Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Cunningham v. Consolidated Edison Inc.

March 28, 2006


The opinion of the court was delivered by: Sifton, Senior Judge.


Plaintiff, Edward Cunningham, commenced this action by filing a complaint invoking this Court's federal question and supplementary jurisdiction against defendant, Consolidated Edison Inc. ("Con Edison"). The complaint sets forth claims for relief based on race discrimination and hostile work environment, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §2000e et. seq. ("Title VII") and the New York State Human Rights Law, Executive Law §296 et seq. ("NYSHRL"), age discrimination and hostile work environment in violation of the Age Discrimination in Employment Act of 1967, as amended, 29 U.S.C. §621 et. seq. ("ADEA"), and the New York City Human Rights Law, N.Y.C. Admin Code §8-101 et seq. ("NYCHRL"), and retaliation in violation of Title VII, NYSHRL and NYCHRL. Defendant Con Edison now moves for summary judgment dismissing the complaint pursuant to Federal Rule of Civil Procedure 56. For the reasons set forth below the defendant's motion for summary judgment is granted.


The following facts are taken from the submissions of the parties in connection with the present motion. They are undisputed unless otherwise noted.

Plaintiff Edward Cunningham is a white male, born January 9, 1962. (Amended Complt. ¶14). On January 18, 2000, he commenced his employment with defendant Con Edison as a General Utility Worker ("GUW"). (Id. at ¶15).

Con Ed Procedures For Complaints

Con Ed maintained internal procedures to address employee concerns about environmental, health, and safety issues. These procedures were laid out in its Code of Conduct, which was distributed to every employee.

The Code of Conducts section on environmental, health and safety laws, provided:*fn1 If you have an environmental concern or problem, follow these guidelines: First, report the matter to your immediate supervisor . . . If you feel uncomfortable raising concerns with your immediate supervisor, you can contact your Environmental, Health and Safety (EH&S) Manager or your local EH&S representative, or you may call the EH&S Compliance Administrator . . . If you have a more serious concern, including suspected violations of this Code, environmental or health and safety regulations, you can contact the Corporate Ombudsman at (212)-206-0949. The Corporate Ombudsman is overseeing [Con Edison's] ethical and environmental performance on behalf of the Company (see Reporting Wrongdoing section on pages 35-27) . . . The Company's Environment, Health and Safety Excellence Program and this Code assure all employees that they will not be subject to retaliation and harassment of any kind for raising a concern or allegation in this area. ("Living Our Values, Your Guide to the Code of Conduct for Consolidated Edison, Inc.," §1.1, Carey Aff. Ex. DD, Dobrini Dec. Ex. C.).

The Code of Conduct and Con Ed's Corporate Policy on Equal Opportunity lay out the process for raising an Equal Opportunity in Employment Complaint. The Code of Conduct states:

Con Edison men and women are fully committed to Equal Employment Opportunity (EEO) for all employees and applicants for employment. We do not discriminate . . . on the basis of race, color, religion, creed, national origin, sex, age, marital status, sexual orientation, disability, citizenship or veteran status. Moreover, sexual or any other form of harassment will not be tolerated . . . . Acts or threats of violence towards employees or any other form of intimidation based on fear of violence, cannot be tolerated. Each reported incident will be promptly investigated and appropriate disciplinary action, up to and including termination of employment, will be taken. ("Living Our Values, Your Guide to the Code of Conduct for Consolidated Edison, Inc.," §1.1, Carey Aff. Ex. DD, Dobrini Dec. Ex. C.). The Corporate Policy States:

In order to ensure implementation of its EEO policy, the Company shall continue to . . . Maintain an Equal Employment Opportunity Affairs [office or department]. . . . Accept and investigate, through the Director, Equal Employment Opportunity Affairs . . . complaints of violations of this EEO policy . . . and implement appropriate actions, including discipline . . . for violations of [the EEO] policy. (Id.).

Van Nest Assignment - January 18, 2000 to April 8, 2000

Cunningham was initially assigned to the "Van Nest" facility as part of the Company's Maintenance and Construction Services Department ("M&C").(Carey Aff. Ex. K). At the Van Nest facility Cunningham worked under several supervisors, including Supervisor Robert Colucci.

According to Cunningham, in March 2000 Supervisor Bob Collucci told Cunningham that he was shocked that Cunningham was a new hire and said "you should be an 'A' mechanic at your age." (Cunningham Aff. ¶7). Subsequently, when Cunningham refused to operate a two-hundred ton crane without training, Collucci told Cunningham that Con Edison was used to younger, more aggressive workers. Collucci further told Cunningham, "I think you're not going to last at Con Ed." (Cunningham Dep. 54, 71-74).

On March 10, 2000, Collucci issued an unsatisfactory performance evaluation for Cunningham. The review stated that Cunningham was not "someone who is willing to give a hand unless asked or told to. (Carey Aff. Ex. K.)

According to Cunningham, he complained about Collucci's age based remarks to Pat Boland, an administrative supervisor who reported to General Manager Mike O'Donnell. (Cunningham Dep. 80). Cunningham did not report the comment to the Company's internal Equal Employment Opportunity Affairs Department ("EEO"). (Carey Aff. Ex. DD, ¶10).

On March 24, 2000, Cunningham received a satisfactory review from supervisor Kevin Sweeny. Supervisor Troy Bruce changed this review to a negative review, because Cunningham had not properly cleaned a work station. (Cunningham Dep. 74-5, 88, 91; Carey Aff. Ex. K).

Coal Tar Gang Assignment, Maintenance Services: April 9, 2000 -May 26, 2001

Beginning on April 9, 2000, Cunningham began a year long assignment to the Coal Tar Gang of Maintenance services. This assignment involved removing coal tar insulation from cables in the street. (Cunningham Dep. 94-95).

Relationship with Supervisor Lew

Beginning in April of 2000 and continuing through October of that year, Cunningham received weekly job evaluations from Supervisor Lew. On April 18, 2000, Lew commented in his evaluation that, "Ed is very cooperative, is getting the hang of things, assisting in setting up the work site, e.g. traffic control, retrieval unit, manhole entry setup, shows positive attitude." On April 22, 2000, Lew noted in his evaluation, "Ed is showing good work habits, is cooperative, show [sic] desire to learn." On May 6, 2000, Lew wrote, "Ed is a good worker, dependable, cooperative and accepted by his fellow workers." On May 17, 2000, Lew stated, "Ed is working out good [sic], is cooperative, has a good attitude towards the job." (Pl. Ex. C). Cunningham initially received mostly "satisfactories" on his job evaluation, but his evaluations improved and by October Cunningham was receiving mostly "very good" evaluations. At no time did he receive less than a satisfactory rating. In April 2000, Supervisor Lew promoted Cunningham from General Utility Worker to Mechanic B. (Cunningham Dep. 152). Despite the positive evaluations, Cunningham claims that Supervisor Lew "didn't like [him]" (Cunningham Dep. 121) and that in July, 2000, Supervisor Lew told Cunningham that he was, "too old and overeducated to do this kind of work." (Cunningham Dep. 147).

Relationship with Co-Workers

Cunningham claims that during his assignment to the coal tar gang, co-workers made age and race based comments to him. On one instance, Cunningham states, an unidentified co-worker asked him, "what the fuck are you doing here, old man?" (Cunningham Dep. 119).

Cunningham further alleges that during this same period, two employees, Mike Hansel and Carlos Gordon, made derogatory racist remarks to him such as, "why do you have to come into this company guns blazing like a white boy from Long Island." (Cunningham Dep. 118; Cunningham Aff. ¶11), and "I was treated like shit when I came in and that means I get to treat you like the shit that you are, white boy." (Cunningham Aff. ¶11). Cunningham also alleges that in December 2000, Hansel demanded that Cunningham step outside a work vehicle and physically threatened him. (Cunningham Dep. 116).

Altercation with Supervisor Tranchina

In January or February of 2001, Cunningham had an altercation with supervisor John Tranchina. Cunningham had previously objected to Tranchina's method of doing work and instructed Tranchina as to the method he believed was correct. On the day in question, the coal tar gang was working in a trench near Columbia University. Tranchina told the work crew, "you guys get up, you can't eat lunch anymore; we've got to get this project done." (Cunningham Dep. 215-216). Cunningham says Tranchina then said to him, "get in the hole, prick." Cunningham went into the trench as requested but then jumped out because a backhoe was spilling sand into the hole threatening to dislodge the supports. (Cunningham Dep. 220-221).

Altercation with Supervisor Murphy

On May 4, 2001, Cunningham asked his supervisor, Dennis Murphy, for what Murphy considered to be an obsolete and inappropriate respirator. (Lew. Dep. 66). Several of his co- workers described Cunningham's request as abrupt and confrontational. (Carey Aff. Ex. L). When Murphy began to respond, Cunningham demanded, "just give me a yes or no answer." (Id.) Afterward, Cunningham heard from a co-worker that Murphy had commented, "Ed's going to bury himself here." (Cunningham Dep. 186-87).

Cunningham's Complaints Concerning the Coal Tar Gang

According to Cunningham, in May 2001*fn2 he complained to Con Edison's Corporate Ombudsman, Robert McGuire and Deputy Ombudsman Richard Bagwell that he was experiencing race and age discrimination. (Cunningham Aff. ¶12). The defendant claims that Cunningham's complaints focused on safety issues and management's response to Cunningham's having raised such issues, and made only a passing reference to his age and college education. (Carey Aff. Ex. N). Cunningham requested that his complaints remain confidential. (Cunningham Aff. ¶14). Cunningham claims that Bagwell and McGuire assured him that his complaints would remain confidential. However, Cunningham believes that they did not honor this promise because Supervisor Lew was aware of Cunningham's complaints. (Lew Dep. 35). Further, according to Cunningham, supervisor Marovic told auditors he was aware that Cunningham had sent an e-mail about him to Bagwell.

Bagwell did not refer any of Cunningham's complaints to the Corporate EEO, but rather, referred them to George Tabone in the Auditing Department. (Bagwell Dep. 18). Tabone told Cunningham that he would refer the matter to the EEO, but Tabone did not do so. (Cunningham Aff. ¶13).

16th Street Assignment

On May 27, 2001, Cunningham was transferred to an assignment in the 16th street yard under supervisors Andre Sahai and Joe Busacca. (Cunningham Dep. 108, 103). Defendant claims that Cunningham did not get along with his co-workers at this site. According to Project Manager Massoni, "Cunningham was acting up a little bit and the other employees were not happy to work with him, that all he did was ramble about his dogs . . . that he felt the job was beneath him." (Lew. Tr. 72-73). Cunningham was heard saying to other employees, "I am a white educated man," "what the hell are we doing?" and "this job is stupid." (Id. at 73-74).

Tuition Reimbursement

On May 29, 2001, Cunningham was told that he needed a management signature in order to obtain tuition reimbursement for classes he was attending. (Cunningham Dep. 225). This was a general requirement for employees seeking reimbursement. (Id.). Cunningham asserts that his tuition reimbursement was delayed by supervisors Massoni, Murphy, Boland, and Delabastide in retaliation for his having raised age, race, and safety issues (Id. at 229). Defendant asserts that these supervisors had not been informed of Cunningham's complaints. (Carey Aff. Ex. BB ¶7-9). Defendant also asserts that Bagwell was not made aware of any complaints. (Carey Aff. Ex. X, Bagwell Sec. Aff. ¶3-5).

Complaints to Tabone

On June 4, 2001, Cunningham raised several harassment and safety issues in a meeting with Tabone. According to Tabone, none of these issues involved race or age discrimination. (Carey Aff. Ex. BB, Tabone Aff. ¶4). Over the next months Cunningham phoned and e-mailed Tabone to inform him of problems Cunningham felt he was facing. Only one of these e-mails raised an issue Tabone considered EEO related: a co-worker, Gonzalez, made a false accusation in April 2000 that Cunningham had deliberately "opened the stop van back doors on" female co-worker Fleming while she was changing. (Carey Aff. Ex. N). Cunningham did not feel that Gonzalez had been sufficiently punished for lying. (Id). Tabone notified the director of the Company's EEO Affairs Department of this allegation. On August 1, 2001, Cunningham sent Tabone an e-mail complaining that he was being harassed by managers and was worried about being fired. (Pl. Ex. D).

Cunningham's Late Return and Failure to Check Out

On June 12, 2001, Cunningham was instructed to work with co-worker Hansel to inspect a manhole. (Cunningham Dep. 110).

Cunningham claims that this work took place during his lunch hour. After the job Hansel and Cunningham were supposed to return to a designated work location to be dismissed, as was the normal practice of employees returning from jobs. (Cunningham Dep. 235). However, Cunningham asked co-worker Hansel to tell Supervisor Sahai that he was leaving without waiting to be dismissed because he did not want to be late for his class at Nassau Community College. (Cunningham Dep. 198). Supervisor Andre Sahai docked plaintiff's pay because he left a half hour early. (Id.). Cunningham felt he was entitled to a half hour of overtime for working during lunch. Cunningham believes he was docked in retaliation for his complaints of discrimination to Tabone. (Id.).

Transmission Operations - October 2001 to February 22, 2002*fn3

In October 2001, Cunningham was transferred to Transmission Operations. Defendant asserts that Cunningham irritated his co-workers and supervisors in Transmission Operations by repeated reference to the fact that he had graduated from college and by implying that he knew more than ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.