basis of the nondiscriminatory reasons proffered by defendant. Cronin, 46 F.3d at 203.
B. Plaintiff's Prima Facie Case.
Plaintiff can clearly establish the first element of his prima facie case; as an African-American, he is a member of a protected class. Defendant, however, argues that he cannot show the second and third elements; namely, that he was qualified for his position, and that he was terminated under circumstances that demonstrate an inference of discrimination. As to the question of whether the defendant was qualified, the court holds that plaintiff has introduced enough evidence to make this a genuine issue of material fact. The annual performance appraisals of plaintiff, while indicating that plaintiff had serious problems with his interpersonal skills, nonetheless rated his job performance as satisfactory. This in itself is enough to preclude summary judgment on the issue of qualification. See De la Cruz v. N.Y. City Human Resources Admin., Dept. of Soc. Ser., 82 F.3d 16, 21 (2d Cir. 1996)("[A] performance evaluation that is positive overall is sufficient to withstand summary judgment at the prima facie stage of analysis.")
The court also holds that the discharge took place under circumstances that could lead to an inference of discrimination. After all, there was an altercation between two employees of defendant, one of whom was Hispanic and the other African-American. The fact that the Hispanic was given a suspension while the African-American was terminated establishes the necessary inference. As was made clear in Sec. II. A supra, the burden which the plaintiff must carry in order to make out his prima facie case of discrimination is "de minimis." Gallo, 22 F.3d at 1225.
C. Defendant's Non-Discriminatory Reason for Plaintiff's Termination.
Defendant maintains that even if plaintiff can make out a prima facie case, defendant has come forward with legitimate, nondiscriminatory reasons for plaintiff's discharge to which there is no genuine issue of material fact. Defendant argues that the state of the evidence is such that any rational factfinder would be compelled to find that defendant terminated plaintiff after the July 24, 1996 incident because (1) as a supervisor, he was expected to behave in a more professional manner, and (2) he had a history of poor relations with other employees. Defendant argues that although Rivera was also guilty of misconduct, the fact that he had no history of such misconduct, along with the fact that he was not similarly situated to plaintiff because he was not a supervisor, made suspension a more appropriate penalty for him.
The court has previously held that "whether plaintiff and Rivera are similarly situated . . . is a question squarely within the province of the trier of fact." Sykes, 937 F. Supp. at 274. However, defendant's evidence regarding plaintiff's history of poor relations with other employees, more clear now than it was when the first summary judgment motion was filed, is compelling indeed. Defendant has shown no less than four separate incidents which resulted in plaintiff's being warned regarding his behavior. Moreover, the final warning which Walls claims that he sent plaintiff states that it is a "last attempt" to get plaintiff to improve his behavior and that any continuance of that behavior would result in his termination. Finally, each of plaintiff's performance evaluations from 1988 to the time that he was terminated in 1994 (six appraisals in all) make reference to plaintiff's poor interpersonal skills.
Plaintiff argues that defendant's evidence is not to be trusted. Thus, for example, plaintiff claims that the "final warning" allegedly sent by Walls on August 24, 1993 was not signed by plaintiff or another employee in plaintiff's presence as required by defendant's own internal regulations and that plaintiff denies having received it. Plaintiff did acknowledge at his deposition, however, both that Walls had spoken to him about the incident and that he must have seen the letter written by the complaining nurse which led to Walls' alleged "final warning" memorandum. Now that a summary judgment motion has been filed, plaintiff claims that he does not recall the incident at all. As the Second Circuit made clear some time ago, a party cannot create an issue of fact simply by submitting an affidavit which contradicts prior sworn testimony. Perma Research & Dev. Co. v. Singer Co., 410 F.2d 572, 578 (2d Cir. 1969).
Moreover, even if the August 1993 incident were to be ignored by the court, there were three other letters which plaintiff admits receiving which criticized his behavior. These, along with the performance evaluations, which plaintiff obviously saw, demonstrate that plaintiff was on notice regarding his treatment of other employees.
Thus, it should be clear from the foregoing that plaintiff cannot avoid summary judgment by relying on his prima facie case alone. The fact that an African-American employee was terminated following an altercation with a Hispanic while the Hispanic was retained may be sufficient to create an inference of discrimination at the prima facie level, but defendant has introduced enough evidence regarding plaintiff's history of troubled relations with employees to make it impossible to raise a genuine issue of material fact simply by relying on the fact that the two employees were not given the same discipline. This is especially so when the person making the decision to terminate plaintiff and retain Rivera was himself an African-American. In fact, precisely because reliance on his prima facie case would hardly be sufficient, this court reopened discovery on September 5, 1996 so that plaintiff would have an opportunity to gather evidence of other cases of disparate treatment in disciplinary proceedings and to collect any statistical evidence which could help establish a general bias on the part of defendant in favor of Hispanics.
However, despite the reopening of discovery, plaintiff has failed to show anything which would allow a rational juror to find that defendant's proffered reasons for terminating his employment were a pretext for discrimination. He does not cite one example of another African-American who was terminated for reasons which raise an inference of discrimination, and the statistical evidence he provides is vague and ambiguous. It is true that 29 African-American supervisors were terminated for cause between the years 1984-1994 while 7 white supervisors were so terminated despite the fact that whites comprised 55% of the work force and African-Americans only 20%. (Kruger Aff. Ex. 2; April 7 Tr. at 12.) However, 17 Hispanic supervisors were terminated for cause, and given the fact that they are 13.3% of the work force, this shows that Hispanics and African-Americans were terminated at approximately the same rate. (Kruger Aff. Ex. 2; Ex. 3.) This hardly establishes plaintiff's contention that Hispanics were favored over African-Americans in disciplinary proceedings. Moreover, plaintiff made no attempt to investigate the terminations of the 29 African-Americans in order to determine whether they were terminated in circumstances similar to those of plaintiff. That would be the type of evidence plaintiff would need to introduce in order to show that the employer's stated reason for discharging plaintiff was a pretext.
The only other evidence plaintiff introduces comes in the form of affidavits of employees and former employees of defendant who allege (1) that Rivera provoked the incident on July 24, 1996 which resulted in his termination, and (2) that Mt. Sinai discriminates against African-Americans in favor of Hispanics insofar as overtime opportunities and working conditions are concerned.
With regard to the incident with Rivera, regardless of who was originally to blame, defendant concluded that plaintiff behaved improperly by resuming the argument after it had ended and by not only agreeing to a fight but also recommending that it take place on Madison Avenue, which was closer to defendant's premises than Rivera's suggestion of Central Park. Plaintiff has admitted both of these facts, and even if it is assumed (as the court has for the purposes of analyzing the summary judgment motion) that Rivera was the primary instigator of the hostilities, defendant was clearly within its right to terminate plaintiff based on the conduct to which he has admitted given his past history of troubled relations with employees.
As regards the disparate treatment with regard to working conditions, the affidavits submitted by plaintiff are problematic for several reasons. First of all, they are extremely generalized and do not delineate specific instances of disparate treatment. Secondly, they do not involve any disciplinary actions at all, and plaintiff has made no claims regarding overtime, work assignments, promotions or leaves of absence. Finally, many of the allegations involve favorable treatment of Hispanics by other Hispanic supervisors. Given that it was Walls, an African-American, who recommended plaintiff's termination, it is difficult to see why the behavior of certain Hispanic supervisors with regard to the overtime and work assignments of lower-level employees is at all relevant to this case.
For the reasons set forth above, defendant's motion for summary judgment is GRANTED.
Dated: June 25, 1997
New York, New York
Constance Baker Motley
United States District Judge