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September 30, 1996

BOBBY L. SMITH, Plaintiff,
CADBURY BEVERAGES, INC., a/k/a Cadbury Schweppes, Inc., Defendant.

The opinion of the court was delivered by: LARIMER

 This is a discrimination case brought pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. ; 42 U.S.C. §§ 1981, 1983, and 1985; and the New York Human Rights Law, Executive Law § 296. Plaintiff Bobby Smith ("Smith") alleges that defendant Cadbury Beverages, Inc. ("Cadbury") unlawfully discriminated against him due to his race and in retaliation for filing complaints against Cadbury.

 Presently before me is Cadbury's motion for summary judgment and Smith's cross-motion to amend his complaint. For the reasons set forth below, Cadbury's motion is granted and Smith's motion is denied.


 Smith is an African-American male who was employed during the relevant time period by Cadbury. Among other products, Cadbury makes and distributes applesauce.

 Smith's claims arise out of three employment incidents: Cadbury's 3-day suspension of Smith without pay following a performance error on January 19, 1993; Cadbury's alleged failure to promote Smith in March 1993; and Cadbury's alleged failure to pay Smith the proper amount during a one-week period in March 1993. Smith alleges that each of these incidents was unfair and motivated by racial discrimination and/or retaliation. Cadbury denies wrongdoing with respect to each incident and particularly denies that its actions were at any time motivated by racial animus or retaliation.

 The Suspension:

 In January 1993 Smith was one of two "caser" or "packer" operators on an assembly line packaging applesauce. His job was to load flat boxes into a large packing machine, which then folded and fitted the boxes around six-packs of applesauce. A coding machine, located further down the assembly line, printed day and time codes on every box coming from the packing machines.

 On January 19, 1993, Smith worked the "A" shift, from midnight to 8:00 a.m. On that night, applesauce bound for Canada was being packaged in boxes marked with both English and French language. Toward the end of that shift, employees known as "tow motor operators" delivered to the assembly line boxes designed for shipping in the United States. These boxes had only English language on the outside. They were erroneously loaded into a packing machine and used to pack several hundred cases of Canadian-bound applesauce. Once discovered, the error had to be corrected. This took extra man hours and resulted in the destruction of the boxes.

 Smith's supervisor (John Adam) determined that the mispackaged product primarily came from the packing machine operated by Smith. Adam made this determination based upon the position of the day code stamp on the mispackaged boxes. Because the boxes from Smith's packing machine approached the coding machine from a 180 degree different angle than the boxes coming from the other packing machine, the codes were allegedly printed on different places on the boxes. Moreover, the other packing machine apparently was not working during most of the relevant time period due to a mechanical problem. Thus, Adam determined that roughly 500 mispackaged boxes came from Smith's machine.

 Adam also determined that another packer operator (Helen Snyder), working on a different assembly line, did the same thing. Snyder was responsible for mispackaging roughly 130 boxes of applesauce.

 Adam reported the errors to the Human Resources Manager, Michael Meador. As a result, Smith was suspended for 3 days, without pay. Snyder was reprimanded and a record made in her personnel file. A third employee, Kristine Bohnke, who was a quality control inspector, was also reprimanded for failing to catch the errors. None of the tow motor drivers who delivered the incorrect boxes was disciplined.

 Because the other employees (none of whom were African-American) were disciplined less severely than Smith, he alleges that Cadbury was motivated by discrimination in imposing the discipline against him.

 The Promotion:

 It is Cadbury policy that any employee who works temporarily in a single job classification for a period of one year be promoted permanently into that job classification. Smith alleges that he was eligible for such a promotion after working at the Grade 6 pay level for one year prior to March 1993. Smith was not promoted until 1994. Smith alleges that several Caucasian employees with similar work histories (Kevin Hilligeer, Eileen LeGant and Wayne Vermeulen) were promoted in March 1993, and that Cadbury's failure to promote him at that time was the result of discrimination.

 One Week's Pay:

 During March 1993, Smith was working as a General Laborer Grade 2. Smith alleges that on or about the week of March 19, 1993, he was asked to fill in as a tow motor driver, a Grade 5 job, because the regular driver was out sick. The job of tow motor driver pays at a rate higher than that of a Grade 2 laborer. Smith alleges that for one week he worked as a tow motor driver but was paid as a Grade 2 laborer. This, Smith alleges, was the result of discrimination.

 Smith's Prior Complaints:

 Prior to these three incidents, Smith had brought administrative and legal complaints against Cadbury alleging that Cadbury had discriminated against Smith in other contexts.

 In June 1988, Smith filed an administrative complaint with the New York State Division of Human Rights ("NYSDHR") alleging that he had received lower pay than his Caucasian counterparts performing the same job. In December 1991, Smith filed another administrative complaint with the NYSDHR alleging that following a lapse in applesauce quality, Cadbury disciplined him more severely than two Caucasian employees, because of his race and in retaliation for a prior complaint. Both administrative complaints were investigated and dismissed by the NYSDHR, which determined that there was no probable cause to believe that Cadbury had engaged in unlawful discriminatory behavior.

 Finally, on March 17, 1993, Smith filed a lawsuit in the Western District of New York, alleging a variety of discriminatory acts by Cadbury. This lawsuit was discontinued voluntarily by stipulation in November 1993, on the merits and with prejudice.


 Cadbury moves to dismiss the instant complaint in its entirety. Pursuant to Fed.R.Civ.P. 56(c), a moving party is entitled to a judgment as a matter of law if there is "no genuine issue as to any material fact" and where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party. See Matsushita Elec. Indus, Co. v. Zenith Radio Corp., 475 U.S. 574, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986). The burden is on the moving party to inform the court of the basis for its motion and to demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). After the moving party has carried its burden, the non-moving party "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita, supra, at 586. "The non-moving party must come forward with 'specific facts showing that there is a genuine issue for trial.'" 475 U.S. at 587 (quoting Fed.R.Civ.P. 56(e) (alteration in original)). However, at the summary judgment stage, when perusing the record to determine whether a rational fact-finder could find for the non-moving party, all reasonable inferences must be drawn in favor of the non-moving party. See Murray v. National Broadcasting Co., 844 F.2d 988, 992 (2d Cir.), cert. denied, 488 U.S. 955, 102 L. Ed. 2d 380, 109 S. Ct. 391 (1988).

 The general principles underlying a motion for summary judgment apply no less to this action simply because it is an employment discrimination case. It is true that courts exercise caution when considering whether to grant summary judgment in cases where an employer's intent is at issue. See, e.g., Gallo v. Prudential Residential Servs., 22 F.3d 1219, 1224 (2d Cir. 1994). However, "summary judgment remains available to reject discrimination claims in cases lacking genuine issues of material fact." Chambers v. TRM Copy Centers Corp., 43 F.3d 29, 40 (2d Cir. 1994). For a plaintiff in a discrimination case to survive a motion for summary judgment, he must do more than present "conclusory allegations of discrimination," Meiri v. Dacon, 759 F.2d 989 (2d Cir.) cert. denied, 474 ...

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