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LATTIMORE v. INITIAL SECURITY INC.

August 3, 2005.

JOHNNY McCAUTHOR LATTIMORE Plaintiff,
v.
INITIAL SECURITY INC., Defendant.



The opinion of the court was delivered by: ALVIN HELLERSTEIN, District Judge

MEMORANDUM AND ORDER DENYING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
Plaintiff, who is proceeding pro se, filed the instant complaint on July 22, 2003, alleging that his employer, Initial Security Inc., discriminated against him because of his race and age in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e — 2000e-17 (Title VII), and the Age Discrimination in Employment Act of 1967, 29 U.S.C. §§ 621 — 634 (ADEA). Both parties now move, after full discovery, for summary judgment. Plaintiff argues that Defendant fired him on account of his race and age. Defendant denies that it discriminated, and maintains that Plaintiff's insubordination and refusal to cooperate with an internal investigation into his alleged sexual harassment were the grounds for his termination. As elaborated below, Plaintiff's motion for summary judgment is denied, and Defendant's motion for summary judgment is granted.

BACKGROUND

  Facts

  Plaintiff, a fifty-year old African-American male, was hired by Defendant's New York branch in August 2001. Defendant is a security services provider, and Plaintiff initially worked as a dispatcher and security guard. Several months after being hired, Plaintiff was promoted to the position of security supervisor and was assigned to work at Jennison Associates, LLC (Jennison). In his new position, Plaintiff supervised a number of security guards, including Gwendolyn Sarvis (Sarvis).

  On April 2, 2003, Sarvis complained to Stanley Walker, a New York Operations Manager, that Plaintiff had sexually harassed her and that she feared that, if she refused Plaintiff's advances, she could lose her job. Sarvis filed a Written Incident Report and Defendant promptly commenced an internal investigation.

  On April 8, 2003, Plaintiff met with Walker in the New York office. Walker informed Plaintiff about the investigation and questioned him about Sarvis' allegations. Plaintiff denied the allegations and grew increasingly agitated. Walker felt that he could not proceed alone. He took Plaintiff to see Robert Rahle (Rahle), the New York Branch Manager. Plaintiff, Walker, and Rahle were the only people in the meeting, although, as I discuss below, Plaintiff argues that another person was also present. Rahle instructed Plaintiff to prepare a written statement in support of his position. When Plaintiff refused to do so, Rahle suspended him and ordered him not to report to Jennison that evening. Plaintiff responded that he intended to talk to Albert Graham (Graham), Jennison's Facility Manager and Plaintiff's client contact, and that he would not listen to Rahle or Walker's efforts stop him. Rahle repeated the directive several times as Plaintiff left the room.

  Walker tried to reach Graham to update him on the situation. Unable to do so, Walker went to Jennison to make sure that everything was under control. Upon arriving at Jennison, Graham informed Walker that Plaintiff had reported to the site. Walker then went to the front lobby desk to check on Sarvis. As he stood at the desk, Plaintiff called. Sarvis placed the call on speakerphone and Walker heard Sarvis ask why she informed on him and caused him trouble.

  Based on Plaintiff's refusal to obey proper orders from his superiors and refusal to cooperate with his employer's investigation, Rahle made terminated Plaintiff's employment. Subsequent to Plaintiff's dismissal, Walker, with Rahle's approval, temporarily assigned Mario Agard (Agard) to replace Plaintiff. Approximately two weeks later, Walker, again with Rahle's approval, permanently replaced Plaintiff with Owen Snipes Jr. (Snipes). Both Agard and Snipes are African-American males and are approximately the same age as Plaintiff.

  Plaintiff's Story

  According to Plaintiff, Walker was not at the April 8 meeting. Rather, pursuant to a company policy to have a witness at such meetings, one Maureen Ellis (Ellis) attended as a witness, a person who no one could identify, and who was not an employee of either Initial Security or Jennison. Plaintiff denies that Rahle directed him not to go to Jennison that evening. Instead, Plaintiff claims that Rhale told him that his job was being eliminated, for a younger, vibrant person who would be more productive for Defendant's needs, and who would fit into Defendant's corporate profile (Ellis Aff. ¶¶ 1, 2, 3, 4, 5, 6, 7, 8). Plaintiff claimed that Tricia Ohn (Ohn), a job applicant, told him that she overheard the conversation, and said to Plaintiff, "they did you wrong" (Oh Aff.; Plaintiff O Aff. Exh 22). Plaintiff also asserts that Walker first assigned Ellis to be Plaintiff's temporary replacement, but later chose Ben Stewart, a twenty-five year old white male, to be Plaintiff's permanent replacement (Ellis Aff. ¶¶ 9, 10). Procedural History

  In May 2003, Plaintiff filed a discrimination charge with the Equal Employment Opportunity Commission (EEOC) alleging that Defendant terminated his employment because of his age and race. The EEOC dismissed the charge and issued a Notice of Right to Sue. In November 2003, Plaintiff sued Defendant and Sarvis in state court, alleging termination of employment based on false statements and unspecified damages to person. This case was dismissed due to faulty service of process. Then, in July 2003, Plaintiff initiated this action and, on September 25, 2003, received an order from Judge Mukasey allowing him to proceed in forma pauperis. Discovery closed on April 1, 2005.

  DISCUSSION

  I

  Summary judgment is warranted if the "pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits . . . 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." Fed.R.Civ.P. 56(c). A "genuine issue" of "material fact" exists "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Although all facts and inferences therefrom are to be construed in favor of the party opposing the motion, see Harlen Assocs. v. Village of Mineola, 273 F.3d 494, 498 (2d Cir. 2001), the nonmoving party must raise more than just a "metaphysical doubt as to the material facts," Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). "[M]ere speculation and conjecture is insufficient to preclude the granting of the motion." Harlen, 273 F.3d at 499. "If the evidence is merely colorable or is not ...


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