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United States District Court, S.D. New York

August 3, 2005.


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

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.



  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.



  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 significantly probative, summary judgment may be granted." Anderson, 477 U.S. at 249-50 (citations omitted). I hold that Plaintiff's version of the facts is not credible and that, in any event, Defendant fired Plaintiff for a non-discriminatory, non-pretextual reason.

  Plaintiff relies heavily on Ellis' account of the April 8 meeting. However, Rahle has no knowledge of anyone named Maureen Ellis, and neither his multiple searches through Defendant's payroll and security guard registration systems, nor his manual check of Defendant's payroll and personnel files, has produced any record of an employee named Maureen Ellis working for Defendant in New York or elsewhere. Similarly, Emilia Barrett and Jane Rodriguez, the Administrative Assistant and Compliance Officer in Defendant's New York branch, respectively, have no knowledge of a Maureen Ellis working for Defendant (Rahle Opp'n Aff. ¶¶ 3, 4, 5). These suspicions are supported by the fact that Ellis' affidavit does not state her position in the company.

  Furthermore, Plaintiff has submitted as evidence what purports to be a copy of the document produced by Defendant at Bates No. D0214 (Lattimore Reply Aff. Exh. 18). The document indicates that Agard and Snipes, Plaintiff's temporary and permanent replacements, were terminated prior to the April 8 meeting, and that Ellis worked for Defendant as a guard until April 12, 2004. Plaintiff produces the document to corroborate Ellis' affidavit. However, it appears that this document is a forgery. Defense Counsel, by letter dated July 6, 2005, submitted the correct copy of the form, and represented to the Court that Agard has been in Defendant's employ continuously since June 2001 and that Snipes resigned in February 2003, but was rehired shortly thereafter (Defense Counsel's letter of July 6, 2005).

  Aside from Ellis' testimony, the only evidence of a discriminatory comment by Rahle that Plaintiff produces is Tricia Ohn's affidavit. However, it appears that Ohn was not a job applicant, as Plaintiff asserted. Defendant's investigation revealed that Ohn never applied for a job with Defendant, and that she is married to Plaintiff (Rose Opp'n Aff. ¶¶ 18, 19, 20, 21; Savitsky Opp'n Aff. ¶¶ 2, 3, 4), a fact which Plaintiff denied at his deposition (Pl. Dep. At 18-20, 22-23, 58-60).

  In short, Plaintiff does not present any credible evidence of discrimination to create a genuine issue of material fact. Plaintiff's motion for summary judgment is denied.


  I now discuss Defendant's motion for summary judgment. In claims of race and age discrimination, Plaintiff bear the initial burden of establishing a prima facie case of unlawful discrimination. This requires a plaintiff to show that: (1) he belongs to a protected class; (2) he was performing his duties satisfactorily; (3) he suffered an adverse employment action; and (4) the circumstances surrounding the adverse employment action give rise to an inference of discrimination. See Ongsiako v. City of New York, 199 F. Supp. 2d 180, 188 (S.D.N.Y. 2002); Abdi-Brisson v. Delta Air Lines, Inc., 239 F.3d 456, 466 (2nd Cir. 2001) (age and race discrimination governed by the same legal standard). Plaintiff easily satisfies the first three prongs. He is African-American and over the age of forty, his employment was terminated and, for purposes of this motion, Defendant does not contest the adequacy of Plaintiff's job performance aside from Sarvis' sexual harassment complaint. However, even if Defendant concedes the fourth prong and Plaintiff establishes a prima facie case, Defendant may still prevail by proving that it had an independent, legitimate basis for terminating plaintiff. Donovan v. Milk Mktg. Inc., 243 F.3d 584, 584 (2nd Cir. 2001) (citing Price Waterhouse v. Hopkins, 490 U.S. 228, 244-45, 109 S.Ct. 1787-88 (1989)); Raskin v. Wyatt Co., 125 F.3d 55, 60 (2nd Cir. 1997).

  Defendant terminated Plaintiff based on his insubordination and refusal to cooperate with Defendant's investigation of Sarvis' sexual harassment claim (Rahle Aff. ¶ 13; Rose Aff. Exhs. H, L). Both insubordinate behavior and refusing to cooperate with an internal investigation constitute legitimate grounds for discharge. Schnabel v. Abramson, 232 F.3d 83, 88 (2nd Cir. 2000) (insubordination); See Tullo v. City of Mount Vernon, 237 F. Supp.2d 493, 504-05 (S.D.N.Y. 2002) (failure to cooperate); Costello v. St. Francis Hosp., 258 F. Supp.2d 144, 156 (E.D.N.Y. 2003) (failure to cooperate). Since Plaintiff concedes that he was insubordinate and refused to cooperate with Defendant's internal investigation, Defendant is entitled to judgment as a matter of law.


  For the foregoing reasons, Plaintiff's motion for summary judgment is denied, and Defendant's motion for summary judgment is granted. The clerk shall mark this case as closed.



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