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May 13, 2003


The opinion of the court was delivered by: Constance Baker Motley, United States District Judge



Plaintiff Ismael Bailey ("plaintiff"), a former employee of Colgate-Palmolive Co., brings this action alleging claims of race discrimination, retaliation, and race-based hostile work environment pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e through 2000e-17 ("Title VII"); age discrimination pursuant to the Age Discrimination in Employment Act of 1967, 29 U.S.C. § 621-634 (the "ADEA"); race discrimination and retaliation pursuant to 42 U.S.C. § 1981 ("Section 1981"); and race discrimination, age discrimination, and retaliation pursuant to N.Y. Exec. Law § 296 ("NYSHRL").*fn1

Defendant Colgate-Palmolive Co. ("defendant" or "Colgate") now moves this court for an order granting summary judgment pursuant to Fed.R.Civ.P. 56(c). Defendant asserts that plaintiff's allegations of race and age discrimination and retaliation are wholly unrelated to its decision to terminate his employment and, indeed, to any decisions related to his employment at Colgate. Moreover, Colgate contends that the court can forego consideration of the substance of most of plaintiff's claims inasmuch as they are procedurally flawed.

For the reasons set forth below, defendant's motion for summary judgment is hereby GRANTED.


A. Plaintiff's Employment History at Colgate

The following facts are taken from the Amended Complaint, the parties' memoranda of law and Local Rule 56.1 statements, and relevant deposition testimony.

Plaintiff, an African American male, began working for Colgate in September 1985 as what is referred to as a Grade 12 Staff Auditor in the company's Corporate Auditing Department. During his tenure of employment at Colgate, plaintiff's work performance was periodically evaluated by supervisors, presumably pursuant to a formal protocol. Since Mr. Bailey's record of performance at Colgate is a matter of dispute between the parties, the court will briefly comment on portions of the performance evaluations completed by his supervisors.

Francine Nielson, an African American Colgate employee who supervised plaintiff during the period spanning from 1985 to 1986 rated his overall work performance as "Competent," notwithstanding plaintiff's weakness with respect to certain technical skills.

In 1988, plaintiff was promoted to a Grade 13 position as a Treasury Analyst in Colgate's New York Treasury Department. In his performance appraisal for the period of January 16, 1988 to December 1, 1988, plaintiff's supervisor, Andris Anuzis, rated his overall performance as "Commendable." Mr. Anuzis noted that plaintiff needed to "continue his technical development." He moreover commented that "[plaintiff] needs more financial education in the form of Graduate courses, additional analytical projects and writing." See Gay Aff. Exhibit L.

In March 1989, plaintiff was promoted to a Grade 14 Financial Manager position for Colgate's Far East Division. Plaintiff's supervisors in this capacity were David Murray and Jack Robinson, who is African American. Mr. Murray rated plaintiffs overall performance as "Standard" in his appraisal for the period of January 1, 1989 to December 31, 1989. Mr. Murray rated plaintiffs overall performance for the period of January 1, 1989 to December 31, 1989 as "Standard." Mr. Murray commented on the evaluation form that plaintiff is "more adept and more comfortable in a special projects mode than financial analysis." See Gay aff. Exhibit M.

In an August 20, 1990 memorandum which was labeled "Personal and Confidential," Jack Robinson addressed what he characterized as "[Plaintiffs] UNSATISFACTORY PERFORMANCE." See Gay Aff. Exhibit N (capitalization in original). In this memorandum, Mr. Robinson commented, inter alia, that plaintiff "DOES NOT RECONCILE AND PICK UP ON DISCREPANCIES WITHOUT SUPERVISION AND THEN DOES NOT RELIABLY MAKE CORRECTIONS." Id. (capitalization in original).

In a September 7, 1990 memorandum addressed to plaintiff, Mr. Robinson noted:

In his performance appraisal for the period of January 1, 1990 to November 30, 1990, Mr. Robinson rated plaintiffs overall performance as "Below Standard," noting, inter alia, that plaintiff "needs courses, training in how to interpret and present accurate financial information to senior management" and "needs to learn about managing change v. `using the way it is' as an excuse for unsatisfactory practices and systems." Gay Aff. Exhibit P.

In 1991, plaintiff was assigned to the Integrated Financial Systems for Colgate's United States operations. Plaintiff was supervised by Doug Presley. For the periods of February 1, 1991 to June 1, 1991 and June 1, 1991 to December 1, 1991, plaintiff received performance ratings of "Standard" and "Above Standard" respectively. Gay Aff. Exhibits Q and R.

In September 1992, plaintiff was assigned to the position of Distribution Services Financial Manager in the Finance Department in Atlanta, GA. Plaintiffs supervisor, Alfred J. Lee, who is African American, gave plaintiff an overall performance rating of "Above Standard" for the period of August 1, 1992 to November 30, 1992. In his evaluation of plaintiffs performance for the period of December 1, 1992 to November 15, 1993, Mr. Lee noted that plaintiff's "technical skills do not meet the minimum requirements for a senior position in Finance. After review and evaluation, it is evident that he requires training and education in basic accounting fundamentals." Gay Aff. Exhibit T. In addition, Mr. Lee noted that

a significant part of [plaintiff's] role is to review the work of Analysts. This has not been sufficiently performed. During the first quarter, a significant cost of sales error was noted by the Marketing Controller. The cause was an incorrect rate for co-packing SKU in the cost of goods sold report. During the first and second quarters, a series of journal entries were made incorrectly, causing freight exposure being understated by $600,000.

Mr. Lee gave plaintiff a "Below Standard" rating in his performance appraisal for this period. Id.

In March 1994, plaintiff and other Colgate employees were assigned to install the so-called Ross System General Ledger, Accounts Payable and Purchasing Program ("Ross") in Puerto Rico. Plaintiff received a letter dated January 10, 1995 from the Comptroller of Puerto Rico which praised plaintiff and his co-workers for their successful implementation of the relevant software. See Exhibit 8, Letter from William Sibaja. Plaintiff claims that although Colgate's policy manual dictates that employees receive yearly performance appraisals, he did not receive one for his work on the Ross system in Puerto Rico.

Plaintiff returned to New York in 1995 after the completion of the Ross installation in Puerto Rico. According to the Amended Complaint, unlike Carol Smith and Greg Cucco, two of plaintiff's co-workers on the ROSS project, plaintiff was not assigned to work on the so-called SAP project in New Jersey upon his return from the installation project. Pursuant to his discrimination claims, plaintiff asserts that Ms. Smith and Mr. Cucco are both white and younger than plaintiff. Colgate contends that Mr. Cucco is in fact one year older than plaintiff; Ms. Smith is less than five years younger than plaintiff. See Tr. at 21.

Thereafter, in March 1995, plaintiff applied for a Grade 15 Special Packaging Manager position in Colgate's U.S. Materials Management Unit. Plaintiff claims that Dennis Hickey, the Executive Vice President and Chief Financial Officer of Colgate North America, did not allow plaintiff to interview for this position. Plaintiff suggests that Mr. Hickey prevented him from pursuing the position for at least two reasons: (1) because of his disapproval of plaintiff's "activities with the African American Forum," an organization which ostensibly was organized to address issues of race-based discrimination at Colgate; and (2) because of Mr. Bailey's "history of complaints regarding matters of race [at Colgate]." See Am. Comp., ¶ 67. Colgate denies that Mr. Bailey's race or his membership in the African American Forum had anything to do with the company's employment decisions with respect to Mr. Bailey. Rather, Colgate asserts that Mr. Bailey was objectively unqualified for the Special Packaging Manager position.

In April 1995, at a meeting held by Michele Mayes, Colgate's Vice President of Human Resources for the U.S. Company, and Mr. Hickey, plaintiff was offered a severance package in exchange for his resignation. Plaintiff rejected this offer.

At a May 23, 1995 meeting, Ms. Mayes and Mr. Hickey informed plaintiff that they did not think that he was qualified for Grade 14 employment with Colgate. They offered him a Grade 12 Staff Accountant position without any reduction from his Grade 14 salary. Plaintiff rejected this offer, too. Colgate claims that in light of Mr. Bailey's intransigence with respect to the issue of his placement in a Grade 14 level position, the company then terminated his employment.

B. Plaintiff's Allegations of Discrimination

With respect to the facts summarized above in this Opinion, plaintiff claims that because of his race (1) he was not assigned to work on the SAP project in New Jersey. Am. Compl. ¶ 66; (2) he was prevented from interviewing for a Grade 15 position in March 1995. Am. Compl. ¶ 67; (3) he was offered what he considers to be an inferior position during the May 23, 1995 meeting with Ms. Mayes and Mr. Hickey. Am. Compl. ¶ 69; and (4) he was terminated on May 23, 1995. Am. Compl. ¶ 77.

Plaintiff claims that because of his age he was not assigned to work on the new SAP project in New Jersey and was terminated on May 23, 1995.

C. Plaintiff's Allegations of Racially Hostile Work Environment

Plaintiff alleges that he was subjected to a litany of racially-insensitive incidents during his tenure at Colgate which cumulatively fostered and were constitutive of a hostile work environment. See Am. Compl. ¶ 12. According to plaintiff,

[t]his environment was created and/or condoned by the Defendant's employees and by the Defendant's use of racially, [sic] derogatory terms, images and materials. Even after [plaintiff] brought these matters to defendant's attention, Defendant failed to act up to and including the date of [plaintiff's] termination. Id.
In particular, plaintiff claims that: (1) in New York in 1985, plaintiff viewed, in an accounting department manual (which plaintiff was required to use in the course of his employment) the term "Nigger Soap" used with reference to soap residue. Mr. Bailey asserts that the term "Nigger Soap" describes a soap or residue of inferior quality. This use of the word "nigger" to denote a quality of inferiority, Mr. Bailey claims, was offensive and contributed to a hostile work environment; (2) during an audit in Kansas City in 1986, a co-worker named Robert "Bob" Proctor introduced himself as the Grand Wizard of the Ku Klux Klan and repeatedly used the word "nigger" in the presence of Mr. Bailey. During oral argument on the pending motion for summary judgment, defendant asserted that it cannot find any record of a person named Bob Proctor being employed at Colgate at that time; (3) during an audit in France in 1987, plaintiff viewed a sign that referred to black soap residue as "Nigger Soap"; (4) at a meeting in Texas in February 1989, he overheard a co-worker use the offensive Afrikaner word Kaffa*fn2 with reference to blacks; (5) in June 1990, during a budget review, plaintiff prepared "budget templates and graphics which depicted a logo of a smiley, black face, black top-hatted, bright-eyed minstrel for Defendant's `Darkie Toothpaste.'" Am. Compl. ¶ 28. Darkie Toothpaste is a product manufactured by a company which Colgate acquired and which was marketed only in Asia. Plaintiff perceived the logo to be racially insensitive and offensive; (6) in New York in 1990, a co-worker referred to plaintiff as "one big nigger." Bailey Tr. at 382-84; (7) in Puerto Rico in 1994,*fn3 plaintiff heard a co-worker, Carol Smith, tell a racially insensitive joke about Puerto Ricans, which plaintiff perceived to be tasteless and offensive; and (8) in 1995, after he was informed of his termination, plaintiff overheard a conversation in a bathroom at Colgate in which an employee said, presumably with reference to Mr. Bailey: "We got another one. These niggers don't get it. We decide who comes and goes at Colgate." Am. Compl. ¶ 72. See generally Am. Compl. ¶¶ 13, 19, 28, 32, 33, 47, 60, 72.

D. Plaintiff's Allegations of Retaliation

Plaintiff alleges that as a result of his role in the organizing of, and his participation in, the African American Forum at Colgate in 1992 and 1993, Colgate retaliated against him by: (1) giving him a below-standard performance evaluation in 1993. See Am. Compl. ¶ 100; (2) transferring him from Atlanta to Puerto Rico in 1994. See Am. Compl. ¶ 55; (3) not allowing plaintiff to interview for a Grade 15 position in March 1995. See Am. Compl. ¶ 67; and (4) terminating plaintiff's employment on May 23, 1995. See Am. Compl. ¶ 100.

Under the heading of "Racially Hostile Environment" in the Amended Complaint, but seemingly with relation to the foregoing issues of retaliation and discrimination, plaintiff claims that from April 1993 to the first quarter of 1994, Stan Brothers, who was the Manager of Colgate's Atlanta operation, maintained his own separate file on Mr. Bailey. Plaintiff claims that these files included performance appraisals and letters to and from Mr. Bailey during his period of service in Atlanta. Plaintiff claims that this file and the materials therein mysteriously disappeared from Mr. Brothers' files in 2000 or 2001.

Plaintiff claims that his supervisor, Al Lee, told him that he would receive an "above average" rating for the period of December 1, 1992 to October 31, 1993. Plaintiff claims that Mr. Brothers met with Mr. Lee and directed him to "change the language of [plaintiff's] performance appraisal." Moreover, plaintiff asserts that "Stan Brothers identified language Al Lee was to use in the performance appraisal." Am. Compl., ¶ 51. Plaintiff claims that as a result of this manipulation by Mr. Brothers, he received a "below standard" performance appraisal for the period of December 1, 1992 to November 15, 1993. Id., ¶ 52.

In addition, with respect to claims of retaliation, plaintiff notes that employees in Atlanta under the supervision of Al Lee filed sexual harassment charges against Mr. Lee in 1993. Plaintiff was interviewed pursuant to Colgate's investigation of this matter. Am. Compl. ¶ 54. The Amended Complaint notes that "Al Lee knew of the [sic] Ismael Bailey's cooperation with the investigation; Al Lee also knew that Ismael Bailey opposed discriminatory practices at Defendant's place of employment" Id. ¶ 54. It appears that plaintiff wishes to raise an inference of retaliation for his involvement in this investigation and "opposition" to discriminatory practices.

It is apparent that Mr. Bailey believes that he was the victim of retaliation because of his involvement in the African American Forum, a group which "raised issues of equal employment." Am. Compl. ¶ 100. Plaintiff alleges that Colgate was aware of his creation of and participation in the Forum.*fn4 He alleges that his affiliation with the Forum contributed to his receipt of below standard performance reviews, his denial of an opportunity to interview for a Grade 15 position, and the ultimate termination of his employment with Colgate. Id.


According to Fed.R.Civ.P. 56(c), summary judgment "shall be rendered forthwith" if it is shown that "there is no genuine issue of material fact and that the moving party is entitled to a judgment as a matter of law." Celotex Corp. v. Catrett, 477 U.S. 317, 323 n. 4, 106 S.Ct. 2548, 2552 n. 4 (1986). "[G]enuineness runs to whether disputed factual issues can reasonably be resolved in favor of either partly, [while] materiality runs to whether the dispute matters, i.e., whether it concerns facts that can affect the outcome under the ...

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