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KELLY v. AMERICAN FEDN. OF MUSICIANS' & EMPLOYERS'

January 3, 1985

THOMAS H. KELLY, Plaintiff, against AMERICAN FEDERATION OF MUSICIANS' AND EMPLOYERS' PENSION WELFARE FUND, Defendant


The opinion of the court was delivered by: DUFFY

MEMORANDUM & ORDER

KEVIN THOMAS DUFFY, D.J.:

 Pro se plaintiff, Thomas H. Kelly ("Kelly"), brings this "reverse" employment discrimination action pursuant to Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000(e) et seq. ("Title VII") and The Civil Rights Act of 1866, 42 U.S.C. § 1981 against defendant, American Federation of Musicians' and Employers' Pension Welfare Fund (the "Fund"), alleging he was terminated from his employment because of his race. Defendant moves for summary judgment under Rule 56 of the Federal Rules of Civil Procedure on the ground that Kelly offers no evidence which would tend to rebut the Fund's showing that the discharge was based entirely on non-discriminatory reasons. Defendant also seeks costs and attorney's fees.

 Plaintiff, a white male, was hired by the Fund in September of 1980 to work as a Pension Clerk. His duties included determining the level of contributions made into the Fund on behalf of the musicians and what, if any, pension benefits they were entitled to. Eli Quintero, the Supervisor of the Pension Department, oversaw Kelly's work.

 After a few months, Kelly was told by Quintero that there had been complaints by musicians who had not received their correct pension benefits. Kelly was instructed to check the proper source material, something he admits he failed to do at times. In the ensuing months, Kelly repeatedly made errors which had to be corrected by others. In the summer of 1982, he was admonished both privately and later with others "to be more careful in . . . work" because there were complaints by the musicians about the number of errors being made. Transcript of Deposition of Thomas H. Kelly, dated May 15, 1984 ("Tr."), 40, 41.

 In August 1982, Kelly prepared a document which did not include contributions for the years 1959 through 1964. As a result, someone else had to insert these figures. Kelly admitted his negligence at his deposition:

 
Q: Would checking the book from 1959 to 1964 be one of the first steps you would take in preparing the work sheets?
 
A. Definitely.
 
Q. And for whatever reason, you didn't check these books in this particular case; is that correct?
 
A. Yes. I might have checked and just missed it.
 
Q. But these are adjustments that were caught by someone other than you?
 
A. That's right.

 Tr. at 63, 64.

 In November 1982, Kelly failed to correct an entry on a worksheet he was supposed to update. On November 15, 1982, he again met with Quintero who once more stated that the musicians were complaining about errors. Kelly did not dispute that he was making these errors, but simply said that he would attempt to cut down on them. Tr. at 41-43. Finally, on November 24, 1982, Kelly was informed that he was being discharged because of his poor work ...


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