United States District Court, S.D. New York
August 3, 2005.
JOHNNY McCAUTHOR LATTIMORE Plaintiff,
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.
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
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.
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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