Bailey v. Huntington Hebrew Congregation
Filing
36
MEMORANDUM AND ORDER granting 30 Motion for Summary Judgment. For the foregoing reasons, Defendant's motion for summary judgment is GRANTED. The Clerk of the Court is directed to mail Plaintiff a copy of this Order and to mark this case CLOSED. So Ordered by Judge Joanna Seybert on 7/12/11. C/M; C/ECF (Valle, Christine)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
-------------------------------------X
JULIUS C. BAILEY,
Plaintiff,
MEMORANDUM & ORDER
09-CV-0839(JS)(ETB)
B against B
HUNTINGTON HEBREW CONGREGATION d/b/a
HUNTINGTON JEWISH CENTER,
Defendant.
-------------------------------------X
APPEARANCES:
For Plaintiff:
Julius C. Bailey, pro se
120 Columbia Street
Huntington Station, NY 11746-1220
For Defendant:
Danielle M. Dandrige, Esq.
Rhonda L. Epstein, Esq.
Hoey King Toker & Epstein
55 Water Street, 28th Floor
New York, NY 10041
SEYBERT, District Judge:
In this employment discrimination case, plaintiff pro
se Julius Bailey (“Plaintiff”) sued Defendant Huntington Hebrew
Congregation
(“Defendant”
or
the
“Synagogue”)
for
alleged
violations of Title VII of the Civil Rights Act (“Title VII”).
Pending before the Court is the Synagogue’s motion for summary
judgment.
For the reasons that follow, that motion is GRANTED.
BACKGROUND
Plaintiff
counter-statement
or
did
not
oppose
serve
a
Local
Defendant’s
Civil
motion.
Rule
56.1
The
Court
therefore takes as true the facts contained in Defendant’s Local
Rule 56.1 Statement that are supported by admissible evidence.
See LOCAL CIV. R. 56.1(c); Baker v. Dorfman, 239 F.3d 415, 422 (2d
Cir.
2000);
5477753,
Marshall
v.
*1
n.1
(E.D.N.Y.
adopted
2010
at
Recommendation)
Marshall,
No.
Dec.
WL
08-CV-1420,
7,
5477152
2010)
2010
(Report
(E.D.N.Y.
WL
and
Dec.
30,
2010).
Plaintiff, an African-American male, began working at
the
Synagogue
as
a
custodian
on
March
29,
2007
and
was
eventually assigned a 40-hour work week on the 3 p.m. to 11 p.m.
shift.
(Def.
Plaintiff
was
56.1
Stmt.
responsible
¶¶
10,
for
18.)
mopping,
Among
other
vacuuming,
things,
cleaning
bathrooms and arranging classroom and meeting room chairs.
¶ 20.)
to
help
(Id.
In addition to these duties, Plaintiff was also required
strip
and
wax
the
Synagogue’s
floors
as
part
of
a
refurbishment project that was ongoing when Plaintiff was hired.
(Id. ¶¶ 20-21.)
Soon
after
Plaintiff
was
hired,
Plaintiff’s
supervisor, head custodian Alberto Caballaro, complained to the
Synagogue’s President, Cheryl Silberman, that Plaintiff spent
inordinate
amounts
instead of working.
observed
Plaintiff
of
time
socializing
(Id. ¶ 22.).
socializing
2
with
with
the
congregants
Ms. Silberman personally
congregants
instead
of
working.
(Id.)
She also learned that Plaintiff would try to
pass his assignments off on his colleagues, which in her view
caused resentment among the custodial staff and undermined Mr.
Caballaro’s authority.
(Def. 56.1 Stmt. ¶ 23; Silberman Aff. ¶
14.)
to
Most
troubling
Defendant,
though,
was
Plaintiff’s
accrual of excessive overtime and his habit of remaining in the
building well past the time at which everyone else had left
(including more than one instance where Plaintiff stayed until
3:00
a.m.).
Plaintiff’s
(Def.
56.1
approximately
Stmt.
¶¶
nine-week
25,
tenure,
40,
45.)
During
worked
127.75
he
hours of overtime, a number that far exceeded his colleagues’
overtime billing.
(Id. ¶¶ 26, 36.)
Silberman, Caballaro and Howard Novick, a Synagogue
trustee,
met
with
Plaintiff
on
Plaintiff’s excessive overtime.
May
18,
2007
(Id. ¶ 37.)
to
discuss
Novick ordered
Plaintiff to stop working overtime and to begin punching in and
out
at
lunchtime
so
that
the
Synagogue
could
Plaintiff was working when he was supposed to be.
verify
that
(Id. ¶ 39.)
The Synagogue’s only other African-American custodian did not
have to punch out for lunch because Defendant was not concerned
that this custodian was abusing overtime.
(Id. ¶ 43.)
Plaintiff was fired on May 31, 2007.
3
According to
Defendant, Plaintiff could not complete his assignments in an
efficient
and
timely
manner,
abused
the
overtime
rules,
and
exhibited poor judgment by remaining in the Synagogue building
until 3 a.m.
(See Def. 56.1 Stmt. ¶¶ 45-46.)
On
October
Employment
24,
Opportunity
2007,
Plaintiff
Commission
filed
(“EEOC”)
an
Equal
charge
of
discrimination, in which he alleged that his termination was the
result of unlawful racial discrimination.
Specifically,
only
three
guys.”
Plaintiff
black
(Id.)
alleged
employees
Plaintiff
and
also
that
the
replaced
claimed
(See Def. Ex. C.)
Synagogue
them
that
fired
with
he
its
“Spanish
was
treated
differently than his Hispanic colleagues in that he was required
to punch in and out for lunch.
At
his
deposition,
(Id.)
Plaintiff
admitted
that
neither
Silberman nor Novick said anything racially derogatory toward
him.
(Def. 56.1 Stmt. ¶ 53.)
And, Plaintiff testified that
although Caballaro’s habit of speaking to other custodians in
Spanish was rude, Caballaro never said anything rude to him or
racially derogatory to him or the other black custodians.
¶¶ 49, 51.)
the
(Id.
Plaintiff also admitted that during his tenure at
Synagogue
discrimination.
he
did
not
complain
to
anyone
about
racial
Instead, he first complained of discrimination
4
after he was fired.
(Id. ¶¶ 60-61.)
DISCUSSION
Plaintiff
asserts
three
claims:
that
he
was
(1)
unlawfully terminated; (2) unlawfully subjected to unequal terms
and
conditions
of
employment;
and
(3)
retaliated
against.
Plaintiff’s Complaint contains few factual allegations, but his
July 29, 2009 “Supplemental Complaint” amplifies his position
by,
among
other
things,
denying
that
his
overtime
was
unauthorized, stating that two other black employees were fired
for
false
or
disingenuous
reasons,
and
claiming
that
an
unqualified Spanish employee kept his job despite several verbal
warnings.
See Docket Entry 9.
These allegations are similar to
those in the narrative statement portion of Plaintiff’s EEOC
Charge.
See Docket Entry 33-3 at 3.
For the following reasons, Defendant is entitled to
summary judgment.
I. Legal Standard
Summary judgment is only appropriate where the moving
party can demonstrate that there is “no genuine dispute as to
any material fact” and that the moving party is entitled to
judgment
as
a
matter
of
law.
FED. R. CIV. P.
56(a).
In
considering this question, the Court considers “the pleadings,
5
depositions, answers to interrogatories and admissions on file,
together with any other firsthand information including but not
limited to affidavits.”
Nnebe v. Daus, __ F.3d __, 2011 WL
2149924, at *6 (2d Cir. May 31, 2011); see also Celotex Corp. v.
Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 2552, 91 L. Ed. 2d
265, 273 (1986); McLee v. Chrysler Corp., 109 F.3d 130, 134 (2d
Cir. 1997); see also FED. R. CIV. P. 56(c).
“In assessing the
record to determine whether there is a genuine issue to be tried
. . . the court is required to resolve all ambiguities and draw
all permissible factual inferences in favor of the party against
whom summary judgment is sought.”
McLee, 109 F.3d at 134.
The
burden of proving that there is no genuine issue of material
fact
rests
with
the
moving
party.
Gallo
v.
Prudential
Residential Servs., L.P., 22 F.3d 1219, 1223 (2d Cir. 1994)
(citing Heyman v. Com. & Indus. Ins. Co., 524 F.2d 1317, 1320
(2d Cir. 1975)).
Once that burden is met, the non-moving party
must “come forward with specific facts,” LaBounty v. Coughlin,
137
F.3d
68,
73
(2d
Cir.
1998),
to
demonstrate
that
“the
evidence is such that a reasonable jury could return a verdict
for the nonmoving party,” Anderson, 477 U.S. at 257, 106 S. Ct.
at 2514-15, 91 L. Ed. 2d at 218.
or denials will not suffice.”
“Mere conclusory allegations
Williams v. Smith, 781 F.2d 319,
6
323 (2d Cir. 1986).
And “unsupported allegations do not create
a material issue of fact.”
Weinstock v. Columbia Univ., 224
F.3d 33, 41 (2d Cir. 2000).
When a party has appeared in an action, but has not
opposed
summary
default.
judgment,
the
moving
party
does
not
win
by
Instead, the Court must “examin[e] the moving party’s
submission
to
determine
if
it
has
met
its
burden
of
demonstrating that no material issue of fact remains for trial.”
Vt. Teddy Bear Co. v. 1-800 BEARGRAM Co., 373 F.3d 241, 244 (2d
Cir. 2004) (citation and internal quotation marks omitted).
And
“[i]f the evidence submitted in support of the summary judgment
motion does not meet [Plaintiff’s] burden of production, then
summary judgment must be denied,” even though the non-movant
failed to oppose it.
Id. (internal quotation marks omitted).
Courts are cautious in awarding an employer summary
judgment
in
cases
where
its
intent--i.e.,
plaintiff’s
summary
case
material fact.
is
Id.
judgment
wholly
alleged
McLee, 109 F.3d at 135.
discriminatory motive--is an issue.
Nevertheless,
its
is
lacking
warranted
in
where
the
genuine
questions
of
As discussed below, this is one such case.
II. Application
The
Court
first
addresses
7
Plaintiff’s
unlawful
termination and unequal terms and conditions claims, and then
considers his retaliation claim.
A. Unlawful Termination & Unequal Terms and Conditions
As
to
Plaintiff’s
unlawful
termination
and
unequal
terms and conditions claims, Plaintiff has failed to show that
Defendant’s nondiscriminatory reason for its actions was pretextual.
These claims are analyzed using the familiar burden-
shifting framework first articulated in McDonnell Douglas Corp.
v. Green, 411 U.S. 792, 802-04, 93 S. Ct. 1817, 36 L. Ed. 668
(1973).
In
establishing
this
a
analysis,
prima
facie
Plaintiff
case
of
has
the
discrimination,
burden
at
of
which
point the burden shifts to Defendant to articulate a legitimate,
non-discriminatory reason for its conduct.
If Defendant can do
so, the burden shifts back to Plaintiff to show that Defendant’s
proffered
reason
discrimination.
was
simply
a
pre-text
for
unlawful
See Clayborne v. OCE Business Svcs., 381 Fed.
Appx. 32, 33-34 (2d Cir. 2010).
Defendant
argues
that
Plaintiff
has
established a prima facie case of discrimination.
disagrees.
not
even
The Court
Plaintiff’s burden at the first level of McDonnell
Douglas is “mimimal,” and it requires him to show only that: (1)
he was a member of a protected class; (2) he was qualified for
8
his position; (3) he suffered an adverse employment action; and
(4) the adverse employment action occurred under circumstances
giving rise to an inference of discrimination.
See, e.g., Wolf
v. New York City Dept. of Educ., 708 F. Supp. 2d 327, 331
(S.D.N.Y. 2010).
As Defendant concedes, Plaintiff satisfies the
first three requirements: he self-identifies as black, he was
minimally qualified for his position, and he was required to
punch out for lunch and ultimately fired.
Plaintiff
asserts
has
that
not
he
met
and
the
fourth
other
Defendant argues that
requirement,
black
employees
but
were
Plaintiff
fired
and
replaced with “Spanish guys,” a point that Defendant does not
dispute.
(See Def. Ex. C, Plaintiff’s EEOC Charge.)
This is
enough to satisfy the minimum showing required of Plaintiff at
this stage.
(S.D.N.Y.
See Weiss v. LaSuisse, 260 F. Supp. 2d 644, 657
2003)
(Defendant’s
knowledge
of
plaintiff’s
race
combined with plaintiff’s being replaced with Caucasian worker
was sufficient for prima facie showing of discrimination).
Having concluded that Plaintiff can establish a prima
facie case, the Court looks to whether Defendant has articulated
a
legitimate,
non-discriminatory
motive
punch out at lunch and for firing him.
Plaintiff
worked
significantly
more
9
for
requiring
him
to
Defendant has done so.
overtime
hours
than
his
colleagues
and
his
supervisor
complained
to
the
Synagogue
president that Plaintiff spent too much time socializing and not
enough time working.
Based on this, Defendant concluded that
Plaintiff could not accomplish his assigned work in a reasonable
time.
Defendant warned Plaintiff about his overtime excesses,
instituted the lunchtime punch-out requirement to help monitor
his
efficiency,
inefficient
and
and
eventually
because
he
fired
him
demonstrated
because
poor
he
judgment
remaining in the building into the early morning hours.
were
legitimate,
actions.
non-discriminatory
reasons
was
for
by
These
Defendant’s
Nieves v. Angelo, Gordon & Co., 341 Fed. Appx. 676,
679 (2d Cir. 2009) (in age discrimination suit, employer who
terminated employee in part for failure to complete assigned
tasks had a non-discriminatory reason for its action); see also
Romero v. Howard Johnson Plaza Hotel, No. 97-CV-3706, 1999 WL
777915, at *8 (S.D.N.Y. 1999)
(employee’s failure to complete
task properly and her relaxing instead of working were nondiscriminatory reasons for adverse employment action).
It
now
becomes
Plaintiff’s
burden
to
show
that
Defendant’s proffered reasons were merely a pretext for unlawful
discrimination.
countered
Plaintiff
Defendant’s
Local
cannot
Rule
10
do
so
56.1
here.
Statement,
Having
not
Plaintiff
admits Defendant’s version of events, at least insofar as it is
supported by admissible evidence.
See supra at 2.
As discussed
already, the facts show that Defendant believed Plaintiff was an
inefficient, irresponsible employee.
In response to Plaintiff’s
perceived shortcomings, Defendant required Plaintiff to punch
out at lunchtime and eventually fired him.
Plaintiff
trouble
socialized
completing
when
his
he
should
assignments
In Defendant’s eyes,
have
on
been
time,
working,
and
had
accrued
an
excessive amount of overtime.
There
Defendant’s
is
actions
no
evidence
were
in
motivated
this
by
case
bias.
showing
that
Plaintiff
even
testified that none of the key players in this saga--Caballaro,
Silberman
towards
and
Novick--ever
him.
Ultimately,
said
anything
Plaintiff
is
racially
left
with
derogatory
just
the
allegations in his EEOC Charge and his Supplemental Complaint,
including that: his overtime was authorized; the new Spanish
supervisor only hired Spanish workers; that a Spanish employee
was an ineffective worker yet still kept his job; and that two
other black employees were fired without cause.
Plaintiff has
not supported any of these allegations with evidence, however,
and unsupported allegations are insufficient to create issues of
fact
for
trial.
Weinstock,
224
11
F.3d
at
41.
Accordingly,
Defendant is entitled to summary judgment on these claims.
B. Retaliation
Plaintiff also checked the “retaliation” box on the
Eastern
District’s
form
Title
VII
complaint.
Defendant
entitled to summary judgment on this claim as well.
is
Setting
aside whether Plaintiff exhausted his administrative remedies as
to this claim prior to filing suit, as he was required to do,
Plaintiff simply cannot make out a prima facie retaliation case.
A Plaintiff alleging retaliation must prove “(1) [he]
was engaged in a protected activity; (2) [his] employer was
aware of that activity; (3) [he] suffered a materially adverse
action;
and
(4)
there
was
a
causal
connection
between
protected activity and the adverse employment action.”
the
Martin
v. MTA Bridges & Tunnels, 610 F. Supp. 2d 238, 254 (S.D.N.Y.
2009).
Here,
the
evidence
refutes
the
idea
that
Plaintiff
engaged in any protected activity that could have prompted his
dismissal.
Plaintiff admitted that he never complained to his
supervisors about racial discrimination while he was working for
the Synagogue; he testified instead that he only complained of
discrimination after he was fired.
124-125.)
Accordingly,
Defendant
(See Def. Ex. D at 118-120,
is
judgment on Plaintiff’s retaliation claim.
12
entitled
to
summary
CONCLUSION
For
the
foregoing
summary judgment is GRANTED.
reasons,
Defendant’s
motion
for
The Clerk of the Court is directed
to mail Plaintiff a copy of this Order and to mark this case
CLOSED.
SO ORDERED.
/s/ JOANNA SEYBERT
Joanna Seybert, U.S.D.J.
Dated:
July
12 , 2011
Central Islip, New York
13
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