Jarvis v. Campbell & Dawes

Filing 47

ORDER ADOPTING REPORT AND RECOMMENDATIONS: for the reasons stated in the attached Order, the Report and Recommendation is respectfully adopted in major part and modified in part, and defendant's motion for summary judgment is granted. Counsel f or defendant is ordered to serve a copy of the Order on the plaintiff at the address listed on the docket sheet and file proof of service by February 28, 2014. The Clerk of Court is respectfully requested to close the case. Ordered by Judge Kiyo A. Matsumoto on 2/26/2014. (Keefe, Reed)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
---------------------------------X
DANIEL C. JARVIS,
MEMORANDUM AND ORDER
ADOPTING IN PART &
MODIFYING IN PART REPORT
AND RECOMMENDATION

Plaintiff,
-againstCAMBPELL & DAWES, LTD.,

11-CV-2259 (KAM)(SMG)

Defendant.
---------------------------------X
MATSUMOTO, United States District Judge:
On May 10, 2011, plaintiff Daniel C. Jarvis,
proceeding pro se, filed the instant action against his former
employer Campbell & Dawes, Ltd., alleging discrimination in his
employment based on his race and age.

Specifically, plaintiff

alleges that, between 2001 and 2009, he experienced unequal
terms and conditions of his employment, was not promoted and was
terminated because he is African-American and over 40 years old,
in violation of Title VII of the Civil Rights Act of 1964, 42
U.S.C. §§ 2000e to 2000e-17, and the Age Discrimination in
Employment Act of 1967 (“ADEA”), 29 U.S.C. §§ 621-634. 1
generally Compl., ECF No. 1.)

(See

Following discovery, on May 31,

2013, defendant filed a motion for summary judgment pursuant to
Federal Rule of Civil Procedure 56, and, on August 29, 2013, the

1
Although plaintiff alleges in his complaint that defendant’s discriminatory
acts continue to the present day, it is clear from defendant’s statement
pursuant to Local Civil Rule 56.1 (“Def. R. 56.1,” ECF No. 38-2) and
plaintiff’s affidavit submitted in opposition to defendant’s summary judgment
motion (“Pl. Aff.”) that plaintiff was terminated in 2009. (Def. R. 56.1
¶ 23; Pl. Aff. ¶ 13.)

undersigned referred the motion to the Honorable Steven M. Gold
for a Report and Recommendation pursuant to Federal Rule of
Civil Procedure 72(b). 2

Chief Magistrate Judge Gold’s Report and

Recommendation (“R&R,” ECF No. 44) is now before the court, and
the deadline for objections by the parties has passed.

Neither

side has filed objections, although the defendant has submitted
a supplemental affidavit pursuant to Chief Judge Gold’s order in
the R&R.

(ECF No. 45.)

For the reasons stated below, the R&R

is respectfully adopted in major part and modified in part.
In reviewing a Report and Recommendation, a district
“court may accept, reject, or modify, in whole or in part, the
findings or recommendations made by the magistrate judge.”
U.S.C. § 636(b)(1).

28

Where a party makes specific and timely

objections to a magistrate judge’s findings or recommendations,
the district court must apply a de novo standard of review to
the portions of the R&R to which the objection is made.

Mazzei

v. Abbott Labs. & Co., No. 10-CV-1011, 2012 WL 1101776, at *1

2

Chief Magistrate Judge Gold observed that defendant’s summary judgment
submission to the court apparently did not comply with Local Civil Rule 56.2,
which requires that a represented party moving for summary judgment against a
pro se litigant serve and file a copy of the court’s “Notice To Pro Se
Litigant Who Opposes a Motion For Summary Judgment” and copies of Federal
Rule of Civil Procedure 56 and Local Civil Rule 56.1 with the other papers in
support of summary judgment. (See R&R 1 n.1; Minute Entry dated Dec. 31,
2013, ECF No. 41.) Counsel for defendant avers that he served plaintiff with
copies of the notice and the rules on April 12, 2013, at the same time he
served plaintiff with the summary judgment motion. (ECF No. 43.) In any
event, the court sent plaintiff additional copies of the required documents
at Chief Judge Gold’s direction and plaintiff was afforded additional time to
decide whether to supplement his opposition. (Minute Entry dated Dec. 30,
2013.) The court therefore considers the summary judgment motion properly
served on plaintiff.

2

(E.D.N.Y. Apr. 2, 2012) (citing Fed. R. Civ. P. 72(b)(3); Arista
Records, LLC v. Doe 3, 604 F.3d 110, 116 (2d Cir. 2010)); see
also 28 U.S.C. § 636(b)(1).

However, where, as here, no proper

objection to a Report and Recommendation has been timely made,
the district court “‘need only satisfy itself that that there is
no clear error on the face of the record.’”

Jarvis v. N. Am.

Globex Fund, L.P., 823 F. Supp. 2d 161, 163 (E.D.N.Y. 2011)
(quoting Wilds v. United Parcel Serv., Inc., 262 F. Supp. 2d
163, 169 (S.D.N.Y. 2003)).
Having carefully reviewed both the R&R and the record
in this case, the court concurs with Chief Judge Gold that
plaintiff has not submitted any admissible evidence to show that
his reduced over-scale rate and the fact that he was not
promoted to foreman give rise to an inference of discrimination
based on his race or age. 3

See Bucalo v. Shelter Island Union

Free Sch. Dist., 691 F.3d 119, 129 (2d Cir. 2012) (noting that
under both Title VII and the ADEA a plaintiff must demonstrate
that the adverse employment “action occurred under circumstances
giving rise to an inference of discrimination.” (internal
citation omitted)).

There is no evidence in the record that the

pay rate reduction was related to race or age, but was instead
based on the defendant’s cost-saving measure of reducing
discretionary over-scale pay.

Regarding the fact that Mr.

3

The relevant facts of the case are set forth in detail in the R&R and will
not be recited here.

3

Jarvis was not promoted to foreman, it is undisputed that
plaintiff did not take the required safety courses to obtain
this position, nor did he apply for the position.
Jarvis Dep. 95-97, Def. Ex. D, ECF No. 38-7.)

(See, e.g.,

Finally, the

court also agrees that, even if plaintiff could make a prima
facie case as to wrongful termination, the record is devoid of
evidence that defendant’s stated reason for his termination, an
overall reduction in the work force during an economic downturn
in construction, was pretextual.

See Davey v. Jones, 371 Fed.

Appx. 146, 148 (2d Cir. 2010) (noting that, under Title VII and
the ADEA, a plaintiff must show that an employer’s stated
reasons for an adverse employment “were not its true reasons,
but were a pretext for discrimination,” and that the ADEA
imposes the additional burden that the plaintiff show “that age
was the ‘but for’ cause of the employer’s adverse action, and
not merely one of the motivating factors.”) (internal citations
omitted). 4

4

Plaintiff does cite to the fact that, of the total number of employees
terminated from the defendant company from 2007 to 2011, the majority were
over the age of 40 at the time of termination. (Pl. Ex. C., ECF No. 39-3.)
Defendant argues that this statistic does not take into account the overall
the age composition of the company, and James Schwerdt, a superintendent at
Campbell & Dawes, avers that defendant does not maintain that global number
by age because it is impractical to do so in light of the company’s varied
workforce at any given time. (Def. Ltr. dated Jan. 27, 2014, ECF No. 45.)
While “[t]here is room for debate about whether . . . raw statistical data
can ever make out a prima facie case” of age discrimination, Nicholls v.
Philips Semiconductor Mfg., 760 F. Supp. 2d 407, 418 (S.D.N.Y. 2011)
(collecting cases), there is no evidence at all in the record that
defendant’s stated business reasons for terminating plaintiff were pretextual
and that plaintiff would not have been terminated “but for” his age, Davey,
371 Fed. Appx. at 148. See also Drake v. Delta Air Lines, Inc., No. 94-CV-

4

The court notes that the R&R discusses the steps in
the burden-shifting analysis, and states that once a plaintiff
establishes a prima facie case and a rebuttable presumption of
discrimination, “if the defendant successfully rebuts the
presumption of discrimination, ‘the plaintiff must prove by a
preponderance of the evidence that the defendant’s explanations
were pretextual.’”

(R&R 10 (citing D’Cunha v. Genovese/ Eckerd

Corp., 479 F.3d 193, 194-95 (2d Cir. 2007)); see also R&R 11,
14.)

The “preponderance of the evidence” standard is not

applicable when considering a motion for summary judgment.

“In

the summary judgment context, [the plaintiff’s burden to show
pretext] means that ‘the plaintiff must establish a genuine
issue of material fact either through direct, statistical, or
circumstantial evidence as to whether the employer’s reason for
discharging her is false and as to whether it is more likely
that a discriminatory reason motivated the employer.’”

Kerzer

v. Kingly Mfg., 156 F.3d 396, 401 (2d Cir. 1998) (citing Gallo
v. Prudential Residential Servs., Ltd. P’ship, 22 F.3d 1219,
1225 (2d Cir. 1998)) (emphasis in original omitted); see also
Delville v. Firmenich, Inc., 920 F. Supp. 2d 446, 458-59

5944, 2005 WL 1743816, at *6 (E.D.N.Y. July 21, 2005) (analyzing “the Second
Circuit’s treatment of statistical evidence in disparate-treatment claims in
employment discrimination cases” and noting that “[s]tatistics alone are
insufficient [in this type of claim] because an individual plaintiff must
prove that he or she in particular has been discriminated against.”). As
such, plaintiff has not established a genuine issue of material fact as to
his wrongful termination claim.

5

(S.D.N.Y. 2013) (noting that the particular burden-shifting test
for ADEA suits is set forth in Gross v. FBL Financial Services,
557 U.S. 167 (2009) and that “Plaintiff’s job at [the summary
judgment] stage is not to convince the Court that it prevails
under the Gross framework, but rather to show that a genuine
issue of material fact exists as to whether it can ultimately do
so at trial.”).
Nonetheless, Chief Judge Gold’s reasoning and thorough
marshaling of the evidence stands.

For the same reasons stated

in the R&R, plaintiff has failed to present evidence that
establishes a genuine issue of material fact as to whether he
could demonstrate that defendant’s stated reasons for reducing
plaintiff’s over-scale rate, not promoting him to foreman, and
ultimately terminating him were pretextual.

The R&R is

therefore adopted in large part and modified only to clarify the
burden shifting analysis to be applied to the motion.
Consequently, defendant’s motion for summary judgment is granted
and the complaint is dismissed.

Counsel for defendant is

ordered to serve a copy of this Memorandum and Order on

6

plaintiff at the address listed on the docket sheet and to file
proof of service with the court by February 28, 2014.

The Clerk

of Court is respectfully requested to close the case.

SO ORDERED.
Dated:

February 26, 2014
Brooklyn, New York
_______ ___/s/
Kiyo A. Matsumoto
United States District Judge
Eastern District of New York

7