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September 23, 1997

REYNELL A.H. LYNCH, Plaintiff, against PATHMARK SUPERMARKETS, Defendant.

The opinion of the court was delivered by: SCHEINDLIN


 Plaintiff filed a Complaint on August 9, 1996, asserting a claim for violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. ("Title VII"). Plaintiff claims that the defendant, his former employer, discriminated against him on the basis of his religion. Defendant now moves for summary judgment pursuant to Fed.R.Civ.P. 56(b). For the reasons stated below, defendant's motion is granted.

 I. Legal Standard for Summary Judgment

 A motion for summary judgment may be granted only if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-50, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). The moving party has the burden of identifying evidence that demonstrates the absence of a genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986); Schwapp v. Town of Avon, 118 F.3d 106, 110 (2d Cir. 1997).

 In determining whether summary judgment should be granted, the court resolves all ambiguities and draws all reasonable inferences against the moving party. See id. Courts must be particularly cautious about granting summary judgment to an employer in a discrimination case when the employer's intent is at issue. See Gallo v. Prudential Residential Servs., Ltd. Partnership, 22 F.3d 1219, 1224 (2d Cir. 1994). Even in these cases, however, "a plaintiff must provide more than conclusory allegations of discrimination to defeat a motion for summary judgement." Schwapp, 118 F.3d at 110. Instead, the plaintiff "must come forward with evidence that would be sufficient to support a jury verdict in his favor." Goenaga v. March of Dimes Defects Foundation, 51 F.3d 14 (2d Cir. 1995).

 II. Factual Background

 The following facts are undisputed. Lynch was hired by the defendant in July, 1976 as a butcher. Throughout the period of his employment, Lynch was a member of Local 174 of the United Food and Commercial Workers International Union ("Union"). Defendant's Rule 56.1 Statement ("Def's 56.1") at P 1. From December, 1988, and possibly earlier, disputes between the defendant and its employees were governed by a collective bargaining agreement that referred "all complaints, disputes or grievances" to binding arbitration. Id. at P 45. This agreement provided, inter alia, that the defendant had the right to terminate any employee for "just cause." *fn1" It did not, however, give employees the individual right to contest termination decisions. Though employees were to be bound by the results of any arbitration, only the Union had the ability to enforce the terms of the agreement. *fn2"

 From early on, Lynch's career at Pathmark was marked by repeated conflicts with supervisors and co-workers. In 1979, six separate complaints were recorded in Lynch's disciplinary file concerning his use of profanity, poor attitude, excessive lateness and absenteeism. After 1979, the rate of complaints slowed, but did not cease. In November, 1982, he was suspended for leaving work early. In May, 1983, he was suspended for absenteeism. He was suspended for a third time in February, 1984, this time for having engaged in a fight with a co-worker. Later that year, a supervisor, Armando Massari, wrote an inter-office memorandum describing Lynch as chronically late and disruptive. Massari "strongly" recommended plaintiff's termination. Id. at PP 2-10, 12.

 In March 1986, Lynch was issued warnings for absenteeism and poor work. In January 1987, he received warnings for disruptive and insubordinate behavior. Similar warnings were issued in February, 1987 and October, 1989. Id. at PP 13, 15, 18, 20, 22.

 Lynch became a "born again" Christian in January, 1990. Affidavit of Reynell A.H. Lynch ("Lynch Aff.") at P 4. His disciplinary problems persisted: In February, 1990, he was suspended for stealing food, and in April, 1990, he was suspended for absenteeism. Pathmark's first attempt to actually terminate him was made later that year. Lynch failed to show up for work on August 26, 1990, a Sunday, and was terminated by John Padian, Pathmark's head of personnel. The Union challenged this decision on the grounds that the collective bargaining agreement prohibited Pathmark from requiring employees with a demonstrable religious commitment to work on Sundays. The arbitrator agreed with the Union and ordered that Lynch be reinstated. However, citing his dismal employment record, the arbitrator also allowed the three and a half month period since his termination to stand as a disciplinary suspension without pay and issued the plaintiff a "final warning." Def's 56.1 at PP 24-26, 29-30.

 Lynch's relationship with Pathmark apparently improved for a year or so after the arbitration hearing. In June, 1993, however, Padian received a written complaint alleging that Lynch was again engaged in persistent absenteeism and was unable to work with fellow employees. Id. at P 31.

 In April, 1994, Lynch was transferred to a Pathmark store in Bay Plaza, the Bronx. Lynch Aff. at P 11. George D'Angelo, the store manager at Bay Plaza, received complaints from several of Lynch's co-workers about his lack of productivity: Hector Caballos and Tony Midea told D'Angelo that Lynch did "half the work" of other employees. Meat Manager Carolyn Griffin and First Person John Dorso made similar allegations. Angie Iglesias complained that Lynch annoyed her, and requested that he not speak to her. D'Angelo himself observed Lynch's performance on several occasions, and found it "sub-par." Deposition of George D'Angelo at 144-50.

 Lynch, in turn, complained that Griffin and Dorso had engaged in a campaign of harassment against him. According to Lynch, Griffin often referred to him as a "dumb born again Christian," mocked him for spending too much time at church, and held him to a higher standard of behavior than she did other employees. According to Lynch, Dorso swore at him and ridiculed him by loudly singing secular songs when he sang Christian songs. Lynch Aff. at PP 15-19, 22, 28. Lynch's allegations in this regard are supported by Lynch's co-workers Robin Jones and Gerry Smith, who state that Griffin and Dorso "called him names" and "degraded his religion." Jones and Smith also contend that Lynch was a good employee, and as productive as anyone else in the department. Affidavit of Gerry Smith at PP 4-13; Affidavit of Robin Jones ("Jones Aff.") at PP 4-10. Lynch does not allege that D'Angelo participated materially in Griffin and Dorso's campaign of harassment; he does, however, allege that D'Angelo occasionally made insensitive remarks to him such as "God may have your soul, but your ass belongs to me" and "you have the Bible in your hand, but you still look up the women's skirts." Lynch Aff. at P 24.

 Meanwhile, Lynch continued to rack up disciplinary warnings, receiving four during the five month period that he worked at Bay Plaza. The last of these was issued with regard to events that took place on September 17, 1994. Def's 56.1 at P 37-41. According to D'Angelo, Lynch had refused to leave the work area when so requested by his supervisor, and persisted in this refusal until security was called. Def's 56.1 at P 41. According to Lynch, Dorso falsely accused him of working too slowly and he remained in the work area only in an attempt to find D'Angelo and prevent a misunderstanding. Lynch Aff. at P 25. In any event, D'Angelo wrote a letter to Padian two days later recommending that Lynch be fired. This recommendation was based on Lynch's long disciplinary history, inability to work with others and his generally disruptive attitude. On September 22, Padian fired Lynch, citing the same considerations. Def's 56.1 at PP 42-43.

 The Union grieved Lynch's termination. On January 19, 1995, an arbitration hearing was held pursuant to the terms of the collective bargaining agreement before George Sabatella. The Union argued that termination was an unduly harsh penalty for what Lynch had done and that he had been the victim of a campaign of harassment on the part of his supervisors. Def's 56.1, Ex. 39 (Opinion of Arbitrator Sabatella, dated 2/28/95). ...

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