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Bhaduri v. Summit Security Services

January 17, 2007

GOUR G. BHADURI, PLAINTIFF,
v.
SUMMIT SECURITY SERVICES, INC., DEFENDANT.



The opinion of the court was delivered by: Harold Baer, Jr., District Judge

OPINION & ORDER

On August 8, 2005, Gour G. Bhaduri ("Bhaduri" or "Plaintiff"), proceeding pro se, filed a complaint against his employer, Summit Security Services, Inc. ("Summit" or "Defendant"), that alleged race and national origin discrimination, retaliation, and hostile work environment claims pursuant to Title VII of the Civil Rights Act of 1964, as well as an age discrimination claim pursuant to the Age Discrimination in Employment Act of 1967 ("ADEA"), as codified, 29 U.S.C. §§ 621-634. The retaliation claim was dismissed in my Opinion & Order dated August 8, 2006. Bhaduri v. Summit Sec. Servs., 2006 WL 2290766 (S.D.N.Y. Aug, 8, 2006). Defendant then filed a motion for summary judgment. I found, utilizing the more liberal test allowed to a party that proceeds pro se, that issues of material fact remained and relying upon several theories in Title VII jurisprudence, I denied summary judgment. Bhaduri v. Summit Sec. Servs., 2006 WL 3114272 (S.D.N.Y. Nov., 2, 2006). A two and a half day bench trial began on November 17, 2006 with respect to the Plaintiff's claims of hostile work environment and wage disparity based on race, national origin, and age discrimination. Parties were given until December 10, 2006 to submit post-trial findings of fact and law and summations were held on December 18, 2006.

I. FINDINGS OF FACT

Plaintiff was born on March 1, 1927, and was in his late sixties and seventies during the events recounted below. Plaintiff is an educated Indian male, with a college degree in Economics and Philosophy, but with little ability to make himself understood verbally in English and sought no interpretive assistance. As a result, I asked him to write out both his opening statement and summation so that the record would be comprehensible at least to that extent. He also wrote out questions that were posed to some of the witnesses by my deputy clerk. In addition, the Court took over some of the discovery for the Plaintiff. Several requests for essential records were produced by the Defendant at my direction.

A. Bhaduri's Employment History at Summit

Plaintiff was hired first as a part-time security guard for Summit Security on April 22, 1992. Summit Security, founded in 1976, provides security services in the New York area and has approximately 2,000 employees. Jim Nicchio Declaration ("Nicchio Decl.") ¶ 7. Bhaduri was fired on February 2, 1994, Pl.'s Ex. 38, but re-hired as a full-time security guard on October 7, 1994 as part of a conciliation agreement between him and Summit to resolve an earlier age discrimination complaint Plaintiff filed with the New York State Division of Human Rights ("NYSDHR") in 1993. Pl.'s Ex. 43; See also Nicchio Decl. ¶ 14. As a full-time employee of Summit Security, Bhaduri was eligible to join Allied International Union ("Union"), which he did. Pl.'s Ex. 8.

During Plaintiff's tenure at Summit, he was assigned to various work sites. That chronology follows:

May 1, 1992 -- 875 3rd Ave. Def.'s Ex. N. March 9, 1993 -- 145 East 32nd Street (NYU Medical Center). Pl.'s Ex. 56. October 12, 1994 -- 254 Canal Street / 110 Lafayette Street. Pl.'s Ex. 55. January 5, 1995 -- 1460 Broadway and 41st Street. Pl.'s Ex. 15.

July 21, 1995 -- 542 West 112th Street (Columbia University). Pl.'s Ex. 13. February 15, 1996 -- 21 West Street. Pl.'s Ex. 14.

June 4, 1997 to March 2006 -- 254 Canal Street/ 110 Lafayette Street. Pl.'s Ex. 12.

As set forth above, Plaintiff has worked at the 110 Lafayette Street site since 1997. He continues to be employed by Summit at this time but has been out since March 2006 on disability due to a broken ankle.

B. Harassment / Hostile Work Environment Complaints

Summit's discrimination and harassment policy, a copy of which is provided to every employee, spells out the complaint procedure to be followed by employees allegedly subject to harassment by a fellow employee. All employees are directed to contact the General Manager immediately with discrimination complaints. Def.'s Ex. L, Summit Security Officer Manual. Although Bhaduri admits that he received and read Summit's workplace policy, he never followed the procedure. Tr. at 135:13-136:15. Plaintiff testified that he complained to a former Summit supervisor (in or around 1996), Tr. at 137:15-20, but never saw the General Manager as the policy instructs. While he was unable to explain why this happened, there is, not surprisingly, no record of any complaint by the Plaintiff until 2001. Tr. at 139:11-12. Then the record reveals a single written complaint wherein Bhaduri alleged that a fellow guard, Efrain Hidalgo, yelled at and physically threatened him. Pl.'s ex. 33; Def.'s ex. LL. Summit's Human Resources Manager, Angelica Rosello ("Rosello"), testified that after a review of Bhaduri's employment file, she found no other written complaints during his more than ten years at the company. In fact, during her five years as Human Resources Manager at Summit, she never spoke to, nor met, the Plaintiff.

The Witness: The only thing I can say is that he never came to me. I was not aware of any of his complaints, except for the one that I read in this file, but that was in 2001 when I was not the HR manager. But in any case, anyone made a complaint against any of the supervisors or any guards had any grievances, I was the person who did respond to them and I did investigate any complaints that any security officer had.

Tr. at 273:21-274:3. In addition, Joseph McGlennan ("McGlennan"), Secretary Treasurer of the Union, who was produced pursuant to a court subpoena, testified that over the past five years, he had received two or three complaints from Bhaduri with respect to harassment by his co-workers and to his knowledge, they were resolved. Tr. at 245:10-246:10. McGlennan made it clear that none of the grievances Plaintiff shared with him had to do with race or age discrimination. Tr. at 248:10-13.

Bhaduri presents a litany of harassing conduct he was subjected to by Summit employees. With the exception of the October 2001 incident for which Bhaduri submitted a written complaint to Summit authorities (that resulted in the removal of his co-worker from the site), all of the alleged incidents of harassment are uncorroborated, not to mention unconnected to his age, race, and national origin complaint. Rather, the record provides credible testimony from several witnesses that they never witnessed or participated in harassment of the Plaintiff.

Bhaduri claims that he was given an unduly burdensome workload. For example, Bhaduri reports that he alone was forced to work extra hours to cover the shifts of guards that either were permitted to leave early or slept during their shifts. Not only is this against Summit policy but the Plaintiff's contention was contradicted by each witness that took the stand. For example, Summit field supervisor, Evencio Hernandez, testified that he would notify Summit if he saw any on duty guard asleep or leaving the post prior to the end of a shift. Tr. at 49:20-23. And Rafael Ortiz, Director of Property Management of CHH Realty, the company that owns and manages the 110 Lafayette Street property, testified that a company policy was in place whereby guards called in on the hour. To Ortiz's knowledge, no guard had failed to comply with this policy and even after an internal investigation, he found no evidence to support Bhaduri's claims. Tr. at 84:3-85:8.

Bhaduri also claims that he was forced to pick up newspapers and sweep the sidewalk in front of the 110 Lafayette Street site. While it was agreed that these activities were beyond the scope of the job, there was no evidence that Bhaduri was directed to engage in these activities. In fact, it appears that Bhaduri performed these activities of his own accord. Hernandez, a Summit field supervisor, testified to that effect.

He [Bhaduri] used to sweep outside in the street and I asked him why, he said he didn't want the building to get any ticket because the super wasn't doing his job. I said, well, he wants to do it, I can't tell him, force him ...


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