Salters v. Hewitt-Young Electric, LLC
ORDER granting 48 Motion for Summary Judgment. The Clerk of the Court is instructed to enter judgment in favor of defendant and to close the case. Signed by Hon. Michael A. Telesca on 6/2/17. (JMC)-CLERK TO FOLLOW UP-
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
HEWITT-YOUNG ELECTRIC, LLC,
Plaintiff Robert Salters (“plaintiff”) commenced this action
against Hewitt Young Electric, LLC (“Hewitt Young” or “defendant”),
seeking damages for racial discrimination in violation of Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e to
e-17 (“Title VII”), Article 15 of the New York State Executive Law,
Human Rights Law § 290 et seq. (the “NYSHRL”), and 42 U.S.C. § 1981
(“§ 1981”). Specifically, plaintiff, who is African American, claims
that he was subjected to race discrimination based on Hewitt Young’s
failure to hire him based on his race, leading to plaintiff’s
termination by Hewitt Young’s subcontractor and a continued refusal
to employ him.
Defendant now moves for summary judgment pursuant to Federal
Rule of Civil Procedure 56(a), arguing that (1) plaintiff has failed
to establish a prima facie case of discrimination; (2) defendant had
legitimate, non-discriminatory reasons for not hiring plaintiff that
were not pretextual; and (3) plaintiff has failed to establish a
prima facie case of retaliation.
Plaintiff opposes defendant’s
motion, arguing that there are genuine issues of material fact that
necessitate a jury trial.
For the reasons set forth below, the Court
finds that defendant has established its entitlement to judgment as
a matter of law.
Accordingly, its motion for summary judgment is
The following facts are taken from the respective statements of
fact, affidavits, and exhibits submitted by plaintiff and defendant.
Plaintiff is an African American electrician.
He works as a
International Brotherhood of Electrical Workers, Local Union #86
Local 86 refers plaintiff to various jobs offered by
residential electrical work in schools, retail spaces, restaurants,
and offices, and receives referrals from Local 86.
between Local 86 and defendant is governed by a collective bargaining
testified at deposition that he was treated respectfully on this job
and was not teased because of his race.
this job due to a death in his family.
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Plaintiff voluntarily left
Plaintiff began working for defendant again on July 2, 2013.
September 27, 2013, including at Charlotte High School, School 17,
SUNY Geneseo, and the Batavia Casino.
Plaintiff maintains that he
would not have been permitted to move from project to project if his
job performance had been lacking.
Plaintiff testified at deposition
that he was treated respectfully throughout this time period and was
not disparaged based on his race.
During his work at the Batavia Casino, plaintiff was involved in
an incident where a supervisor, Mark Spall, was injured in the course
of unloading a large toolbox from a truck.
Mr. Spall has submitted
a sworn declaration in which he states that he believed his injury
was caused by plaintiff.
Plaintiff disputes this account, claiming
that Mr. Spall did not report the injury contemporaneously and that
plaintiff would not have been called back to the work site had he
caused an injury.
Plaintiff was laid off by defendant on September 27, 2013, and
hired again on October 1, 2013.
Plaintiff worked three additional
days before being laid off again, due to completion of the job.
According to defendant, Mr. Spall reported to Hewitt Young
management that plaintiff was a poor and inefficient worker, and
Hewitt Young therefore determined that it would not hire plaintiff
Under the collective bargaining agreement, defendant has the
right to reject any applicant for employment.
defendant’s characterization of his work, and maintains that no one
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at Hewitt Young ever complained about his work and that he would not
have been called back to the job at the Batavia Casino if his
workmanship had been poor.
In December 2013, plaintiff received a referral to defendant
defendant’s offices on December 6, 2013.
According to plaintiff,
Gregory Young, the President of Hewitt Young, came into the waiting
Mr. Young maintains that plaintiff arrived
late, was disheveled, and appeared to be intoxicated, which plaintiff
The parties agree that Mr. Young never said anything to
plaintiff related to his race.
In fact, plaintiff testified at
deposition that no one at Hewitt Young ever said anything to him
about his race.
referral, Hewitt Young hired Leonard Miller, an African American
electrician, to work on the RCSD project. Hewitt Young added another
African American journeyman electrician, Carnell White, to the RCSD
project in January 2014.
On or about December 24, 2013, Local 86 referred plaintiff to a
job for Unified Electric, a subcontractor for defendant on the RCSD
Hewitt Young management observed plaintiff working for
Unified Electric on the RCSD Project and informed Unified Electric’s
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management that they did not want plaintiff working on Hewitt Young
Unified Electric laid plaintiff off on or about December 27,
Unified Electric replaced plaintiff with another African
American electrician, whom defendant did not ask Unified Electric to
Plaintiff filed a complaint with the EEOC on or about March 18,
The EEOC issued a “no probable cause” determination and a
right to sue letter on October 31, 2014.
commenced the instant action on January 21, 2015.
Standard of review
Pursuant to Rule 56(a) of the Federal Rules of Civil Procedure,
demonstrates that there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of law.
considering a motion for summary judgment, all genuinely disputed
facts must be resolved in favor of the party against whom summary
judgment is sought. See Tolan v. Cotton, 134 S.Ct. 1861, 1863 (2014).
If, after considering the evidence in the light most favorable to the
nonmoving party, the court finds that no rational jury could find in
favor of that party, a grant of summary judgment is appropriate.
Scott v. Harris, 550 U.S. 372, 380 (2007), citing Matsushita Elec.
Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 586-587 (1986).
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Plaintiff has failed to establish a prima facie case of
Plaintiff’s Amended Complaint (the operative pleading in this
pursuant to Title VII, the NYSHRL, and § 1981.
These causes of
action are generally evaluated under the same substantive legal
See Patterson v. Cty. of Oneida, N.Y., 375 F.3d 206, 225
(2d Cir. 2004) (“Most of the core substantive standards that apply to
claims of discriminatory conduct in violation of Title VII are also
applicable to claims of discrimination in employment in violation of
Betterson v. HSBC Bank, USA, N.A., 139 F. Supp. 3d 572,
The legal sufficiency of a claim for disparate treatment is
“assessed using the burden shifting framework established by the
United States Supreme Court in McDonnell Douglas Corp. v. Green, 411
Betterson, 139 F. Supp. 3d at 585.
McDonnell Douglas framework, the plaintiff must first establish a
prima facie case of discrimination.
“To establish a prima facie
protected class; (2) [he] was qualified for the position; (3) [he]
was subject to an adverse employment action; and (4) the adverse
employment action occurred under circumstances giving rise to an
inference of discrimination.’”
(quoting Leibowitz v. Cornell
Univ., 584 F.3d 487, 498
(2d Cir. 2009).
Once the plaintiff
establishes a prima facie discrimination case, the burden shifts to
the defendant to articulate legitimate, non-discriminatory reasons
for the adverse employment action.
If the defendant does so, the
plaintiff can no longer rely on the prima facie case, and must
demonstrate that the reasons offered by the defendant were a pretext
Here, defendant argues that plaintiff has failed to establish a
prima facie case of disparate treatment because the circumstances
surrounding defendant’s failure to rehire him (and subsequent request
that he be terminated by Unified Electric) do not give rise to an
inference of discrimination.
The Court agrees.
The fourth element of a prima facie claim for discrimination is
a “flexible one that can be satisfied differently in differing
factual scenarios.” Chertkova v. Conn. Gen. Life Ins. Co., 92 F.3d
discrimination can be drawn from circumstances such as the employer’s
criticism of the plaintiff’s performance in ethnically degrading
terms; or its invidious comments about others in the employee’s
protected group; or the more favorable treatment of employees not in
the protected group; or the sequence of events leading to the
plaintiff’s [adverse employment action].”
Abdu–Brisson v. Delta Air
Lines, Inc., 239 F.3d 456, 468 (2d Cir. 2001) (internal quotation
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discrimination is modest, it is clear that a plaintiff must identify
some evidence from which a trier of fact could conclude that the
defendant was motivated by discriminatory intent. See Grillo v. N.Y.
City Transit Auth., 291 F.3d 231, 234 (2d Cir. 2002) (a plaintiff
credible evidence that the actions of the [defendants] were motivated
by racial animus or ill-will”). Plaintiff has identified no such
evidence in this case.
It is undisputed that no
one associated with
Hewitt Young ever made any derogatory comments regarding plaintiff’s
race, and plaintiff himself testified that he was consistently
treated with respect on the various Hewitt Young jobs on which he was
Plaintiff also has produced no evidence that non-African
American employees were treated more favorably than he was. Although
plaintiff claimed that other employees were not terminated despite
smelling of alcohol at work, he testified at deposition that he was
referring to both Caucasian and African American employees and that
he did not know whether the foreman was aware of the alcohol.
testimony is plainly insufficient to establish that other employees
were treated more favorably than plaintiff based on race.
Additionally, the undisputed fact that defendant hired multiple
African American electricians within one month of declining to rehire
discrimination. See, e.g., White v. Pacifica Found., 973 F. Supp. 2d
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363, 381 (S.D.N.Y. 2013) (“The fact that Plaintiff was replaced by a
member of the same protected class further undermines any inference
of discriminatory intent”); Rodriguez v. N.Y.C. Health & Hosps.
Corp., 2015 WL 5229850, at *5 (E.D.N.Y. Sept. 8, 2015) (“It is
extremely difficult, if not practically impossible to establish
discrimination where, as here, plaintiff was passed over so an
employer can hire another member of plaintiff’s same protected
class.” (internal quotation marks and citation omitted)).
argues that defendant’s hiring of other African Americans is not
probative in this case because the RCSD Project had target goals for
minority participation, but has offered no explanation for how
defendant’s acceptance of a contract with minority hiring goals is
evidence of discrimination.
Moreover, the existence of minority
hiring goals on the RCSD Project does not negate the fact that
plaintiff, which strongly suggests that defendant’s rejection of
plaintiff was based on factors other than his race.
In sum, this is a case in which plaintiff has “done little more
than cite to [his alleged] mistreatment and ask the court to conclude
establish a prima facie case of discrimination, and defendant is
entitled to judgment in its favor.
III. Plaintiff cannot show pretext
Defendant has also argues that, even assuming plaintiff had made
out a prima facie case of discrimination, defendant had legitimate,
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non-discriminatory, non-pretextual reasons for its actions towards
plaintiff - namely, that plaintiff’s work was poor, that he caused
Mark Spall to be injured, and that he arrived at the Hewitt Young
offices disheveled and smelling of alcohol.
Plaintiff argues that
defendant’s asserted rationales are pretextual.
The Court agrees
with defendant that plaintiff has failed to meet his burden of
showing pretext and that, in the alternative, defendant is entitled
to summary judgment on this basis.
A plaintiff cannot not meet the burden of showing pretext merely
by calling into question the credibility of an employer’s proffered
rationale for its actions.
See Forte v. Liquidnet Holdings, Inc.,
2015 WL 5820976, at *11 (S.D.N.Y. Sept. 30, 2015), aff'd, 2017 WL
104316 (2d Cir. Jan. 10, 2017) (“Plaintiff does not satisfy her
burden at the pretext stage simply by undermining the credibility of
Defendants’ proffered rationale for discharge.”); see also Saulpaugh
v. Monroe Cmty. Hosp., 4 F.3d 134, 142 (2d Cir. 1993) (“a Title VII
plaintiff does not necessarily meet its burden of persuasion by
convincing the factfinder that the employer’s non-discriminatory
explanation is not credible; rather, the trier of fact must find that
the plaintiff has proven its explanation of discriminatory intent by
Residential Servs., Ltd. P’ship, 22 F.3d 1219, 1225 (2d Cir. 1994)
(“The Supreme Court teaches that a reason cannot be proved to be a
pretext for discrimination unless it is shown both that the reason
was false, and that discrimination was the real reason. . . .
this means in the summary judgment context is that the plaintiff must
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establish a genuine issue of material fact . . . as to whether the
employer’s reason for discharging her is false and as to whether it
is more likely that a discriminatory reason motivated the employer to
make the adverse employment decision.”) (internal quotations and
citations omitted and emphasis in original).
Here, as discussed at
length above, plaintiff has identified no evidence supporting the
conclusion that defendant’s actions were based on his race.
result, even were a jury to conclude that defendant’s proffered
reasons for its actions were false, it still could not conclude that
discrimination was the real reason.
Because plaintiff cannot show
pretext, defendant is entitled to judgment in its favor on his
Plaintiff has failed to establish a prima facie case of
retaliation because the adverse employment actions at issue occurred
in December 2013, and plaintiff did not file his EEOC charge until
In opposition, plaintiff argues (1) that he told his
union in December 2013 that the reasons defendant gave for refusing
to hire him were not true and (2) that defendant retaliates against
him every time he is “skipped over” for jobs at Hewitt Young or any
of its subcontractors.
For the reasons discussed below, plaintiff’s
arguments are unavailing.
To establish a prima facie retaliation claim, plaintiff is
required to show “1) participation in a protected activity; 2) the
defendant’s knowledge of the protected activity; 3) an adverse
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employment action; and 4) a causal connection between the protected
activity and the adverse employment action.”
Zann Kwan v. Andalex
Grp. LLC, 737 F.3d 834, 844 (2d Cir. 2013) (internal quotations
Plaintiff cannot meet this standard.
With respect to his
EEOC complaint, while this is undisputedly protected activity, it
occurred after defendant had determined not to hire plaintiff.
Plaintiff’s “continuing retaliation” theory is not viable, because it
is well-established that “[i]f an employer’s conduct before and after
an employee complaint is consistent, the post-complaint conduct is
Wright v. N.Y. City Off-Track Betting Corp., 2008
WL 762196, at *5 (S.D.N.Y. Mar. 24, 2008).
Here, there is no
evidence that defendant’s conduct towards plaintiff changed after he
filed his EEOC charge - to the contrary, defendant had already
determined that plaintiff was not to be hired on any of its jobs well
before plaintiff made his complaint. Plaintiff therefore cannot show
a causal connection between his EEOC complaint and any adverse
With respect to plaintiff’s allegation that he informed his
union that defendant’s reasons for refusing to fire him were false,
it is in no way clear that this constitutes protected activity.
constitute protected activity, an employee’s complaint must have been
aimed at unlawful discrimination.
See Galdieri-Ambrosini v. Nat’l
Realty & Dev. Corp., 136 F.3d 276, 292 (2d Cir. 1998).
plaintiff has not alleged nor presented any evidence that anyone at
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Hewitt Young was aware of his statements to his union.
cannot have retaliated based on a complaint of which it was not
Grant v. N.Y. State Office for People with Developmental
Disabilities, No. 12–CV–4729, 2013 WL 3973168, at *9 (E.D.N.Y.
July 30, 2013) (plaintiff who alleged that he complained to his union
representative had not stated a retaliation claim because there was
no allegation that the union representative contacted the employer or
that plaintiff made complaints directly to the employer).
For these reasons, plaintiff has failed to establish a prima
facie claim for retaliation.
Defendant is therefore entitled to
judgment as a matter of law on plaintiff’s retaliation claim.
For the reasons set forth above, the Court grants defendant’s
motion for summary judgment (Docket No. 48).
The Clerk of the Court
is instructed to enter judgment in favor of defendant and to close
ALL OF THE ABOVE IS SO ORDERED.
s/Michael A. Telesca
MICHAEL A. TELESCA
United States District Judge
Rochester, New York
June 2, 2017
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