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McDowell v. T-Mobile USA

September 26, 2007


The opinion of the court was delivered by: Trager, J.


Plaintiff Patrick McDowell ("McDowell" or "plaintiff") brings this action against his former employer, T-Mobile USA, Inc. ("T-Mobile" or "defendant"). Plaintiff alleges that defendant discriminated against him on the basis of his race and terminated his employment in retaliation for his complaints about the discrimination. Plaintiff's claims are brought pursuant to Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e-1 et seq. ("Title VII"), the New York State Human Rights Law, New York Executive Law, §§ 296 et seq. ("NYSHRL"), the New York City Human Rights Law, Administrative Code of the City of New York, §§ 8-107 et seq. ("NYCHRL") and the Civil Rights Act of 1866, 42 U.S.C. § 1981, ("Section 1981"). Defendant moves for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure.

Plaintiff's case fails for two fundamental reasons. First, plaintiff has failed to provide any evidence to suggest that other employees were treated preferentially because of racial discrimination. Although plaintiff claims that defendant failed to discipline four white employees who violated various driving rules, none of the four proposed comparators are similarly situated to plaintiff. Notably, three of the four proposed comparators did not even share the same supervisor as plaintiff. Second, Keith Zaring ("Zaring"), the critical decision-maker who recommended the revocation of plaintiff's driving privileges that led to his termination, was based in Bellevue, Washington and did not know plaintiff's race. Zaring Tr. 192:12-16. Moreover, Wayne Krum ("Krum"), the supervisor who terminated plaintiff's employment, had previously recommended plaintiff for a promotion; plaintiff, in fact, testified that Krum was "a fair supervisor" who plaintiff believed had not treated him differently because of his race. Pl. Tr. 107:18-21. In short, plaintiff has failed to provide any evidence to support his allegations of discrimination. For the reasons stated below, defendant's motion for summary judgment is granted.


(1) Plaintiff's Employment At T-Mobile

On October 18, 1999, plaintiff, an African-American male, was hired as a Field Technician I by Omnipoint Communications (the predecessor in interest to T-Mobile) to work out of the Whitestone (Queens) Field Operations office. Def.'s 56.1 Statement ¶¶ 2, 53. As his employment duties included traveling to various cellular sites to perform maintenance, plaintiff was issued a company vehicle. Def.'s 56.1 Statement ¶ 3. Plaintiff's initial supervisor at T-Mobile was Charles Cormier ("Cormier"). Def.'s 56.1 Statement ¶ 54. Wayne Krum took over as plaintiff's supervisor on December 10, 2001. Def.'s Ex. U. T-Mobile field operation supervisors were not tied to a specific work site, but oversaw individuals working out of multiple offices in the metropolitan New York area. Krum Tr. 8:18-10:2.

In plaintiff's first annual review, which took place on May 4, 2001 and covered the previous employment year, plaintiff received low scores in several areas including performing job functions according to department procedures and maintaining a satisfactory driving record. Def.'s Ex. BB. Plaintiff's second review, which took place on April 25, 2002, showed that plaintiff had improved in job performance. Def.'s Ex. FF. At this time, plaintiff was given a proficiency chart listing various goals, which, if met, would warrant promotion. Def.'s Ex. FF; Pl. Tr. 121:2-9, 128:3-7.

Plaintiff alleges that, at some point during his employment, he complained that he was not promoted because of his race. Pl's Tr. 131:14-22. Plaintiff, however, admits that he never "directly used the word race." Id. 131:21-22. When asked at his deposition what specifically he said in making his alleged complaint, plaintiff stated that "I might have asked [Charles Cormier], my paperwork is taking that long and the other techs didn't take that long." Id. 131:23-132:6. At his deposition, plaintiff did not recall making any other statements that he considered to be complaints about a failure to promote him because of his race. Id. 132:15-24. In opposing defendant's motion for summary judgment, McDowell filed an affidavit stating that "I complained to my supervisors about the failure to promote myself and Richard Browne in light of the promotion of the other field technicians." Pl.'s Aff ¶ 6. McDowell affirmed that he also "complained on behalf of Alan Duval." Id. ¶ 8. Richard Browne ("Browne") is African-American and Alan Duval ("Duval") is Hispanic.*fn1

Wayne Krum confirmed that plaintiff "occasionally" complained to Krum and Ian Ellis ("Ellis"), Krum's supervisor and Manager of Operations, about not being promoted. Krum Tr. 21:22-23:20; Ellis Tr. 7:24-8:23. Krum also recalled that plaintiff mentioned defendant's failure to promote Duval, but Krum did not remember plaintiff mentioning any other individuals. Id. 21:22-23:20. Although McDowell may not have complained directly to Ellis, Ellis recalled both Krum and Cormier relaying McDowell's complaints. Ellis Tr. 18:2-21; see also Krum Tr. 23:7-11 (stating that McDowell complained to Ellis).

On or about June 14, 2002, plaintiff and Krum met again to discuss plaintiff's job performance. At this time Krum believed that plaintiff had met the requisite proficiency goals and that a promotion was warranted. Pl. Tr. 122:11-123:22, 126:8-17; Def.'s Ex. HH. Krum communicated this information to Ellis, who recommended that McDowell be promoted. Ellis Tr. 17:16-19; see also Pl. Tr. 126:19-22. Plaintiff's promotion appears to have been pending when he was terminated from employment on August 13, 2002.

(2) The August 1, 2000 Accident

On Thursday August 1, 2002, after servicing a cellular site, McDowell returned to his parked T-Mobile vehicle and discovered its side door had been "noticeably damaged." Pl.'s Tr. 147:2-22; Pl.'s Ex. 32. Plaintiff maintains that he tried to report the accident to Krum that night pursuant to the terms of the VoiceStream Safety Manual ("the Manual"). However, when Krum did not answer McDowell's phone call McDowell did not leave a message. Plaintiff believed that he could report the accident on Monday, the next day he was scheduled to work, four days after the damage had occurred. Pl. Tr. 150:25-151:6.

It is undisputed that Krum discovered the damage to McDowell's vehicle on Monday August 5, 2002, before plaintiff reported it.*fn2 When Krum confronted McDowell that day about the damage, McDowell claimed that he had not yet had the chance to report the accident. Id. 149:6-151:18. Krum told plaintiff that the accident should have been reported immediately and plaintiff subsequently filled out an incident report, which he gave to Krum. Id. at 150:21-151:18.

After confronting plaintiff about the damage, Krum informed Ellis about the incident. Ellis instructed Krum to "report it . . . in the normal procedure," which Krum interpreted as meaning that he should "fill out the company accident report and send it up to corporate." Krum Tr. 29:23-30:23. Krum then forwarded the accident report, which McDowell had filled out, to T-Mobile's Fleet Management Department ("Fleet Management").*fn3 Id. 26:11-25. Fleet Management is responsible for managing T-Mobile's fleet of vehicles and administering its vehicle policies, including those found in the Manual and the Ten Point Motor Vehicle Report Evaluation System ("10-Point System"). Zaring Tr. 9:14-20; Zaring Aff ¶¶ 1,4.

Zaring, the Corporate Fleet Manager who was based in Bellevue, Washington, Zaring Aff. ¶ 3, reviewed plaintiff's Motor Vehicle Record ("MVR")*fn4 and accident history. Def.'s Ex. KK. Zaring never met McDowell and stated, at his deposition, that he did not learn of McDowell's race until the instant lawsuit. Zaring Tr. 192:12-16. Before discussing Zaring's subsequent actions, it is important to review T-Mobile's various policies covering motor vehicle operation and McDowell's driving history.

a. The Manual

The Manual provides that a driver receiving two or more moving violations or preventable accidents within one year will placed on probation for one year and must attend a defensive driving course. Pl.'s Ex. 15. If the driver receives an additional moving violation or is involved in a preventable accident while on probation he will no longer be permitted to drive for the Company and assignment of his fleet vehicle will be revoked. The Manual also includes an accident reporting and investigation requirement ("Reporting Requirement") under which "all accidents and injuries must be reported to the supervisor within eight working hours and the Risk Manager within 24 hours." Id. There also appears to have been a separate "Vehicle Policy Manual" that contained similar provisions. See Def.'s Ex. S (Aug. 7, 2002 email from Zaring to Krum excerpting portions of the Vehicle Policy Manual). Finally, it should be noted that, although not discussed in the Manual, all field technicians were instructed to inform their supervisors of any incidents that would show up on their driving records (whether or not the incident occurred involved a company vehicle). Pl.'s Ex. 4 (Dec. 12, 2001 email from Ellis to all field technicians).

b. The 10-Point System

T-Mobile also uses a 10-Point System to "evaluate [an employee's] driving history, [] determine whether or not a driver is eligible to drive for [T-Mobile] or whether or not the driver needs some remedial attention." Zaring Tr. 21:4-8. Although not included in the Manual, this system was memorialized in a separate written document. Def.'s Ex. T. Under the 10-Point System, point values are assigned to various driving related incidents. Driving while under the influence of alcohol or narcotics, a hit and run violation or a speed contest/racing violation are all assigned ten points. Reckless driving violations are assigned six points.*fn5 Preventable accidents involving bodily injury are assigned four points, while preventable accidents involving property damage are assigned three points. Any speeding violation, standard moving violation (such as careless driving, ignoring stop signs and failing to signal) or vehicle damage caused by an unidentified third party (such as if a parked vehicle were struck by an unknown person) is assigned two points. All accidents listed on an MVR are presumed to be preventable and the driver is "responsible for proving the accident was the fault of someone else."*fn6 Id.

The 10-Point System states that drivers who receive ten or more points during a three-year period will be ineligible to drive company vehicles or their personal vehicles on company business and that any exceptions must be approved by company management. According to Zaring, in determining a driver's points, he would consider preventable accidents that appeared on the MVR, as well as any preventable accident that appear in the company's own auto accident log. Zaring Tr. 59:11-60:9.*fn7

c. McDowell's Driving Record

Between October 17, 1999 (the day before he was hired) and August 1, 2002, plaintiff was involved in five motor vehicle accidents and received three citations for driving violations. See Def.'s Ex. W. Below is a summary of these accidents and citations along with their corresponding point assignments under the 10-Point System. Whether or not an accident was deemed preventable is also noted where appropriate.

On October 17, 1999, plaintiff ran a stop sign and was involved in an accident that resulted in personal injury. This accident counted as four points and appears to have been considered preventable. See Def.'s Ex. X (October 11, 2000 email from Zaring to Cormier placing McDowell on probation and apparently relying on October 17, 1999 accident); Pl.'s Ex. 36; Zaring Tr. 51:3-18. On May 2, 2000, plaintiff was involved in an accident with his T-Mobile vehicle, involving property damage. Def.'s Exs. T, W; Pl. Ex. 6. On September 21, 2000, plaintiff was again involved in an accident with his T-Mobile vehicle.

Both of those accidents counted as three points under the 10-Point System and both appear to have been considered preventable. See Pl. Tr. 91:25-92:34; 93:17-19; Def.'s Exs. W, Z. On October 1, 2000, plaintiff received a speeding ticket and was convicted of this violation on October 24, 2000. On October 2, 2000, plaintiff received another speeding ticket; he was convicted of this violation on October 11, 2000. These citations each counted as two points under the System. Def.'s Exs. T, W.

In early October 2000, Zaring was notified of plaintiff's accidents and reviewed his MVR. On October 11, 2000, Zaring emailed Cormier, plaintiff's then-supervisor, informing him that plaintiff had "10 points against him."*fn8 Pl.'s Ex. Z. Zaring also explained that "at least two of these accidents happened within a one-year period," implicitly referring to the Manual's probation policy. Pl.'s Ex. 6. Zaring recommended that plaintiff be placed on probation for one year and take a defensive driving course. Id. In placing McDowell on probation, Zaring noted that although he believed the 10-Point System was discretionary, he wanted to be sure that "any action [taken with regard to McDowell] be consistent with past and future actions in similar circumstances."*fn9 Id.

(3) Revocation Of McDowell's Driving Privileges And Termination

Returning to August 2002, after being informed of McDowell's accident, Zaring reviewed plaintiff's MVR, which had been run on May 30, 2002.*fn10 The MVR listed the following five accidents and citations: the October 17, 1999 accident, the September 21, 2000 accident, the two October 2000 citations and the February 27, 2001 citation. Zaring Tr. 43:5-6; Pl.'s Ex. 36; Def.'s Ex. W. Karen Wilmouth, Zaring's fleet administrator, calculated the point values for each accident and citation and wrote them on the MVR. Zaring Tr. 51:7-14. Zaring then noted that the points totaled thirteen and added an exclamation point to emphasize that this was "important" and "need[ed to be brought] to somebody's attention."*fn11

After reviewing plaintiff's driving record, Zaring emailed Krum on August 7, 2002. Def.'s Ex. KK. In the email, Zaring noted that plaintiff had been placed on driving probation "beginning on 10/11/01" [sic] and violated the terms of his probation by receiving a moving violation in February 2001.*fn12

Id. Apparently, McDowell had never informed T-Mobile of this moving violation. The email also included excerpts of several portions of T-Mobile manuals, including: (1) sections on Driving Violations; (2) sections on Accident Reporting; and (3) a section describing the conditions under which a vehicle assigned to an employee may be withdrawn. Zaring concluded the email, stating that "Patrick violated the terms of his probation and should, in my opinion, be removed from driving privileges. If Charlie [Cormier, McDowell's former supervisor,] can not [sic] provide evidence that Patrick had been notified of his probationary status, we won't be able to use this evidence."*fn13 Id. At his deposition, Zaring stated that although he was "not sure why" he was focused on the probation issue at that time, he was "looking at [the probation issue] and not specifically at the ten-point policy." Zaring Tr. 69:5-19. Although it is unclear who ultimately made the determination to revoke McDowell's driving privileges, Zaring's recommendation in the email appears to be the final decision on this issue. See Krum Tr. 25:21-26:9 (Krum stated that "T-Mobile" revoked McDowell's driving privileges, but was unable to identify the particular individual who made that decision).*fn14

At some point, most likely after receiving this email, Krum spoke with both Zaring and Ellis about what should be done with McDowell now that his driving privileges had been revoked. Id. 27:1-17. The decision was eventually made that McDowell had to be terminated because there no other positions available for an individual without driving privileges. On August 12, 2002, Krum informed McDowell that he was being terminated and presented him with a dismissal form, which stated:

Patrick, On 8/5 admitted to me you were involved in an accident. You made no attempt to report this incident until you were questioned by myself on 8/5. This is in direct violation of Voicestream policy. Following this incident, your MVR was reviewed and a directive was issued by corporate fleet management to cease your company driving privileges. At the current time Voice Stream has no positions open for technicians without Voicestream driving privileges.

Def.'s Ex. G. Although the dismissal form appears to have been drafted by Krum and L'Etta Gulbin ("Gulbin"), Regional Employee Relations Manager, Krum Tr. 41:24-42:8, it is unclear who ...

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