According to defendants, Frost was terminated on September 8,
1995 for the same reasons as Dallas — "for repeatedly making
unauthorized radio transmissions, insubordination, and for
attempting to undermine the authority of his supervisors."
Frost does not dispute the events' occurrence. Instead he
attempts to rationalize his insubordination by stating that he
"was told specifically that we were supposed to record all events
that occurred during the course of our shift in the log book."
Whatever the evidentiary value of this statement, it is
nonetheless clear that the circumstances surrounding his
termination do not give rise to any inferences of racial
discrimination. Frost admits this in his deposition when he
explains his belief that his termination was discriminatory
"[b]ecause I filed several complaints against the company" for
reasons related to his pay. Without any specific evidence to
support his discrimination claim, Frost's statement, together
with the uncontradicted facts, show there are no genuine issues
of fact regarding the circumstances surrounding his termination.
According to defendants, Franklin "received disciplinary
warnings regarding carrying a knapsack to his post, excessive
tardiness, and absences." But the pivotal problem with Franklin
was that in October 1994, Foglia learned that Franklin had been
arrested, found guilty of disorderly conduct in June 1994, and
that a bench warrant had been issued for his arrest due to his
failure to pay the fine. The company also reviewed his personnel
records at the time and found that his INS Form I-9 was
incomplete. Because under New York law a criminal record "may
prevent the licensing of a security guard" and because of the
outstanding questions concerning Franklin's criminal record and
employment record, King instructed Franklin in writing on October
19, 1994, to report to KBI headquarters "with two forms of
identification" within 24 hours. Defendants say that "Franklin
did not report to KBI headquarters until two weeks after he
received King's written direction. . . . Franklin never cleared
up the questions about his criminal record and employment record,
and never returned to work."
Franklin does not dispute receiving disciplinary warnings for
carrying a knapsack to his post and for excessive tardiness and
absences. But he does dispute the fairness of the disciplinary
warning for the knapsack. He explains that "there were several
instances in the past when I brought packages or other materials
to work" and that on one occasion Foglia "noticed the bag,"
inspected the contents, and "told [Franklin] that he had no
problem with it." Franklin also seeks to explain his two-week
delay in responding to King's request by stating that King's
"letter [was] very suspect." He clarifies that "I have been
employed by KBI for three years and. . . . I believe that the
defendants requested that I supply [the requested identification
documents] to harass me." He also states, with respect to his
arrest, that "when I told Robert Foglia about the incident he
told me that there was no problem and that it would not affect my
employment with the company."
Franklin's rationalizations do not change the fact that he had
excessive tardiness and absences, that he waited two weeks before
responding to his employer's request, and that a bench warrant
had been issued for his arrest. Though Franklin claims that
Foglia told him his arrest would not present any employment
problems, it is clear from his own affidavit that Franklin was
discharged because of the bench warrant and not just the arrest.
According to Franklin, "[King] told me that he was aware that
there was a warrant out for my arrest. . . . [and][a]s a result
he said I can no longer work for the company." At the minimum,
this evidence demonstrates that King had nonracial reasons for
discharging him. Together with the other evidence, the record
firmly supports the conclusion that Franklin failed to perform
his duties satisfactorily.
In addition to the specific evidence relating to each of the
plaintiffs' disciplinary and attitudinal problems, this Court
takes into account that each of the plaintiffs was replaced by an
African-American, the same protected class as plaintiffs.
Plaintiffs' assertions of racial discrimination lack force in
light of this. It also suggests that if any
non-performance-related animosity did motivate their discharges,
it stemmed from the management's desire to punish them for filing
claims with the Labor Board, and not race. Accordingly, this
Court finds as a matter of law that plaintiffs do not have a
claim under Title VII for racially discriminatory discharge.
To establish a prima facie case for retaliatory discharge under
Title VII, "a plaintiff must show that (1) the employee was
engaged in protected activity; (2) the employer was aware of that
activity; (3) the employee suffered an adverse employment action;
and (4) there was a causal connection between the protected
activity and the adverse employment action." Reed v. A.W.
Lawrence & Co., 95 F.3d 1170, 1178 (2d Cir. 1996).
A "protected activity" under Title VII refers to a person's
opposition to "an unlawful employment practice" or a person's
assistance or participation in "an investigation, proceeding, or
hearing" under Title VII. 42 U.S.C. § 2000e-3(a). Title VII
defines "an unlawful employment practice," in pertinent part, as
an action by an employer
"(1) to fail or refuse to hire or to discharge any
individual, or otherwise to discriminate against any
individual with respect to his compensation, terms,
conditions, or privileges of employment, because of
such individual's race, color, . . . or national
origin; or (2) to limit, segregate, or classify his
employees or applicants for employment in any way
which would deprive or tend to deprive any individual
of employment opportunities or otherwise adversely
affect his status as an employee, because of such
individual's race, color, . . . or national origin."
42 U.S.C. § 2000e-2(a).
If the plaintiff can establish a prima facie case of
retaliatory discharge, the defendant must then demonstrate
legitimate reasons for its actions. See Kaible v. U.S. Computer
Group, Inc., 27 F. Supp.2d 373, 378 (E.D.N.Y. 1998). If the
defendant can meet its burden, the plaintiff must show that the
defendant's proffered reasons are a pretext for the true
discriminatory motive. Id.
The only protected activities for which the defendants can
establish a prima facie case are that of Brady's and Laster's.
Both filed complaints with the Equal Employment Commission before
their terminations, alleging harassment or verbal abuse on the
basis of race or national origin. Both experienced adverse
employment actions at the hands of KBI. Furthermore, the evidence
supports prima facie that a causal connection existed between the
protected activities and the adverse actions and that KBI,
through its supervisors, was aware of their Equal Employment
Nevertheless, the evidence amply supports the conclusion that
KBI discharged Brady and Laster for non-pretextual, nonracial
reasons. Based on Brady's and Laster's affidavits and
depositions, they both firmly maintain that they were fired for
filing claims relating to pay and benefits owed to them under
KBI's agreement with their union. Laster states that "[s]ometime
in 1993 or 1994, Captain Barrera . . . and my immediate
supervisor . . . began a pattern of harassment against me based
upon charges I filed against KBI relating to my right to a pay
increase under our collective bargaining agreement." Brady states
that the retaliatory actions began "after I filed a charge
against the defendants for back pay . . . ultimately resulting in
my termination from KBI." But a discharge on the basis of a claim
for pay and benefits related to a
union contract is not prohibited by Title VII.
In addition, the evidence also amply supports the conclusion
that KBI terminated Brady and Laster for repeated disciplinary
and attitudinal problems. As discussed earlier, it is
uncontradicted that Brady received numerous disciplinary warnings
for reporting to work late and not manning his post properly. At
one point, KBI suspended him from work for two days and warned
him that continued failure to perform properly would result in
his termination. Indeed, the uncontradicted evidence indicates
that Brady's termination was probably provoked by his being away
from his regular post yet again in October 1994.
Laster's work record is no better than Brady's. It is
uncontradicted that Laster received disciplinary warnings for
repeatedly leaving his post unsecured and for failure to obey
orders. He was also warned that any future failure to obey orders
might result in his termination. On May 5, 1994, Laster left the
latch down on a lobby door, which damaged the door and left it
unlocked, and on that same day repeatedly rolled his sleeves up
in violation of company rules and against the orders of his
In light of this evidence, Brady's and Laster's references to
racial discrimination amount, at best, to conclusory assertions
seemingly thrown in just to trigger the protections of Title VII.
Indeed, the Equal Employment Commission found "no probable cause
to believe" that Laster's termination "was because of his
national origin or retaliation" and found that Brady's
termination was "for abandoning [his] post without notifying
[his] supervisor, together with [his] prior disciplinary
history." This Court agrees with the Equal Employment Commission.
Accordingly, this Court finds as a matter of law that there is no
basis under Title VII for plaintiffs' claims of retaliatory
For the foregoing reasons, defendants' motion for summary
judgment is granted.
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