Courts in this Circuit have been reluctant to dismiss
discrimination complaints based upon the doctrine of laches.
See, e.g., Springer, 17 F. Supp.2d at 141; Myree v. Local 41,
International Bhd. of Elec. Workers, 789 F. Supp. 597, 616
(W.D.N.Y. 1992) (court declined to dismiss plaintiff's Title VII
complaint on laches grounds even though he waited 10 years to
request a right-to-sue letter); cf. Ivani, 103 F.3d 257, 262
(laches not available to bar otherwise timely § 1983 claim).
The instant case fails to meet either of the factors required
to make out an affirmative defense of laches. First, Anderson has
not been guilty of "unreasonable and inexcusable delay." Ivani,
103 F.3d at 259. ABI has repeatedly emphasized that eleven years
passed between the time at which Anderson could have requested
a right-to-sue letter, and the time at which he actually did
request the letter. That time period, however, is irrelevant.
Anderson had no reason to request a right-to-sue letter until the
NYSDHR completed its investigation of his charge and the EEOC
accepted the final determination of the NYSDHR in 1996. The
request was made less than two years later. This does not
constitute unreasonable and inexcusable delay, particularly in
light of the fact that Anderson, at this point, was proceeding
pro se. See Myree, 789 F. Supp. at 615.
In addition, ABI has made no showing that Anderson's delay will
result in prejudice to ABI. Its sole claim of prejudice is that
the "14-year delay has made it very difficult for ABI to contact
three of its four witnesses who testified at the NYSDHR hearings
in 1994-1995." As is apparent from ABI's statement, however, at
the time of the NYSDHR hearings, at which ABI, of course,
prevailed, between nine and ten years had already elapsed since
the time of the alleged discrimination. ABI has made no claim
that the additional four to five years that have elapsed since
the NYSDHR hearings have caused those witnesses to become
unavailable. Moreover, ABI has neither identified which potential
witnesses it has had difficulty contacting, nor supplied any
supporting materials indicating what — if any — specific efforts
were made to contact those potential witnesses. "[I]t is well
established that mere conclusory assertions as to anticipated
difficulties in putting on a defense are not sufficient to
constitute prejudice for purposes of establishing laches."
Springer, 17 F. Supp.2d at 139.
Because ABI has neither demonstrated that Anderson is guilty of
unreasonable and inexcusable delay in filing his claim, nor that
ABI would be prejudiced by such delay, Anderson's claim will not
be dismissed on the ground of laches.
III. Summary Judgment Is Appropriate
A. Standard for Summary Judgment
Rule 56(c) of the Federal Rules of Civil Procedure provides
that a motion for summary judgment may be granted when "there is
no genuine issue as to any material fact and that the moving
party is entitled to a judgment as a matter of law." The Second
Circuit has repeatedly noted that "as a general rule, all
ambiguities and inferences to be drawn from the underlying facts
should be resolved in favor of the party opposing the motion, and
all doubts as to the existence of a genuine issue for trial
should be resolved against the moving party." Brady v. Town of
Colchester, 863 F.2d 205, 210 (2d Cir. 1988) (citing Celotex
Corp. v. Catrett, 477 U.S. 317, 330 n. 2, 106 S.Ct. 2548, 91
L.Ed.2d 265 (1986) (Brennan, J., dissenting)); see Tomka v.
Seiler Corp., 66 F.3d 1295, 1304 (2d Cir. 1995); Burrell v.
City Univ., 894 F. Supp. 750, 757 (S.D.N.Y. 1995). If, when
viewing the evidence produced in the light most favorable to the
nonmovant, there is no genuine issue of material fact, then the
entry of summary judgment is appropriate. See Burrell, 894
F. Supp. at 758 (citing Binder v. Long Island Lighting Co.,
933 F.2d 187, 191 (2d Cir. 1991)).
Materiality is defined by the governing substantive law. "Only
disputes over facts that might affect the outcome of the suit
under the governing law will properly preclude the entry of
summary judgment. Factual disputes that are irrelevant or
unnecessary will not be counted." Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).
"[T]he mere existence of factual issues — where those issues are
not material to the claims before the court — will not suffice to
defeat a motion for summary judgment." Quarles v. General Motors
Corp., 758 F.2d 839, 840 (2d Cir. 1985).
For a dispute to be genuine, there must be more than
"metaphysical doubt." Matsushita Elec. Indus. Co. v. Zenith
Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538
(1986). "If the evidence is merely colorable, or is not
significantly probative, summary judgment may be granted."
Anderson, 477 U.S. at 249-50, 106 S.Ct. 2505 (citations
Additional considerations factor into a summary judgment motion
in an employment discrimination action. See Gallo v. Prudential
Residential Services, L.P., 22 F.3d 1219, 1224 (2d Cir. 1994);
see also Montana v. First Fed. Sav. & Loan Ass'n, 869 F.2d 100,
103 (2d Cir. 1989); Meiri v. Dacon, 759 F.2d 989, 998 (2d Cir.
1985). Because writings directly supporting a claim of
intentional discrimination are rarely, if ever, found among an
employer's documents, a trial court must be particularly cautious
about granting summary judgment when the employer's intent is at
issue. Affidavits and depositions must be scrutinized for
circumstantial evidence which, if believed, would show
discrimination. See Gallo, 22 F.3d at 1224. This does not
suggest, however, that summary judgment is never appropriate in
an employment discrimination action. The Second Circuit has made
clear that the "impression that summary judgment is unavailable
to defendants in discrimination cases is unsupportable." McLee
v. Chrysler Corp., 38 F.3d 67, 68 (2d Cir. 1994); see Meiri,
759 F.2d at 998.
Where no evidence exists or only conclusory allegations of
discrimination have been offered to suggest that an employer's
motives are improper, summary judgment may be appropriate. See
Meiri, 759 F.2d at 998; see also Woroski v. Nashua Corp.,
31 F.3d 105, 109-10 (2d Cir. 1994). After all, a party seeking to
defeat a summary judgment motion cannot rely upon "conclusory
allegations or denials," but rather must set forth "`concrete
particulars'" showing that a trial is needed. National Union
Fire Ins. Co. v. Deloach, 708 F. Supp. 1371, 1379 (S.D.N.Y. 1989)
(quoting R.G. Group, Inc. v. Horn & Hardart Co., 751 F.2d 69,
77 (2d Cir. 1984)). Mere speculation or conjecture as to the true
nature of facts cannot overcome the motion. See Lipton v. Nature
Co., 71 F.3d 464, 469 (2d Cir. 1995); Knight v. U.S. Fire Ins.
Co., 804 F.2d 9, 12 (2d Cir. 1986). The responding party "must
show the existence of a disputed material fact in light of the
substantive law." Peer Int'l Corp. v. Luna Records, Inc.,
887 F. Supp. 560, 564 (S.D.N.Y. 1995). In the absence of any disputed
material fact, summary judgment is appropriate.
B. Anderson Has Established a Prima Facie Case of Race
A plaintiff bringing an action under Title VII bears the burden
of establishing a prima facie case of discrimination. See
Luciano v. Olsten Corp., 110 F.3d 210, 215 (2d Cir. 1997). This
involves showing that the plaintiff is: (1) a member of a
protected class, (2) who was qualified for his position, (3) who
suffered an adverse employment action, (4) under circumstances
giving rise to an inference of discrimination. See Austin v.
Ford Models, Inc., 149 F.3d 148, 152 (2d Cir. 1998); see also
St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 506, 113 S.Ct.
2742, 125 L.Ed.2d 407 (1993). The requirements for establishing
a prima facie case are not onerous. See id.; Austin, 149 F.3d
It is assumed that Anderson has satisfied the first three
elements of his prima facie case: he is black, he was apparently
qualified for his position as evidenced by his two promotions,
and he suffered an adverse employment action. Anderson has
attempted to meet the fourth element — that the circumstances
surrounding the decision to terminate him give rise to an
inference of race discrimination — by showing that a similarly
situated individual not in Anderson's protected group — a
non-African American — was treated differently. See Shumway,
118 F.3d at 63; see also Taylor v. Runyon, No. 97 Civ. 2425,
1997 WL 727488, at *5 (S.D.N.Y. Nov.20, 1997) ("In order to state
a prima facie case of individual disparate treatment based on
race, a Title VII plaintiff must allege that: (1) he was treated
differently, (2) from a person of another race, color, gender,
religion or national origin, (3) where the defendant intended to
discriminate, and (4) where the defendant's intent to
discriminate caused the difference in the plaintiff's
Anderson's claim of differential treatment turns on ABI's
investigation and retention of Forget. To be similarly situated,
the other employee must have engaged in similar conduct and there
must be no differentiating or mitigating circumstances to
distinguish this conduct. See Shumway, 118 F.3d at 64.
According to Anderson, Forget, a white ABI zone manager, also
falsified expense and call reports. Unlike Anderson, however,
Forget was notified of the possible discrepancies in his reports
in advance of his meeting with his supervisors, thereby giving
Forget time to compose explanations. ABI audited Forget's reports
and concluded that there was nothing "suspect" about them.
While Anderson's claims fail to establish that Forget submitted
false documentation and disobeyed a direct order, there is
sufficient ambiguity in the record to support an inference of
differential treatment. The basis on which Anderson was summoned
to St. Louis to explain the discrepancies in his reports was not
decidedly more substantial than the basis on which Forget was
summoned. Yet Forget was notified in advance of the reason for
the summons, while Anderson was apparently misled. That Anderson
was not at the time able to explain to the satisfaction of ABI
the discrepancies in his reports is not, therefore, altogether
Additional circumstances contributing to a permissible
inference of discriminatory intent may "include the employer's
continuing, after discharging the plaintiff, to seek applicants
from persons of the plaintiff's qualifications to fill that
position, or the employer's criticism of the plaintiff's
performance in ethnically degrading terms, or its invidious
comments about others in the employee's protected group."
Chambers v. TRM Copy Ctrs. Corp., 43 F.3d 29, 37 (2d Cir. 1994)
(citations omitted); see Chojar v. Levitt, 773 F. Supp. 645, 653
Anderson has stated that after his termination, his position
was filled by a white man. This assertion, uncontested by ABI,
may itself suffice to satisfy Anderson's burden of showing an
inference of discrimination. Cf. Hicks, 509 U.S. at 506, 113
S.Ct. 2742 (no challenge to district court finding that plaintiff
had satisfied requirements of prima facie case "by proving (1)
that he is black, (2) that he was qualified for the position . .
. (3) that he was . . . ultimately discharged, and (4) that the
position remained open and was ultimately filled by a white
In sum, reading the evidence in the light most favorable to
Anderson, this Court finds that Anderson has made out a prima
facie case of discrimination.
C. ABI Has Articulated a Legitimate Purpose for Its Decision
and Anderson Has Failed To Establish Pretext
If a plaintiff makes out a prima facie case, the burden then
shifts to the defendant
to articulate a legitimate, nondiscriminatory purpose for the
adverse employment decision. See McDonnell Douglas Corp. v.
Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973);
Austin, 149 F.3d at 153; Woroski, 31 F.3d at 108. "Any such
stated purpose is sufficient to satisfy the defendant's burden of
production; the employer does not have to persuade the court that
the stated purpose was the actual reason for its decision."
Austin, 149 F.3d at 153; see Fisher v. Vassar College,
114 F.3d 1332, 1335-36 (2d Cir. 1997) (en banc), cert. denied,
522 U.S. 1075, 118 S.Ct. 851, 139 L.Ed.2d 752 (1998). Once the
employer satisfies its burden, the plaintiff may still prevail,
but "only if [the] employer's proffered reasons are shown to be a
pretext for discrimination." Id. (quoting Fisher, 114 F.3d at
1339). To make this showing, the plaintiff must demonstrate
"both that the [proffered] reason was false, and that
discrimination was the real reason." Hicks, 509 U.S. at 515,
113 S.Ct. 2742.
As set forth above, ABI has offered substantial credible
evidence that Anderson's employment was terminated for
legitimate, nondiscriminatory reasons: the submission of false
reports and violation of the terms of his suspension. This
satisfies ABI's burden of production, leaving Anderson with the
burden of persuasion that ABI's nondiscriminatory reasons were
However, there is insufficient evidence to support a showing of
pretext. First, Cloud, who made the decision to fire Anderson,
was the same person who twice promoted him. This "strongly
suggest[s] that invidious discrimination was unlikely." Grady v.
Affiliated Cent., Inc., 130 F.3d 553, 560 (2d Cir. 1997).
Second, Cloud did not unilaterally decide to terminate
Anderson's employment. Williams, who had equal employment
compliance responsibilities, assisted in coordinating the
investigation of Anderson's reports, and determined that Anderson
had falsified documents and had been insubordinate. That Williams
was a member of Anderson's protected class and was charged with
the responsibility of ensuring that any decisions regarding
Anderson's employment were made in compliance with ABI's
equal-employment-opportunity concerns and policies further
weakens the inference of discrimination. See Marlow v. Office of
Court Admin., 820 F. Supp. 753, 757 (S.D.N.Y. 1993), aff'd,
22 F.3d 1091 (2d Cir.); Toliver v. Community Action Comm'n to Help
the Economy, Inc., 613 F. Supp. 1070 (S.D.N.Y. 1985), aff'd,
800 F.2d 1128 (2d Cir.) (if decision-maker is in same protected
class as plaintiff, claims of discrimination become less
A conclusory allegation by Anderson that he must have been a
victim of discrimination because he was black, and the second
black salesman to have been discharged, does not supply a factual
basis for inference sufficient to defeat ABI's motion for summary
judgment. See Meiri, 759 F.2d at 998. "To allow a party to
defeat a motion for summary judgment by offering purely
conclusory allegations of discrimination, absent any concrete
particulars, would necessitate a trial in all Title VII cases."
Anderson also has urged that ABI treated him differently from
two other employees, Douglas Mackey ("Mackey") and Randy White
("White"). Mackey's reports were reviewed in mid 1987, almost two
years after Anderson's discharge. Discrepancies between originals
and copies were found, as well as inaccuracies, one of which is
characterized by Anderson as double billing. Mackey, who was
white, was not discharged. However, Anderson has failed to
establish that Mackey had deliberately falsified his reports.
White, who had been asked three times to provide a passport
photo to supervisors and had failed to do so, received an
unfavorable performance rating, had irregularities in his
reports, yet was not terminated until January 1988, over five
months after investigation into his infractions began.
However, the difference in the investigation and the timing of
the discharge do not constitute facts which infer discrimination.
Further, of course, these precise issues were raised and
litigated before the Chief Administrative Law Judge at the
NYSDHR. While University of Tennessee v. Elliott, 478 U.S. 788,
106 S.Ct. 3220, 92 L.Ed.2d 635 (1986), makes clear that state
agency findings are not "entitled to preclusive effect in Title
VII actions in federal court," id. at 795, 106 S.Ct. 3220, this
Court has the discretion to consider and weigh the probative
value of the 2,118 page transcript of the NYSDHR hearings. See
Paolitto v. John Brown E. & C., Inc., 151 F.3d 60, 64 (2d Cir.
1998) (establishing Second Circuit's rule that consideration to
be given agency's determination is within trial judge's
discretion, depending on its quality and factual detail).
Even assuming the facts in a light most favorable to Anderson,
he does not dispute the material facts that he falsely reported
meeting with clients with whom he had not met, sought
reimbursement for business expenses he had not legitimately
incurred or did not properly report, in violation of a company
policy of which he was aware, and contacted at least four
accounts during his 30-day suspension when he was expressly
instructed not to do so.
Anderson's assertion in the face of these undisputed facts —
that Forget, a fellow ABI zone manager who is white, was not
terminated for committing the same expense report violations — is
not supported by evidence to support disparate treatment. In
fact, when Anderson first made this allegation, ABI promptly
audited Forget's call and expense reports as it had audited
Anderson's. The audit of Forget's reports revealed no credible
evidence that Forget submitted false call reports or defied the
terms of a suspension. ABI is therefore entitled the entry of
summary judgment in its favor on Anderson's Title VII claim.
For the reasons set forth above, ABI's motion for summary
judgment is granted, and the complaint is dismissed with
It is so ordered.