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HUNTER v. CITIBANK

September 15, 1994

MORRIS J. HUNTER, Plaintiff,
v.
CITIBANK, N.A., Defendant.



The opinion of the court was delivered by: JOANNA SEYBERT

 SEYBERT, District Judge:

 In the above-referenced actions, plaintiff, proceeding pro se, alleges, inter alia, that his former employer, Citibank, N.A., discriminated against him because of his race and religion. Plaintiff brought his first action against defendant in October 1990 (90-CV-3816) ("Hunter I") pursuant to Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. ("Title VII"), alleging racial and religious discrimination. In May 1991, plaintiff filed an amended complaint that added several state common law causes of action arising out of the same allegedly discriminatory conduct underlying his initial complaint. *fn1" Defendant filed a summary judgment motion in Hunter I on December 31, 1991. Judge Weinstein denied the motion without opinion at a January 20, 1993 status conference. On March 11, 1993, plaintiff commenced a second action (93-CV-1028) ("Hunter II") pursuant to 42 U.S.C. § 1981 alleging racial discrimination based in part on the conduct complained of in Hunter I. Plaintiff's second action also included one new allegation: that a January 1993 outsourcing by defendant of certain tasks previously performed by plaintiff also constituted racial discrimination against him.

 Defendant filed a motion on February 2, 1994 seeking reconsideration of Judge Weinstein's denial of defendant's motion for summary judgment in Hunter I and summary judgment on the claims filed in Hunter II. For the reasons stated below, the request for reconsideration is denied and the motion for summary judgment with respect to the Hunter II claims is granted.

 BACKGROUND

 In June 1983, plaintiff, a Christian minister, was hired as a permanent full-time employee with Citibank at a yearly base salary rate of $ 11,000. (Id. at 12, 17.) In June 1988, plaintiff was transferred to defendant's Pelham facility, where his responsibilities included microfilming all of the booked consumer loan applications forwarded to the support services unit. (Hunter Dep., July 24, 1991, at 15; Durruthy Aff. P 3.)

 Plaintiff alleges that in the summer of 1988, he requested, but was denied, permission from his supervisors to conduct lunch-time Bible study classes. (Hearing Tr., Mar. 5, 1992, at 6.) Disregarding this instruction, plaintiff initiated the classes in August 1988 but voluntarily discontinued them after less than ten meetings. (Hunter Dep., July 24, 1991, at 146-149, 159.) It is uncontested that none of defendant's employees, including plaintiff's direct supervisor, Brenda Giangregorio, told plaintiff to cease holding the Bible study classes. (Id. at 159-60.)

 Plaintiff claims that after his request to begin the Bible study classes, Giangregorio began to "harass me with my job, my work, the standards, the productivity." (Id. at 53; Hearing Tr., March 5, 1992, at 6.) Specifically, plaintiff alleges that he was harassed for not meeting what he considered to be a "very high standard" for microfilm data entry. (Amended Hunter I Compl. at 1.) Defendant argues that plaintiff was not harassed but merely criticized for producing substandard work and being tardy, argumentative and disruptive. (Mullins Dep., August 14, 1991, at 20, 39, 55.)

 On December 13 and 27, 1988, plaintiff requested permission to take December 30, 1988 as a personal day. (Mem. in Response to Def. Mot. for Sum. Jgmt. in Hunter I, Exh. A at 5 and Exh. 1A at 1.) Plaintiff was denied permission because of his unit's work responsibilities *fn2" while another employee in the unit was granted the day off. (Id. at 4; Mullins Dep., Aug. 14, 1991, at 34.) Even though Giangregorio specifically told plaintiff to report to work on that day, plaintiff failed to do so. (Mem. in Response to def. Mot. for Sum. Jgmt. in Hunter I, Exh. 12L at 2.) Plaintiff was penalized one day's pay as a result. (Hunter Dep., July 24, 1991, at 212.)

 Plaintiff used Citibank's internal problem review procedure to challenge the final warning. (Mem. in Response to Def. Mot. for Sum. Jgmt. in Hunter 1, Exh. 12L at 1.) Plaintiff wrote a five-page response to the warning. (Durruthy Aff. P 9.) He then participated in three lengthy meetings, totaling fourteen hours, which resulted in a reduction of the final warning to a formal one-month written warning. (Mem. in Response to Def. Mot. for Sum. Jgmt. in Hunter 1, Exh. 12L at 1; Hunter Dep., July 24, 1991, at 232.) In a letter submitted to the Equal Employment Opportunity Commission (the "EEOC") in connection with plaintiff's subsequent action before that agency, Citibank acknowledged that the final warning had been excessive in light of the fact that some of the complaints concerning plaintiff's tardiness, work performance and attitude had not been well-documented. (Mem. in Response to Def. Mot. for Sum. Jgmt. in Hunter 1, Exh. 12L at 2.) For instance, Giangregorio had noted in plaintiff's file that his work performance had been below average on days that were not business days. (Mullins Dep., Aug. 14, 1991 at 49.)

 Plaintiff was again dissatisfied with the result and requested that his grievance be advanced to the next step of the problem review procedure. Pursuant to this request, plaintiff met with Richard Federman, a vice president at Citibank, who reduced the formal warning to an informal oral warning. This warning had no effect on eligibility for promotion, transfer or salary increases. (Hearing Tr., Mar. 5, 1992, at 8; Hunter Dep., July 24, 1991, at 253.) Indeed, plaintiff received a salary increase and promotion in June 1989. (Durruthy Aff. P 12.)

 Plaintiff, still dissatisfied, filed a charge alleging racial and religious discrimination with the EEOC based on the foregoing facts. The EEOC requested that plaintiff accept an offer of settlement in which defendant would reimburse plaintiff for one day's pay. (Mem. in Response to Def. Mot. for Sum. Jgmt. in Hunter 1, Exh. 11K.) The EEOC concluded that this afforded plaintiff full relief, because the "warning in [his] file had expired." *fn4" (Id.) Plaintiff refused to accept the offer, and the EEOC dismissed his complaint for failure to accept an offer of full relief. (Amended Hunter I Compl., Exh. 2.) Plaintiff then commenced Hunter I.

 Despite his dispute with defendant, plaintiff continued to receive annual salary increases in June of each year. He was earning $ 19,750 per annum by June 1991 and had been promoted ...


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