The case at bar, of course, is distinguishable from Gardner-Denver in that the defendant seeks to preclude Lynch's claim on the basis of collateral estoppel rather than res judicata. The distinction is purely conceptual -- the claim would be effectively barred under either theory -- but it could solve the jurisdictional problem: Though the collective bargaining agreement did not give Sabatella the power to decide Lynch's Title VII claim, it did give him the power to make findings on the factual issue of whether Pathmark discriminated against Lynch on the basis of his "creed."
Even if this is correct, however, the third rationale for the Gardner-Denver decision -- the risk that a union will not adequately represent the interests of some individual members at arbitration -- remains applicable. See Pryner v. Tractor Supply Co., 109 F.3d 354, 363 (7th Cir. 1997) (because of the risk that employee and union interests will conflict, a "union cannot consent [to arbitration] for the employee by signing a collective bargaining agreement that consigns the enforcement of statutory rights to the union-controlled grievance and arbitration machinery created by the agreement."); Humphrey v. Council of Jewish Federations, 901 F. Supp. 703, 710 (S.D.N.Y. 1995); Kirkendall v. United Parcel Service, Inc., 964 F. Supp. 106, 108 (W.D.N.Y. 1997); LaChance v. Northeast Publishing, Inc., 965 F. Supp. 177, 183 (D. Mass. 1997); see also Tran v. Tran, 54 F.3d 115 (2d Cir. 1995) (Gilmer distinguished, but did not overrule, Barrentine v. Arkansas-Best Freight System, Inc., 450 U.S. 728, 67 L. Ed. 2d 641, 101 S. Ct. 1437 (1981), a case barring preclusive effect to arbitration mandated by a collective bargaining agreement in a subsequent Fair Labor Standards Act case). But see Austin v. Owens-Brockway Glass Container, Inc., 78 F.3d 875 (4th Cir. 1996) (employee barred from pursuing Title VII and Americans with Disabilities Act claims in federal court when provision of collective bargaining agreement required all employee/employer disputes to be submitted to binding arbitration).
In fact, this case is a persuasive illustration of why Gardner-Denver enjoys continuing vitality: Lynch had a long history of mutual antagonism with a great number of fellow employees, many of whom were members of the Union as well. Union management, then, had little to lose politically, and perhaps something to gain, if his termination were upheld. Under these circumstances, one might entertain reasonable suspicions that his representation in the arbitration hearing might have been less than vigorous. In fact, Lynch alleges that his Union attorney was reluctant both to raise his claim of religious discrimination and to call witnesses in his defense. Whether or not this charge is true, the possibility that it is counsels against giving the arbitral findings preclusive effect.
Therefore, the plaintiff is not estopped from raising his claim of religious discrimination in this action. I will give the findings of Mr. Sabatella the weight they merit; I note in this regard, however, that the issue of religious bias as a motivation for Lynch's termination was clearly not the focus of his decision.
B. Pretext Theory
To recover under Title VII on a "pretext" theory, a plaintiff must first establish, by a preponderance of the evidence, a prima facie case that illegal discrimination has occurred. See Scaria v. Rubin, 117 F.3d 652, 653 (2d Cir. 1997); see also McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 36 L. Ed. 2d 668, 93 S. Ct. 1817 (1973). A prima facie case is established in a wrongful dismissal case when the plaintiff shows that 1) he belongs to a protected class, 2) he was performing his duties satisfactorily, 3) he was discharged, and 4) his discharge occurred in circumstances giving rise to an inference of discrimination on the basis of his membership in the protected class. See Chambers v. TRM Copy Ctrs. Corp., 43 F.3d 29, 37 (2d Cir. 1994). The level of proof plaintiff must present in order to demonstrate a prima facie case is "minimal." Fisher v. Vassar College, 114 F.3d 1332, 1337 (2d Cir. 1997). In fact, a plaintiff can successfully state a prima facie case without adducing enough evidence to support a rational jury verdict in his favor. See id. Once this burden is met, the defendant must then "produce evidence that the plaintiff was [discharged] . . . for a legitimate, nondiscriminatory reason." Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 254, 67 L. Ed. 2d 207, 101 S. Ct. 1089 (1981). If the defendant establishes such a reason, the presumption of discrimination established by the prima facie case disappears, and the plaintiff "must . . . point to sufficient evidence to reasonably support a finding that he was harmed by the employer's illegal discrimination." Fisher, 114 F.3d at 1337.
1. Prima Facie case
Here, defendant does not dispute that the plaintiff has established elements 1 and 3 of his prima facie case; thus, the only dispute is as to whether the plaintiff was performing his duties satisfactorily and, if so, whether the discharge occurred in circumstances giving rise to an inference of discrimination based on religious bias.
It is theoretically possible that a finder of fact could conclude that Lynch was performing his job satisfactorily at the time of his discharge. I need not reach the issue of whether this possibility is sufficient to meet the "satisfactory performance" element of the plaintiff's prima facie case, however, as I find that the plaintiff has failed to proffer any evidence that could support a rational inference that he was discharged because of religious bias.
The undisputed evidence shows that the decision to terminate Lynch was made by John Padian, based on a recommendation by George D'Angelo. D'Angelo Aff. at 237. Lynch asserts that Carolyn Griffin and John Dorso exercised influence in the decision making process as well, and even claims that "without their input, Mr. D'Angelo has [sic] no independent basis" for making the decision. Plaintiff's Memorandum of Law in Opposition to Defendant's Motion for Summary Judgment at 27. This assertion, however, is not supported by any evidence and is contradicted by undisputed testimony that D'Angelo personally observed Lynch's performance on several occasions and found it wanting. D'Angelo Aff. at 162. Lynch vigorously contends that Griffin and Dorso harassed him on the basis of his religion; however, he cannot proffer any evidence that this harassment played any part in his dismissal. See McLee v. Chrysler Corp., 109 F.3d 130, 137 (2d Cir. Mar. 25, 1997) (allegation that plaintiff's supervisor had made a racially derogatory remark and had "spit on the chairs of minority employees" was insufficient to satisfy fourth element of prima facie wrongful termination case when the supervisor did not participate in the termination decision).
As to Padian, Lynch does not allege that he had any discriminatory animus. This leaves D'Angelo, alleged author of the statements: "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. Even with all rational inferences drawn in the plaintiff's favor, neither comment can be interpreted as evidencing bias against born again Christians.
The first statement is likely an exhortation to work harder or possibly an assertion of D'Angelo's authority during working hours. Neither interpretation, however, supports the plaintiff's theory that D'Angelo was biased against born again Christians. The second is similar: It could have been intended as a crude joke or as a serious accusation of hypocrisy. In either event, the comment offers no evidence that D'Angelo harbored anti-born again Christian bias. Statements do not demonstrate discriminatory animus merely because they reflect poorly on the plaintiff. See Fisher v. Vassar College, 70 F.3d 1420, 1441 (2d Cir. 1995), aff'd en banc, 114 F.3d 1332, 1337 (2d Cir. 1997) (notes of committee that denied married woman tenure said she was "out of touch" after taking nine years off; even if interpreted to mean that the committee felt her skills had become obsolete, this sentiment betrays no discriminatory bias); Hill v. St. Louis Univ., 123 F.3d 1114 at 1119, 1997 WL 538918, at *4 (8th Cir. 1997) (statement by supervisor made after plaintiff resigned that he wanted to bring "fresh blood" into the position was not probative of age discrimination). As this is the only evidence that is proffered to support Lynch's claim that his dismissal was motivated by bias, his prima facie case fails.
2. Defendant's proffer of a non-discriminatory motivation
Even if Lynch could somehow satisfy the requirements of a prima facie case, his pretext claim would be insufficient to withstand a motion for summary judgment. If such a case had been established, the burden of production would shift to the defendant to articulate a "legitimate, non-discriminatory reason" for Lynch's dismissal. Burdine, 450 U.S. at 254. Pathmark would clearly satisfy this requirement: D'Angelo testified that Lynch was fired because of his "sub-par" performance and extraordinary disciplinary history.
3. Plaintiff's burden of showing sufficient evidence to support a jury verdict
Once a non-discriminatory reason is proffered, "the McDonnell-Douglas framework -- with its burdens and presumptions -- is no longer relevant." St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 511, 125 L. Ed. 2d 407, 113 S. Ct. 2742 (1993). The issue then becomes simply whether the plaintiff can "point to sufficient evidence to reasonably support a finding that he was harmed by the employer's illegal discrimination." Fisher, 114 F.3d at 1337. As to this issue, the mere fact that a prima facie case has been established carries no weight in and of itself. See id. at 1337.
Lynch cannot meet this burden. As noted above, he asserts that he was harassed by Carolyn Griffin and John Dorso because of his religious beliefs, but has produced no evidence linking this harassment to his termination. Therefore, there is insufficient evidence to reasonably support a finding of a Title VII violation by Pathmark.
B. Mixed Motive Theory
To recover under Title VII on a "mixed motive" theory, a plaintiff must "focus his proof directly at the question of discrimination and prove that an illegitimate factor had a motivating or substantial role in the employment decision." Tyler, 958 F.2d 1176 at 1181 (internal quotations omitted). "The types of indirect evidence that suffice in a pretext case to make out a prima facie case -- or even to carry the ultimate burden of persuasion -- do not suffice, even if credited, to [meet this standard]." Raskin v. Wyatt Co., 125 F.3d 55 at 60, 1997 WL 556063, at *4 (2d Cir. 1997) (internal quotations omitted). Instead, "direct" evidence must be shown; evidence that is considered "direct" for this purpose includes, inter alia, policy documents and evidence of behavior by decision makers that reflects the alleged discriminatory attitude. See id. "In short, to warrant a mixed-motive burden shift, the plaintiff must be able to produce a 'smoking gun' or at least a 'thick cloud of smoke' to support his allegations of discriminatory treatment." Id. Once the plaintiff has sufficient direct evidence of discriminatory animus, the employer must prove that it would have made the same decision even had there been no such animus. See De La Cruz, 82 F.3d 16 at 23.
Lynch has failed to produce evidence that could support a rational inference that his termination was motivated by religious bias. By definition, then, he has failed to produce the "smoking gun" necessary to defeat summary judgment on a mixed-motive theory. Raskin, 125 F.3d at 61, 1997 WL 556063, at *4. Moreover, it is clear that Lynch has offered virtually no evidence to support his allegation that bias played a substantial or motivating role in his dismissal. As noted above, though he has testified that he was subjected to harassment by some of his supervisors, he has not offered any evidence to support his assertion that these supervisors were influential in the decision to terminate him. As for the people who did have such influence, Lynch either makes no allegations at all or offers evidence that utterly fails to demonstrate bias. Thus, his claim cannot survive a motion for summary judgment on a mixed motive theory.
Plaintiff has failed to demonstrate that his termination occurred in circumstances allowing a reasonable inference of discriminatory intent. He has similarly failed to adduce direct evidence that bias played a motivating or substantial role his termination. Because there are therefore no genuine issues of material fact in dispute, the defendant's summary judgment motion is granted and the complaint is dismissed.
Shira A. Scheindlin
Dated: New York, New York
September 23, 1997