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RICHARDSON v. SUNMARK INDUS.

April 1, 1983

JOSEPH J. RICHARDSON, Plaintiff,
v.
SUNMARK INDUSTRIES, A Division Of Sun Oil Company Of Pennsylvania, Defendant



The opinion of the court was delivered by: PLATT

MEMORANDUM & ORDER

 PLATT, D.J.

 Plaintiff, Joseph J. Richardson, who is black, brings this action under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. ยง 2000e et seq. He alleges that his employer, defendant Sunmark Industries (Sunmark), *fn1" disciplined him discriminatorily because of his race. Sunmark now moves for summary judgment. Upon viewing the facts in the light most favorable to plaintiff, we conclude that he has failed to sustain his burden of making out a prima facie case of disparate treatment. Therefore, Sunmark's motion will be granted.

 Mr. Richardson was hired by Sunmark in 1972 as a gasoline tank truck driver operating out of its Brooklyn Distribution Terminal. The record does not detail plaintiff's job performance during his first five years with Sunmark. However, from 1977 through 1979, he had the highest annual absentee rate of all employees (approximately 35) at the Brooklyn terminal. In 1979, his performance rating was the lowest of all 26 drivers then based at the Terminal. In addition, he received a two-day suspension in 1978 for excessive absenteeism, counseling on at least four occasions for arriving late for work, and warning memos in 1978 for allegedly falsifying his timesheet and for leaving work early. Then, on December 12, 1979, plaintiff drove his 22-ton gasoline delivery truck into the overhead bar of the Hunter's Point Avenue Bridge in Queens, injuring himself and causing about $1,000 damage to the truck. Plaintiff was asked to appear at the Sunmark Terminal on December 24, 1979 for a post-accident interview. He did not. On February 15, 1980, after conducting its own investigation, Sunmark fired plaintiff effective December 12, 1979. The reasons given were the accident and his poor past record.

 Pursuant to its agreement with Sunmark, Mr. Richardson's collective bargaining agent took the matter to arbitration. On May 15, 1981, Arbitrator Samuel R. Pierce, Jr. issued an Opinion and Award which found that (1) the accident had been caused by plaintiff's "gross negligence"; (2) his failure to attend the post-accident interview constituted "insubordination"; and (3) prior to the accident, plaintiff had a "relatively good" driving record but a "very poor" disciplinary record. The arbitrator concluded that under the circumstances, Sunmark should have given plaintiff a "very long suspension" -- specifically, an 18-month suspension -- but should not have fired him. The termination thus was converted into a suspension; the 18-month period expired on June 8, 1981. *fn2"

 Meanwhile, Mr. Richardson filed complaints with the New York State Division of Human Rights (the Division) and the Federal Equal Employment Opportunity Commission (EEOC). On January 16, 1981, after an investigation failed to corroborate any of plaintiff's allegations, the Division dismissed his complaint. Similarly, on July 28, 1981, the EEOC found that there was no reasonable cause to believe the allegations were true, and issued a right-to-sue letter permitting plaintiff to proceed in this Court. He brought the instant action on September 16, 1981.

 In addition to a general claim of disparate treatment because of his race, Mr. Richardson raises the following contentions here: (1) non-minorities with less seniority have been given better assignments and equipment; (2) in November, 1979, then-Terminal Supervisor Charles F. Rogers accused him of stealing gasoline and placed a letter of reprimand, which he has not been allowed to see, in his file; (3) although aware that the plaintiff was ill, Assistant Supervisor Robert L. Wheelin ordered him to attend the December 24, 1979 post-accident interview in the hope that he would not be present and thus give Sunmark an excuse to discharge him.

 After a careful review of the record, including Mr. Richardson's responses to paras. 6-10, 12, 13, 15, 17, and 19 of Sunmark's Local Rule 9(g) Statement, we are convinced not only that plaintiff's contentions are groundless, but also that Sunmark had ample reason to take disciplinary action against him. *fn3" Nonetheless, we will proceed to evaluate each specific contention, and then consider whether the record contains any evidence at all suggesting that Sunmark treated plaintiff in a discriminatory fashion.

 Plaintiff first alleges that defendant forced him to use inferior equipment on less desirable route assignments, despite his greater seniority. However, this claim is fatally undermined by the fact that plaintiff put nothing into the record regarding equipment and assignments prior to his suspension or the equipment and assignments of other drivers at the Brooklyn Terminal. Affidavit of Doretta P. Hahn [Hahn Affidavit], Exhibit A (Deposition of Joseph J. Richardson, November 8, 1982 [Richardson Deposition]) at 102-04 and 2-3; Plaintiff's Responses to Defendant's Affidavit in Support of Motion to Dismiss [Plaintiff's Response] at 9-10. Moreover, in a sworn affidavit, Terminal Operations Manager Rogers *fn4" stated that Sunmark changed plaintiff's delivery routes so that he could stay closer to his home, apparently because a family member was ill. Rogers Affidavit, para. 7. *fn5" Because the instant lawsuit is concerned only with Mr. Richardson's 18-month suspension and events that occurred prior to it, his (questionable) assertion that the defendant assigned him to inferior equipment after his return to duty in June, 1981 is irrelevant. Richardson Deposition at 102. His first contention must fail because it is unsupported by the "concrete particulars" necessary to withstand a motion for summary judgment. S.E.C. v. Research Automation Corp., 585 F.2d 31, 33 (2d Cir. 1978). As this Circuit has made clear, "it is not sufficient merely to assert a conclusion without supplying supporting arguments or facts in opposition to the motion." Id.

 Plaintiff next contends that in 1979 Supervisor Rogers falsely accused him of stealing gasoline, and placed a letter in his file. Sunmark denies this. Rogers Affidavit, para. 18. Moreover, when Sunmark tried to determine the basis of this charge, Mr. Richardson did not remember where or when the purported accusation was made, or any facts about it. Richardson Deposition at 12-13. A "conclusory allegation[] or denial[]" will not withstand a motion for summary judgment supported by affidavit. S.E.C. v. Research Automation Corp., 585 F.2d at 33. This contention also must fail.

 Mr. Richardson's third specific claim centers on the December 24, 1979 interview. Plaintiff alleges that on this date he received a telephone call from Mr. Wheelin ordering him to appear at the Brooklyn Terminal later in the day, and that he told Mr. Wheelin that he could not, because he was under medication. Plaintiff's Response at 4. However, plaintiff fails to mention that four days earlier he had agreed to appear for a post-accident interview on December 24, 1979, and that, when Mr. Wheelin called him at noon on that day to find out whether he still intended to appear, plaintiff responded with abusive language. Rogers Affidavit, para. 16; Hahn Affidavit, Exhibit C (Arbitrator Pierce's Opinion and Award) at 2-3. Nowhere does plaintiff deny that he agreed in advance to the interview or that he was insubordinate with Mr. Wheelin. Plaintiff may not avoid summary judgment by relating only those parts of a given incident that are helpful to him. Rather, he must raise a triable issue with regard to the parts of the incident presented by his adversary. Here, instead of calling forth contrary facts, plaintiff has chosen to remain silent. This is not enough, and his third contention must fail.

 Because Mr. Richardson is proceeding pro se, we would be remiss in granting defendant's motion without scrutinizing the record for any evidence that plaintiff was treated in a discriminatory fashion. We have done so, and found none. Moreover, the affidavits *fn6" and exhibits submitted by the parties demonstrate that Sunmark was amply justified in taking disciplinary action. We will discuss this in greater detail after outlining the minimum showing plaintiff must make to avoid summary judgment.

 A prima facie case of discriminatory discharge or disparate treatment is made out where plaintiff presents concrete facts showing that he (1) belongs to a racial minority; (2) "was satisfying the normal requirements of his work"; and (3) was replaced by a non-minority worker or, if he was not replaced, that "non-minority workers with comparable records were retained while plaintiff was terminated." Wade v. New York Telephone Co., 500 F. Supp. 1170, 1174 (S.D.N.Y. 1980). Under McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973), if plaintiff makes out a prima facie case, the burden shifts to defendant to

 
produce evidence of a legitimate, non-discriminatory reason for its employment decision. If defendant succeeds in rebutting the plaintiff's prima facie case with a non-discriminatory reason, the burden shifts back to plaintiff to show ...

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