The opinion of the court was delivered by: Sweet, District Judge.
Defendant Anheuser-Busch, Inc. ("ABI") has moved, pursuant to
Rule 56 of the Federal Rules of Civil Procedure, for summary
judgment to dismiss the complaint of plaintiff Joseph Anderson,
Jr., pro se ("Anderson"), which alleges a discriminatory
discharge on the basis of race in violation of Title VII of the
Civil Rights Act of 1964, 42 U.S.C. § 2000e-1, et seq. ("Title
VII"). For the reasons set forth below, the motion will be
granted, and the complaint dismissed with prejudice.
Title VII has been a breeding ground for challenging issues,
particularly where, as here, the plaintiff is proceeding pro
se. The instant motion raises difficult questions arising from
the interplay between the state and federal administrative
agencies having responsibility in this field, from Anderson's
conduct in pursuing his claims (for which ABI has asserted a
laches defense), and from the determination and application of
the facts in a summary context to the legal sufficiency of
Anderson's complaint. What follows, hopefully, will reveal the
complexity of these issues and set forth appropriately the
reasoning on which Anderson will be denied the relief he has
Anderson, who is black, was employed by ABI for approximately
four years. He was fired in November 1985 under circumstances
which he alleges constitute a violation of Title VII.
ABI is a Missouri corporation selling its products nationally.
ABI maintained a national sales force in which Anderson was
employed at the time of his discharge.
On January 7, 1998, Anderson filed a complaint alleging that he
was discriminatorily discharged by ABI in November 1985. ABI
defaulted in early pretrial proceedings, but the default was
vacated by order of June 22, 1998. Discovery disputes were
ABI's instant motion for summary judgment was filed on June 4,
1999. Papers were received through August 30, 1999, at which
point the motion was deemed fully submitted.
Pursuant to Local Rule 56.1, ABI has submitted a statement of
material facts, and Anderson has submitted correspondence with
exhibits which will be treated as a counter-designation of facts.
What follows is gleaned from these submissions, with any factual
inferences drawn in Anderson's favor.
In September 1981, ABI hired Anderson as an area manager at its
Pearl River, N.Y. office. In August 1983, ABI promoted Anderson
to national accounts zone manager, a position which entailed
cultivating and maintaining relationships with ABI's national
accounts, which are companies having sales or distribution
responsibilities overlapping a division or region. James Cloud
("Cloud"), ABI's Director of National Sales East and Anderson's
direct supervisor, made the decision to promote Anderson to zone
In December 1984, Cloud promoted Anderson from zone manager to
zone manager two, which made Anderson responsible for larger
accounts and resulted in a raise. Prior to the fall of 1985, ABI
had been generally satisfied with Anderson's job performance.
Anderson described his first four years at ABI as "very positive"
In the fall of 1985, ABI was notified — in a manner not clear
on the record before the Court — that Stephen Anglim ("Anglim"),
a representative from the Long Island Railroad, one of ABI's
national accounts for which Anderson was responsible, had
apparently not seen Anderson for approximately three months,
which Anglim found unusual.
Anglim's comment prompted ABI to review Anderson's call and
expense reports. A "call report" is a document on which ABI
managers are required to identify the accounts with whom they
have met or "called upon" during a particular week. An "expense
report" is a document ABI managers submit seeking reimbursement
for business-related expenses. As a zone manager, Anderson was
required to submit a "weekly reporting package" that included a
call report, an expense report, and a summary cover sheet for
Cloud's review, in order to keep Cloud abreast of Anderson's
schedule. Cloud reviewed Anderson's call and expense reports and
found them inconsistent with Anglim's complaint since the reports
indicated several recent meetings with Anglim.
Cloud consulted Daniel Williams ("Williams"), ABI's Director of
Technical Assistance, who was black, about conducting an
investigation of the apparent discrepancies in Anderson's call
and expense reports. ABI's Auditing and Systems Department was
directed to conduct an audit of Anderson's call and expense
reports for the previous ten months — January 1 through October
1, 1985. ABI's Audit Department found that Anderson's restaurant
receipts were suspect because he had used receipts
"indiscriminately" to support entertainment charges. The Audit
Department concluded that Anderson's entertainment charges were
not adequately supported and should be disallowed.
On October 23, 1985, Cloud and Paul Morrissey ("Morrissey"), an
ABI Vice-President, summoned Anderson to ABI headquarters in St.
Louis. Anderson apparently went under the impression that he was
going to be given a raise. However, Cloud and Morrissey told him
that ABI had reason to believe he had falsified his call and
expense reports relating to several accounts, including
Convenient Food Markets, Melmarkets, the Long Island Railroad,
Nassau Coliseum, and the Michelob Gold Tournament. Anderson was
further told that, in accordance with ABI's Dismissal and
Suspension Policy, he was suspended for 30 days with pay to
provide ABI additional time to investigate the apparent
discrepancies in his reports. ABI's Dismissal and Suspension
Policy provides that falsification of documents, such as call and
expense reports, may be grounds for termination. At the meeting,
Cloud and Morrissey instructed Anderson that he was not to
contact his accounts during his 30-day uspension. Anderson
requested but did not receive any documentation of the charges
against him. Anderson also requested that Cloud or Morrissey call
Anderson's accounts right there to verify the supposed
falsifications, but Cloud and Morrissey declined to do so.
By letter dated October 30, 1985, Anderson informed Cloud that
he had contacted several of his accounts on October 24, 1985, the
day after he was told not to contact his accounts for the next 30
days. Those contacted included Keith Gooden of Harbor
Distributing, Richard Makse of the Long Island Railroad, Brian
Conlon of Nassau Coliseum, and Larry Wright of Convenient
Foodmart. Anderson asked these accounts to write letters of
support for him. The letters were not provided to ABI until the
hearings before the New York State Department of Human Rights
("NYSDHR") described below.
Cloud met with several of Anderson's contacts at ABI's national
accounts, including Anglim, who reported Anderson had called on
him on only one of the four occasions Anderson had listed in his
call reports. Then, on November 25, 1985, Cloud and Morrissey met
with Anderson and informed him that their investigation confirmed
he had falsified his call and
expense reports relating to at least one of his accounts, the
Long Island Railroad. Apparently, accusations relating to some of
Anderson's other accounts could not be verified and did not form
the basis for Anderson's subsequent termination. Anderson was
shown several of his reports, including a call report indicating
he had met with Anglim and/or Makse of the Long Island Railroad
on July 8, 1985, and an expense report dated July 13, 1985, for
which he was reimbursed $62.00, indicating he had lunch with
Anglim and Makse. Anglim had informed Cloud that he had "lost"
Anderson in the month of July and did not see him in person.
Anderson was also shown a call report dated July 24, 1985,
indicating he had met with Anglim and Makse, and an expense
report, for which he was reimbursed $70.00, indicating that on
July 25, 1985, he entertained Makse and Anglim at Louie's Shore
Restaurant. Anderson admitted he did not entertain Makse or
Anglim on July 25, 1985.
Anderson was further questioned about an expense report
indicating he had entertained a representative of Harbor
Distributors on October 17, 1985 at McCauley's Restaurant.
Anderson stated that he had not entertained anyone from Harbor
Distributors at McCauley's Restaurant in October 1985, but,
rather, had bought lunch at McCauley's for a representative of
Beck's, an ABI competitor. He admitted that he had submitted
false documents to the company, exercised "bad judgment" in
deliberately listing the wrong individuals on several of his call
and expense reports, and knew his actions were wrong. On November
25, 1985, Anderson was discharged by ABI.
On December 20, 1985, Anderson forwarded a 20-page "statement"
to Edward W. Foles ("Foles"), a supervisor in NYSDHR's New York
City office, recounting the circumstances of the termination of
his employment at ABI. In his letter, Anderson stated his
responsibilities with respect to the development of the market
for ABI in the black community and stated, in addition, that:
During the week of October 27, 1985, he contacted his
accounts to ask them if they had complained about him
to Mr. Cloud;
At least one of his call reports was inaccurate;
Two of his expense reports were "in fact false as to
the extent that [he] did not enter the proper names
of the parties with whom [he] dined";
He ate lunch with a competitor but "was afraid" to
include the competitor's name in his expense report,
so he included a false name in his report seeking
reimbursement for the meal;
He ate lunch with a "black tavern owner and
businessman," but "was afraid" to include his name on
his expense report, so he included a false name in
his report seeking reimbursement for the meal; and
He submitted expense reports with false information.
In his letter Anderson questioned why he was terminated rather
than reprimanded and noted that he was the one black employee in
a department of fifty, that only blacks had been interviewed for
the position for which he was employed, and that five members had
been reprimanded or demoted for misconduct without discharge.
On December 27, 1985, Anderson filed a charge of discrimination
with the EEOC's Newark office, alleging that ABI had terminated
his employment based on his race. In his charge, Anderson
I believe that I was suspended and subsequently
terminated because of race (black) for ...