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January 15, 1980


The opinion of the court was delivered by: HAIGHT


Plaintiff Benjamin Wooten commenced this action against the New York Telephone Company (the "Company") pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. Wooten, who is black, claimed that the Company discharged him because of his race, in violation of 42 U.S.C. § 2000e-2(a)(1). He sought reinstatement and back pay. *fn1" After bench trial, the Court enters the following Findings of Fact, Discussion and Conclusions of Law, pursuant to Rule 52(a), F.R.Civ.P. For the reasons stated, the complaint is dismissed.


 The plaintiff, Benjamin Wooten, applied to the Company for employment in November, 1969. After he successfully passed some initial tests, the Company employed Wooten, and trained him as a frameman. Wooten was assigned to work at a Company facility at West 73rd Street and Broadway, in Manhattan. He was employed as a frameman until his discharge on August 9, 1974, under the circumstances to be related.

 A telephone "frameman" works on a "frame," which is a complex of machinery bringing the Company's main cables together with the wires going to the telephones of individual consumers. Framemen perform a variety of functions in connection with the frame. Wooten was employed as a "loopman." The function of a loopman is to put on a head set, and plug in his equipment at various locations around the frame, following the instructions of a tester in order to locate troubles within the system. The job is known as "working the loops." A loopman's responsibilities are rather limited, the job is monotonous, and requires a lower level of training than other functions which framemen may perform, such as testing, the installation of new wires, repair, and working on the "cross-bars" which lie at the heart of the frame complex.

 Subsequent to his employment in 1969, Wooten performed generally satisfactory work for the Company. An appraisal report dated April 9, 1973 (DXK) grades his job performance as satisfactory in four categories, although "unsatisfactory" in "reliability" and "attitude and conduct." However, an appraisal report dated May 16, 1974 gave Wooten a "satisfactory" rating in all six categories; and added the following remarks:

"Ben does his assignments and his work is fairly good. With a little more experience and more training, Ben could become a fairly good frameman." (PX1).

 During the weekend of July 6-7, 1974, Wooten injured his right hand playing baseball at home. In an earlier statement, Wooten said he was injured by the bat; at trial he testified that he was hit by the ball. The discrepancy is of no significance. Wooten reported to work on Monday, July 8. He worked the night shift at the 73rd Street facility, which ran from 4:00 p.m. to twelve midnight. When he reported on July 8, Wooten showed the third finger of his right hand, which was swollen and painful, to his foreman, Bertram Francks. Wooten told Francks that he needed medical assistance, and asked that he be sent to the Company medical department, which was housed in a separate Company building downtown. Francks declined to do so. There is a conflict in the testimony as to the reasons for Francks' position. Wooten testified that Francks simply stated he was short of men, and could not spare Wooten for a visit to the Company medical department. Francks testified that he explained to Wooten that, in the circumstances, the Company medical department would not treat Wooten's injury, and that Wooten should consult his own physician. I find that both factors were present in Francks' mind, and that he expressed both of them to Wooten. It is common ground that Wooten performed his regular duties as a frameman, without visiting the Company medical department or seeking out medical advice on his own, until July 17. On July 16, while Wooten was at work, a union shop steward advised Francks that Wooten's hand "looked bad," and recommended that Francks send Wooten to the Company medical department. Francks accepted that suggestion, instructing Wooten to report to the medical department at 4:00 p.m. on the following day, July 17.

 During the period July 8 through July 16, Wooten was required to, and did, perform his regular duties as a frameman. I find, from the medical evidence, that the third finger on his right hand was infected and painful during this interval. Francks did not assign Wooten any light or restricted work during this period. As foreman, he had no authority to do so. Only the Company's medical department could certify an employee for light or restricted duty.

 On July 17, Wooten presented himself at the Company medical department, where he was examined by a Dr. Harold Grande. Dr. Grande found that Wooten had an infected finger on the right hand. He advised Wooten to consult his own physician; gave him the rest of the day off; and advised Wooten that he would be expected to return to work on the following day, with restricted duty (Grande deposition, PX8, at p. 8).

 In point of fact, Wooten did not report again for work prior to his discharge on August 9. Wooten testified, and I find, that subsequent to his examination by Dr. Grande on July 17, he undertook to find a private physician, eventually coming under the care of a Dr. Ambinder on about July 21. Wooten also reported again to the Company medical department on July 22, at which time Dr. Grande again examined him, and instructed him to return to work on restricted duty. Wooten returned to Dr. Grande's clinic on August 1, at which time he submitted a medical statement from Dr. Ambinder, to the effect that Wooten was unable to work "for a few weeks." Plaintiff had misplaced his written statement from Dr. Ambinder, and that physician was not called as a witness on the trial; but the substance of Dr. Ambinder's recommendation, and its date, July 24, appear from the Company's medical records on Wooten (PX2). Dr. Grande advised Wooten, on August 1, that he did not agree with Dr. Ambinder's evaluation, and, that while he was willing to have Wooten examined by another Company physician, Dr. Grande was obliged, in the circumstances, to instruct Wooten again to report for restricted duty. (PX8 at p. 14). According to Dr. Grande's contemporaneous note (PX2), Wooten rejected that suggestion "strenuously" Wooten felt "that what his doctor says is the last word. The visit ended on this impasse."

 Wooten's supervisors at the 73rd Street facility made repeated efforts to contact Wooten by telephone at home, to urge him to report to work. On July 29, Daniel Lake, at that time a second line frame supervisor at the 73rd Street facility, and another supervisory individual named Entwistle visited Wooten at his home, and advised Wooten that there was work available for him on restricted duty, which would involve working with the left hand only. Lake testified that he advised Wooten specifically of the nature of such work: filing and answering the telephone. Wooten denies that he was given such specifics. In the view I take of the case, I need not resolve this discrepancy. Wooten did not return to work, apparently relying, as noted ante, upon the statement obtained from Dr. Ambinder that he should not work at all for a number of weeks.

 Under date of August 5, 1974, R. K. Banta, the Company's district plant superintendent, sent Wooten a letter (PX3) which read in its entirety as follows:

"You are absent from the job without justification from our Medical Department.
"If you do not return to work by August 8, 1974, you will be subject to disciplinary action, which could lead to separation from the payroll."

 Wooten acknowledges having received this letter. His response to it was to report again to the Company medical department, be examined again by Dr. Grande on the morning of August 9. In Wooten's presence, Dr. Grande reached Dr. Ambinder by telephone, and the two physicians discussed the situation. Dr. Grande testified at his deposition (p. 16), his contemporaneous notes confirm, and I find, that in that conversation Dr. Ambinder learned for the first time that Wooten could be placed on restricted duty, involving work which did not require the use of his right hand. Dr. Ambinder agreed with Dr. Grande that, with this restriction, Wooten was able to work. Dr. Grande terminated the conversation, and advised Wooten of its substance. Dr. Grande's contemporaneous note (contained within the medical file, PX2) reflects Wooten's continued insistence that he could not work.

 There is a conflict as to whether Dr. Grande spoke by telephone with superintendent Banta following these events of August 9. Banta testified that Grande had reported to him concerning his interview that day with Wooten, advising Banta that Grande had spoken to Wooten's physician, who concurred in Wooten's ability to work with restrictions. Dr. Grande, at his deposition, recalled no such conversation with Banta. Again I need not resolve the discrepancy. It is apparent that Banta had sufficient knowledge of the circumstances to dictate to his secretary a letter, advising Wooten that his employment had been terminated for failure to report to work. Banta, who was leaving early that day, instructed his secretary to contact Wooten's supervisor at 4:30 p.m. on August 9, and, if Wooten had not reported for the night shift, the letter was to be signed and mailed. Wooten did not report, and these instructions were followed. On August 12, Wooten, having received the letter, telephoned Banta and protested his discharge on the ground that his own physician had said that he could not work. Wooten made no charge, in that conversation, that his discharge had been racially motivated. Banta replied that he was bound by the findings and recommendations of the Company's medical department, and that the discharge would remain in effect.

 The record contains no direct evidence, in the form of oral or written admission, that the Company was motivated by racial animus in discharging Wooten. That is hardly surprising. Wooten relies, instead, upon a series of circumstances, from which he contends that such animus should be inferred. The Court's findings with respect to those particular circumstances will now be set forth.

 Wooten lays particular stress upon two incidents involving one James Irvine, a former Company foreman with whom Wooten came into unharmonious contact. I find the facts concerning the first Irvine incident to be as follows. In early 1974, Irvine was a foreman at the 73rd Street facility. He was assigned to the night shift, and supervised Wooten, among others. A foreman is a managerial, non-union position within the Company hierarchy, in contrast to framemen, testers, and others, who are craftsmen and union members. It came to pass that on an evening early in 1974 Irvine, his wife and another couple were having dinner at Gleason's Bar, an establishment in the vicinity of the 73rd Street facility which Irvine frequented. During the course of the evening, Wooten and John DeRiggs, another frameman (also black) on Wooten's shift, appeared in Gleason's. Words were exchanged between Irvine and Wooten; an altercation broke out; the disputants repaired to the sidewalk; and Irvine, during the course of the altercation, referred to Wooten as a "dirty nigger." When this unpleasant incident came to the attention, the next morning, of Lake, Irvine's immediate superior, he directed Irvine to apologize to DeRiggs and Wooten, in the presence of the entire night shift work force. Irvine made such an apology.

 There is no dispute as to these particular facts. There is a conflict in the evidence concerning the circumstances of the arrival of Wooten and DeRiggs at Gleason's. Wooten testified that he and DeRiggs were on duty on the 4:00 p.m. to midnight shift, when they received two telephone calls from Lake, asking to speak to Irvine. While Irvine was the foreman on duty on that shift, he had left early, to meet his wife for dinner at Gleason's. Irvine testified that he was entitled to leave his position before midnight. Wooten testified that he and DeRiggs resolved to find Irvine and give him a message that Lake was trying to contact him; and that they proceeded, on this mission, directly to Gleason's, arriving there at about 11:45 p.m. DeRiggs, in his trial testimony, generally corroborated this account, except for the time that he and Wooten arrived at the bar, as to which point DeRiggs was entirely vague. Wooten testified that he tried to tell Irvine that Lake was trying to reach him, whereupon Irvine became abusive, and the altercation started. Irvine testified that Wooten and DeRiggs did not arrive at Gleason's until about 1:30 or 1:45 a.m. He acknowledges that Wooten and DeRiggs told him that Lake had tried to reach him twice by telephone. Irvine testified further that he replied that he would get in touch with Lake; and then offered to buy Wooten and DeRiggs a drink. They declined, according to Irvine's testimony; and Wooten then made an audible obscene remark with reference to Irvine's wife, which started the altercation.

 The timing of the incident, as to which the testimony conflicts, is significant. Wooten filed a complaint, in respect of his discharge, with respect to the Equal Employment Opportunity Commission ("EEOC"). The Gleason's Bar incident was cited by Wooten in that proceeding as an example of Company racial animus. The EEOC, declining to find reasonable cause, stated in its determination of July 23, 1975, in respect of the Gleason's incident, that it was "reasonable to assume that the incident did not occur during working hours." DXG at p. 2. While Wooten denied at trial having received a copy of that determination, it is clear from his pre-trial deposition that he did so, and I so find. I further find that Wooten's testimony at trial, that he and DeRiggs went directly to Gleason's from the job site, arriving at the bar before twelve midnight, represents an effort on his part to bring the incident within what could be regarded as "working hours." I further find that Wooten's testimony at trial, on this point, cannot be accepted, and represents a transparent effort to avoid the quoted finding in the EEOC determination. In a written and notarized complaint which Wooten addressed to the Company on this incident (DXD), Wooten states in pertinent part:

"After work John and myself went to a club. Afterward we past (sic) a bar called Gleason's at 2:00 a.m. and saw Jim Ervine (sic) ...

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