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United States District Court, S.D. New York

August 9, 2005.


The opinion of the court was delivered by: GEORGE DANIELS, District Judge


Plaintiff brings suit against former employer, alleging termination on the basis of discrimination and retaliation in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e, et seq. Defendant moves for summary judgment pursuant to Fed.R.Civ.P. 56. Because plaintiff fails to establish a prima facie case of either discrimination or retaliation, defendant's motion is granted and plaintiff's claim is dismissed.


  Plaintiff, who is of Ghanaian descent, was employed from November 1983 until his termination in November 1997 by defendant Depository Trust Company ("DTC"), "a national clearinghouse for settling securities trades and a custodian of nearly $20 trillion of securities for its participant banks and broker-dealers." Defendant's Reply Memorandum ("Reply") at 2. Defendant claims plaintiff was terminated for "committing a fraudulent/dishonest act and for lack of trust," pursuant to DTC's Code of Business Conduct, Ethics, and Corporate Compliance. Reply at 3. Under this code, DTC purports to adopt a "zero tolerance policy" towards fraudulent conduct, terminating employees for single acts of conduct, such as lying about reasons for absences from work and falsifying personal information on company documents. Id. Plaintiff argues that he was terminated because of his national origin and in retaliation for a discrimination complaint he filed with the Equal Employment Opportunity Commission ("EEOC") against the company over nine years earlier in 1988.*fn1

  Immediately preceding plaintiff's termination, plaintiff was an intermediate clerk in DTC's Microprocessing Department. This department, responsible for recording the daily financial transactions that DTC processes, operated on a round-the-clock basis with three shifts. As a member of the third shift, plaintiff often objected whenever having to complete leftover work from the second shift. He considered the second shift's repeated inability to finish its tasks as purposely targeting the plaintiff since "they know he did not want to do it." Pl. Tr. 276-78. His expressed resistance to completing assignments from the second shift was cited as insubordination, and elicited verbal warnings from his manager. Defendant's Notice of Motion in Support of Summary Judgment, Ex. B at 18-22; Persue Aff. Par. 4.

  On the evening of October 21, 1997, work from the second shift was once again left over to be completed by the third shift, which plaintiff was staffing. That particular night, plaintiff was also responsible for "quality checking" work done during his shift. Reply at 4. Plaintiff's supervisor claims that plaintiff blatantly refused to complete the work left over from the second shift, leaving his supervisor to finish the remainder for an additional 45 minutes after the third shift had ended.

  This act of insubordination triggered an investigation, which revealed that plaintiff had signed one of the columns in the production log with a co-worker's initials instead of his own. Plaintiff asserts he had done so to reflect his co-worker having done the bulk of the work indicated in that column, that it was common practice to record someone else's initials if that other person had done the work, and that his supervisor had authorized the action. His supervisor denied ever giving such authorization, and other third shift workers confirmed that plaintiff had not completed the leftover work. Plaintiff was terminated for signing someone else's name in the log and lying about his completion of the work assigned to him.

  Plaintiff timely filed a post-termination EEOC charge in April 1998, stating, "I have had a continuing on-going unrelenting retaliatory pressure, intimidation and harassment all of which culminated in my unlawful and discriminatory termination on or about November 21, 1997." Plaintiff's EEOC Aff. ("Pl. Aff.") at ¶ 7. The complaint was ultimately dismissed for, among other reasons, "fail[ing] to indicate that a violation has occurred." EEOC Notice of Right to Sue at 1. Plaintiff obtained his notice of right to sue in November 1998, and commenced this action in February 1999.


  Summary judgment is proper when "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." 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). Though the moving party bears the initial burden of demonstrating a lack of genuine issue of material fact, see Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986), the non-moving party is responsible for providing "specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e). Rather than resolve disputed matters it may find in the record, the court's role is merely to determine, as a threshold matter, if any such dispute exists. See Anderson, 477 U.S. at 249; Gibson v. American Broad. Cos., 892 F.2d 1128, 1132 (2d Cir. 1989).

  When reviewing a motion for summary judgment, the court views the evidence in the light most favorable to the non-moving party and draws all reasonable inferences in favor of that party. See Schneider v. Feinberg, 345 F.3d 135, 144 (2d Cir. 2003). A non-moving party's "bald assertions," completely unsupported by evidence, is not sufficient to overcome a motion for summary judgment. Carey v. Crescenzi, 923 F.2d 18, 21 (2d Cir. 1991). To survive summary judgment, the non-moving party cannot rely on mere allegations, denials, conjectures or conclusory statements, but must present affirmative and specific evidence showing that there is a genuine issue for trial. See Anderson, 477 U.S. at 256-57; Gross v. Nat'l Broad. Co., 232 F.Supp.2d 58, 67 (S.D.N.Y. 2002). "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).

  Title VII prohibits an employer from discriminating against "any individual with respect to his compensation, terms, conditions, or privileges of employment, because of the individual's race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-2(a) (2002). Title VII also prohibits an employer from discriminating against an employee for opposing a practice made unlawful by Title VII or for filing an EEOC charge. See 42 U.S.C. § 2000e-3(a). Under Title VII, both discrimination and retaliation claims without direct evidence are governed by the well-established burden-shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973). Using this framework, (1) the plaintiff bears the initial burden of establishing a prima facie case; (2) the defendant then bears the burden of articulating a legitimate reason for termination of the plaintiff; (3) after which, the plaintiff must show the employer's proffered reason is mere pretext, and that discrimination or retaliation was the true motivation for termination. See McDonnell Douglas Corp., 411 U.S. at 802-04; see also Terry v. Ashcroft, 336 F.3d 128, 141 (2d Cir. 2003) ("The McDonnell Douglas burden shifting analysis used in claims of discrimination in violation of Title VII also applies to retaliation claims brought pursuant to Title VII").

  I. Title VII National Origin Discrimination Claim

  Plaintiff claims his termination was based on national origin discrimination. As evidence, he asserts that he was the only Ghanaian-African employee during his tenure at DTC. He also describes derogatory references made with regards to his national origin by various co-workers and his supervisor. At an unspecified date between 1992 and 1994, a co-worker made remarks deriding plaintiff's national origin. Pl. Tr. at 384. Plaintiff maintains that another co-worker made similar derisive comments on his national origin some time before 1997, as well. Pl. Tr. at 382. Plaintiff also cites to an incident in February 1995 where a third co-worker spat in his face, which plaintiff believed was due to his national origin. Pl. Tr. at 377-78. In June 1997, during an altercation with a fourth co-worker, that co-worker said, "Oh, he is a problem man, you African, who is you to tell me." Pl. Tr. at 375. According to plaintiff, there were no witnesses to the remark. More recently, plaintiff describes a verbal exchange between himself and his supervisor a few months before the October 21 incident where his supervisor referred to his African background. Pl. Tr. 372-74. Though he asserts that he reported such incidents to DTC's management, he claims his reports went unanswered. Instead, he advances only vague declarations that whenever co-workers raised complaints about him, DTC instituted disciplinary action against him.

  To establish a prima facie case of national origin discrimination, a plaintiff must show: (1) he is a member of a protected class; (2) he was qualified for his position; (3) he suffered an adverse employment action; and (4) the action occurred under circumstances giving rise to an inference of national origin discrimination. See Admassu v. Fox/Lorber Associates, Inc., 2003 WL 22290226, *2 (S.D.N.Y.); see also Norville v. Staten Isl. Univ. Hosp., 196 F.3d 89, 95 (2d Cir. 1999); Stern v. Trustees of Columbia Univ., 131 F.3d 305, 312 (2d Cir. 1997).

  The first and third elements of plaintiff's prima facie case, his protected status as a Ghanaian and his termination as an adverse employment action, are undisputed. While defendant argues that plaintiff fails to meet the second element, this case is ultimately decided by plaintiff's failure to meet the fourth element in that the circumstances of his termination do not raise any inference of discrimination. He does not point to any specific instances of national origin discrimination in his complaint, and offers no proof to support such a claim. Though plaintiff contends that his co-workers often called him names and referred disparagingly to his African origin, stray comments are not evidence of discrimination if they are not temporally linked to an adverse employment action or if they are made by individuals without decision-making authority. Campbell v. Daytop Village, 1999 WL 292576 *3 (S.D.N.Y. 1999); Orisek v. American Institute of Aeronautics & Astronautics, 938 F.Supp. 185, 192 (S.D.N.Y. 1996) (comments must be linked in time); see Price Waterhouse v. Hopkins, 490 U.S. 228, 277 (1989) (O'Connor, J. concurring) ("statements made by nondecisionmakers, or statements made by decisionmakers unrelated to the decisional process itself" are insufficient to establish discriminatory intent); Sergilus v. Covenant House 21, 1999 WL 717273 *2 (S.D.N.Y.) (finding that comments made by people without role in decision to terminate plaintiff was not evidence of discrimination). Even if these purported comments were made, they are neither linked in time to his termination nor made by those who could terminate him.

  Plaintiff's conclusory statement that he was the only Ghanaian-African employed by DTC is not adequate proof of discrimination. He proffers no evidence of disparate treatment between himself and other similarly situated employees of other national origins. See McGuiness v. Lincoln Hall, 263 F.3d 49, 53 (2d Cir. 2001) ("A showing that the employer treated a similarly situated employee differently is `a common and especially effective method' of establishing a prima facie case of discrimination"). No rational juror could find in favor of the plaintiff on such unsupported characterizations.

  Given plaintiff's failure to provide evidence for a reasonable jury to find inferences of discrimination on the basis of national origin, summary judgment is granted in favor of defendant on plaintiff's Title VII discrimination claim.

  II. Title VII Retaliation Claim

  Plaintiff additionally claims he was terminated in retaliation for an EEOC charge of national origin discrimination he filed against his company nine years prior. Though he eventually withdrew the original discrimination charge as part of a negotiated settlement, plaintiff avers that DTC's management waged a campaign of harassment against him in response to the charge, subjecting him to constant disciplinary action. Plaintiff's Opposition Memorandum ("Pl. Opp.") at 3. In support of this assertion, plaintiff cites to several incidents of harassment during the years after his EEOC charge, all of which are insufficient to defeat a motion for summary judgment.*fn2

  Plaintiff fails to establish his requisite prima facie case of retaliation under the McDonnell Douglas framework. To state a prima facie case for unlawful retaliatory discharge, a plaintiff must demonstrate (1) that he participated in a protected activity known to the employer; (2) that he suffered an adverse employment action; and (3) that there was a causal connection between the protected activity and the adverse employment action. Wimmer v. Suffolk County Police Dep't, 176 F.3d 125, 134 (2d Cir. 1999).

  Without specific evidence that there was a causal connection between his 1988 EEOC charge and his termination, plaintiff falls short of meeting the third prong of a prima facie case. Proof of causal connection can be established directly through evidence of retaliatory animus against plaintiff by defendant. DeCintio v. Westchester County Medical Center, 821 F.2d 111, 115 (2d Cir. 1987) (citations omitted). Alternatively, proof of causal connection can be established indirectly, such as by showing that discriminatory treatment followed closely after protected activity or that similarly situated fellow employees were treated disparately. Id.

  The lapse of time between plaintiff's EEOC charge in 1988 and his termination in 1997 is too great to support any inference of retaliation. See Castro v. Local 1199, Nat'l Health & Human Servs. Employees Union, 964 F.Supp. 719, 728 (S.D.N.Y. 1997) (one year is too long to show causal connection between filing of EEOC complaint and termination); Stroud v. New York City, 374 F.Supp.2d 341, 351 (S.D.N.Y. 2005) (finding that "yawning temporal gap" of over 21 months between filing of lawsuit and allegedly retaliatory act cannot give rise to inference of causation). The nine-year temporal difference is simply too attenuated to establish a causal relationship for purposes of putting forth a prima facie case of retaliation.*fn3

  Plaintiff does not put forth any credible evidence, direct or indirect, of a causal connection between his 1988 EEOC charge and termination. Summary judgment in favor of defendant on plaintiff's Title VII retaliation claim is granted, as plaintiff has not demonstrated a genuine issue of material fact with regards to employer retaliation against him for engaging in protected activity.


  As there are no material facts in dispute such that a reasonable jury could find either discrimination or retaliation, defendant's motion for summary judgment is granted and both of plaintiff's claims are dismissed.


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