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United States District Court, S.D. New York

July 19, 2004.


The opinion of the court was delivered by: SHIRA SCHEINDLIN, District Judge



  Silvin Blackstock brings this action against Champlain Enterprises, Inc. d/b/a CommutAir ("CommutAir"), alleging that CommutAir discharged him on the basis of his race, in violation of Title VII of the 1964 Civil Rights Act ("Title VII"), 42 U.S.C. § 2000e-2000e-17, and the New York Human Rights Law, N.Y. Exec. Law §§ 290-301. CommutAir now moves for summary judgment. For the following reasons, CommutAir's motion is granted.


  CommutAir is a privately owned commercial passenger airline that flies throughout the northeastern United States.*fn1 Vanda Crook is CommutAir's Director of Operations and Vice President, as well as a qualified pilot.*fn2 Henry Wurster is CommutAir's Chief Pilot; he supervises CommutAir's pilots and reports directly to Crook.*fn3

  Silvin Blackstock, an African-American, was a pilot for CommutAir from March 2000 until September 12, 2002.*fn4 Like all new pilots at CommutAir, Blackstock started out as a First Officer.*fn5 CommutAir First Officers can become Captains by completing CommutAir's program to upgrade to Captain, which consists of an oral examination, flight simulator training, and Initial Operating Experience ("IOE") in which the First Officer flies an aircraft as a Captain with a Check Airman observing and flying as First Officer.*fn6 As places become available in the Captain upgrade program, they are offered to First Officers solely on the basis of seniority.*fn7

  In June 2001, Blackstock enrolled in the Captain upgrade program, but he failed the oral examination and resumed flying as a First Officer in July 2001.*fn8 Blackstock attributes his failure to the fact that at the time he was partially responsible for the care of his sister, who had been injured and hospitalized.*fn9

  During the time that Blackstock was a First Officer, Chief Pilot Wurster received numerous complaints concerning Blackstock's performance.*fn10 As a result, Wurster decided to fly as a Captain with Blackstock as his First Officer in January 2002 in order to evaluate Blackstock's flying skills.*fn11 After two or three days of flying with Blackstock, Wurster concluded that Blackstock was proficient to fly as a First Officer, but that Blackstock's "flying skills were not at a par with individuals of his experience."*fn12 During these flights, Wurster pointed out to Blackstock areas in which his skills needed improvement.*fn13

  In May 2002, Blackstock again enrolled in the Captain upgrade program on the basis of his seniority.*fn14 During the IOE phase of the program, Blackstock first flew two days with Check Airman Dave Douglas, who reported several deficiencies in Blackstock's performance.*fn15 Blackstock then flew three days of IOE with Check Airman Ted Robinson, who concluded from his observations that Blackstock's deficiencies were of such a serious nature that further IOE was not warranted, and that Blackstock should not be promoted to Captain.*fn16

  Despite Robinson's evaluation, and despite the fact that Blackstock had already received the standard number of IOE hours, Crook and Wurster arranged for Blackstock to have additional IOE.*fn17 Blackstock then flew with Check Airman Dale Holderman, who determined that Blackstock was still unprepared to become a Captain, but nevertheless recommended that he receive further additional IOE.*fn18 Blackstock then underwent further IOE with Holderman, after which Holderman deemed him ready for an FAA observation and line check, the last step to becoming a Captain.*fn19 Blackstock passed his FAA observation and line check, and became a Captain on July 2, 2002.*fn20

  Shortly after Blackstock began flying as a Captain, Chief Pilot Wurster received three unsolicited complaints from other CommutAir Captains regarding Blackstock's performance.*fn21 As a result, Wurster arranged to fly as Blackstock's First Officer on August 6 and 7, 2002. Blackstock, however, called in sick on August 6, 2002, and Wurster never rescheduled the flights.*fn22

  On September 5, 2002, Crook was a passenger on one of Blackstock's flights, during which she saw him commit several violations of operating procedure.*fn23 After this flight, Crook asked Wurster to conduct an investigation of Blackstock's ability to fly as a Captain.*fn24 This was the only investigation Wurster conducted into a pilot's competence at CommutAir, and both Wurster and Crook stated that there were no CommutAir rules or procedures governing such an investigation.*fn25

  Between September 6 and 12, 2002, Wurster communicated with five First Officers who had flown with Blackstock as Captain, as well as with CommutAir's Director of Maintenance and a CommutAir Dispatcher.*fn26 At no time during the investigation did Wurtser speak to Blackstock about the concerns that had been raised regarding his competence.*fn27 Based in part on these communications, Wurster concluded that Blackstock was a nervous pilot, that his knowledge of systems and operations was weak, and that he was prone to potentially dangerous errors.*fn28 For these reasons Wurster "no longer had confidence that Silvin Blackstock could fly safely and effectively a CommutAir aircraft as a Captain,"*fn29 and he therefore recommended that Blackstock be terminated.*fn30 On September 12, 2002, Wurster and Crook met with Blackstock and offered him the option of being terminated or resigning; Blackstock chose to be terminated.*fn31

  Blackstock claims to have identified at least twelve documented instances in which Caucasian CommutAir Captains violated procedures or engaged in unsafe conduct but were not terminated.*fn32 Each of these incidents involved a different CommutAir pilot.*fn33

  Blackstock also states that "Captain Mark Sherwin once asked me during a flight while I was First Officer, `What kind of black are you?' Another CommutAir pilot, Robert Henke, referred to me as `The Negro.'"*fn34


  Summary judgment is permissible "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law."*fn35 "An issue of fact is genuine `if the evidence is such that a jury could return a verdict for the nonmoving party.'"*fn36 A fact is material when "it `might affect the outcome of the suit under the governing law.'"*fn37

  The party seeking summary judgment has the burden of demonstrating that no genuine issue of material fact exists.*fn38 in turn, to defeat a motion for summary judgment, the non-moving party must raise a genuine issue of material fact. To do so, he "`must do more than simply show that there is some metaphysical doubt as to the material facts,'"*fn39 and he "`may not rely on conclusory allegations or unsubstantiated speculation.'"*fn40 Rather, the non-moving party must produce admissible evidence that supports his pleadings.*fn41 In this regard, "[t]he `mere existence of a scintilla of evidence' supporting the non-movant's case is also insufficient to defeat summary judgment."*fn42 In determining whether a genuine issue of material fact exists, the court must construe the evidence in the light most favorable to the non-moving party and draw all inferences in that party's favor.*fn43 Accordingly, the court's task is not to "weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial."*fn44 Summary judgment is therefore inappropriate "if there is any evidence in the record that could reasonably support a jury's verdict for the non-moving party."*fn45

  "[T]he salutary purposes of summary judgment — avoiding protracted, expensive and harassing trials — apply no less to discrimination cases than to commercial or other areas of litigation."*fn46 Courts within "the Second Circuit have not hesitated to grant defendants summary judgment in such cases where . . . plaintiff has offered little or no evidence of discrimination."*fn47 Indeed, "[i]t is now beyond cavil that summary judgment may be appropriate even in the fact-intensive context of discrimination cases."*fn48

  However, greater caution must be exercised in granting summary judgment in employment discrimination cases where the employer's intent is genuinely at issue and circumstantial evidence may reveal an inference of discrimination.*fn49 This is so because "[e]mployers are rarely so cooperative as to include a notation in the personnel file that the firing is for a reason expressly forbidden by law."*fn50 But even where an employer's intent is at issue, "a plaintiff must provide more than conclusory allegations of discrimination to defeat a motion for summary judgment."*fn51 "[A] party may not `rely on mere speculation or conjecture as to the true nature of the facts to overcome a motion for summary judgment.'"*fn52

  IV. DISCUSSION*fn53 Title VII makes it unlawful for an employer "to discharge any individual . . . because of such individual's race."*fn54 Where, as here, the plaintiff has not produced any direct evidence of discrimination, he must proceed under the burden-shifting framework developed in McDonnell Douglas Corp. v. Green.*fn55 Under this framework, the plaintiff must first prove a prima facie case of discrimination.*fn56 "If a plaintiff establishes a prima facie case, a presumption of discrimination is created and the burden of production shifts to the defendant to articulate some legitimate, nondiscriminatory reason for the adverse employment action or termination."*fn57 "If such a reason is proffered, the burden shifts back to the plaintiff to prove that discrimination was the real reason for the employment action."*fn58 Even assuming, arguendo, that Blackstock has established a prima facie case of discrimination, CommutAir has provided a legitimate, nondiscriminatory reason for Blackstock's termination. Moreover, Blackstock has failed to meet his ultimate burden of producing evidence sufficient to support a finding that discrimination was the real reason for his termination.

  A. CommutAir's Legitimate, Nondiscriminatory Reason

  Assuming that Blackstock has established a prima facie case, the burden shifts to CommutAir to "introduce evidence which, taken as true, would permit the conclusion that there was a nondiscriminatory reason for the adverse action."*fn59 Wurster states that, based on his investigation into Blackstock's performance as Captain, he "no longer had confidence that Silvin Blackstock could fly safely and effectively a CommutAir aircraft as a Captain."*fn60 Taken as true, this explanation would be a sufficient nondiscriminatory justification of CommutAir's decision to terminate Blackstock.

  B. Blackstock's Ultimate Burden of Showing Discrimination

  Blackstock has proffered some evidence in support of his allegation that, notwithstanding CommutAir's articulated reason for discharging him, the real reason for his discharge was discriminatory. However, none of the evidence Blackstock identifies is sufficient to rebut CommutAir's proffered justification and raise a triable issue of fact as to discriminatory intent.

  1. Racist Remarks

  Blackstock alleges that two CommutAir pilots, Mark Sherwin and Robert Henke, made racist comments in his presence and referred to him in a racist manner, and argues that this supports his contention that he was discharged for a discriminatory reason. The Second Circuit has held that although isolated discriminatory comments alone are usually not sufficient to show employment discrimination, a "stray comment may `bear a more ominous significance' when considered within the totality of all the evidence."*fn61 Because Sherwin and Henke were not involved in the decision to discharge Blackstock, and because it is not alleged that Sherwin or Henke played a substantial role in providing the information upon which the decision to discharge Blackstock was based, the evidence does not impart an "ominous significance" to Sherwin's and Henke's stray comments, at least as they relate to Blackstock's discharge. These comments, therefore, do not support an inference of discrimination.

  2. Captain Joseph Henry's Declaration

  CommutAir Captain Joseph Henry, with whom Blackstock flew as a First Officer, states in his Declaration that during his flights with Henry, Blackstock showed himself to be a "competent" and "conscientious" pilot, and that he demonstrated "[s]afety, superior airmanship, and effective cockpit resource management skills."*fn62 Blackstock argues that this assessment of his competence demonstrates that CommutAir's "asserted reason for terminating [Blackstock] . . . is simply not true."*fn63

  However, "[i]n judging whether [the defendant]'s proffered justifications are `false,' it is not important whether they were objectively false . . . Rather, courts `only require that an employer honestly believed its reason for its actions even if its reason is foolish or trivial or even baseless.'"*fn64 While Henry's Declaration may indicate that Wurster and Crook were mistaken in their belief that Blackstock was not competent, it does not suggest that this belief was not the real reason for discharging him. It therefore does not support Blackstock's claim that the real reason for his termination was race discrimination.

  3. Alleged Violation of CommutAir Procedures

  Blackstock makes much of Wurster's testimony that when he received complaints about a pilot, the pilot was given an opportunity to respond to the allegations. Blackstock contends that Wurster had a procedure under which the "first step" was to speak to the pilot concerned and give him a chance to respond to the complaints.*fn65 Blackstock asserts that Wurster never spoke to him during the course of the investigation that led to his termination, and argues that this was a violation of Wurster's procedure. Blackstock further argues that this violation of procedure supports an inference of discrimination.*fn66

  While a departure from established procedures may provide support for an inference of discrimination in some contexts,*fn67 the record provides no support for Blackstock's contention that there was any procedure, formal or informal, of informing a pilot of allegations against him as a "first step" in an investigation or disciplinary action. Wurster and Crook both stated that CommutAir had no written procedure for conducting an investigation into a pilot's competence.*fn68 Wurster also specifically explained that prior to instituting a disciplinary action, there was not a practice of providing the pilot concerned with a letter of reprimand or warning to alert the pilot to the existence of the investigation. Furthermore, in discussing a disciplinary action taken against two CommutAir pilots, Wurster stated that the pilots heard nothing about the action pending against them until a meeting at which they were informed that the decision to take disciplinary action had already been made, and at which they were permitted to respond to the complaints against them.*fn69 Thus, the evidence does not support Blackstock's assertion that there was any "first step" procedure of giving pilots an opportunity to respond.

  4. Changing or Inconsistent Reasons for Discharge

  Blackstock argues that CommutAir has offered "[c]hanging or inconsistent reasons for the decision to terminate."*fn70 First, during the September 12, 2002 termination meeting, Wurster and Crook told Blackstock he was being terminated because of "a series of events that have occurred since July 2, 2002," the date on which Blackstock became a Captain.*fn71 Second, in its brief, CommutAir offers information from Blackstock's record prior to July 2, 2002 as additional support for its decision to terminate him.*fn72 Blackstock argues that this discrepancy supports an inference of discrimination.*fn73

  However, this "discrepancy" in CommutAir's articulated reasons does not suggest that the real reason for the discharge was discriminatory. CommutAir has not retracted its original claim that post-July 2, 2002 events motivated its decision to discharge Blackstock. Its more recent claim relating to pre-July 2, 2002 events, which merely lends additional support to its decision, does not contradict the original rationale. CommutAir's effort to adduce additional support for its decision to terminate Blackstock does not indicate that the reason it originally gave was false or a pretext for discrimination. 5. Similarly Situated Caucasian Employees

  Finally, Blackstock argues that the fact that numerous Caucasian CommutAir Captains committed violations of procedure but were treated more favorably than he was — i.e., were not terminated — supports an inference that the reason for his discharge was discriminatory. The Second Circuit has held that "[a] showing that similarly situated employees belonging to a different racial group received more favorable treatment can . . . serve as evidence that the employer's proffered legitimate, non-discriminatory reason for the adverse job action was a pretext for racial discrimination."*fn74 However, to be "similarly situated" comparators "must have engaged in conduct similar to the plaintiff's."*fn75 Blackstock correctly notes that "`[w]hether two employees are similarly situated ordinarily presents a question of fact for the jury,'"*fn76 and that "`an employee's conduct need not be identical to that of another for the two to be similarly situated.'"*fn77 Nevertheless, "[t]he Second Circuit has frequently denied Title VII claims for failure to establish comparable conduct" where, as in this case, the conduct of the plaintiff and the comparators is too different for the comparison to support an inference of discrimination.*fn78

  The critical difference between Blackstock's conduct and that of the comparators is that each comparator was responsible for one isolated incident, whereas Blackstock was the perpetrator of repeated violations of procedure and the subject of repeated complaints. Crook and Wuster's own observations and evaluations of Blackstock were corroborated by thirteen other pilots, from First Officers, to fellow Captains, to Check Airmen, all of whom expressed doubts about Blackstock's competence and safety.*fn79 This substantial pattern of mistakes and complaints implicated the soundness of Blackstock's fundamental flying skills and his level of comfort and control in the role of Captain, and thus related to his ability to fly safely in a wide range of situations. This is consistent with CommutAir's proferred reason for discharging Blackstock. By contrast, each of the incidents involving the comparators could be attributed to a one-time lapse in judgment or attention. This difference is sufficient to justify CommutAir's different treatment of the comparators.

  Blackstock implies that none of the things that he did had safety implications as serious as some of the incidents for which certain comparators were responsible.*fn80 However, even if this were true, it would not rebut CommutAir's articulated reason for terminating Blackstock. In maintaining the competence and safety of its staff of Captains, CommutAir legitimately is concerned not merely with the seriousness of past incidents, but also with the risk of future incidents. Although Blackstock had not yet been involved in a serious safety-related incident, CommutAir has demonstrated that it had reason to believe that his flying skills were so weak that by allowing him to continue to fly as a Captain, it would have exposed its passengers to an unacceptable risk of catastrophe. Where an airline believes that a pilot is generally incompetent and that his incompetence increases the likelihood of a serious breach of safety, the airline is not required to wait for such a potentially calamitous incident to actually occur before terminating the pilot.*fn81

  Blackstock has produced no evidence sufficient to rebut CommutAir's well supported and clearly articulated account of the events and decisions leading up to his discharge, and has therefore not produced sufficient evidence to defeat CommutAir's motion for summary judgment.


  For the reasons set forth above, CommutAir's motion for summary judgment is granted and Blackstock's Complaint is dismissed in its entirety. The Clerk is directed to close this motion and this case.


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