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May 19, 1997


The opinion of the court was delivered by: SPATT

 SPATT, District Judge.

 This lawsuit arises out of the claims of the plaintiff, Marvin Moorer (the "plaintiff"), that the defendant, Grumman Aerospace Corporation (the "defendant"), violated Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. ("Title VII"), 42 U.S.C. § 1981 ("Section 1981"), and New York State Executive Law § 296, also known as the New York Human Rights Law (the "New York Human Rights Law"), by discriminating against the plaintiff on the basis of his "race and color". Presently before this Court are the defendant's motions: (1) for summary judgment pursuant to Fed. R. Civ. P. 56; (2) 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 (3) for sanctions equivalent to the amount of reasonable expenses incurred as a result of the plaintiff's affidavit pursuant to Fed. R. Civ. P. 56(g).


 A. Local Civil Rule 56.1 statement

 As a preliminary matter, the Court notes that the plaintiff failed to file a statement of material facts as to which there exists a genuine issue of material fact in response to the defendant's summary judgment motion as required by Local Civil Rule 56.1 ("Rule 56.1 statement"), formerly Local Civil Rule 3(g). Rather, the plaintiff filed a list of rhetorical questions, labelling these questions as a Rule 56.1 statement. However, the plaintiff did submit an affidavit and memorandum in opposition to defendant's motion. To the extent that there is some dispute between the defendant's Rule 56.1 statement and the plaintiff's papers, the facts will be viewed in the light most favorable to the plaintiff. However, any facts in the defendant's Rule 56.1 statement which remain uncontroverted by the plaintiff's papers will be accepted as true. See Dusanenko v. Maloney, 726 F.2d 82, 84 (2d Cir. 1984).

 B. Factual background

 The plaintiff, Marvin Moorer, is a 47 year old African-American male residing in North Babylon, New York. On or about November 13, 1967, the plaintiff became employed by the defendant to fill the position of riveter/assembler and to perform other structural assembly work. Since November, 1967, except for a twenty month period during 1969 and 1970 when the plaintiff was in military service, the plaintiff has been and continues to be an at-will employee of the defendant. Over the last thirty years, the plaintiff has received three promotions: (1) to inventory planner and analyst in 1978; (2) to program planner and scheduler in 1984; and (3) to program representative for machine parts in 1986. The plaintiff remained in the latter position until 1991.

 In January, 1991, the plaintiff was transferred from the position of program representative for machine parts to the position of senior program coordinator. In addition, the defendant downgraded the plaintiff's position code one level from exempt to non-exempt status, which affected potential future raises for an undetermined amount of time, but did not affect his then salary or benefits. Simultaneously, the defendant also lowered the exempt/non-exempt position codes of four Caucasian employees within the plaintiff's department. The downgrades were authorized by William Vreeland ("Vreeland"), the plaintiff's manager, who believed that the titles held by the five employees were not indicative of the work they were performing.

 The plaintiff's May, 1991 performance evaluation as a customer interface representative for the machine parts department states in relevant part:

Mr. Moorer's ability to maintain status of his assigned programs is handled well. Additionally he is able to maintain a look ahead in resolving problem areas prior to customer impact.
Marvin has also proved his ability in answering direct [sic] to our customers, maintaining a flow of information, of real time status. His knowledge and use of manufacturing systems aids his abilities of accurate machine part statusing.

 The plaintiff's May, 1992 performance evaluation as a customer interface representative for the machine parts department states in relevant part:

Marvin is diligent and concerned in his approach to his duties. He has shown a willingness to do whatever needs to be done in support of our customers. He accepts and follows direction readily.
Marvin's attendance, housekeeping and safety habits are very good.

 On both the May, 1991 and May, 1992 performance evaluations, the plaintiff was given a 300 out of a possible rating of 500, with 500 denoting outstanding. A rating of 300 denotes that the plaintiff met expectations of the supervisor completing the evaluation.

 On July 24, 1992, the plaintiff was selected for inclusion in a reduction in force ("RIF"), with the earliest possible date of termination to be September 3, 1992. At the time, the plaintiff was ranked eighth out of ten people in his department on a Termination Review Report Position Rank Order Form (the "Termination Review Report"). The Termination Review Report dated July 24, 1992 states that the reason for the plaintiff's selection for RIF was "budget/manpower reduction" and that the plaintiff's selection was due to "ranking in skill." Significantly, the individuals rated below him were laid-off during a RIF in September, 1992. Even more significantly, the individual rated above him was laid-off in June, 1993. All three of these persons are Caucasian. In fact, from 1991 to 1993, 15 of the 28 people in the plaintiff's department were RIF'd or otherwise left the department, and only one of these 15 people was African-American. Plaintiff's RIF paperwork was "revalidated" and extended into 1993.

 In January, 1993, the plaintiff was selected for another RIF, with the earliest possible RIF date being January 21, 1996. Although the plaintiff was placed in the RIF category, he was never laid-off. The plaintiff appealed his situation to the defendant's Personnel Relations department and to the President of the Company, Renzo Caporali. His appeal was successful and consequently, the plaintiff received a transfer to the Property Management department. The plaintiff could not identify any other position open at the time he was selected for RIF into which he could have been transferred. Upon his transfer, the duties which were previously fulfilled by the plaintiff were distributed among at least five people remaining in the department.

 The plaintiff was transferred to the Property Management department in March, 1993. During his tenure in this department, the plaintiff was spoken to regarding numerous performance issues: too many personal calls; being away from his desk on too many occasions during the day; returning late from lunch; and failing to appropriately notify superiors in advance as to when he would take time off from work. In addition, during a three month period, the plaintiff was absent from work for thirteen and one-half days.

 On July 16, 1993, the plaintiff received an adverse evaluation from Pat Jacklets, his manager in the Property Management department. The plaintiff received an overall rating of "1" out of a possible "5", which was an "unsatisfactory" rating. In addition, the July 16, 1993 performance evaluation detailed the plaintiff's performance problems including lack of concentration, wandering away from his desk for extended periods of time, and making too many personal calls. It was recommended in this evaluation that the plaintiff be transferred to a position that is "not as complex as Property Management which requires self-motivation and the ability to work alone." At that time, the Property Management department was required to lay-off one person. The plaintiff was not selected for that layoff.

 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 ...

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