where the nonmovant 'fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.'" Id. (citations omitted). Accordingly, in determining the propriety of summary judgment, "'factual disputes that are irrelevant or unnecessary will not be counted.'" Id. at * 3 (quotation omitted). "The nonmovant 'must present affirmative evidence in order to defeat a properly supported motion for summary judgment.'" Id. (quotation omitted). "Mere conclusory statements or reliance on the pleadings, . . . will not suffice, . . . . " Id. (citations omitted).
The court must look to the substantive law to identify which facts are material. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 2510, 91 L. Ed. 2d 202 (1986). In this case, the court must determine whether genuine issues of material fact exist in the context of a "burden-shifting analysis." See Sample at *4 (citations omitted).
Under this analysis, in any Title VII action, "[a] plaintiff must, as a threshold matter, establish a prima facie violation." Lambert v. Genesee Hospital, No. 92 Civ. 7570 (2d Cir. September 17, 1993), slip op. at 6100 (citation omitted). The "establishment of the prima facie case in effect creates a presumption that the employer unlawfully discriminated against the employee." St. Mary's Honor Center v. Hicks, 125 L. Ed. 2d 407, U.S. , , 113 S. Ct. 2742, 2747 (1993) (citation omitted). This presumption then places upon the defendant "the burden of producing an explanation to rebut the prima facie case-i.e., the burden of 'producing evidence' that the adverse employment actions were taken 'for a legitimate, nondiscriminatory reason'." Hicks, U.S. at , 113 S. Ct. at 2747 (citation omitted).
Once the defendant has met its burden of production by providing a legitimate, nondiscriminatory reason for the discharge, the burden of proof then shifts back to the plaintiff to prove that the defendant's legitimate reason for the discharge is a mere pretext to cover up the true, discriminatory (retaliatory) motive for the discharge. Devine v. Whelan, 90 Civ. 6272, 1993 WL 350049 (S.D.N.Y. September 3, 1993) (citation omitted).
In order to make out a prima facie case of retaliation under Title VII, a plaintiff must establish the following: (1) that the plaintiff engaged in an activity protected by Title VII of which his employer had knowledge; (2) that he suffered an adverse employment action; and (3) that there was a causal relationship between the protected activity and the adverse employment action, that is, that a retaliatory motive played a part in the adverse employment action. Grant v. Bethlehem Steel Corp., 622 F.2d 43, 46 (2d Cir. 1980). Additionally, "courts have recognized that proof of causal connection can be established by showing that protected activity is followed by discriminatory treatment." Id. (citing Hochstadt v. Worcester Found. for Experimental Biology, Inc., 425 F. Supp. 318, 324, aff'd, 545 F.2d 222 (1st Cir. 1976); Aguirre v. Chula Vista Sanitary Serv. and Sani-Tainer, Inc., 542 F.2d 779, 781 (9th Cir. 1976)). Further, it has been held that a close proximity in time between a plaintiff's protected activity and his/her discharge "raises an inference of a causal link between the activity and the discharge." Devine, 1993 WL 350049, at *3; see also Aguirre, 542 F.2d at 781.
Considering all of the facts in the light most favorable to Plaintiff, the court finds that Plaintiff has established a prima facie case. As to the first element, it has been held that protected activity encompasses more than the filing of a complaint; e.g., it can include an employee's "expression of a reasonable belief that the employer has engaged in discriminatory employment practices based on race." Coleman v. Wayne State Univ., 664 F. Supp. 1082, 1092 n.5 (E.D.Mich. 1987) (citations omitted). Thus, applying this criterion, Plaintiff's assertions that he informed certain persons within the DMV that he intended to file a complaint concerning DMV's alleged discriminatory treatment of Jews alone establishes the first element.
As to the second element, it is incontrovertible that the discharge of Plaintiff constituted an "adverse employment action." And, it can be inferred, for the purposes of establishing a prima facie case, that the close proximity in time between Plaintiff's protected activity and his discharge establishes a causal link between the two. See Devine at *3. Thus, Plaintiff has met his burden of production regarding each of the elements of a prima facie case and has thereby satisfied the first phase of the burden-shifting analysis.
Since Plaintiff has made out a prima facie case of retaliation, the court must next determine whether Defendant has articulated a legitimate, nondiscriminatory reason for Plaintiff's discharge. See Hicks, U.S. at , 113 S. Ct. at 2747 (citation omitted). In this regard, Defendant asserts that Plaintiff was discharged for misuse of state resources; e.g., that, inter alia, Plaintiff made over $ 2,300.00 in unauthorized phone calls at DMV's expense over a period of approximately eighteen months.
Defendant also argues that the criminal charges levied against Plaintiff support Defendant's contention that nondiscriminatory reasons existed for the discharge of Plaintiff. As previously noted, judgment in the criminal case was entered against Plaintiff under a plea bargain agreement whereby the charge of Grand Larceny in the fourth degree was reduced to disorderly conduct in return for a plea of guilty by Plaintiff.
The Supreme Court recently clarified the third phase of the burden-shifting analysis in holding that although the burden of production shifts to the defendant in the second phase, "the ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff." Hicks, U.S. at , 113 S. Ct. at 2747 (citation omitted). Thus, "the determination that a defendant has met its burden of production (and has thus rebutted any legal presumption of intentional discrimination) can involve no credibility assessment." Hicks, U.S. at , 113 S. Ct. at 2748.
Accordingly, the Court finds, without weighing the credibility of the reason offered, that Defendant has met its burden of production by offering a nondiscriminatory reason for Plaintiff's discharge. Therefore, the burden once again shifts to Plaintiff who must rebut the nondiscriminatory reason for the discharge given by Defendant.
As best as can be ascertained from his submissions, Plaintiff apparently relies upon two separate grounds to argue that the unauthorized phone usage was a mere pretext for his discharge. First, Plaintiff claims that he is innocent of the phone charges, i.e., that the court should reopen the criminal action. Second, Plaintiff argues that the threats he received on October 2 and 18, 1989 about the prospective repercussions if he went to any anti-defamation, etc., groups after his discharge support Plaintiff's claim that the actual discharge itself was retaliatory. The court will examine each of these seriatim.
In order to show that the criminal conviction entered against Plaintiff is a mere pretext for Plaintiff's discharge, Plaintiff first asks that the court "reopen" the issue of his guilt with regard to the unauthorized phone calls he allegedly made. Defendant argues that under New York law Plaintiff's plea of guilty to the criminal charges should collaterally estop Plaintiff from relitigating the issue of his guilt with regard to the illegal phone use.
It is well-settled in New York that
the doctrine of collateral estoppel, a narrower species of res judicata, precludes a party from relitigating in a subsequent action or proceeding an issue clearly raised in a prior action or proceeding and decided against that party or those in privity, whether or not the tribunals or causes of action are the same.
Ryan v. New York Tel. Co., 62 N.Y.2d 494, 500, 478 N.Y.S.2d 823, 826, 467 N.E.2d 487 (1984) (citations omitted).
However, the party against whom collateral estoppel is to be applied must have had a full and fair opportunity to litigate the issue. Id. at 501, 478 N.Y.S.2d at 826-827. In determining whether a party had a full and fair opportunity to litigate the issue in a prior proceeding, the court should consider such factors as "the nature of the forum and the importance of the claim in the prior litigation, the incentive and initiative to litigate and the actual extent of litigation, the competence and expertise of counsel, the availability of new evidence, the differences in the applicable law and the foreseeability of future litigation." Id. at 502, 478 N.Y.S.2d at 827 (citations omitted). In deciding whether collateral estoppel should preclude the relitigation of an issue "the burden rests upon the proponent of collateral estoppel to demonstrate the identicality and decisiveness of the issue, while the burden rests upon the opponent to establish the absence of a full and fair opportunity to litigate the issue in [sic] prior action or proceeding." Id. at 502, 478 N.Y.S.2d at 827 (citations omitted).
Plaintiff alleges that the criminal proceeding did not provide a full and fair opportunity to litigate the issue of his guilt with regard to the phone charges as he was compelled to plead guilty due to a heart problem he experienced at that time, which made it impossible for him to defend himself against the charges.
The court need not decide whether this explanation would satisfy Plaintiff's burden of proving that he did not have a full and fair opportunity to litigate the issue of his guilt in the criminal proceeding, as resolution of this issue is unnecessary in deciding Defendant's summary judgment motion. Even if Plaintiff were allowed to relitigate the issue of his guilt with regard to the phone misuse charges and he could show that he was innocent of the criminal charges levied against him, this would not resolve the question of whether Defendant is liable for discharging Plaintiff, as Defendant is liable under Title VII only if Plaintiff can prove that Defendant fired him for retaliatory reasons. In other words, as long as Defendant discharged Plaintiff based upon its belief that Plaintiff misused state resources and Plaintiff is unable to provide sufficient proof that this belief is a mere pretext for discharge, Defendant is not liable under Title VII. Moreover, liability cannot be imposed
upon an employer for alleged discriminatory employment practices unless an appropriate factfinder determines, according to proper procedures, that the employer has unlawfully discriminated . . . . But nothing in law would permit us to substitute for the required finding that the employer's action was the product of unlawful discrimination, the much different (and much lesser) finding that the employer's explanation of its action was not believable.
Hicks, U.S. at , 113 S. Ct. at 2751 (emphasis in original). Thus, Plaintiff must affirmatively establish that he was discharged for retaliatory reasons; it is insufficient to merely disprove the validity of the nondiscriminatory reason(s) proffered by Defendant. See id. Plaintiff's proof in this regard is inadequate, as it is mainly limited to the proximity between the time of the scheduled appointment with Van Holland and his discharge -- as previously discussed, this goes to the establishment of a prima facie case, but not to the issue of pretext. The court therefore finds that Plaintiff has failed to provide sufficient evidence to substantiate the first of his arguments regarding retaliation and the pretextual nature of the reason given by Defendant for the discharge, and must next consider the second of Plaintiff's contentions in this regard.
Plaintiff's second pretextual argument is based upon his claim that post-discharge criminal charges were levied against him in retaliation for his having been perceived to have gone to a Jewish activist group. It appears that Plaintiff would ask the court to retroactively consider this alleged post-discharge retaliatory act as proof that his discharge was based upon a retaliatory motive.
The court finds this argument unpersuasive, since it has located no authority which would permit post-discharge conduct to be utilized in order to prove that the discharge itself resulted from a retaliatory motive.
The court reaches a similar conclusion in examining Plaintiff's second argument. The Second Circuit has noted that Title VII "prohibits discrimination related to or arising out of an employment relationship, whether or not the person discriminated against is an employee at the time of the discriminatory conduct." Pantchenko v. C.B. Dolge Co., Inc., 581 F.2d 1052, 1055 (2d Cir. 1978). Thus, the fact that the alleged retaliatory "threats" and arrest occurred after Plaintiff's discharge does not automatically preclude him from maintaining this claim. However, even if Plaintiff's allegations of post-discharge "threats" to arrest him and charge him with a felony were bona fide, they would not provide a sufficient basis for defeating Defendant's motion for summary judgment, since the alleged "threat-makers" (Graziano and Crist) were neither responsible for arresting Plaintiff nor for his discharge. And, regarding the alleged "threat" made by Shaw, Plaintiff has provided no proof that Shaw had any control over whether Plaintiff was to be arrested. In short, Plaintiff has provided no proof that the decision to arrest him was in any way influenced by Defendant; i.e., that this decision did not remain within the sole province of the office of the District Attorney.
To summarize, Plaintiff has failed to provide competent evidence that rebuts Defendant's tendered explanation for Plaintiff's discharge. Although the court finds Plaintiff to be a sympathetic and sincere litigant, the court simply cannot ignore the clear tenets of summary judgment. As Plaintiff has failed to substantiate, beyond conclusory allegations, that genuine issues of material fact exist as to whether Defendant's discharge of Plaintiff was motivated by retaliatory animus, the court must grant Defendant's motion for summary judgment.
Plaintiff's Motion for Sanctions
Plaintiff attempts to bring a motion for sanctions against Defendant based upon his allegation that Defendant purposely destroyed a videotape recording of the fact-finding conference conducted by the EEOC concerning his charge against Defendant.
However, Inv. David Ging attests that he was responsible for erasing the videotape.
Plaintiff has submitted no factual allegations to dispute Ging's assertion, or to support Plaintiff's claim that the DMV was responsible for the destruction of the videotape; thus, the court summarily denies this motion.
Defendant's motion for summary judgment is hereby GRANTED and Plaintiff's complaint is DISMISSED. Plaintiff's motion for sanctions is DENIED.
IT IS SO ORDERED.
DATED: December 20, 1993
Syracuse, New York
Hon. Frederick J. Scullin, Jr.
United States District Judge