The opinion of the court was delivered by: Scheindlin, District Judge.
In this employment discrimination action, plaintiffs Wayne
Curtis, Juan Gonzalez, Anthony Dupree, Lenora Young, Lamont
Killian, Patrick Thomas and Renee Hatch allege that their
employer, Airborne Freight Corporation d/b/a Airborne Express
("Airborne"), subjected them to a racially hostile work
environment in violation of Title VII of the Civil Rights Act of
1964, 42 U.S.C. § 2000e-1 et seq., and the New York State Human
Rights Law ("NYSHRL"), N.Y. Exec. Law § 296 et seq. Defendant now
moves for summary judgment pursuant to Federal Rule of Civil
Procedure 56. For the reasons set forth below, defendant's motion
is granted in its entirety.
The following facts are taken from the amended complaint, the
parties' Rule 56.1 statements and relevant deposition testimony.
Unless otherwise indicated, the facts are undisputed.
Airborne is a Washington corporation which provides express
freight and package delivery services throughout the United
States. See Amended Complaint ("Am. Compl.") ¶¶ 18-19;
Statement of Material
Facts in Support of Defendant's Motion for Summary Judgment
("Def.56.1") ¶ 1.*fn1 Airborne operates a branch terminal in
Elmsford, New York. Am. Compl. ¶ 19. The Elmsford terminal
employs approximately one-hundred couriers who transport freight
and packages throughout Westchester County. Id. Plaintiffs are
couriers employed in Airborne's Elmsford facility. Id. ¶¶ 10,
21. With the exception of Gonzalez who is Hispanic, all of the
plaintiffs are African-American. Id. ¶¶ 10-17.
From November 1996 to September 1998, Matt Zaranski was one of
approximately eight supervisors at the Elmsford facility. See
id. ¶ 22; Def. 56.1 ¶ 4. Zaranski reported directly to Felix
"Bud" Patterson, an Airborne District Field Services Manager
stationed in Elmsford. See Am. Compl. ¶ 23; Def. 56.1 ¶ 3.
Patterson was at all relevant times the senior management
official at the Elmsford facility. Def. 56.1 ¶ 3. Patterson and
Zaranski are both Caucasian. Am. Compl. ¶ 22.
Airborne's Elmsford couriers, including plaintiffs, are
represented by Local 295 of the International Brotherhood of
Teamsters. Id. ¶ 24. At all relevant times, the terms and
conditions of plaintiffs' employment were governed by a
collective bargaining agreement between Airborne and Local 295
(the "CBA").*fn2 Def. 56.1 ¶ 14. The CBA includes a four-step
grievance and arbitration procedure for resolution of all
disputes between Airborne and its Elmsford employees. Id. ¶ 15.
The CBA also provides for the designation of a "shop steward" who
is responsible for, among other things, handling the couriers'
complaints and filing grievances with the company. Id. ¶ 16.
Plaintiff Wayne Curtis is, and was at all relevant times, Local
295 shop steward for the Elmsford facility. Id. ¶ 17.
Except for Killian and Dupree, each plaintiff alleges a single
incident of harassment by Zaranski. Am. Compl. ¶ 30.*fn3 Killian
claims he was harassed on one occasion by Zaranski and on a
separate occasion by Patterson. Id. ¶¶ 30(G)-(H). Dupree
alleges that he was harassed by Zaranski on two occasions. Id.
¶¶ 30(C)(D). All of the alleged incidents of harassment occurred
between November 1996 and September 1997. Id. ¶ 30. It is
plaintiffs' theory that all of the alleged incidents of
harassment were racially motivated. Id. However, only two of
the nine alleged incidents include arguably racist comments.
Id. ¶¶ 30(G), (I).
Although defendant concedes that Zaranski had altercations with
each plaintiff, defendant denies that these altercations
constitute illegal racial harassment.*fn4 The specific details
surrounding the alleged incidents of harassment are set forth
Gonzalez is a part-time employee at the Elmsford facility.
See 1/29/99 Deposition of Juan Gonzalez ("Gonzalez Dep.") at
20.*fn5 Gonzalez makes morning deliveries and sorts packages for
afternoon deliveries. See id. However, Gonzalez leaves work at
12:15 p.m. each day and does not himself make afternoon
deliveries. See id.
On one occasion in November 1996, Zaranski instructed Gonzalez
to move several boxes that were stacked against Gonzalez's
delivery truck. See id. at 21; Def. 56.1 ¶ 18. Zaranski told
Gonzalez to put the stacked boxes inside — rather than next to —
his truck. See Gonzalez Dep. at 21. In response, Gonzalez told
Zaranski: "I do not do afternoon deliveries, those boxes stay
there. . . . You can go and talk to Tom Grimaldi, which is
another supervisor, if there [is] a problem with this." Id. at
21-22. When Gonzalez refused to move the boxes, Zaranski yelled
at him. Def. 56.1 ¶ 19. Gonzalez described the incident as
A: . . . I told [Zaranski] to go see Jim Grimaldi if
there was a problem with this, and I guess in
retaliation maybe I went over his head and he didn't
like it so he got real upset and kept arguing and
yelling at me, and I told him, "Do not yell at me,
I'm not one of your kids."
A: He's saying "you're going to put them in your
truck" and he told me I better wise up and shut my
fucking mouth before he writes me up for
insubordination. Then he walked away.
Gonzalez Dep. at 24. At no point during this altercation, nor at
any other time, did Zaranski make any racial or ethnic comments
to Gonzalez. See id. at 36. Nor did Gonzalez ever hear Zaranski
make a racial or ethnic comment to any other driver. See id. at
39. Other than the November 1996 incident, Gonzalez never had any
problems with Zaranski. See id. at 24-25, 36, 38, 40.
Gonzalez did not report the November 1996 incident to Patterson
or to any other Airborne supervisor. See id. at 39. Gonzalez
did complain to Curtis, his shop steward, immediately following
the altercation with Zaranski. See id. at 37. Gonzalez told
Curtis: "I don't know what [Zaranski's] problem is, but he's
yelling at me and I don't appreciate him bumping me off." Id.
However, Gonzalez did not tell Curtis that he believed Zaranski's
behavior was racially motivated. See id. at 39. Gonzalez filed
a charge of discrimination with the Equal Employment Opportunity
Commission ("EEOC") on January 22, 1998, more than one year after
his November 1996 altercation with Zaranski. Def. 56.1 ¶ 23.
Each Airborne courier is assigned to a specific geographic
delivery route. Am. Compl. ¶ 21. During what is called the
"morning breakdown", couriers identify and collect all outgoing
freight to be delivered within their geographic route. See Def.
56.1 ¶¶ 8-11; 1/14/99 Deposition of Wayne Curtis ("Curtis Dep.")
at 50. Once the couriers have collected their freight, they
"scan" the freight into handheld computers. See Curtis Dep. at
50-51. Scanning enables Airborne to keep track of every piece of
freight it sends out for delivery. See id. at 51. Supervisors
conduct periodic audits to determine whether couriers are
properly scanning their freight. See id. at 99. This audit
process is known as "back-scanning." See id.
Curtis continued to talk with Charlie Judson about the
incident. See id. Curtis testified as follows about what
While I was [talking with Judson], [Zaranski] had
gone around the [conveyor] belt and come up on the
other side of the belt and started cursing at me
again. At that point I lost it. I jumped over the
belt and I went for him. Fortunately, Tommy Grimaldi
who had come down the belt for the second portion of
the discussion saw me jump over the belts and grabbed
me just as I was going for Zaranski. I threw Tommy
off and went back towards Zaranski again, and Tommy
grabbed me again the second time.
Id. at 101. After Grimaldi pulled Curtis away from Zaranski,
Curtis took a walk outside to "cool off". See id. at 101. When
Curtis returned, he and several supervisors went to Patterson's
office to discuss the incident. See id. According to Curtis,
Patterson asked him "what it would take for that situation never
ever to happen again." Id. at 102. Curtis told Patterson that
"as long as [Zaranski] never went nose to nose with [him] again",
the two men "would never have a problem." Id.
Although Curtis and Zaranski never formally reconciled, Curtis
testified that the two men informally reached a mutual
understanding. See id. Curtis stated:
A:. . . . [S]ince that time [the December 1996
incident] on a personal basis, I've never had any
conflict with [Zaranski] again in that nature other
than the normal bickering back and forth between
what's right on a grievance and what's not.
Q: Normal union management stuff?
A: Right, other than that there has been nothing
personal. In fact, we've always been very cordial
with one another from that point forward. . . .
At no time during the December 1996 incident did Zaranski make
racial or ethnic comments to Curtis. See id. at 114. Moreover,
Curtis testified that at the time the incident occurred, he did
not believe it was racially motivated. See id. Curtis filed a
charge of discrimination with the EEOC on January 22, 1998, more
than one year after his December 1996 altercation with Zaranski.
See Def. 56.1 ¶ 30; Curtis EEOC Charge of Discrimination, Ex. D
to Borden Decl.
Incoming freight is transported to the couriers for
identification and collection via a moving conveyor belt. Def.
56.1 ¶¶ 9-10. On one occasion in December 1996, Dupree was
scanning packages on the conveyor belt when he accidentally hit
the "stop button" with his leg and shut down the conveyor belt
for approximately ten seconds. See 2/16/99 Deposition of
Anthony Dupree ("Dupree Dep.") at 29-34. Dupree had done the same
thing — inadvertently hit the stop button — six months earlier.
See id. at 31-32. After the belt was reactivated, Zaranski
walked over to Dupree and whispered, "Don't do that fucking shit
again." Id. at 32. Zaranski made no other comments to Dupree
regarding the December 1996 stop-button incident. See id. at
At no time during the stop-button incident, nor at any other
time, did Zaranski make racial comments to Dupree. See id. at
33, 62-63. Dupree never reported the stop-button incident to
Patterson or to any other Airborne supervisor. See id. at 66.
Dupree did complain to Curtis about the incident. Dupree told
Curtis that he thought Zaranski "had a problem." Id. at
35. However, ...