin or his accent. None of Prokopiou's supervisors has ever said anything to him indicating an unfavorable opinion was held about Prokopiou's national origin.
In December 2004, Prokopiou filed a complaint with the Equal Employment Opportunity Commission ("EEOC") against LIRR, alleging national origin discrimination. In that complaint, Prokopiou alleged that LIRR prevented him from taking the ESQT before applying for and obtaining a position, while it allowed other employees to do so. On December 29, 2005, EEOC determined that no evidence existed indicating that Prokopiou's national origin played any role in LIRR's decision not to allow him to take the ESQT prior to applying for and obtaining a position in the Electronics Shop. EEOC dismissed Prokopiou's complaint and provided him with a Notice of Right to Sue. While Prokopiou testified at his deposition that he could not offer any explanation, other than national origin, for LIRR's determination to bar him from taking the ESQT and to permit Hoist to do so, he also testified he believes that it is possible that LIRR simply liked Hoist better than it liked him.
Summary Judgment Standard
Fed.R.Civ.P. 56(c) provides that summary judgment "should be rendered if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." "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 v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 2510). When considering a motion for summary judgment, a court must view the evidence in the light most favorable to the party opposing the summary judgment and must draw all reasonable inferences in the opposing party's favor. See Salamon v. Our Lady of Victory Hosp., 514 F.3d 217, 226 (2d Cir. 2008).
The moving party bears the burden of showing that no genuine issue of material fact exists. See Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 2553 (1986). Once the moving party has satisfied its burden, the non-moving party must "set out specific facts showing a genuine issue for trial." Fed.R.Civ.P. 56(e); see Anderson, 477 U.S. at 250, 106 S. Ct. at 2511.
In order to defeat a motion for summary judgment, the non-moving party cannot merely rely upon allegations contained in the pleadings that raise no more than "some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S. Ct. 1348, 1356 (1986). "[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment." Anderson, 477 U.S. at 247-48, 106 S. Ct. at 2510 (emphasis in the original). "The moving party is `entitled to a judgment as a matter of law' [when] the nonmoving party has failed to make a sufficient showing on an essential element of her case with respect to which she has the burden of proof." Celotex Corp., 477 U.S. at 323, 106 S. Ct. at 2552.
In order to survive a motion for summary judgment on a Title VII claim, a plaintiff must establish a prima facie case of discrimination by showing that: (1) he is a member of a protected class; (2) his job performance is satisfactory; (3) he suffered an adverse employment action; and (4) the action occurred under circumstances giving rise to an inference of discrimination. See Dawson v. Bumble Bumble, 398 F.3d 211, 216 (2d Cir. 2005). If the plaintiff establishes a prima facie case, a presumption of discrimination arises and the burden shifts to the defendant to provide a legitimate, non-discriminatory reason for the adverse action. See id. If the defendant makes that showing, the burden shifts back to the plaintiff to prove discrimination, by establishing, by a preponderance of the evidence, that the legitimate reason offered by the defendant is pretextual. See id.
Prokopiou identifies as a person of Cypriot Greek origin, and LIRR does not dispute that he is a member of a protected class. LIRR also does not dispute that Prokopiou's job performance is satisfactory. However, LIRR contends, Prokopiou failed to demonstrate that he suffered an adverse employment action and that such an action occurred under circumstances giving rise to an inference of discrimination.
Adverse Employment Action
To be actionable under Title VII's substantive anti-discrimination provision, an employment action must "affect employment or alter the conditions of the workplace." See Burlington Northern Santa Fe Ry. Co. v. White, 548 U.S. 53, ___, 126 S. Ct. 2405, 2411-12 (2006). A plaintiff sustains an adverse employment action when he "endures a `materially adverse change' in the terms and conditions of employment." Galabya v. New York City Bd. of Educ., 202 F.3d 636, 640 (2d Cir. 2000). A "materially adverse change" is one that is "more disruptive than a mere inconvenience or an alteration of job responsibilities."Id. (citation omitted.) Examples of a materially adverse change include: "a termination of employment, a demotion evidenced by a decrease in wage or salary, a less distinguished title, a material loss of benefits, significantly diminished material responsibilities, or other indices . . . unique to a particular situation." Id. (citations omitted).
LIRR contends "Prokopiou's only complaint is that he was not permitted to take [ESQT] prior to bidding successfully for a High Tech position." However, according to LIRR, "[p]assing the test had no bearing upon the success or non-success of his, or any employee's, bid for a High Tech position," and would not have provided Prokopiou "any increase in pay or job title."
Prokopiou contends, Holst "had the opportunity to take the [ESQT] prior to being awarded a high-tech electrician position." According to Prokopiou, by passing the ESQT, Holst "enjoys the benefit that should he decide to bid for a high-tech electrician position, he is guaranteed to not be in jeopardy of losing his pay increase and other benefits due to failure. Mr. Prokopiou was denied that benefit/opportunity."
The evidence in the record establishes that, although Hoist was the only employee who was permitted to take the ESQT prior to applying for and obtaining a position, he did not receive any benefit, promotion or pay raise, in connection with taking that test. The evidence in the record also establishes that taking the ESQT, prior to applying for and obtaining a position, did not have any impact on an application for and award of a high-tech position because the success of such an application depended solely on seniority. The record establishes further that Prokopiou's employment was not terminated, and he was not demoted by receiving a decrease in wage or salary or a less distinguished title. Moreover, Prokopiou failed to present any competent evidence that he suffered a material loss of benefits or significantly diminished material responsibilities as a result of LIRR's decision not to permit him to take the ESQT prior to applying for and obtaining a position. In fact, Prokopiou applied for and obtained a high-tech position in 2006 and, thereafter, took and passed the ESQT.
Prokopiou's conjecture that, if Holst applies for a high-tech position, "he is guaranteed to not be in jeopardy of losing his pay increase and other benefits due to failure," by itself, is not sufficient to sustain his burden of showing an adverse employment action on the part of LIRR. Prokopiou failed to present any evidence that taking the ESQT, prior to applying for and receiving a position, guarantees an employee, who applies for a position, that he will "not be in jeopardy of losing his pay increase and other benefits due to failure." By failing to demonstrate that he suffered an adverse employment action, Prokopiou failed to establish a necessary element of a prima facie case of discrimination under Title VII. Consequently, summary judgment for LIRR is warranted.
CONCLUSIONFor the reasons stated above, the defendant's motion for summary judgment, (Docket Entry No. 22), made pursuant to Fed.R.Civ.P. 56, is granted.