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June 19, 2000


The opinion of the court was delivered by: Mcmahon, District Judge.


Plaintiff brought claims under 42 U.S.C. § 1981 and 1983, Title VII, 42 U.S.C. § 2000e et seq., The Age Discrimination in Employment Act, 29 U.S.C. § 623(a)(1), (the "ADEA") and § 296 of the Executive Law of the State of New York against his former employer, Witco Corporation. On January 10, 2000, this Court granted Defendant's motion to dismiss the first two counts of the complaint. See Memorandum Decision and Order, 99 Civ. 6079 (S.D.N.Y. Jan. 10, 1999) (McMahon, J.). Defendant now moves for summary judgment and dismissal of the remaining claim. For the reasons stated below, the motion is granted.


The following facts are undisputed, except where noted:

Plaintiff Neville R. Dawkins, an African-American, became a lab assistant at the chemical laboratory facility Tarrytown New York facility of Witco's predecessor in 1977. In or about 1991, Dawkins was promoted to Senior Lab Technician. In 1996, Witco Corporation (the "Company") acquired successor interest in the Tarrytown facility and became Dawkins' employer. Over the course of his first twenty years at the Company, Plaintiff received generally satisfactory performance reviews for his work. (See Plaintiff's Opp., Exhs. A-1 through A-8; B-1, B-2.) Some of his reviews indicated that his performance could be improved. (See Plaintiff's Opp. Exh. B-4; Exh. D-1.)

In 1997, Dawkins was working as the Senior Lab Technician in the Organosilicones Group when he applied for promotion to the Chemist I position in the Company's Performance Chemicals Group. Plaintiff was interviewed by Dr. Ib Bechara and Dr. Ross Armbrecht, neither of whom had previously met or worked with Plaintiff. Drs. Bechara and Armbrecht decided to hire Plaintiff as Chemist I, and in November 1997, he began work in that job, reporting to Dr. Bechara.*fn1 As part of the job change, Plaintiff received a salary increase.

A. The Company's Safety Requirements

By his own testimony, Plaintiff was aware that safety was an important part of his job responsibilities. (Dawkins Dep. at 74.) The Company emphasized the central role of safe laboratory operations, and Plaintiff admitted that he attended safety training sessions on a regular basis throughout the course of his employment. (Id. at 269-73, 291.) Plaintiff was acquainted with the safety manual maintained at the Company's Tarrytown facility, at least one hard copy of which was available to employees in a common area of the building. The safety manual is "a huge, maybe about three or four-inch binder that contains all the safety instructions for the laboratory." (Dawkins Dep. at 74.) One of the topics covered in the safety manual was the specific procedure to be followed to safely dispose of hazardous chemical waste. (Dawkins Dep. at 282-83; Dawkins Dep.Exh. 14.)

It is also undisputed that Plaintiff was familiar with the Company's Safety Policy, which specifies that "safety is unequivocally our number one (# 1) priority," and that "We are all accountable for ourselves and the safety of others in the workplace. Working safely is condition of employment." (Dawkins Dep. at 272-75; Dawkins Dep. at Exh. 11) (emphasis added). As evidence of the Company's strong emphasis on safety in the workplace, in 1996 and 1997, all Company employees, including Plaintiff, received annual performance appraisals based partly on their demonstrated ability to "practice [] safe and environmentally sound work habits and influence [] others to work safely and in an environmentally conscious manner." (Dawkins Dep.Exhs. 7, 27.)

The Company's Code of Business Conduct, which Plaintiff received, reviewed and signed on April 23, 1996, contains a section entitled "Workplace Safety," which reads in part:

Employees are expected to implement all work practices taught in company-sponsored education and training programs to prevent personal injury and property loss, and are required to comply with all company policies and applicable health and safety laws. Employees should immediately report all potential or actual health or safety problems to supervisors, the Safety, Health & Environmental Affairs Department, of the Legal Department.

(Dawkins Dep. at 288-90; Dawkins Dep. Exhs. 16, 17.) (emphasis added).

B. The Spill

On the afternoon of January 26, 1998, a spill occurred in the laboratory Plaintiff shared with the scientist, Dr. John Xu, who is Asian. According to Plaintiff's testimony, the spill resulted from Dr. Xu's effort to prepare a potassium hydroxide solution for soaking soiled laboratory glassware. Potassium hydroxide solution is an extremely dangerous, highly reactive, caustic substance that should only be prepared in a stainless steel container. If prepared in an aluminum container, a reaction will commence "almost immediately" and the chemical solution will quickly eat through the container. (Dawkins Dep. at 147, 149; Bechara Dep. at 43, 45-47.) Plaintiff, who testified that he was on the phone at the time the spill occurred, observed Dr. Xu standing over the fume hood in the lab, where a container that "looked as though it was an aluminum bucket container" was filled with liquid that foamed over the top of the container on the floor of the hood. (Dawkins Dep. at 143-144, 160.) Plaintiff further testified that Dr. Xu told him that the container was aluminum "during the time it was foaming over the top." (Id. at 164-65.)

Plaintiff described the reaction between the potassium hydroxide solution and the aluminum bucket in this way:

It [the aluminum bucket] wasn't readily recognizable, because from all the fume and all the chemicals that were still present there. So but what I could observe is the bottom there was a reaction, the reaction with the aluminum and the potassium hydroxide and water. The bottom had all dissolved and eaten away, so instead of it foaming at the top, it was running out from the bottom now.

(Dawkins Dep. at 164.)

Plaintiff and Dr. Xu worked together to contain the spill by mopping up the overflowing liquid with papers towels and ...

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