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LIVINGSTON v. BEV-PAK

September 18, 2000

RICHARD A. LIVINGSTON, PLAINTIFF,
V.
BEV-PAK, INC., D/B/A ADIRONDACK BEVERAGES, DEFENDANT.



The opinion of the court was delivered by: Smith, United States Magistrate Judge.

  MEMORANDUM DECISION AND ORDER

This is a civil action for damages for race discrimination brought pursuant to Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq., and the New York Human Rights Law (the "HRL"), N.Y. Exec. Law §§ 296 and 297. The parties have consented to have the undersigned conduct any and all further proceedings in this case, including the entry of final judgment, in accordance with 28 U.S.C. § 636(c). Presently before the Court is Defendant's motion for summary judgment (hereinafter the "Motion"). For the reasons set forth below, the Court grants Defendant's Motion and dismisses Plaintiff's complaint with prejudice.

I. Standard of Review

Pursuant to Fed.R.Civ.P. 56(c), a court may grant a party's motion for summary judgment only when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Chertkova v. Connecticut Gen. Life Ins. Co., 92 F.3d 81, 86 (2d Cir. 1996). When analyzing the motion, the court's function "is not to weigh the evidence, make credibility determinations or resolve issues of fact, but rather to determine whether, drawing all reasonable inferences from the evidence presented in favor of the non-moving party, a fair-minded jury could find in the non-moving party's favor." Beatie v. City of New York, 123 F.3d 707, 710-11 (2d Cir. 1997) (citing United States v. Rem, 38 F.3d 634, 644 (2d Cir. 1994); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). 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 the affidavits, if any,' which it believes demonstrate the absence of a genuine issue of material fact." Celotex, 477 U.S. at 323, 106 S.Ct. 2548. Once the moving party satisfies this standard, the burden shifts to the non-moving party to set forth specific facts indicating that genuine issues of material fact exist. Cifarelli v. Village of Babylon, 93 F.3d 47, 51 (2d Cir. 1996). In opposing the motion, the non-moving party may not merely rely upon the pleadings, but "must set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e). Where the evidence in the record could reasonably support a verdict in favor of the non-moving party, the court must deny the moving party's motion. Beatie, 123 F.3d at 711 (citing Anderson, 477 U.S. at 252, 106 S.Ct. 2505). However, "[w]here the record taken as a whole could not lead a rational trier of fact to find for the non-moving party," the Court will grant the moving party's motion. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).

II. Background

Construing the evidence in the light most favorable to Plaintiff, the facts are as follows. In 1986, Defendant hired Plaintiff to work in the production department of Defendant's Scotia, New York, plant as a general line worker. In 1989, Plaintiff was promoted to the position of filler-operator and became responsible for stocking the bottle cap and can lid machines, filling the bottles or cans to their proper height, and keeping the general work area clean. Plaintiff's supervisor in this position was James Rufer. Once Rufer learned that Plaintiff was of Hispanic descent, he began to make repeated derogatory comments to Plaintiff on the basis of Plaintiff's ethnic background. Furthermore, on at least one occasion, Rufer physically assaulted Plaintiff. Plaintiff complained to Defendant's upper level employees about Rufer's conduct, including Douglas Martin, Defendant's Director of Operations, but no action was taken.

On October 28, 1991, Plaintiff incorrectly capped 300 cases of one-liter bottles. The next night, Rufer asked Plaintiff to move the case of bottle caps with an hydraulic pallet jack so that other bottles would not be mis-capped, but Plaintiff refused to do so. Plaintiff told Rufer that such work was not a part of his job description and further explained that he had suffered a traumatic experience with a pallet jack as a child. The next day, Martin fired Plaintiff for insubordination. Plaintiff then filed a grievance against Defendant through his union and sought reinstatement to his former position, back pay, and no loss of benefits.

In December 1991, the unemployment insurance administrative law judge ("ALJ") found that, although Defendant had been warranted in removing Plaintiff from its payroll, Plaintiff's conduct did not rise to the level of misconduct under the Unemployment Insurance Law. Consequently, the ALJ found that Plaintiff was not ineligible for unemployment benefits. Faced with one unfavorable decision, Defendant proposed to reinstate Plaintiff as of January 10, 1992 to the lower-paying position of general line worker and to leave all questions relating to his demand for complete exoneration, reinstatement to the position of filler-operator, and back pay to the grievance ALJ. When Plaintiff refused to show up for work despite Defendant's repeated efforts to contact him, he was fired again on February 6, 1992.

On June 23, 1992, the grievance ALJ found that, although Plaintiff had been insubordinate when he refused to move the case of bottle caps, his insubordination did not warrant the ultimate penalty of termination. Accordingly, the ALJ reduced Plaintiff's termination on October 30, 1991 to a suspension without pay for 60 days followed by a disciplinary demotion from filler-operator to general line worker, and he ordered Defendant to compensate Plaintiff for the income that he would have earned between January 1, 1992 (the date that Plaintiff's 60-day suspension expired) and January 17, 1992 (the latest date by which Plaintiff should have been aware of Defendant's offer to reinstate him). The ALJ further found that, although Defendant was not required to compensate Plaintiff after January 17, 1992 for the time that Plaintiff did not work, Plaintiff was still eligible to return to the general line worker position that Defendant had offered to him.

Plaintiff returned to work on July 6, 1992. On August 7, 1992, Plaintiff filed charges with the New York State Division of Human Rights (the "SDHR") alleging that Defendant had discriminated against him on the basis of his national origin. On September 22, 1992, the SDHR notified Defendant that Plaintiff had filed charges against it and that the charges were "dual filed" with the Equal Employment Opportunity Commission (the "EEOC"). As the SDHR explained, dual filing created two charges against Defendant (one pending before the SDHR and the other pending before the EEOC) and allowed the EEOC to review the SDHR's final decision if Defendant submitted its request for review within 15 days of the date that it received a copy of that decision and order.

On October 6, 1992, Martin called Plaintiff into his office and began yelling at him. Martin said that Plaintiff was going to be fired, and he offered Plaintiff $10,000 to drop the SDHR and EEOC charges that were pending against Defendant. Plaintiff was not encouraged to consult with an attorney, and in fact, he did not do so. Martin told Plaintiff to wait outside his office while he made a few changes to the release agreement that had been prepared by Defendant's attorney. Martin called Plaintiff back into his office about ten minutes later, and Plaintiff signed the agreement.

Pursuant to the terms of the release agreement, Plaintiff sought to withdraw his federal and state claims of discrimination. On April 29, 1993, the SDHR ordered Plaintiff's complaint withdrawn and closed his file. On August 2, 1993, the EEOC issued a similar order. On December 2, 1994, however, the EEOC responded to a letter sent by Congressman Michael R. McNulty and stated that information presented to it indicated that Plaintiff may have lacked the mental capacity to sign the release agreement. The EEOC thus issued Plaintiff a notice of right to sue on December 7, 1994 so that, if Plaintiff were successful in invalidating the release agreement, he could continue the action on the underlying claim.

On January 24, 1995, Plaintiff filed his complaint against Defendant and alleged that he had been discriminated against on the basis of his race and national origin. Plaintiff subsequently amended his complaint three times and alleged each time that Martin and Rufer forced him to resign on October 6, 1992 by telling him that, if he did not, they would continue to harass, humiliate, and retaliate against him. Plaintiff did not mention his alleged lack of capacity to sign the release agreement in his initial Complaint or in any of the amendments thereto.

On May 20, 1996, Defendant filed a motion to dismiss the complaint, inter alia, on the grounds that Plaintiff had failed to submit any proof that he signed the release agreement under duress. On September 11, 1996, this Court agreed and concluded that Plaintiff had failed to establish that he had not knowingly and voluntarily signed the release agreement. Plaintiff appealed the Court's decision, and the Second Circuit reversed. Although Defendant argued, and this Court found, that the EEOC's determination that Plaintiff was challenging the release agreement due to his own competency barred him from challenging the agreement on any other grounds, the Second Circuit held that "[a]s long as [Plaintiff] set forth a viable claim of duress, his complaint ...


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