Lotocky v. Elmira City School District
Filing
54
-CLERK TO FOLLOW UP-ORDER granting defendant's 41 Motion for Summary Judgment and dismissing the complaint in its entirety, with prejudice. Signed by Hon. David G. Larimer on 12/15/15. (EMA)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
_______________________________________________
PETER LOTOCKY,
Plaintiff,
DECISION AND ORDER
13-CV-6298L
v.
ELMIRA CITY SCHOOL DISTRICT,
Defendant.
________________________________________________
Plaintiff Peter Lotocky (“plaintiff”) brings this action alleging discrimination in
employment on the basis of national origin, and retaliation, against his employer, the Elmira City
School District (the “District”), pursuant to the Title VII of the Civil Rights Act of 1964, 42
U.S.C. §2000e-2(a)(1) et seq. (“Title VII”). The District now moves for summary judgment
dismissing plaintiff’s claims (Dkt. #31). For the reasons that follow, that motion is granted and
the complaint is dismissed.
Plaintiff has been employed by the District as a custodial worker since approximately
1995. On or about March 31, 2009, plaintiff filed a charge of discrimination with the Equal
Employment Opportunity Commission (“EEOC”), alleging that the District had denied him a
promotion due to discrimination. Specifically, he complained that in August 2008, the District
denied him the position of Head Custodian of Riverside Elementary School, due to his Ukrainian
national origin.
The EEOC performed an investigation (the parties dispute whether that
investigation was sufficiently thorough, as the EEOC allegedly did not obtain testimonial
evidence from the relevant decision makers within the District), and ultimately found probable
cause to believe that discrimination had occurred, and/or that Lotocky had been subjected to
retaliatory actions in response to the EEOC charge, and issued a right to sue letter. This action
followed.
DISCUSSION
Familiarity with the underlying facts of this case, discussed in summary fashion hereafter,
is presumed.
I. Summary Judgment in Discrimination Cases
When deciding a motion for summary judgment brought pursuant to FED. R. CIV. PROC.
56, a court’s responsibility is to determine whether there remain any issues to be tried. Duse v.
Int’l Bus. Machs. Corp., 252 F.3d 151, 158 (2d Cir.2001). Summary judgment should be granted
if the record demonstrates that “there is no genuine issue as to any material fact and that the
moving party is entitled to a judgment as a matter of law.” FED. R. CIV. PROC. 56(c); see also
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). “A fact is ‘material’ for these
purposes if it ‘might affect the outcome of the suit under the governing law’ . . . An issue of fact
is ‘genuine’ if ‘the evidence is such that a reasonable [factfinder] could return a verdict for the
nonmoving party.’”
Lovejoy-Wilson v. NOCO Motor Fuel, Inc., 263 F.3d 208, 212 (2d
Cir.2001), (quoting Anderson, 477 U.S. at 248). See also Matsushita Elec. Indus. Co. v. Zenith
Radio Corp., 475 U.S. 574, 587 (1986). In deciding a motion for summary judgment, the
Court’s function is not to weigh the evidence and determine the truth of the matter, but simply to
determine whether there is a genuine issue of material fact to be tried. See Anderson, 477 U.S. at
250.
2
These general principles regarding summary judgment apply equally to discrimination
actions. See Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 148 (2000) (quoting St.
Mary=s Honor Ctr. v. Hicks, 509 U.S. 502, 524 (1993) (reiterating that trial courts should not
“treat discrimination differently from other ultimate questions of fact.”)). Although courts must
be cautious about granting summary judgment in cases where motive, intent or state of mind are
at issue, see Dister v. Cont’l Group, Inc., 859 F.2d 1108, 1114 (2d Cir.1988); Montana v. First
Federal Savings and Loan Ass’n of Rochester, 869 F.2d 100, 103 (2d Cir.1989), “the salutary
purposes of summary judgment – avoiding protracted, expensive and harassing trials – apply no
less to discrimination cases than to... other areas of litigation.” Meiri v. Dacon, 759 F.2d 989,
998 (2d Cir.1985)(summary judgment rule would be rendered sterile if mere incantation of intent
or state of mind would act as a talisman to defeat an otherwise valid motion).
II.
Plaintiff=s Claim of Discriminatory Failure to Promote
A plaintiff asserting a Title VII discrimination claim based on a failure to promote
establishes a prima facie case by showing that at the relevant time: (1) the plaintiff was a
member of a protected class; (2) the plaintiff applied for and was qualified for a job; (3) the
plaintiff was rejected for the position; and (4) the rejection of the plaintiff’s application occurred
under circumstances giving rise to an inference of discrimination. See Aulicino v. New York City
Dep't of Homeless Servs., 580 F.3d 73, 80 (2d Cir. 2009). Once plaintiff has established these
elements, the burden shifts to the defendant to articulate a legitimate, nondiscriminatory reason
for its actions. Id. If the employer does so, the burden then returns to plaintiff, to supply
evidence that the legitimate, nondiscriminatory reason offered by the defendant is pretextual.
See St. Mary's Honor Center, 509 U.S. 502 at 508.
3
As an initial matter, I am not convinced that plaintiff has made out a prima facie case that
he was denied a promotion on discriminatory grounds. For example, although plaintiff points to
several differences between his qualifications and those of District employee Mark McDonald,
who was chosen for the position at issue and who does not share plaintiff’s Ukrainian
background, those differences – chiefly a seven-month difference in length of prior service,
when both candidates had been employed by the District for over thirteen years – are so
negligible that no reasonable trier of fact could find that they present “circumstances giving rise
to a reasonable inference of discrimination.”
Indeed, as the District points out, it had a
longitudinal history of promoting plaintiff, who was granted nine promotions between 1995 and
2008 (out of 28 attempts), while McDonald was promoted only six times during the same period
(out of 31 attempts).
Furthermore, even assuming arguendo that a reasonable inference of discrimination
could be drawn from the minute differences between plaintiff’s qualifications and McDonald’s,
plaintiff has failed to rebut the legitimate, nondiscriminatory reasons given by the District for its
selection of McDonald instead of plaintiff, including McDonald’s longer period of prior
experience in a capacity comparable to that of “head custodian,” and McDonald’s superior
performance during his job interview, including exuding a positive attitude and giving direct
answers to questions, whereas plaintiff exhibited a negative attitude and gave rambling and nonresponsive answers.
Plaintiff does argue that his attitude and responsiveness to questions should not have been
considered, because English is not his first language and it can be frustrating and/or stressful for
him to respond to questions in English. He also contends that his prior “head custodian”
experience, while briefer than McDonald’s, was in some ways more “on point” with the duties of
4
the position for which he was interviewing. However, the District was entitled to some latitude
in choosing between similarly-qualified candidates.
Plaintiff’s mere disagreement with the
facially non-discriminatory criteria used by the District to evaluate candidates does not, by itself,
raise a question of fact as to whether its reasons for selecting McDonald instead of plaintiff were
pretextual. It is well-settled that, “Title VII is not an invitation for courts to ‘sit as a superpersonnel department that reexamines employers’ judgments.” Delaney v. Bank of Am. Corp.,
766 F.3d 163, 169 (2d Cir. 2014).
In light of the undisputed facts, no reasonable trier of fact could conclude that the
District’s selection of McDonald over plaintiff for the head custodian position at Riverside
Elementary School in or around August 2008 was discriminatory. Plaintiff’s failure to promote
claim is dismissed.
III.
Retaliation
Claims of retaliation are also analyzed under the familiar McDonnell Douglas burden-
shifting rules. McDonnell-Douglas Corp. v. Green, 411 U.S. 792 (1973). See Richardson v.
New York State Dep=t of Corr. Servs., 180 F.3d 426, 443 (2d Cir. 1999). To set forth a prima
facie claim for retaliation, plaintiff must show: (1) that he participated in a protected activity; (2)
that the defendant knew of the protected activity; (3) that he suffered an adverse employment
action; and (4) that a causal connection exists between plaintiff=s protected activity and the
adverse employment action. See Gordon v. New York City Bd. of Educ., 232 F.3d 111, 113 (2d
Cir. 2000). Once plaintiff makes out a prima facie case of retaliation, the burden shifts back to
the defendant employer to show that there was a legitimate, non-retaliatory reason for its actions.
If the employer meets its burden, the burden returns to the plaintiff to show that “there is
5
sufficient potential proof for a reasonable jury to find the proffered legitimate reason merely a
pretext for impermissible retaliation.” Richardson, 180 F.3d at 443, citing Gallagher v. Delaney,
139 F.3d 338, 348 (2d Cir. 1998). Protected activity includes actions taken to report, oppose or
protest unlawful discrimination, including complaints of discrimination to the employer, and the
filing and pursuit of administrative charges. See Cruz v. Coach Stores Inc., 202 F.3d 560, 566
(2d Cir. 2000).
It is undisputed that plaintiff engaged in protected activity on several occasions, filing
EEOC charges and making internal complaints.
The retaliation plaintiff describes is alleged to have taken several forms. Plaintiff alleges
that he was subjected to unspecified coworker comments that were derisive of his national
origin, a comment by then-Assistant Superintendent Diane Spotts concerning American freedom
of speech, increased supervisory scrutiny, alleged failure to adequately discipline an employee
who threatened plaintiff, the administration of a random drug test, the expiration of a Civil
Service “qualification list” on which plaintiff’s name appeared, and an expansion of school
outdoor athletic facilities which had the indirect effect of increasing plaintiff’s workload.
Even construing all inferences in plaintiff’s favor, a reasonable trier of fact would
struggle to find that the complained-of actions, separately or in combination, rose to the level of
an “adverse” action – that is, any action “that could well dissuade a reasonable worker from
making or supporting a charge of discrimination.” Chen v. City Univ. of N.Y., 2015 U.S. App.
LEXIS 18792 at *46 (2d Cir. 2015) (quoting Burlington N. & Santa Fe Ry. Co. v. White, 438
U.S. 53, 57 (2006)).
Actions that are “trivial harms”—i.e., “those petty slights or minor
annoyances that often take place at work and that all employees experience”—are not materially
adverse. Burlington, 438 U.S. 53 at 68. As the Supreme Court reminds us, Title VII does not set
6
forth “a general civility code for the American workplace.” Id. Construing all inferences in
plaintiff’s favor, it is nonetheless clear that annoyances like the administration of a random drug
test, the building of a ballfield at a school, the normal expiration of a Civil Service “qualification
list,” or an administrator’s comment comparing American freedom of expression with that of
more restrictive countries, are not “materially adverse,” but trivial.
Furthermore, even assuming arguendo that the complained-of actions were “adverse” for
purposes of plaintiff’s retaliation claim, many of the incidents about which plaintiff complains
(such as the allegedly-disparaging comments) were precipitated by coworkers, and were
undisputedly never brought to the attention of the District, despite the fact that the District had a
formal and publicized framework for complaints of discrimination and/or retaliation. As such,
there is no evidentiary basis for imputing knowledge of (or responsibility for) those actions to the
District.
Also, plaintiff has failed to show a causal connection between his protected activities and
the complained-of actions, or otherwise to present sufficient evidence to convince a reasonable
trier of fact that they were motivated by retaliatory animus.
For example, the District’s response to the threat made against plaintiff by a coworker
was swift and decisive, including a campus-wide lockdown, the summoning of law enforcement,
suspension of the employee who made the threat, and the implementation of a successful plan to
prevent any future interactions between plaintiff and that coworker – a plan which was
undisputedly effective, and achieved its aim of preventing further contacts between the two. No
reasonable trier of fact could find that the District’s actions were inadequate to immediately
cease the other employee’s harassment of plaintiff, and to prevent such harassment from
continuing.
7
Plaintiff has also produced no evidence to refute the District’s testimony and evidence
establishing that the District was not responsible for the expiration of a Civil Service “eligible
list” that resulted in plaintiff having to re-take a Civil Service Test, and that plaintiff’s selection
for a random drug test was just that – a random selection made by a computer, over which the
District had no control.
The Court has carefully reviewed the remainder of plaintiff’s factual allegations and the
evidence submitted by both parties, and I find that the plaintiff has simply not made out a prima
facie case of national origin-based discrimination or retaliation.
It is well-settled that
“conclusory statements or mere allegations [are] not sufficient to defeat a summary judgment
motion,” Davis v. State of New York, 315 F.3d 93, 100 (2d Cir. 2002), and that is really all that
plaintiff has presented here. Even if he had made out a prima facie case, I note that plaintiff has
produced no evidence by which a finder of fact could conclude that to the extent that the District
is liable for any of the complained-of actions, that they were motivated by discriminatory animus
or otherwise pretextual.
CONCLUSION
For these reasons, the District’s motion for summary judgment (Dkt. #41) is granted, and
the complaint is dismissed in its entirety, with prejudice.
IT IS SO ORDERED.
_______________________________________
DAVID G. LARIMER
United States District Judge
Dated: Rochester, New York
December 15, 2015.
8
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?