Rodriguez v. Long Island American Water, Inc.
Filing
36
ORDER granting 21 Motion for Summary Judgment. IT IS HEREBY ORDERED that, for the reasons stated herein, defendant's motion is granted. With respect to the race discrimination claim, as set forth in plaintiff's deposition and as confir med at oral argument, it is uncontroverted that plaintiff falsified his timesheet and that, when confronted about the discrepancy on the timesheet, plaintiff lied about his whereabouts and provided additional false information. Plaintiff has offered no evidence to attempt to rebut these legitimate, non-discriminatory reasons for his termination, other than to point to other workers whom he argues committed similar misconduct and were not fired. Having examined the entire record, reviewed the s ubmissions of the parties, and heard oral argument, the Court concludes that no rational jury could find that these alleged comparators were similarly situated to plaintiff. It is uncontroverted that the comparators never affirmatively recorded that they were working when they were not and, even more importantly, did not deny their misconduct, or provide false information, when they were confronted. In short, even construing the evidence most favorably to plaintiff, there is no rational basis for a jury to conclude that his termination was based upon his race, rather than his undisputed falsification of a timesheet and repeated lies when questioned. Similarly, with respect to plaintiffs retaliation claim, there is simply no evidence that could support such a claim. Accordingly, the motion is granted as to the federal claims, and the Court declines to exercise jurisdiction over any state law claims. The Clerk of the Court shall enter judgment accordingly and close the case. SO ORDERED. Ordered by Judge Joseph F. Bianco on 9/26/2014. (Lamb, Conor)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
_____________________
No 12-cv-2970(JFB)(ARL)
_____________________
REYES RODRIGUEZ
Plaintiff,
VERSUS
LONG ISLAND AMERICAN WATER, INC.,
Defendant.
___________________
MEMORANDUM AND ORDER
September 26, 2014
___________________
JOSEPH F. BIANCO, District Judge:
Plaintiff, a utility man employed by
defendant Long Island American Water
(“LIAW”), brought this action alleging
racial discrimination and retaliation, under
Title VII of the Civil Rights Act of 1964, 42
U.S.C. § 1981, and the New York Human
Rights Law (“NYHRL”). In particular,
plaintiff, who is a Hispanic male, alleges
that LIAW terminated him on February 17,
2011, on the basis of his race, and retaliated
against him because his wife filed a lawsuit
in 2009 alleging that she was denied health
benefits due to discrimination.1
Defendants now move for summary
judgment pursuant to Federal Rule of Civil
Procedure 56, arguing that plaintiff cannot
establish a prima facie case of unlawful
discrimination because (1) the finding by the
independent arbitrator that LIAW had just
cause to terminate plaintiff should be given
great weight; (2) there is no evidence of
discriminatory comments or actions; and (3)
plaintiff cannot point to any similarly
situated employee who received preferential
treatment.
Defendant also argues that
LIAW had a legitimate business reason for
terminating plaintiff’s employment after an
internal investigation—namely, that plaintiff
falsified his timesheet on December 4, 2010,
1
Although the complaint makes a conclusory
reference to a “hostile work environment,” plaintiff
did not attempt to argue in his opposition papers (or
at oral argument) that he was asserting a separate
cause of action for hostile work environment, but
rather only argued that summary judgment should be
denied on his claim for unlawful termination based
on race and his claim for retaliation. Thus, there is no
indication that plaintiff intends to assert a separate
hostile work environment claim. However, to the
extent such a claim is being asserted separately, the
Court concludes that there is insufficient evidence
from which a rational jury could find a hostile work
environment based on race or on plaintiff’s wife’s
protected activity.
information, when they were confronted. In
short, even construing the evidence most
favorably to plaintiff, there is no rational
basis for a jury to conclude that his
termination was based upon his race, rather
than his undisputed falsification of a
timesheet and repeated lies when
questioned.
in violation of LIAW’s policy, and then lied
about the falsification of the timesheet when
confronted—and that plaintiff has not come
forth with any evidence from which a
rational jury could find that LIAW’s stated
reasons are pretextual.
Similarly, with
respect to the retaliation claim, defendant
argues that summary judgment is warranted
because there is no evidence to support such
a claim.
Similarly, with respect to plaintiff’s
retaliation claim, there is simply no evidence
that could support such a claim. Although
plaintiff claims in his complaint (and at his
deposition) that LIAW’s alleged retaliation
in terms of unjustified discipline began soon
after his wife’s lawsuit, it is uncontroverted
that his wife’s lawsuit was filed in 2009,
and the discipline about which he complains
(for excessive absences, driving into a light
post with his Company vehicle, and failing
to stop at a stop sign) occurred in 2008, prior
to his wife’s lawsuit. Moreover, it is
uncontroverted that the supervisor who
recommended plaintiff’s termination was
not employed with LIAW at the time of his
wife’s lawsuit (which was dismissed on
August 31, 2010) and did not learn about
that lawsuit until after plaintiff’s termination
in February 2011. Thus, there is simply no
evidence from which a rational jury could
find that plaintiff’s termination in February
2011 for admittedly falsifying his timesheet
and lying repeatedly about it when
confronted, or plaintiff’s alleged lack of
overtime and training compared to other
workers, were acts of retaliation for a
lawsuit filed by his ex-wife in 2009.
For the reasons set forth below, the
Court grants defendant’s motion for
summary judgment on the federal claims,
and declines to exercise supplemental
jurisdiction over the state claims. With
respect to the race discrimination claim, as
set forth in plaintiff’s deposition and as
confirmed at oral argument, it is
uncontroverted that: (1) plaintiff falsified his
timesheet for December 4, 2010, by
recording that he was at various work
locations during that day when, in fact, he
was at the condominium that he was in the
process of purchasing in Freeport, New
York (where he received a parking ticket);
(2) when confronted about the discrepancy
on the timesheet, plaintiff lied about his
whereabouts and provided additional false
information in an effort to continue to
conceal his falsification of the timesheet.
Plaintiff has offered no evidence to attempt
to rebut these legitimate, non-discriminatory
reasons for his termination, other than to
point to other workers whom he argues
committed similar misconduct and were not
fired. Having examined the entire record,
reviewed the submissions of the parties, and
heard oral argument, the Court concludes
that no rational jury could find that these
alleged comparators were similarly situated
to plaintiff. It is uncontroverted that, inter
alia, the comparators never affirmatively
recorded that they were working when they
were not and, even more importantly, did
not deny their misconduct, or provide false
I. BACKGROUND
A. Factual Background
The Court takes the following facts from
the parties’ affidavits, depositions, exhibits,
and Rule 56.1 Statements of Fact. The Court
construes the facts in the light most
2
favorable to the nonmoving party. See
Capobianco v. City of New York, 422 F.3d
47, 50 (2d Cir. 2005). Although the Rule
56.1 statements contain specific citations to
the record, the Court cites to the statements
rather than to the underlying citations.
Unless otherwise noted, where a Rule 56.1
statement is cited, that fact is undisputed or
the opposing party has not pointed to any
contradictory evidence in the record.
Moreover, to avoid repetition, the Court
summarizes the facts regarding the allegedly
similarly situated employees, as well as
certain facts regarding the retaliation claim,
in the respective legal analyses for those
claims.
Plaintiff received the parking ticket at
1:43 p.m., during his workday. On the
timesheet that plaintiff submitted for
December 4, 2010, he stated that he attended
to a “leak” on “Grand Avenue” in Baldwin,
New York (with no address identified) from
11:00 a.m. to 12:30 p.m. (Id. ¶ 28.) From
12:30 p.m. to 1:50 p.m., plaintiff reported
that he was in Woodmere, New York.
However, plaintiff does not dispute that he
was actually in Freeport at 1:43 p.m. (when
he received the parking ticket), that Freeport
and Woodmere are in opposite directions
from Baldwin (the site of plaintiff’s earlier
recorded job), and that Freeport is outside of
LIAW’s service area. (Id. ¶¶ 31, 33, 37.)
Plaintiff began working for LIAW in
1994, and began his most recent position as
a utility man in 2000. (Pl. 56.12 ¶ 6.) He
was responsible for responding to
emergencies and performing “flushes” when
residents complained of rusty water. (Id. ¶¶
7-8.) When plaintiff was terminated in
2011, his supervisor was James Hahn, who
reported to Richard Ruge, LIAW’s Manager
of Field Services. (Id. ¶ 11.) Hahn and
Ruge are both white, and plaintiff is
Hispanic. (Id. ¶ 12.)
LIAW learned of plaintiff’s ticket when
Ruge received a copy of it through LIAW’s
vehicle leasing company. (Id. ¶ 32.) In
early February 2011, Ruge began to
investigate the circumstances surrounding
the ticket. (Id. ¶¶ 32-34.) After learning
that plaintiff was the driver who received the
ticket, Ruge met with plaintiff, his union
representative, and a Human Resources staff
member to discuss the ticket. (Id. ¶ 35.) At
the meeting, plaintiff never mentioned that
the parking spot where he received the ticket
was in front of the apartment he was in the
process of purchasing. Instead, he claimed
that a road detour on his way to perform a
“stack of flushes” led him to Freeport, where
he decided to stop for lunch. (Id. ¶ 36.)
Ruge’s investigation showed, however, that
there was no evidence of a road detour, no
evidence that plaintiff was dispatched to
Grand Avenue on December 4, 2010, and no
evidence that he completed any flushes that
day. (Id. ¶¶ 36-41.) In addition, all of
plaintiff’s cell phone calls on December 4,
2010, between the hours of 8:00 a.m. and
12:16 p.m., originated from a cellular tower
in Freeport. (Id. ¶ 46.)
Ruge began his employment with LIAW
on December 1, 2010. (Id. ¶ 12.) Three
days later, on December 4, 2010, plaintiff
received a parking ticket for parking in a
handicapped spot in Freeport, New York.
(Id. ¶ 29.) The spot is located in front of a
building where plaintiff now resides, and at
the time, plaintiff was in the process of
buying an apartment there. (Id.)
2
Throughout this Memorandum and Order, the Court
cites plaintiff’s “Counter-statement of undisputed
material facts pursuant to Local Rule 56.1,” which
incorporates the statement submitted by defendant
and notes any facts disputed by plaintiff.
3
Ruge
recommended
plaintiff’s
3
termination, and he was terminated
effective February 17, 2011. Plaintiff
challenged his termination through his
union, and the parties went to arbitration.
(Id. ¶ 47.) Before the arbitration, plaintiff’s
union president asked Ruge to grant plaintiff
a Last Chance Agreement (“LCA”), which
would allow plaintiff to return to work, but
Ruge denied the request. (Id. ¶¶ 44.2-3.)
The arbitrator found that plaintiff was
terminated for just cause, namely the
falsification of his timesheet, because the
timesheet did not reflect the fact that he was
in Freeport at 1:43 p.m., and because there
was no evidence of his claimed flushes nor
of the alleged leak in Baldwin. (Id. ¶ 52.)
Plaintiff neither alleged, nor presented
evidence of, racial discrimination at the
arbitration.
II. STANDARD OF REVIEW
The standards for summary judgment are
well settled. Pursuant to Federal Rule of
Civil Procedure 56(a), a court may only
grant a motion for summary judgment if
“the movant shows that there is no genuine
dispute as to any material fact and the
movant is entitled to judgment as a matter of
law.” Fed. R. Civ. P. 56(a). The moving
party bears the burden of showing that he or
she is entitled to summary judgment.
Huminski v. Corsones, 396 F.3d 53, 69 (2d
Cir. 2005). “A party asserting that a fact
cannot be or is genuinely disputed must
support the assertion by: (A) citing to
particular parts of materials in the record,
including
depositions,
documents,
electronically stored information, affidavits
or declarations, stipulations (including those
made for purposes of the motion only),
admissions, interrogatory answers, or other
materials; or (B) showing that the materials
cited do not establish the absence or
presence of a genuine dispute, or that an
adverse party cannot produce admissible
evidence to support the fact.” Fed. R. Civ.
P. 56(c)(1). The court “is not to weigh the
evidence but is instead required to view the
evidence in the light most favorable to the
party opposing summary judgment, to draw
all reasonable inferences in favor of that
party,
and
to
eschew
credibility
assessments.” Amnesty Am. v. Town of W.
Hartford, 361 F.3d 113, 122 (2d Cir. 2004)
(quoting Weyant v. Okst, 101 F.3d 845, 854
(2d Cir. 1996)); see also Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986)
(summary judgment is unwarranted if “the
evidence is such that a reasonable jury could
return a verdict for the nonmoving party”).
B. Procedural History
Plaintiff filed the complaint in this action
on June 13, 2012. Defendant moved for
summary judgment on December 23, 2013,
and plaintiff responded in opposition on
February 14, 2014. Defendant replied in
further support of the motion on March 7,
2014, and the Court heard oral argument on
May 16, 2014.
3
Defendant states that Ruge recommended the
termination to William Varley, the President of
LIAW, but plaintiff contends that Varley played no
role in plaintiff’s termination, and that Ruge’s
recommendations are always followed and carried
out by LIAW’s human resources department. (Pl.
56.1 ¶¶ 12-13, 43.) Plaintiff contends that Ruge was
the decisionmaker with respect to his termination,
and defendant has not disputed that contention; in
fact, defendant provided evidence that Ruge notified
plaintiff of his termination. (Ex. O to Cabrera Decl.)
Therefore, the Court considers Ruge to have been the
decisionmaker with respect to plaintiff’s termination.
Once the moving party has met its
burden, the opposing party “must do more
than simply show that there is some
4
evidence found in affidavits and
depositions. See, e.g., Gallo v.
Prudential Residential Servs., 22
F.3d 1219, 1224 (2d Cir. 1994).
Nonetheless, “summary judgment
remains available for the dismissal of
discrimination claims in cases
lacking genuine issues of material
fact.” McLee v. Chrysler Corp., 109
F.3d 130, 135 (2d Cir. 1997); see
also Abdu-Brisson v. Delta Air
Lines, Inc., 239 F.3d 456, 466 (2d
Cir. 2001) (“It is now beyond cavil
that summary judgment may be
appropriate even in the fact-intensive
context of discrimination cases.”).
metaphysical doubt as to the material
facts. . . . [T]he nonmoving party must come
forward with specific facts showing that
there is a genuine issue for trial.” Caldarola
v. Calabrese, 298 F.3d 156, 160 (2d Cir.
2002) (emphasis in original) (quoting
Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 586-87 (1986)). As the
Supreme Court stated in Anderson, “[i]f the
evidence is merely colorable, or is not
significantly probative, summary judgment
may be granted.” Anderson, 477 U.S. at
249-50 (citations omitted). Indeed, “the
mere existence of some alleged factual
dispute between the parties” alone will not
defeat a properly supported motion for
summary judgment. Id. at 247-48 (emphasis
in original). Thus, the nonmoving party
may not rest upon mere conclusory
allegations or denials but must set forth
“‘concrete particulars’” showing that a trial
is needed. R.G. Grp., Inc. v. Horn &
Hardart Co., 751 F.2d 69, 77 (2d Cir. 1984)
(quoting SEC v. Research Automation
Corp., 585 F.2d 31, 33 (2d Cir. 1978)).
Accordingly, it is insufficient for a party
opposing summary judgment “merely to
assert a conclusion without supplying
supporting arguments or facts.” BellSouth
Telecomms., Inc. v. W.R. Grace & Co., 77
F.3d 603, 615 (2d Cir. 1996) (quoting
Research Automation Corp., 585 F.2d at
33).
Schiano v. Quality Payroll Sys., 445 F.3d
597, 603 (2d Cir. 2006) (quoting Holtz v.
Rockefeller & Co., 258 F.3d 62, 69 (2d Cir.
2001)).
III. DISCUSSION
In his two causes of action, plaintiff
asserts separate claims for unlawful
termination and for retaliation. Both causes
of action are brought under Title VII, 42
U.S.C. § 1981, and the NYHRL. As set
forth below, the federal claims, under Title
VII and Section 1981, cannot survive
summary judgment.
A. Termination
The Second Circuit has provided
additional guidance regarding summary
judgment motions in discrimination cases:
The claims based on plaintiff’s
termination are all analyzed under the
burden-shifting framework set forth in
McDonnell Douglas Corp. v. Green, 411
U.S. 792 (1973). See Mavrommatis v.
Carey Limousine Westchester, Inc., 476 F.
App’x 462, 464 (2d Cir. 2011) (noting that
discrimination claims brought pursuant to
Title VII and § 1981 are both analyzed
under McDonnell Douglas).
We have sometimes noted that an
extra measure of caution is merited
in affirming summary judgment in a
discrimination action because direct
evidence of discriminatory intent is
rare and such intent often must be
inferred
from
circumstantial
5
Reeves v. Sanderson Plumbing Prods., Inc.,
530 U.S. 133, 143 (2000)); see also Conway
v. Microsoft Corp., 414 F. Supp. 2d 450,
460 (S.D.N.Y. 2006) (assuming that plaintiff
met minimal burden of establishing prima
facie case by referring to employer’s
disparate treatment of other employees, and
considering similarity of those employees’
situation under the final step of McDonnell
Douglas).
Under McDonnell Douglas, “a plaintiff
must first establish a prima facie case of
discrimination.” Ruiz v. Cnty. of Rockland,
609 F.3d, 486, 491 (2d Cir. 2010).
In the context of an alleged
discriminatory discharge, a plaintiff
must show that (1) he is a member
of a protected class; (2) he was
qualified for the position he held;
(3) he suffered an adverse
employment action; and (4) the
adverse action took place under
circumstances giving rise to the
inference of discrimination. . . .
Once a plaintiff meets this initial
burden, the burden then shifts to
the defendant to offer a legitimate
nondiscriminatory reason for the
termination. . . . If defendant does
so, the burden returns to the
plaintiff to show that the real
reason for plaintiff’s termination
was his race and national origin.
Here, defendants have articulated
legitimate, non-discriminatory reasons for
the termination: namely, that plaintiff
falsified his timesheet for December 4, 2010
(by reporting that he was working in
Woodmere when he was actually in
Freeport, and by fabricating a leak on Grand
Avenue in Baldwin), and lied when
responding to questions regarding his
activities on December 4, 2010. With
respect to plaintiff’s repeated lies when
confronted about the falsified time entries,
defendant
notes
the
following
uncontroverted evidence:
Id. at 491-92 (citations omitted).
(1) Plaintiff could not explain why
he had written on his timesheet that
he was working in Woodmere
when, in fact, he was in Freeport;
(2) Plaintiff claimed that he worked
on a leak at ‘Grand Ave’ in
Baldwin, but there was no record of
any such leak or any call to
Plaintiff dispatching him to Grand
Avenue; (3) although Plaintiff
claimed that his laptop was not
working and therefore he learned
about the undocumented leak on
‘Grand Avenue’ through either the
plant dispatcher, police, or fire
department, Plaintiff was able to
log onto his laptop at the start of his
shift and off the laptop at the end,
and the employee on the next shift
Here, defendants argue that plaintiff has
failed to establish a prima facie case of
discrimination with respect to his
termination because the comparators he
names are not similarly situated to him in all
material respects. However, given that the
Second Circuit has emphasized the
“minimal” nature of the prima facie
showing, see Bucalo v. Shelter Island Union
Free Sch. Dist., 691 F.3d 119, 128 (2d Cir.
2012), the Court will assume, arguendo, that
plaintiff has made such a showing, and will
proceed directly to the pretext stage of
McDonnell Douglas, in which it is
plaintiff’s “ultimate burden” to show that
there is a genuine issue of fact with respect
to discrimination. Schnabel v. Abramson,
232 F.3d 83, 90 (2d Cir. 2000) (quoting
6
(Id. (citing Def. 56.1 ¶¶ 45-46).) Defendant
also notes that plaintiff admitted to testifying
untruthfully at the arbitration about his
reasons for stopping in Freeport, which have
varied throughout the history of this case.
(Def. 56.1 ¶¶ 54-55.).
was also able to log on without
issue; (4) Plaintiff claimed that he
had
completed
flushes
in
Roosevelt, but there was no record
of Plaintiff completing any flushes
that day; and (5) while Plaintiff
claimed he learned about the leak
in Woodmere after stopping in
Freeport for lunch (which would
have been after 1:43 p.m.), LIAW’s
call center had a record of calling
Plaintiff at 12:09 p.m. and 12:13
p.m., before Plaintiff purportedly
stopped for lunch.
Plaintiff does not dispute that Ruge was
responsible for his termination, and that
Ruge’s stated reason for firing plaintiff was
plaintiff’s falsification of his timesheet and
lying when confronted about it. Moreover,
in the context of this lawsuit, plaintiff has
now admitted that he falsified the timesheet
on December 4, 2010. (See Pl. Mem. Opp.
at 2 (“Admittedly, Plaintiff violated
company policy and left company territory
while he was on duty and did not document
his whereabouts on his time sheet.”).)
Plaintiff also admitted that he did not testify
truthfully at the arbitration, and has failed to
provide any explanation for the numerous
inconsistent stories that he told to the
Company when confronted with his false
timesheet for that day. At oral argument,
plaintiff’s counsel acknowledged that
plaintiff had falsified the timesheet and “was
not forthcoming” when confronted by his
employer with the false timesheet.4
Moreover, plaintiff has not argued that
defendant has failed to articulate nondiscriminatory reasons for the termination,
(Def. Mem. at 14 (citing Def. 56.1 ¶¶ 30-31,
37, 40-42, 45-52).)
Moreover,
defendant
hired
an
investigator who obtained the following
uncontroverted evidence of plaintiff’s false
excuses when confronted with his timesheet
for December 4, 2010:
(1) [A]lthough Plaintiff claimed
that a detour on the Sunrise
Highway led him to the town of
Freeport,
the
local
police
department had no record of any
such detour on Sunrise Highway on
December 4, 2010; (2) all of
Plaintiff’s phone calls from 8:00
a.m. until 12:16 p.m., on December
4 originated from a cell phone
tower in Freeport, and not in Valley
Stream, Atlantic Beach, Baldwin,
and Woodmere, where Plaintiff
claimed to be during those times on
his timesheet; and (3) Plaintiff’s
cell phone records did not show
any calls received from the Plant
Operator, or the police or fire
department
(whom
Plaintiff
claimed called him to tell him
about the leak on Grand Avenue).
4
At the oral argument on May 16, 2014, the Court
and plaintiff’s counsel had the following exchange:
COURT: It’s undisputed that your client
falsified a timesheet, right?
PLAINTIFF’S COUNSEL: That’s correct.
COURT: And it’s undisputed that, when
confronted about it, he lied about it, right?
PLAINTIFF’S COUNSEL:
forthcoming, correct.
7
He was not
fact that will defeat a motion for summary
judgment.” Conway, 414 F. Supp. 2d at 464
(collecting cases).
and the Court agrees that defendant has met
its burden under the second step of
McDonnell Douglas. See Bengard v. United
Parcel Serv., 48 F. App’x 350, 352-53 (2d
Cir. 2002) (affirming grant of summary
judgment on disparate treatment claim
where employer’s stated reason was that the
plaintiff falsified his timesheets). Instead,
plaintiff’s arguments focus on pretext (Pl.
Mem. Opp. at 10), and accordingly, so does
the Court’s discussion.
When a plaintiff identifies other
individuals treated differently by the
employer, he must show that they were
similarly situated “in all material respects,”
which “varies somewhat from case to case.”
Graham, 230 F.3d at 40. The similarity of a
comparator’s situation “must be judged
based on (1) whether the plaintiff and those
he maintains were similarly situated were
subject to the same workplace standards and
(2) whether the conduct for which the
employer imposed discipline was of
comparable seriousness.”
Id. (citation
omitted). “In other words, there should be
an objectively identifiable basis for
comparability . . . [meaning] a reasonably
close resemblance of the facts and
circumstances
of
plaintiff’s
and
comparator’s cases, rather than a showing
that both cases are identical.” Id.
Plaintiff attempts to establish pretext by
pointing to evidence concerning white
employees who, he argues, committed
similar misconduct, but were not terminated.
“A plaintiff in a discrimination action may
establish that the reason articulated by a
defendant for termination of plaintiff’s
employment is a pretext and that race, in
fact, did play a part in the decision to
terminate by proving that ‘similarly situated’
white employees were treated more
favorably than he.”
Hargett v. Nat’l
Westminster Bank, USA, 78 F.3d 836, 839
(2d Cir. 1996). “While the determination of
“[w]hether two employees are similarly
situated ordinarily presents a question of fact
for the jury,” Graham v. Long Island R.R.,
230 F.3d 34, 39 (2d Cir. 2000), “[t]his rule
is not absolute . . . and a court can properly
grant summary judgment where it is clear
that no reasonable jury could find the
similarly situated prong met.” Harlen
Assocs. v. Inc. Vill. of Mineola, 273 F.3d
494, 499 n.2 (2d Cir. 2001) (citing Cruz v.
Coach Stores, Inc., 202 F.3d 560, 568 (2d
Cir. 2000), superseded on other grounds as
stated by Jones v. N.Y. State Metro
D.D.S.O., 543 F. App’x 20, 22 (2d Cir.
2013)); accord Ruiz, 609 F.3d at 494-95.
Thus, “when a plaintiff’s misconduct is
objectively more serious than that of a
proposed comparator, differential treatment
by the employer does not create an issue of
Although courts’ analyses of whether
there is an “objectively identifiable basis for
comparability” has varied from case to case,
certain factual distinctions are commonly
noted.
Under the first (“workplace
standards”) prong, “[i]n the Second Circuit,
whether or not co-employees report to the
same supervisor is an important factor,”
which includes whether the same
decisionmaker investigated and took action
with respect to the plaintiff’s misconduct.
Conway, 414 F. Supp. 2d at 465-66.
Under the second (“conduct”) prong, courts
consider both the seriousness of the
employee’s acts when compared with the
acts of other employees, as well as the
context in which those acts occurred.
Graham, 230 F.3d at 40. Here, plaintiff
compares his conduct to three other
incidents involving (1) a co-worker named
8
William Causey; (2) an entire crew of
LIAW workers; and (3) a co-worker named
Warren Hammer. Each is discussed in turn.5
because he received a parking ticket in the
same location as plaintiff—was not of
comparable seriousness in light of all the
circumstances.
Two
material—and
undisputed—facts distinguish Causey’s
conduct from plaintiff’s. First, after Ruge
recommended that Causey be fired for
traveling to Freeport on company time,
Causey’s supervisor told Ruge that he had
instructed Causey to give something to
plaintiff, who lived in Freeport. Although
plaintiff disputes what exactly was said
between the supervisor and Causey, he does
not dispute that the supervisor’s instruction
was Causey’s reason for traveling to
Freeport, and he does not dispute that
Causey gave him the item in question. 6 (Id.
¶ 89.) In other words, plaintiff does not
dispute that Causey’s trip to Freeport on
company time was for a different reason that
1. Causey
William Causey was a white co-worker
of plaintiff’s who received a parking ticket
in the exact same parking lot as plaintiff,
approximately two months later. (Pl. 56.1
¶¶ 87-89.)
Causey’s ticket was also
received during working hours, and he did
not document his trip to Freeport on his
timesheet. (Id.)
Under the first prong for considering the
similarity of plaintiff’s and Causey’s
situations, the “workplace standards” prong,
plaintiff and Causey were subject to the
same workplace standards because Ruge
investigated and made a decision concerning
the misconduct in both cases. In fact, Ruge
made the same recommendation in both
cases: he recommended that both plaintiff
and Causey be fired. (Pl. 56.1 ¶ 87 (stating
that it is undisputed that “Ruge initially
recommended that the Company terminate
Causey because he received a parking ticket
outside of LIAW’s territory and failed to
document his whereabouts for that day”).)
6
At oral argument, plaintiff’s counsel attempted to
argue that Causey’s affidavit places all of these facts
in dispute. The Court disagrees. Causey states in his
affidavit that his supervisor, James Hahn, “directed
[him] to give Plaintiff a certain phone number, but
did not specify in what manner.” (Causey Aff. ¶ 8.)
Causey adds that his supervisor never directed him to
travel to Freeport to give plaintiff the phone number
at his residence and, thus, he was not authorized to be
in Freeport. Thus, even if Causey was not given
specific permission to travel to Freeport during the
work day, it is undisputed (even by Causey) that what
caused him to go to see plaintiff in Freeport was a
request from his supervisor that he give a phone
number to plaintiff. In contrast, it is undisputed that
plaintiff was not in Freeport to deliver a note for a
supervisor or as a result of any interaction with a
supervisor; rather, it was not for any work-related
reason. Moreover, regardless of Causey’s version of
his interactions with Hahn, there is absolutely no
evidence to controvert Ruge’s statement that Hahn
told him “that he had asked Mr. Causey to travel to
Freeport to give a document to Mr. Rodriguez” and
“[i]t was not clear whether Mr. Causey understood
that he should have traveled to meet Mr. Rodriguez
after his shift.” (Ruge Decl. ¶ 31.)
It is under the second prong (the
“conduct” prong) that plaintiff’s argument
with respect to Causey fails. Causey’s
conduct—though analogous in the abstract
5
Although there are references to other comparators
in the record, plaintiff only named these three
comparators in the complaint, and only addressed
these three comparators in his opposition to
defendant’s motion. Having examined the entire
record to determine whether plaintiff has satisfied his
ultimate burden, the Court concludes that there is no
evidence of an LIAW employee who was similarly
situated to plaintiff and treated differently.
9
plaintiff’s, who went there without any
interaction with a supervisor, and instead
made the trip in connection with an
apartment he was attempting to buy. (Id. ¶
29.)
Ruge recognized the distinction
between these two situations when he
awarded Causey an LCA,7 and the Court
also concludes that the role of the
supervisor, whatever his exact comment to
Causey,
makes
Causey’s
conduct
comparably less serious.
31-32.) In plaintiff’s case, there was simply
no comparable post-termination information
brought to light. Thus, the involvement of
Causey’s supervisor not only distinguishes
the seriousness of Causey’s conduct, but
also demonstrates Ruge’s lack of
discriminatory animus: he treated both cases
the same, until a significant factual
distinction arose in Causey’s case, which
justified bringing him back from
termination.9
In addition, the chronology of Causey’s
LCA is significant.
Ruge initially
recommended Causey’s termination, just
like he did for plaintiff, and Causey was
terminated, just as plaintiff was. (Id. ¶¶ 8789; Ex. C to Cabrera Decl. at 56; Ex. C to
Ruge Decl.) Only after Ruge terminated
Causey did Causey’s supervisor inform
Ruge of how Causey may have
misinterpreted his comment, which led Ruge
to grant Causey an LCA.8 (Ruge Decl. ¶¶
The second material distinction between
the seriousness of Causey’s and plaintiff’s
conduct is that plaintiff affirmatively
falsified his timesheet and continued to lie
about it when confronted, while Causey
simply omitted his trip to Freeport.
Although plaintiff argues that this
distinction is semantic, because an omission
necessarily suggests that an employee was in
the recorded location when he was not, the
undisputed evidence in the record shows that
plaintiff,
unlike
his
comparators,
affirmatively told lies and continued to tell
them when confronted.
For example,
plaintiff does not dispute that he entered the
Grand Avenue job and location on his
timesheet, and there is no evidence that the
job ever occurred. (Pl. 56.1 ¶¶ 28-41.)
Furthermore, he does not dispute the
evidence that the flushes he reported never
occurred, that there was no road detour (as
he claimed in the initial meeting with Ruge
as his reason for going to Freeport in the
first place), and that his cell phone calls
originated from Freeport throughout the
entire morning that he reported working in
7
Plaintiff has submitted an affidavit by his union
president stating that the award of an LCA was
“customary practice . . . as a probationary period, and
a mechanism to allow [union members] to return to
work” after misconduct. (Pl. Ex. I ¶ 7.) However,
defendant submitted evidence that, in the past ten
years, LIAW offered LCAs to only three of the
eleven employees who were terminated from the
same office as plaintiff, and several of those not
offered LCAs were white. (Decl of William Varley
¶ 4.) Plaintiff has identified no evidence to dispute
these statistics, and the union president’s conclusory
statement does not create a genuine issue for trial.
8
Although plaintiff’s counsel contended at oral
argument that this fact is disputed, there is no
evidence offered by plaintiff to contradict (1) the
termination letter for Mr. Causey dated April 1, 2011,
and (2) Ruge’s declaration regarding the information
Hahn supplied after he terminated Causey, which
caused him to give Causey the LCA after the
termination.
9
Causey was ultimately fired by Ruge the same year
as plaintiff, for violating his LCA, which further
demonstrates that there is no genuine issue of fact
concerning Ruge’s attitude toward Causey as
opposed to plaintiff.
10
Foods N. Am., Inc., No. Civ.A.02-8609,
2005 WL 1793532, at *8 (E.D. Pa. July 27,
2005) (“Further, although submitting a false
time sheet is an act of dishonesty similar to
Dean’s alleged wrongful conduct, there are
significant differences that may explain why
the white employee was ultimately retained.
Unlike Dean, who admittedly lied to her
supervisors, there is no element of
insubordination involved in submitting a
false time sheet.”); Straughn v. Delta Air
Lines, Inc., 250 F.3d 23, 44 (1st Cir. 2001)
(“Yet more importantly, unlike Straughn,
Higgins forthrightly acknowledged his
misconduct when first confronted, whereas
Straughn repeatedly attempted to deceive
Giglio.” (emphasis in original)).
various locations. (Id. ¶¶ 41-46.) Plaintiff
also does not dispute that his explanations
for the trip to Freeport differed during the
internal investigation, the arbitration, and his
deposition, which caused Ruge to expend
additional investigative resources.
(Id.
¶¶ 53-56.) There is no evidence that LIAW
had to investigate and disprove multiple acts
of affirmative dishonesty in Causey’s case,
because he was not accused of fabricating
his whereabouts in that manner.
In his papers and at oral argument,
plaintiff suggests that, when two employees
have issues with their timesheets and are
subject to differing discipline, the issue of
whether they are similarly situated must be
decided by a jury. The Court disagrees.
The uncontroverted evidence of the differing
circumstances surrounding the timesheet
issues may make it clear that no rational jury
could find that the two employees were
similarly situated. Cf. Thomas v. Dep’t of
Corr. for Ga., 377 F. App’x 873, 880 (11th
Cir. 2010) (distinguishing two employees
who both falsified timesheets, and affirming
summary judgment for employer); see also
Espitia v. Procter & Gamble Co., 93 F.
App’x 707, 710-11 (6th Cir. 2004) (“The
two other employees who were not
terminated for not reporting their tardy
arrivals were not similarly situated because
coming to work late is quite different from
leaving work for several hours in the middle
of the day. Not reporting tardiness indicates
carelessness, while not reporting a threehour mid-day absence indicates something
worse.”).
Thus, courts have granted summary
judgment for the employer in circumstances
closely analogous to those present here—
namely, where the comparator employee
(unlike the plaintiff) did not lie about the
misconduct when confronted. For example,
in Vigil v. Colorado Department of Higher
Education, the plaintiff claimed that his
termination for falsifying overtime records
was a pretext for retaliation and, in
attempting to show pretext, pointed to other
employees who had also submitted inflated
overtime reports, but were not terminated.
No. 98-1174, 1999 WL 407479, at *5-6
(10th Cir. 1999). In finding that summary
judgment for the employer was warranted,
the Tenth Circuit explained that plaintiff was
not similarly situated to the other employees
because, unlike the other employees, he had
lied about the misconduct:
The undisputed facts show that
plaintiff was not similarly situated to
[the other employees who were not
terminated] because defendant not
only accused [plaintiff] of violating a
workplace rule by submitting an
In fact, numerous courts have noted that
an employee who lies about his or her
timesheets when confronted is materially
different from an employee who submitted a
false timesheet but admitted the misconduct
when confronted. See, e.g., Dean v. Kraft
11
by contrast, after initially providing
false statements about time-entry
changes he made in TACS, provided
investigators and his supervisors
with what they believed were
truthful statements.
[Plaintiff’s]
continued denials distinguish her
conduct from [the other employee’s].
. . . Thus, [plaintiff] has failed to
show that [the other employee] is an
appropriate
comparator
and,
therefore, has failed to establish a
prima facie case of gender
discrimination.
inflated overtime report, it also
accused him of subsequently lying
about his alleged misconduct.
Throughout
defendant’s
investigation, plaintiff and [another
worker who was terminated]
repeatedly denied any wrongdoing,
asserting that they worked all hours
reported performing a system
backup.
Defendant ultimately
concluded that they were lying about
their overtime since no computer
records existed of the purported
system backup. The accusation that
[plaintiff]
remained
untruthful
aggravated
his
offense
and
distinguished the seriousness of his
conduct from that of [the other
employees
who
were
not
terminated], thereby justifying more
severe punishment.
Id. at *9; see also Terry v. Sedgwick, Detert,
Moran & Arnold, 66 F. App’x. 25, 27 (7th
Cir. 2003) (affirming summary judgment for
employer in race discrimination case where
plaintiff was discharged for failing to deliver
package to mailroom and lying about it, and
noting that plaintiff was not similarly
situated to another employee who had not
been warned and had admitted to mistake);
Jackson v. Ill. Dep’t of Human Servs., No.
07-CV-0692-MJR, 2009 WL 1259082, at *3
(S.D. Ill. April 30, 2009) (denying motion
for reconsideration of summary judgment
motion, and noting that plaintiff was not
similarly situated to other employees who
had committed similar misconduct because
plaintiff lied during investigation).
Id. at *6.
Similarly, in David v. Donahoe, plaintiff
argued that her reduction in grade because
of her falsification of time records was
based on her gender because a male
employee who had falsified time entries was
given a last-chance agreement with no
demotion. No. 11 C 3720, 2013 WL
676243, at *7 (N.D. Ill. Feb. 25, 2013). In
granting summary judgment for the
employer, the court explained that the
plaintiff was not similarly situated to the
other employee because she had repeatedly
lied about her misconduct:
Accordingly, given the uncontroverted
evidence in this case, no rational jury could
find that plaintiff and Causey were similarly
situated in all material respects because,
among other things, (1) Causey was in
Freeport because of a request by his
supervisor (even if express permission to
travel to Freeport during the work day was
not given), while plaintiff had no reason to
be in Freeport; and (2) plaintiff’s affirmative
lies (even after being confronted with the
timesheet) were more serious than Causey’s
In sum, [plaintiff] is not similarly
situated to [the other employee]
because [plaintiff] repeatedly denied
improperly changing TACS time
entries even though the OIG agents,
Davis, and Pugh all believed that she
had done so. [The other employee],
12
omission. Given these distinctions, and the
absence of any other evidence in the record
to support any inference of discrimination,
a rational jury could not conclude that
defendant’s choice not to give plaintiff an
LCA was motivated by unlawful
discrimination.10
a comparison of their conduct, plaintiff is
not similarly situated to the Crew.
Plaintiff’s comparison to the Crew also
fails under the “workplace standards” prong,
because Ruge was not employed at LIAW
when this incident occurred. As noted
above, “[i]n the Second Circuit, whether or
not co-employees report to the same
supervisor is an important factor in
determining whether two employees are
subject to the same workplace standards for
purposes of finding them similarly situated.”
Conway, 414 F. Supp. 2d at 465 (citing
cases); see also Shumway, 118 F.3d at 64
(“None of the individuals Shumway claims
violated the ‘no fraternization’ policy were
supervised by Gregory McGraw or Jerome
Johnson.”); Martinez-Santiago v. Zurich N.
Am. Ins. Co., No. 07 Civ. 8676(RJH), 2010
WL 184450, at *8 (S.D.N.Y. Jan. 20, 2010)
(“In order to be similarly situated . . .other
employees must have had the same
supervising team leader as the plaintiff. . . .
[because] [e]ach team leader might use his
or her discretion differently.”). Plaintiff has
not shown that the disparate treatment of the
Crew by a different supervisor demonstrates
discrimination by Ruge; on the contrary, in
his deposition Ruge did not defend or
distinguish the Crew’s conduct, and
appeared to agree that he would also have
treated the Crew’s conduct as falsification of
records. (Pl. Ex. D at 65.) Accordingly, a
rational jury could not conclude, based upon
this materially different incident, that Ruge
discriminated against plaintiff in terminating
him.
2. The Crew
Plaintiff also argues that he is similarly
situated to a crew of LIAW employees (“the
Crew”) who went together to one
employee’s home, on company time, in
order to move dirt with company equipment.
Like plaintiff, these employees did not
report the trip on their timesheets, but unlike
plaintiff, there is no evidence that they
affirmatively falsified a job in order to cover
the time. Also unlike plaintiff, the Crew had
a supervisor’s permission to perform the
work on its way back to the LIAW yard (Ex.
D to Cabrera Decl. at 55), and plaintiff has
not identified any contrary evidence. In
fact, his account reflects the same basic
understanding of the event. (Ex. B to
Cabrera Decl. at 213-14 (“Mr. Reckiter said
to all of us, ‘We were caught at my son’s
house bringing out dirt and we just dropped
by to pick up some dirt and bring it back to
the yard.’”).) Moreover, unlike plaintiff,
there is no evidence that the Crew was
confronted about this conduct and
repeatedly lied about it. Therefore, based on
3. Hammer
10
In connection with the LCA, to the extent plaintiff
points to the fact that Causey’s history at LIAW also
included having run a red light at a high rate of
speed, no inference of discrimination arises from the
decision not to terminate him for that conduct,
because plaintiff had similar traffic infractions in
2008 (such as driving into a light post and failing to
stop at a stop sign), and plaintiff also was not
terminated after those events.
Plaintiff also argues that he is similarly
situated to Warren Hammer, who was
disciplined but not terminated for collecting
recyclable bottles using his company truck,
while on company time. (Pl. 56.1 ¶ 82.)
13
entitled to great weight. In particular,
defendant notes that, pursuant to the union’s
collective bargaining agreement, on June 27,
2011, a neutral arbitrator held a hearing
wherein plaintiff presented evidence and his
own testimony. Following the hearing, the
arbitrator issued a detailed seventeen-page
opinion finding that LIAW terminated
plaintiff for just cause. In the opinion, the
arbitrator explained that he had approached
the case “in a manner analogous to the
approach utilized by the courts and the
EEOC in discrimination cases.” (Pl. 56.1
¶ 52.)
Like the incident involving the Crew, the
incident involving Hammer occurred before
Ruge worked at LIAW. Ruge testified that
he did not know what LIAW’s policy was in
2007 (when Hammer was disciplined), but
he stated that, if his investigation revealed
similar facts, he would have taken the same
action against Hammer that he took against
plaintiff. (Pl. Ex. D at 89.) This testimony
corresponds
with
Ruge’s
testimony
concerning the Crew, and with the fact that
Ruge took the same initial action against
Causey as against plaintiff, before the
distinguishing fact of Causey’s supervisor’s
involvement came to light. Thus, Ruge
appears to apply a consistent policy of
recommending termination when an
employee falsifies timesheets, and plaintiff
has identified no evidence to the contrary.
Plaintiff’s comparison to Hammer also
fails under the “conduct” prong. Defendants
offered evidence that, once questioned,
Hammer explained that he collected the
recyclable products during his lunch hour
(Ex. D to Cabrera Decl. at 51), and plaintiff
has not identified any evidence to the
contrary.
Thus, like Causey, Hammer
presented a plausible mitigating explanation
for his conduct, unlike plaintiff, whose story
continued to shift. The Court, therefore,
concludes that plaintiff’s conduct was
comparatively more serious than Hammer’s,
such that they were not similarly situated in
all material respects.
The Court concludes, in its discretion,
that the arbitrator’s decision “is highly
probative of the absence of discriminatory
intent in [plaintiff’s] termination.” Collins
v. N.Y.C. Transit Auth., 305 F.3d 113, 119
(2d Cir. 2002). Obviously, “a negative
arbitration decision rendered under a CBA
does not preclude a Title VII action by a
discharged employee.” Id. However, as the
Second Circuit has emphasized, “[w]here, as
here, that decision follows an evidentiary
hearing and is based on substantial evidence,
the Title VII plaintiff, to survive a motion
for summary judgment, must present strong
evidence that the decision was wrong as a
matter of fact—e.g., new evidence not
before the tribunal—or that the impartiality
of
the
proceeding
was
somehow
compromised.” Id.; accord Attard v. City of
New York, 451 F. App’x 21, 24 (2d Cir.
2011) (quoting Collins and noting that
courts may accord such weight to an
arbitration decision as they deem
appropriate).
B. The Arbitration Decision
Thus far, the Court has analyzed
plaintiff’s claims and the record without
reference to the arbitrator’s decision that
defendant terminated plaintiff for just cause.
However, as one of the grounds for its
motion, defendant also argues that the
independent arbitrator’s finding that LIAW
had just cause to discharge plaintiff is
Plaintiff suggests that an arbitrator’s
decision is entitled to no weight if the
discrimination claim was not presented to
the arbitrator.
The Court disagrees.
Although the Court, in analyzing what
14
(E.D.N.Y. 2012) (same). In any event, even
if the Court gave absolutely no weight to the
arbitration decision, the Court would reach
the same conclusion for the other reasons
discussed herein; namely, there is
insufficient evidence in the record for a
rational jury to conclude that defendant’s
termination decision was a pretext for race
discrimination.
weight to give the arbitrator’s decision,
should consider whether the plaintiff’s
discrimination claim and purported evidence
in support of that claim were specifically
presented to the arbitrator, the failure to
present that claim and/or evidence does not
mean that the decision has no weight. See,
e.g., Rommage v. MTA Long Island R.R.,
No. 08-cv-836(DLI)(ALC), 2010 WL
4038754, at *12 (E.D.N.Y. Sept. 30, 2010)
(“[T]he fact that the arbitrator did not hear
plaintiff’s discrimination claims does not
discount
the
arbitrator’s
findings.”)
(collecting cases). Instead, as the Second
Circuit made clear in Collins, the Court
should consider whether the new evidence
not before the arbitrator presents strong
evidence that the decision was wrong. See
Spell v. United Parcel Serv., No. 09 Civ.
4375(BMC)(CLP), 2012 WL 4447385, at *2
(E.D.N.Y. Sept. 25, 2012) (“[T]he law is
clear that [plaintiff’s] failure to raise his
discrimination claims before the arbitrator is
‘immaterial’ to whether the arbitral
determination should be given substantial
weight. . . . Given the arbitration decision’s
high probative value, the Court must next
consider whether plaintiff offers ‘strong
evidence’ which might allow him to survive
summary judgment.” (citations omitted)).
C. Other Disparate Treatment Claims
In his opposition to defendant’s motion,
plaintiff also argues that, apart from his
firing, defendant subjected him to two
additional adverse employment actions:
defendant allegedly denied him the same
opportunities for (1) overtime and (2)
training as his non-Hispanic colleagues.
1. Overtime
The deprivation of overtime was not
alleged in the complaint, but in an
abundance of caution, the Court will
consider the claim because both parties
referred to it in their statements of
undisputed facts. Plaintiff alleges that,
unrelated to his ultimate termination, his
white supervisor Vinnie Lance refused to
allocate overtime to plaintiff in 2009 and
2010, while he gave it to all of the white
members of plaintiff’s unit. (Pl. 56.2 ¶ 61.)
Lance was not plaintiff’s supervisor at the
time of his firing and is not alleged to have
had any connection with it. Moreover,
plaintiff concedes that, when he complained
about the denial of overtime to his union
representative, the situation was resolved.
(Id.)
In the instant case, for reasons
previously discussed, the “new evidence”
submitted by the plaintiff—that is, the
comparator evidence—does not provide
strong evidence that the arbitrator’s decision
was wrong. See, e.g., Spell, 2012 WL
4447385, at *2 (“Plaintiff argues that
comparator evidence showing that similarly
situated white employees were treated
differently is sufficient to overcome the
probative weight of the arbitral finding.
However, the comparators he offers, are not,
in fact, similarly situated.”); Delia v.
Donahoe, 862 F. Supp. 2d 196, 221-22
Plaintiff’s vague allegation, which does
not identify any specifics concerning the
overtime allegedly denied (for example, no
comparison of the overtime granted to his
15
white colleagues), is insufficient to carry
plaintiff’s claim past the third and fourth
elements of a prima facie case. It is unclear
whether plaintiff even suffered an adverse
employment action, and if he did, there is no
evidence
that
it
occurred
under
circumstances giving rise to an inference of
discrimination. “A plaintiff sustains an
adverse employment action if he or she
endures a ‘materially adverse change’ in the
terms and conditions of employment.”
Galabya v. N.Y.C. Bd. of Educ., 202 F.3d
636, 640 (2d Cir. 2000). “To be ‘materially
adverse’ a change in working conditions
must be more disruptive than a mere
inconvenience.”
Id. (internal quotation
marks and citations omitted).
Anderson, 477 U.S. at 256 (“Rule 56(e)
itself provides that a party opposing a
properly supported motion for summary
judgment may not rest upon mere allegation
or denials . . . but must set forth specific
facts showing that there is a genuine issue
for trial. . . . [T]he plaintiff must present
affirmative evidence in order to defeat a
properly supported motion for summary
judgment. This is true even where the
evidence is likely to be within the
possession of the defendant, as long as the
plaintiff has had a full opportunity to
conduct discovery.”); Harding v. Wachovia
Capital Markets, LLC, 541 F. App’x 9, 12
(2d Cir. 2013) (“Where the plaintiff fails to
adduce evidence of discrimination, pretext
or an inference of discrimination cannot
arise from defendants’ mere failure to
produce contemporaneous evidence.”); cf.
Little v. Nat’l Broad. Co., Inc., 210 F. Supp.
2d 330, 379 (S.D.N.Y. 2002) (“Muro has
produced evidence that he incurred an actual
loss in income because of lost overtime and
that he was forced to work undesirable shifts
with an erratic schedule. This evidence, if
true, could prove that Muro was subject to
an
adverse
employment
action.”).
Accordingly, any separate claim based on
the alleged deprivation of overtime does not
establish a prima facie case under
McDonnell Douglas, and the Court grants
summary judgment to defendant.
Plaintiff attempts to show material
adversity here with the conclusory statement
that his “income was significantly less than
his white co-workers . . . for a significant
period of time” (id. ¶ 61.7), but he identifies
no evidence or specific facts to support that
comparison. His unsupported speculation—
based only on his affirmation and no other
evidence in the record—is lacking in the
“concrete particulars” required for a nonmovant to avoid summary judgment, R.G.
Grp., 751 F.2d at 77, especially considering
that his complaint appears to have been
immediately resolved.
A rational jury
simply could not conclude that, despite the
immediate
resolution
of
plaintiff’s
complaint, the denial of an unspecified
amount of overtime constitutes unlawful
discrimination, particularly where there is no
other evidence of the denial besides
plaintiff’s own conclusory affirmation.11
2. Failure to Train
Plaintiff’s allegations concerning the
denial of training opportunities are likewise
fact with respect to his overtime claim. See Mazyck
v. Metro. Transp. Auth., 893 F. Supp. 2d 574, 589
(S.D.N.Y. 2012) (granting summary judgment
because plaintiff “has not submitted concrete
evidence”).
11
The primary case plaintiff cites for the proposition
that the denial of overtime is an adverse employment
action also supports the Court’s conclusion that
plaintiff has failed to raise a genuine issue of material
16
laptop,13 but plaintiff cites no evidence to
dispute the fact that the only negative event
in plaintiff’s career after he missed the
laptop
training—his
firing—occurred
because he falsified records, not because of
any lack of training on the laptop. See
Argus v. Eastman Kodak Co., 801 F.2d 38,
45 (2d Cir. 1986) (“Such testimony,
unsupported by documentary or other
concrete evidence of the supposed lead line
effect, is simply not enough to create a
genuine issue of fact in light of the evidence
to the contrary.”); Hadman, 2011 WL
4736972, at *7 (“The record contains no
evidence of the NRL’s promotional
practices, and plaintiff’s claim that, after the
training course, she would perform better,
receive more high-profile assignments, and
be promoted as a result are speculative. As
these hypotheses are not supported by
admissible evidence, they cannot create a
genuine dispute as to any material fact
sufficient to defeat summary judgment.”).
Therefore, any separate claim based on a
failure to train does not establish a prima
facie case under McDonnell Douglas, and
the Court grants summary judgment to
defendant.
unconnected with his firing, and are
similarly vague and unsupported. “The
denial of training opportunities is an adverse
employment action only when an employee
can show material harm . . . such as a failure
to promote or a loss of career advancement
opportunities.” Anyanwu v. City of New
York, No. 10 Civ. 8498(AJN)(THK), 2013
WL 5193990, at *21 (S.D.N.Y. Sept. 16,
2013). In other words, “[d]enial of training,
without a showing of some injury therefrom,
cannot alone constitute an adverse
employment action.” Hadman v. Sebelius,
No. 09-CV-4414(ARR), 2011 WL 4736972,
at *5 (E.D.N.Y. Oct. 6, 2011).
Plaintiff has not alleged, much less
identified evidence of, any failure to
promote or gain career opportunities as a
result of defendant’s alleged failure to train
him. The training on which plaintiff focuses
was related to the use of his laptop,12 and
plaintiff concedes that he did not attend
work the day it was offered. (Pl. 56.1 ¶ 57.)
Plaintiff does not identify evidence (i) that
the training was denied to him on other
occasions, (ii) that he remained untrained
because of his race, or (iii) that his career
was affected in way by the missed laptop
training. Plaintiff’s only allegation in this
respect is that he received a single “verbal
warning” about his unfamiliarity with the
D. Retaliation
Plaintiff also alleges that defendant
subjected him to a hostile work environment
in retaliation for his participation in a
lawsuit brought by his wife against LIAW.14
12
Although not alleged in the complaint, plaintiff
refers in his motion papers to the denial of other
opportunities for training in digging and ergonomics.
However, as with the laptop training, plaintiff does
not identify any evidence that he sought this training
and was denied it, nor that it caused any material
harm to his career. Notably, plaintiff does not
dispute that he “cannot recall the specific classes he
believes he was excluded from.” (Pl. 56.1 ¶ 78.) In
addition, plaintiff had bid for and received a lightduty position, and he has not identified evidence that
the digging and ergonomic training even applied to
his job. (Id. ¶ 6.)
13
Plaintiff conceded in his deposition that the
warning was not a “formal corrective action.” (Ex.
B. to Cabrera Decl. at 57.)
14
In the complaint, plaintiff’s retaliation claim was
based mainly on an allegation that defendant
subjected plaintiff to “unjustified discipline and
harassment from co-workers and supervisors.”
(Compl. ¶ 10.) However, plaintiff now concedes that
17
“To state a claim for retaliation in
violation of Title VII, a plaintiff must plead
facts that would tend to show that: (1) she
participated in a protected activity known to
the defendant; (2) the defendant took an
employment action disadvantaging her; and
(3) there exists a causal connection between
the protected activity and the adverse
action.” Patane, 508 F.3d at 115.
speculative and conclusory. See Goenaga v.
March of Dimes Birth Defects Found., 51
F.3d 14, 18 (2d Cir. 1995) (noting that
employment discrimination plaintiff will not
meet ultimate burden “through reliance on
unsupported assertions” or “on the basis of
conjecture or surmise” (internal quotation
marks and citations omitted)).
Plaintiff’s retaliation claim also fails
under the second and third elements because
he has not identified evidence of any
adverse actions taken against him which
occurred because of his support for his
wife’s lawsuit. In particular, plaintiff does
not allege, much less identify, any evidence
of any adverse action taken by Varley, the
only supervisor with knowledge of the suit,
after the suit was filed in 2009. By way of
comparison, in the case which plaintiff
argues is “most analogous” to his case (Pl.
Mem. Opp. at 20), the husband of a
complainant was suspended for three days.
See Murphy v. Cadillac Rubber & Plastics,
Inc., 946 F. Supp. 1108, 1118 (W.D.N.Y.
1996). Plaintiff cites nothing analogous in
the record; in fact, the only post-2009 action
documented in the record is plaintiff’s
firing, which was conducted by Ruge, who
lacked knowledge of the lawsuit.15
Therefore, a rational jury could not conclude
that defendant retaliated against plaintiff for
supporting his wife’s complaint of
discrimination, and the Court grants
Plaintiff’s claim fails along all three
elements of the retaliation cause of action.
First, plaintiff does not dispute that Ruge,
the decisionmaker with respect to his
termination, did not work for LIAW when
plaintiff’s wife initiated her lawsuit, and did
not learn about the existence of the lawsuit
until after plaintiff’s termination. (Pl. 56.1 ¶
72.) Moreover, plaintiff has not identified
evidence of a single supervisor or anyone in
management with knowledge of plaintiff’s
support for his wife’s lawsuit. (Id. ¶ 71
(noting it is undisputed that “Neither
Plaintiff’s supervisors nor anyone in
management said anything to Plaintiff about
his wife’s lawsuit.”).)
The individuals
plaintiff identifies with actual knowledge of
his role in the lawsuit are his co-workers,
not supervisors. (Id. ¶ 70.) Plaintiff also
attempts to impute knowledge to LIAW
President William Varley, but the evidence
plaintiff identifies of Varley’s knowledge is
simply that Varley took business trips with
plaintiff’s union representative, Shawn
Garvey, at unspecified times, and that
Garvey knew of plaintiff’s role in his wife’s
suit. (Id. ¶ 67, 70.) Thus, the argument that
Varley knew of plaintiff’s wife’s lawsuit is
15
To the extent plaintiff claims in his complaint (and
at his deposition) that LIAW’s alleged retaliation in
terms of unjustified discipline began soon after his
wife’s lawsuit, it is uncontroverted that his wife’s
lawsuit was filed in 2009, and the discipline about
which plaintiff complains (for excessive absences,
driving in to a light post with his Company vehicle,
and failing to stop at a stop sign) occurred in 2008,
prior to his wife’s lawsuit.
the disciplinary incidents highlighted in the
complaint, which occurred in 2008 (id. ¶ 11), predated the filing of his wife’s lawsuit in 2009 (Pl. 56.1
¶ 74). The record does not reflect any disciplinary
actions involving plaintiff after 2008. (Id. ¶¶ 13-22.)
18
put forth by § 1367(c), or when the interests
of judicial economy, convenience, comity
and fairness to litigants are not violated by
refusing to entertain matters of state law, it
should decline supplemental jurisdiction and
allow the plaintiff to decide whether or not
to pursue the matter in state court.”).
summary judgment to defendant on the
retaliation claim.
E. State Law Claims
Plaintiff’s complaint also asserts claims
under New York law. Having determined
that the federal claims do not survive
summary judgment, the Court concludes that
retaining jurisdiction over any state law
claims is unwarranted. See 28 U.S.C.
§ 1367(c)(3); United Mine Workers of Am.
v. Gibbs, 383 U.S. 715, 726 (1966). “In the
interest of comity, the Second Circuit
instructs
that
‘absent
exceptional
circumstances,’ where federal claims can be
disposed of pursuant to Rule 12(b)(6) or
summary judgment grounds, courts should
‘abstain
from
exercising
pendent
jurisdiction.’” Birch v. Pioneer Credit
Recovery, Inc., No. 06-CV-6497T, 2007 WL
1703914, at *5 (W.D.N.Y. June 8, 2007)
(quoting Walker v. Time Life Films, Inc.,
784 F.2d 44, 53 (2d Cir. 1986)).
Accordingly, pursuant to 28 U.S.C.
§ 1367(c)(3), the Court declines to retain
jurisdiction over the remaining state law
claims given the absence of any federal
claims that survive summary judgment.
IV. CONCLUSION
For the foregoing reasons, the Court
grants defendant’s motion for summary
judgment as to the federal claims. The Court
declines
to
exercise
supplemental
jurisdiction over the state law claims and,
thus, dismisses such claims without
prejudice. The Clerk of the Court shall enter
judgment accordingly and close this case.
SO ORDERED.
Therefore, in the instant case, the Court,
in its discretion, “‘decline[s] to exercise
supplemental jurisdiction’” over plaintiff’s
state law claims because “it ‘has dismissed
all claims over which it has original
jurisdiction.’” Kolari v. N.Y.-Presbyterian
Hosp., 455 F.3d 118, 122 (2d Cir. 2006)
(quoting 28 U.S.C. § 1367(c)(3)); see also
Cave v. E. Meadow Union Free Sch. Dist.,
514 F.3d 240, 250 (2d Cir. 2008) (“We have
already found that the district court lacks
subject matter jurisdiction over appellants’
federal claims. It would thus be clearly
inappropriate for the district court to retain
jurisdiction over the state law claims when
there is no basis for supplemental
jurisdiction.”); Karmel v. Claiborne, Inc.,
No. 99 Civ. 3608, 2002 WL 1561126, at *4
(S.D.N.Y. July 15, 2002) (“Where a court is
reluctant
to
exercise
supplemental
jurisdiction because of one of the reasons
______________________
JOSEPH F. BIANCO
United States District Judge
Dated: September 26, 2014
Central Islip, NY
***
Plaintiff is represented by Steven A. Morelli
and Paul Bartels, The Law Offices of Steven
A. Morelli, P.C., 1461 Franklin Ave, Garden
City, NY 11530. Defendant is represented
by Anjanette Cabrera, Littler Mendelson
P.C., 900 Third Ave, New York, NY 10022.
19
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