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February 9, 2000


The opinion of the court was delivered by: McAVOY, Chief Judge.


Plaintiff Norman Findlay brings the instant action against Defendants Reynolds Metals Company, Inc. ("Reynolds") and Aluminum, Brick and Glass Workers International Union Local 450 ("Local 450"), alleging that Defendants unlawfully discriminated against him on the basis of his race and color; denied him equal employment opportunities; and retaliated against him for filing a complaint with the Equal Employment Opportunity Commission ("EEOC"), in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. Plaintiff also asserts separate causes of action against Defendant Reynolds for a violation of his statutory rights under 42 U.S.C. § 1981 ("Section 1981") and against Defendant Local 450 for a breach of its duty of fair representation under the parties' collective bargaining agreement, pursuant to 29 U.S.C. § 185. Plaintiff seeks declaratory and injunctive relief, monetary damages, removal of any adverse reports from his personnel file, and attorney's fees. Presently before the Court is Defendant Reynolds' motion for summary judgment pursuant to FED. R. CIV. P. 56.

I. Background

Because this is a motion for summary judgment by the defendant, the following facts are presented in the light most favorable to the plaintiff. See Brennan v. Metropolitan Opera Ass'n, Inc., 192 F.3d 310, 316 (2d Cir. 1999); Ertman v. United States, 165 F.3d 204, 206 (2d Cir. 1999).

Plaintiff, an African American male, was hired by Reynolds on or about April 24, 1989 as a laborer at Reynolds' St. Lawrence Reduction Plant. On August 22, 1995, Plaintiff filed a charge with the EEOC alleging discrimination based upon his race and color and retaliation ("1995 EEOC Complaint").*fn1 In that charge, Plaintiff alleged, in relevant part, that:

I have been a laborer employed by Reynolds Metal[s] Company for approximately six years. Upon information and belief, I am the only African-American employee at the plant. Since the beginning of my employment I have been subjected to racial harassment consisting of a racially hostile work environment. I have been continuously subjected to derogatory racial epithets and racial humor and stereotyping by co-workers and management. Examples include a Ku Klux Klan poster affixed to my locker, parking cones resembling Ku Klux Klan hats taped to my car, jokes about slavery and excrement being directed to myself, and the use of the word "nigger" in the workplace, among other incidents. I have complained to management and they have failed to take remedial action or conduct an investigation. As a result of my complaints, I have been ostracized and am isolated at work.*fn2

Affidavit of Peter D. Carmen, Esq. in Support of Mot. for Summ. J. ("Carmen Aff."), at Ex. C (Charge of Discrimination dated August 22, 1995); see also Affidavit of Norman Findlay ("Findlay Aff."), at ¶ 3. On February 16, 1996, Plaintiff filed a second amended charge with the EEOC that was similar in all respects to the 1995 EEOC Complaint, except that it added a "continuing violation" claim. See Carmen Aff. at Ex. D (Charge of Discrimination dated February 15, 1996) ("1996 EEOC Complaint"). On August 28, 1996, the EEOC issued plaintiff a Dismissal and Notice of Rights letter.*fn3

On November 26, 1996, Plaintiff, proceeding pro se, timely commenced the present action against Defendant Reynolds under Title VII and 42 U.S.C. § 1981. On July 31, 1997, by stipulation of the parties and after Plaintiff retained his present counsel, Plaintiff was granted leave to file an Amended Complaint. See Docket No. 16. On August 11, 1997, Plaintiff filed his Amended Complaint against Defendants Reynolds and Local 450 alleging, inter alia, three separate and distinct causes of action pursuant to Title VII:(1) a racially hostile work environment; (2) disparate treatment based on unfair policies and practices that denied Plaintiff the same employment opportunities provided to similarly situated white employees by limiting Plaintiff's job classifications, job assignments, wages and other work-related benefits; and (3) retaliation based on racial harassment that occurred after Plaintiff filed a complaint with the EEOC charging a racially hostile work environment.*fn4 See Amended Compl. at ¶¶ 15-34. Although Plaintiff argues that the continuing violation exception is applicable to his claims under Title VII and Section 1981, his 1995 and 1996 EEOC Complaints and Federal Complaint fail to document the dates of the specific incidents of discrimination underlying these claims.*fn5 In the interests of fairness to the Plaintiff, the Court, on its own initiative, carefully reviewed the affidavits and depositions submitted by the parties in connection with the instant motion and summarized the incidents underlying Plaintiff's claims. For purposes of the statute of limitations applicable to Plaintiff's Title VII and Section 1981 claims, the Court has classified these incidents into two categories; those occurring pre-1994 and those occurring in 1994 and thereafter.

The pre-1994 allegations include: (1) posting of a Ku Klux Klan poster on Plaintiff's locker (October 13, 1993), see Deposition of Norman Findlay ("Findlay Dep."), at 16-21; Affidavit of Norman Findlay ("Findlay Aff."), at Ex. B; (2) racial epithets by a co-worker regarding use of a machine (Summer 1993), see Findlay Dep. at 58-61; Aff. at Ex. B; (3) numerous racially derogatory comments, jokes and epithets by co-workers in department break room, (1990-91), see Findlay Dep. at 131-32; (4) placement of a racially derogatory poster outside pot room (1991), see Findlay Dep. at 128-31; (5) racial jokes by co-workers (1992-93), see Findlay Dep. at 51-57; (6) racially discriminatory discipline by a supervisor for throwing a bar/ pole at a co-worker (1990), see Findlay Dep. at 105-08; and (7) denial of promotion to anode crew chief (1990-91), see Findlay Dep. at 74-78. The allegations relating to incidents occurring in 1994 and thereafter include: (1) two red cones resembling Ku Klux Klan hats placed on hood of Plaintiff's car (1994), see Findlay Dep. at 24-25; Findlay Aff. at Ex. B; (2) denial of a transfer to Nigeria (1994), see Findlay Dep. at 67-74; (3) not being considered for DCO training (1997), see Findlay Dep. at 39-41; 116-18(4) not receiving QS 9000 training (1997), see Findlay Dep. at 48-51; (5) denial of a promotion to anode crew chief (1996), see Findlay Dep. at 77-78; (6) denial of a promotion to cast house crew chief (1996-97), see Findlay Dep. at 80-82; and (7) a number of instances where Plaintiff was "yelled at" for work-related deficiencies, but no reprimand, transfer, reassignment, loss of pay or time or other adverse employment action resulted (1997), see Findlay Dep. at 84 (failing to straighten his bundles); 85-86 (placed on a work-over list for failing to clean up self-created mess); 96-101 (failing to inform supervisor of his delay in returning to work area after taking a hearing test).*fn6 Plaintiff contends that these racially discriminatory incidents were the result of actions taken by Plaintiff's co-workers and supervisors and that Plaintiff's supervisors and Reynolds' management failed to take any corrective or remedial action with respect to Plaintiff's complaints. See Amended Compl. at ¶¶ 27-30.

Discovery with respect to Plaintiff's claims against Defendant Reynolds is complete. See Carmen Aff. at Ex. B (Letter and Attorney's Certification of Bonnie Strunk, Esq. dated July 29, 1999). Defendant Reynolds now moves, pursuant to FED. R. CIV. P. 56, to dismiss all claims alleged against Reynolds in the Complaint.

II. Discussion

A. The Standard for Summary Judgment

The standard for summary judgment is well-settled. Under FED. R. CIV. P. 56(c), if there is no genuine issue as to any material fact, the moving party is entitled to a judgment as a matter of law "[w]here the record taken as a whole could not lead a rational trier of fact to find for the non-moving party." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); see also Chertkova v. Connecticut Gen. Life Ins. Co., 92 F.3d 81, 86 (2d Cir. 1996). The moving party bears the initial burden of "informing the . . . court of the basis for its motion, and identifying those portions of `the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any,' which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (quoting FED. R. CIV. P. 56(c)). The initial burden is to demonstrate "that there is an absence of evidence to support the nonmoving party's case." Id. at 325, 106 S.Ct. 2548.

Once the moving party has met its burden, the non-moving party must come forward with specific facts showing that there is a genuine issue for trial. See Celotex Corp., 477 U.S. at 322, 106 S.Ct. 2548; Matsushita, 475 U.S. at 585-86, 106 S.Ct. 1348. A dispute regarding a material fact is genuine if a reasonable jury could return a verdict for the non-moving party; that is, whether the non-movant's case, if proved at trial, would be sufficient to survive a motion for judgment as a matter of law. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250-51, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). When reasonable minds, however, could not differ as to the import of the evidence, then summary judgment is proper. See Bryant v. Maffucci, 923 F.2d 979, 982 (2d Cir.), cert. denied, 502 U.S. 849, 112 S.Ct. 152, 116 L.Ed.2d 117 (1991).

Although the trial court must resolve all ambiguities and draw all inferences in favor of that party against whom summary judgment is sought, Ramseur v. Chase Manhattan Bank, 865 F.2d 460, 465 (2d Cir. 1989); Eastway Constr. Corp. v. City of New York, 762 F.2d 243, 249 (2d Cir. 1985), cert. denied, 484 U.S. 918, 108 S.Ct. 269, 98 L.Ed.2d 226 (1987), the motion will not be defeated by a non-movant who raises merely a "metaphysical doubt" concerning the facts or who only offers conjecture or surmise. Delaware & H.R. Co. v. Consolidated Rail Corp., 902 F.2d 174, 178 (2d Cir. 1990), cert. denied, 500 U.S. 928, 111 S.Ct. 2041, 114 L.Ed.2d 125 (1991) (quoting Matsushita, 475 U.S. at 586, 106 S.Ct. 1348); see also Western World Ins. Co. v. Stack Oil, Inc., 922 F.2d 118, 121 (2d Cir. 1990). Indeed, the non-moving party's opposition may not rest on mere allegations or denials of the moving party's pleading, but "must set forth specific facts showing that there is a genuine issue for trial." FED. R. CIV. P. 56(e).

While the Court is mindful that "summary judgment is ordinarily inappropriate where an individual's intent and state of mind are implicated," Meiri v. Dacon, 759 F.2d 989, 998 (2d Cir.), cert. denied, 474 U.S. 829, 106 S.Ct. 91, 88 L.Ed.2d 74 (1985), it is clear that "conclusory allegations of discrimination are insufficient to satisfy the requirements of Rule 56(e)." Id. (citations omitted); see also Schwapp v. Town of Avon, 118 F.3d 106, 110 (2d Cir. 1997).

B. Plaintiff's Disparate Treatment Claim

1. Administrative Exhaustion Requirement

Defendant Reynolds argues that the cause of action sounding in disparate treatment is not included in, nor reasonably related to the charges alleged in Plaintiff's 1995 and 1996 EEOC Complaints and, thus, is barred because of ...

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