producing evidence that the plaintiff was rejected for a legitimate, nondiscriminatory reason. McDonnell Douglas Corp. v. Green, 411 U.S. at 802; Texas Community Affairs v. Burdine, 450 U.S. at 254. If defendants are able to rebut the presumption of discrimination, the burden shifts back to the plaintiff to prove by a preponderance of the evidence that the reasons set forth by the defendants are merely pretextual and not the true reasons for plaintiff's disqualification and termination. McDonnell Douglas Corp. v. Green, 411 U.S. at 804; see also Patterson v. McLean Credit Union, 491 U.S. at 187; Texas Community Affairs v. Burdine, 450 U.S. at 256. "The Title VII plaintiff at all times bears the 'ultimate burden of persuasion'" that the defendants' actions were motivated by improper discriminatory intent. St. Mary's Honor Ctr. v. Hicks, U.S. , 113 S. Ct. 2742, 2749, 125 L. Ed. 2d 407 (1993).
III. Plaintiff's Prima Facie Case
Defendants contend that plaintiff has not established by a preponderance of the evidence a prima facie case of discrimination. Specifically, defendants argue that plaintiff has failed to demonstrate either that he was qualified for the position of terminal supervisor or that he was replaced by a non-minority worker.
While the burden of establishing a prima facie case is not "onerous," see Texas Dep't of Community Affairs v. Burdine, 450 U.S. at 253, the Court concludes that Lawson has made no attempt to satisfy his burden of proving that he was qualified for the position of terminal supervisor at Getty. In addition, the evidence clearly shows that plaintiff was replaced by another minority worker.
Specifically, defendants contend that Lawson was placed on the night shift and subsequently discharged because of his poor job performance. In support of this contention, defendants list specific instances in which Lawson performed the job of terminal supervisor inadequately, including, inter alia, Lawson's failure to (1) reconcile inventory; (2) complete reports; (3) follow safety procedures; and (4) inform drivers of schedule changes. In addition, defendants point to a letter written by Smith after Lawson's discharge in which Smith recorded specific instances of Lawson's poor performance. See letter from Smith of 8/12/92, annexed to the Exhibits as Exh. "R." In the letter, Smith indicates that "from time to time it became necessary to remind Mr. Lawson of performing work below standard." Id. Smith then listed several instances of Lawson's misconduct, including his failure to (1) identify the worker who had called in sick on June 18, 1992; (2) complete plant inventory gauges; (3) update schedules; and (4) relay information. He concluded that "these are a few of the things which meant steady counseling for Mr. Lawson." Id.
In response to these allegations, Lawson merely points to the affidavits of Janovsky and Bittner who describe Lawson as "hardworking, cooperative, sincere, and dedicated," Janovsky Aff. at P 4, and "intelligent, competent, and hard working." Bittner Aff. at P 6. As these individuals did not act in a supervisory capacity, however, the Court concludes that Bittner's and Janovsky's descriptions of Lawson's job performance are entitled to little weight.
The Court finds Smith's letter to be credible evidence of Lawson's poor job performance and demonstrates that the defendants discharged Lawson because of his substandard work. In reaching this conclusion, the Court notes that Smith is an African-American male who was Lawson's direct supervisor. As Lawson has made no effort to refute either Smith's letter or defendants' other evidence of Lawson's poor job performance, the Court finds that Lawson has failed to demonstrate that he was qualified for the position of terminal supervisor.
Lawson points to instances in which several Getty employees engaged in racial slurs as evidence that the defendants were motivated by discriminatory animus in refusing to advance him to the day shift and in terminating his employment. "Racially derogatory language in the workplace can be evidence of a discriminatory atmosphere, and is certainly not to be condoned." Powell v. Missouri State Highway and Transp. Dep't, 822 F.2d 798, 801 (8th Cir. 1987); see also Lopez v. S.B. Thomas, Inc., 831 F.2d 1184, 1189 (2d Cir. 1987) (stating that a work environment overrun by racial antagonism constitutes a Title VII violation). Nonetheless, while the racial epithets aimed at Lawson were deplorable, these isolated racial remarks do not satisfy plaintiff's burden of establishing a prima facie case of discrimination. See Snell v. Suffolk County, 782 F.2d 1094, 1102 (2d Cir. 1986) (stating that a few isolated incidents of racial enmity do not give rise to a Title VII violation); Bennett v. New York City Dep't of Corrections, 705 F. Supp. 979, 982 (S.D.N.Y. 1989) (indicating that, in order to prove a racially hostile atmosphere, a plaintiff must prove more than a few isolated instances of racial friction).
Lawson next contends that the "little mistake[s]" he made in the course of his employment were not surprising in light of the fact that he never received training for the position of terminal supervisor. See Plaintiff's Memorandum of Law in Opposition to Motion for Summary Judgment at 5. While there is no evidence that Lawson received the six months of training given to other terminal supervisors, Lawson held the position of terminal foreman and terminal supervisor for more than six years. Moreover, in March 1992, in response to his request, Lawson was given a job description of his position and acknowledged that he fully understood his job responsibilities. Accordingly, the Court concludes that Lawson's lack of training does not excuse the fact that he was not qualified for the position of terminal supervisor.
The Court finds further that plaintiff has failed to satisfy the fourth prong of the test for a prima facie case, namely, that Getty replaced plaintiff with a non-minority worker. See La Beach v. Nestle Co., 658 F. Supp. 676, 683-84 (S.D.N.Y. 1987) (granting summary judgment to defendant where plaintiff failed to demonstrate that white employees of plaintiff's qualifications were promoted). In fact, in September 1993, Lawson was replaced by London, an African-American male who had been employed with Getty since 1985 as a wholesale credit coordinator. Accordingly, as plaintiff has failed to establish either that he was qualified for the position of terminal supervisor or that he was replaced by a non-minority worker, he has not satisfied his burden of proving a prima facie case of discrimination.
IV. Disparate Impact
Lawson's complaint alleges that defendants' practice of moving terminal supervisors from the night shift to the day shift and then to other locations at higher rates of pay violates Title VII because it has a disparate impact on minority workers. Title VII prohibits discrimination resulting from employment practices that are facially neutral but have a "disparate impact" "because they fall more harshly on a protected group than on other groups and cannot otherwise be justified." Waisome v. Port Auth. of N.Y. and N.J., 948 F.2d 1370, 1374 (2d Cir. 1991); Bridgeport Guardians, Inc. v. City of Bridgeport, 933 F.2d 1140, 1146 (2d Cir.), cert. denied, U.S. , 112 S. Ct. 337 (1991). To prove that an employment practice has a disparate impact, "a plaintiff must first identify the specific employment practice he is challenging, and then show that the practice excluded him or her, as a member of a protected group, from a job or promotion opportunity." Waisome v. Port Auth. of N.Y. and N.J., 948 F.2d at 1375 (citations omitted); see also Wards Cove Packing Co. v. Atonio, 490 U.S. 642, 657, 104 L. Ed. 2d 733, 109 S. Ct. 2115 (1989) ("As a general matter, a plaintiff must demonstrate that it is the application of a specific or particular employment practice that has created the disparate impact under attack.").
To avoid a finding of disparate impact, the employer then must demonstrate that the employment practice was used for nondiscriminatory reasons, "for example, the practice served the employer's legitimate employment goals." Waisome v. Port Auth. of N.Y. and N.J., 948 F.2d at 1375. Once an employer demonstrates a lawful goal for the employment practice, the burden then shifts back to the plaintiff to set forth alternative employment practices that would reduce the disparate impact. Id.; Bridgeport Guardians, Inc. v. City of Bridgeport, 933 F.2d at 1147.
In the instant case, Lawson alleges that defendants treated him in a disparate manner from his white colleagues in precluding him from working on the day shift. Plaintiff has failed to allege any particular employment practice, however, whereby employees were moved from the night shift to the day shift and then were moved out to different locations with a corresponding increase in salary. Rather, the evidence submitted by defendants shows that terminal supervisors on the day and the night shifts shared identical positions and titles and that an employee's salary was a reflection of that individual's prior experience and length of employment at Getty. In fact, plaintiff's complaint alleges that "those white colleagues who moved to the day shift moved up, were not necessarily promoted because they retained the same job title and did the same work." Complaint, annexed to the Exhibits as Exh. "A," at P 18.
Moreover, even if Lawson had successfully isolated a challenged employment practice, he failed to provide the Court with any statistical data showing that defendants' promotion policies have a disparate impact. See La Beach v. Nestle Co., 658 F. Supp. at 684 (finding for defendant where plaintiff failed to provide any statistics showing a disparate impact). In fact, no evidence was offered comparing the number of minorities placed permanently on the night shift to the number of non-minorities posted on the day shift. Lawson thus failed to prove a causal connection between the challenged employment practice and any disparate impact. See Virgo v. Local Union 580, 629 F. Supp. 1204, 1209 (S.D.N.Y. 1986) (finding evidence of a disparate impact on blacks as a group to be wholly lacking). Accordingly, the Court finds that plaintiff has failed to establish a prima facie case of disparate impact.
Plaintiff's complaint next alleges that Getty retaliated against him for bringing his allegations of discrimination to the attention of Getty's human resources department. Title VII "prohibits an employer from subjecting an employee to an adverse employment action in retaliation for that employee's opposition to allegedly discriminatory employment practices." McGuire v. U.S. Postal Serv., 749 F. Supp. 1275, 1281 (S.D.N.Y. 1990). To establish a prima facie case of retaliation under Title VII, a plaintiff must demonstrate (1) protected participation or opposition under Title VII that is known by the alleged retaliator; (2) an employment action disadvantaging the person engaged in the protected activity; and (3) a causal connection between the protected activity and the adverse employment action. Grant v. Bethlehem Steel Corp., 622 F.2d 43, 46 (2d Cir. 1980).
Proof of causal connection can be established indirectly by showing that the protected activity was followed closely by discriminatory treatment, or through other evidence such as disparate treatment of fellow employees who engaged in similar conduct, or directly through evidence of retaliatory animus directed against a plaintiff by the defendant.
De Cintio v. Westchester County Medical Ctr., 821 F.2d 111, 115 (2d Cir.) (internal citations omitted), cert. denied, 484 U.S. 965, 98 L. Ed. 2d 395, 108 S. Ct. 455 (1987).
In the present case, plaintiff has failed to provide the Court with either direct or indirect evidence of any causal connection between his complaint to the human resources department and either his placement on the night shift or his termination from employment. First, Lawson has not demonstrated evidence of any retaliatory animus directed against him.
Second, Lawson has failed to set forth any evidence of disparate treatment of fellow employees who engaged in similar conduct. Finally, Lawson has not established that his failure to be placed on the day shift was prompted by his complaints to the human resources department. On the contrary, the fact that Lawson was placed permanently on the night shift was the impetus for his complaint to the human resources department in the first place. Similarly, with respect to his discharge, Rodgers performed an annual review of Lawson's job performance, indicating that his work was between "competent" and "marginal," on January 27, 1992, several weeks before Lawson contacted the human resources department. In addition, prior to his complaint, Rodgers informed Lawson that he was dissatisfied with Lawson's performance and that Lawson would be placed permanently on the night shift because of his poor performance. Furthermore, on February 11, 1992, four days prior to Lawson's complaint, Smith verbally counselled Lawson regarding his failure to perform his required job duties. In light of these facts, the Court finds that plaintiff has failed to make a causal connection necessary to prove a prima facie case of retaliation.
VI. State Law Claims
As plaintiff's federal claims for employment discrimination fail, there is no further basis for federal jurisdiction. In addition, the complaint does not allege diversity jurisdiction and it appears that diversity of citizenship is lacking between the parties. See 18 U.S.C. § 1332. Accordingly, plaintiffs' state claims of intentional and/or negligent infliction of emotional and psychological harm, humiliation and embarrassment and interference with a business opportunity are dismissed for lack of subject matter jurisdiction. See Howe v. Reader's Digest Ass'n, 686 F. Supp. 461, 467 (S.D.N.Y. 1988) (dismissing pendent state law claims for lack of jurisdiction after granting summary judgment dismissing plaintiff's federal claims).
For the reasons set forth above, defendants' motion for summary judgment, pursuant to Rule 56 of the Federal Rules of Civil Procedure, is granted and the complaint is dismissed in its entirety.
SHIRLEY WOHL KRAM
UNITED STATES DISTRICT JUDGE
Dated: New York, New York
November 2, 1994