In July, 1993, the plaintiff was transferred to the Sealant Laboratory. Once again, at the time of the transfer, the plaintiff was unable to identify any other available position for which he was qualified to fill. A Caucasian employee was also transferred to the Sealant Laboratory along with the plaintiff.
In November, 1994, the Sealant Laboratory began its phase out program. Although several Caucasian employees were laid off, the plaintiff was transferred to another position within the warehouse.
Prior to that time, on November 3, 1993, the plaintiff filed charges of race, color and age discrimination with the State of New York, State Division of Human Rights, which charges were cross filed with the Equal Employment Opportunity Commission (the "EEOC"), the federal agency. The plaintiff's discrimination charge was based on his selection for the January 1993 RIF. On June 28, 1994, at the request of the plaintiff's attorney, the EEOC issued a "Notice of Right to Sue."
C. The complaint
On August 11, 1994, the plaintiff filed his complaint with this Court. Included among the causes of action are claims based on violations of Title VII, the New York Human Rights Law, Section 1981, and negligent and intentional infliction of emotional distress. The plaintiff seeks declaratory and injunctive relief, back pay, future pay, and compensatory and punitive damages.
In an Order dated August 24, 1995, the Court dismissed with prejudice and on the merits, any and all claims that the plaintiff may have under New York State law, except for any claims the plaintiff may have under Section 296. The plaintiff's claims for intentional and negligent infliction of emotional distress were dismissed under this Order.
A. Summary judgment standard
A court may grant summary judgment only if the evidence, viewed in the light most favorable to the party opposing the motion, presents no genuine issue of material fact, Samuels v. Mockry, 77 F.3d 34, 35 (2d Cir. 1996), and the movant is entitled to judgment as a matter of law. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986); see also Fed. R. Civ. P. 56(c) (summary judgment standard). The Court must, however, resolve all ambiguities and draw all reasonable inferences in the light most favorable to the party opposing the motion. See Quaratino v. Tiffany & Co., 71 F.3d 58 (2d Cir. 1995); Twin Laboratories, Inc. v. Weider Health & Fitness, 900 F.2d 566, 568 (2d Cir. 1990); Knight v. U.S. Fire Ins. Co., 804 F.2d 9, 11 (2d Cir. 1986), cert. denied, 480 U.S. 932, 94 L. Ed. 2d 762, 107 S. Ct. 1570 (1987).
According to the Second Circuit, "summary judgment is a tool to winnow out from the trial calendar those cases whose facts predestine them to result in a directed verdict." United National Ins. Co. v. The Tunnel, Inc., 988 F.2d 351, 355 (2d Cir. 1993). Once a party moves for summary judgment, in order to avoid the granting of the motion, the non-movant must come forward with specific facts showing that a genuine issue for trial exists. West-Fair Elec. Contractors v. Aetna Cas. & Surety Co., 78 F.3d 61, 63 (2d Cir. 1996); see also Western World Ins. Co. v. Stack Oil, Inc., 922 F.2d 118, 121 (2d Cir. 1990) (quoting Fed. R. Civ. P. 56(e)). A genuine issue of material fact exists if "a reasonable jury could return a verdict for the nonmoving party." Liberty Lobby, 477 U.S. at 248; see Vann v. New York City, 72 F.3d 1040 (2d Cir. 1995).
However, mere conclusory allegations, speculation or conjecture will not avail a party resisting summary judgment. Kulak v. City of New York, 88 F.3d 63, 70 (2d Cir. 1996). If there is evidence in the record as to any material fact from which an inference could be drawn in favor of the non-movant, summary judgment is unavailable. Holt v. KMI-Continental, Inc., 95 F.3d 123 (2d Cir. 1996); Rattner v. Netburn, 930 F.2d 204, 209 (2d Cir. 1991). Finally, the Court is charged with the function of "issue finding", not "issue resolution." Gallo v. Prudential Residential Services, 22 F.3d 1219, 1224 (2d Cir. 1994).
The general principles underlying a motion for summary judgment apply no less to this action simply because it is an employment discrimination case. While caution is to be exercised in granting summary judgment where intent and state of mind is in issue, Gallo, supra, 22 F.3d at 1224, summary judgment remains available where no genuine issue exists as to a 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, the plaintiff must offer "concrete particulars" to substantiate the claim. Meiri v. Dacon, 759 F.2d 989 (2d Cir.), cert. denied, 474 U.S. 829, 106 S. Ct. 91, 88 L. Ed. 2d 74 (1985).
It is within this framework that the Court addresses the grounds for the present motion for summary judgment
B. The plaintiff's affidavit
In addition to the defendant's motion for summary judgment, the defendant moves to strike, in its entirety, the affidavit of Marvin Moorer dated October 7, 1996, or in the alternative, each portion of the affidavit that does not comply with Fed. R. Civ. P. 56, and for reasonable expenses incurred as a result of the plaintiff's affidavit. The defendant contends that portions of the plaintiff's affidavit contain inadmissible hearsay, are not based on the plaintiff's personal knowledge, contain conclusory allegations and legal arguments, and directly contradict the plaintiff's previous sworn deposition testimony.
Hearsay statements set forth in the plaintiff's affidavit which cannot be categorized as a hearsay exception, conclusory allegations, legal arguments and statements not based upon personal knowledge will be stricken. See Caldwell v. The American Basketball Assoc., 825 F. Supp. 558, 572 (S.D.N.Y. 1993), aff'd, 66 F.3d 523 (2d Cir. 1995), cert. denied, 116 S. Ct. 2579, 135 L. Ed. 2d 1094 (1996) (hearsay); Kamen v. American Tel. & Tel. Co., 791 F.2d 1006, 1011 (2d Cir. 1986) (conclusory allegations and legal arguments); Sellers v. M.C. Floor Crafters, Inc., 842 F.2d 639, 643 (2d Cir. 1988) (personal knowledge). Merely because the plaintiff's affidavit conflicts with his deposition testimony does not nullify the value of the affidavit. "The court may not exclude the affidavit from consideration in the determination of the question whether there is any genuine issue as to any material fact." Perma Research & Development Co. v. Singer Co., 410 F.2d 572, 578 (2d Cir. 1969) (citation omitted). This Court will examine conflicting statements in the plaintiff's affidavit and the deposition testimony, if any, to determine the weight to give to these statements.
C. Plaintiff's race discrimination claims
i. Statutory time requirements
The defendant contends that the plaintiff's claim for relief for the skill code change in 1991 from exempt to non-exempt status is untimely under Title VII and the New York Human Rights Law. It was revealed during discovery that the plaintiff's skill code change occurred in January, 1991, not September, 1991 as alleged in the complaint. The plaintiff does not dispute that his claim may be barred by the applicable time limitations but maintains that the defendant has waived this affirmative defense by its failure to assert it in its answer. The statutory time requirements are analogous to a statute of limitations. Van Zant v. KLM Royal Dutch Airlines, 80 F.3d 708, 712 (2d Cir. 1996).
Fed. R. Civ. P. 8(c) provides in relevant part:
...a party shall set forth affirmatively...statute of limitations ...and any other matter constituting an avoidance or affirmative defense.