The opinion of the court was delivered by: Hon. Norman A. Mordue, Chief U.S. District Judge
MEMORANDUM-DECISION AND ORDER
In this action alleging racial discrimination, there are three motions presently before the Court: first, a motion to sever (Dkt. No. 151) by defendants New Venture Gear, Inc. and DaimlerChrysler Corp. (collectively, "NVG"), in which the other defendants join by letter (Dkt. No. 159); second, a motion for summary judgment (Dkt. No. 153) by NVG; and third, a motion for summary judgment (Dkt. No. 156) by defendants Mike Allen as President of United Automobile, Aerospace and Agricultural Implement Workers of America Local 624, and Stephen Yokich as President of United Automobile, Aerospace and Agricultural Implement Workers of America (collectively, "union"). For the reasons set forth below, the Court grants both summary judgment motions and denies the motion to sever as moot.
In their second amended complaint (Dkt. No. 57), both plaintiffs state that they are African-American men. Plaintiff J.D. Smith, Jr. was hired by NVG on June 6, 1994 and was a dues-paying union member at all times. He was terminated by NVG on March 17, 1999, allegedly due to his race. He claims that while an employee of NVG he "endured racial discrimination in that a dual system of discipline existed for Black and similarly-situated non-Black workers, and when he complained about the inequity of treatment given him was subjected to retaliation." He further avers that the union "failed to work for his return with the same advocacy given to similarly situated non-Black workers with similar work records who engaged in similar or more egregious conduct."
Plaintiff Charles W. Piquet alleges that he was hired by NVG on October 31, 1994 and was a dues-paying union member at all times. At the time of the second amended complaint, he was "out on medical leave caused by the emotional stress he has suffered from prior acts of racial discrimination and harassment" at NVG. He alleges various types of harassment, specifically, unwarranted reprimands, alterations of his attendance record, refusal to give work assignments, and surveillance by his supervisor. He claims that the harassment became more frequent and intense after he complained.
The first cause of action is against NVG for violations of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. ("Title VII"). The second cause of action is against NVG under 42 U.S.C. § 1981 ("section 1981"). The third cause of action is against NVG for retaliation under Title VII. The remaining causes of action assert state law claims (the second amended complaint contains two causes of action designated "fourth cause of action," and one fifth cause of action).
Summary judgment is appropriate "where there exists no genuine issue of material fact and, based on the undisputed facts, the moving party is entitled to judgment as a matter of law." Beth Israel Med. Ctr. v. Horizon Blue Cross and Blue Shield of N.J., Inc., 448 F.3d 573, 579 (2d Cir. 2006) (internal quotation marks omitted). A dispute about a genuine issue of material fact exists if the evidence is such that "a reasonable [factfinder] could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In determining whether there is a genuine issue of material fact, a court must resolve all ambiguities, and draw all inferences, against the movant. See United States v. Diebold, Inc., 369 U.S. 654, 655 (1962).
The Local Rules of the Northern District provide a procedural framework for the resolution of summary judgment motions, placing the burden on the parties to present the evidence that either supports or defeats the motion. The movant must first submit a Statement of Material Facts setting forth the undisputed facts upon which it relies and specific citations to the record where each fact is established. See N.D.N.Y.L.R. 7.1(a)(3). The court must satisfy itself that the cited record evidence supports the movant's assertions of fact and that those facts show that the movant is entitled to judgment as a matter of law. New York State Teamsters Conf. Pension and Ret. Fund v. Express Servs., Inc., 426 F.3d 640, 649 (2d Cir. 2005).
Once the movant submits a properly supported Statement of Material Facts, the non-moving party must file a response thereto. "Any facts set forth in the [movant's] Statement of Material Facts shall be deemed admitted unless specifically controverted by the opposing party." N.D.N.Y.L.R. 7.1(a)(3). The Second Circuit has endorsed this rule, noting: "Rules governing summary judgment practice are essential tools for district courts, permitting them to efficiently decide summary judgment motions by relieving them of the onerous task of 'hunt[ing] through voluminous records without guidance from the parties.'" Id. (citing Holtz v. Rockefeller & Co., 258 F.3d 62, 74 (2d Cir. 2001)) (alteration in original).
Plaintiffs' counsel has failed to comply with these rules. In particular, in many instances she has failed to set forth in her Statement of Material Facts citations to the record supporting plaintiffs' factual assertions. Further, some of her citations to the record appear only in her Memorandum of Law. And plaintiffs' Statement of Material Facts does not set forth specific responses to each factual assertion in movants' Statements of Material Facts. In the interest of fairness to the plaintiffs, the Court has made every effort to ascertain exactly what record evidence they are relying on. The Court declines, however, to dissect the entire voluminous record to determine whether there is uncited factual evidence that might support plaintiffs' claims.
I. Plaintiff J. D. Smith, Jr. Generally
Smith claims that his termination resulted from a "dual system of discipline" under which black employees were disciplined more harshly than white employees. He also claims retaliation and hostile work environment.
In support of its motion for summary judgment, NVG contends that Smith was not subjected to a dual system of discipline as alleged in the complaint; rather, he was treated fairly and in a manner consistent with NVG's work rules, policy and procedure, set out in the written "Standards of Conduct." In this respect, NVG relies on the affidavit of Andrew J. Quinn, Human Resources Coordinator and Labor Relations Representative at NVG during the times in question. Quinn's responsibilities included addressing personnel issues such as termination, discipline, labor relations, and benefits, as well as investigating complaints of discrimination and harassment. Quinn states that the work rules are distributed at orientation and posted on bulletin boards throughout the plant. NVG maintains a "Zero Tolerance" policy prohibiting discrimination or harassment in the workplace. Quinn adds that discipline at NVG is administered equally to minority and non-minority employees based on the severity of the situation and the individual facts of each case.
Quinn avers that he is familiar with the facts and circumstances surrounding this action.
Regarding the incident resulting in Smith's termination, Quinn's affidavit states: "On March 17, 1999, Plaintiff Smith was involved in a series of confrontations with one of his co-workers, James Reinhardt. Shortly after the incident occurred, the employees involved, including Plaintiff Smith, were interviewed by both NVG representatives and the Dewitt Police." Quinn cites to the Town of Dewitt Police Department Supplemental Report, as well as sworn affidavits from Reinhardt and a witness, Scott C. Warren, showing that Reinhardt denied instigating the altercation and that Smith punched Reinhardt in the face with a closed right fist. Quinn also cites to Smith's own written statement, dated March 18, 1999, in which he says that he was arguing with Reinhardt, and then relates as follows: "Jim [Reinhardt] knocks my left arm from in front of him. I turn and swing with my right hand at him, and he goes down."
The investigation revealed that Plaintiff Smith had struck Reinhardt in the face with a closed fist, causing a cut below his eye, which was severe enough to require medical attention. He then went over to two witnesses standing nearby and told them "You didn't see anything," in an obvious effort to intimidate them. Plaintiff Smith also had a previous record of altercations with his co-workers. Plaintiff Smith was terminated based on this offense and his past record.
The Union grieved Plaintiff Smith's termination but the grievance was ultimately withdrawn. The Appeal Board approved the withdrawal and the International Union sustained the Local Union's decision to withdraw. ***
Plaintiff Smith ultimately pled guilty to a criminal offense, second degree harassment, as a result of this incident.
The Complaint alleges that Plaintiff Smith's termination was discriminatory because it was part of an alleged "dual system of discipline" at the plant which imposes more severe penalties on minority employees. I am not aware of any support for this theory. (Citations to record omitted.)
As stated, Quinn affirms that Smith was terminated based on this offense and his past record. Quinn summarizes Smith's disciplinary record, which shows a number of incidents between 1995 and 1998 such as leaving the job without authorization and poor quality workmanship. On September 3, 1998, Smith was suspended for using abusive language to others and on September 17, 1998 he was given a 10-day disciplinary layoff "for using intimidating, abusive and obscene language towards a member of management."
Racially Discriminatory Discharge Generally
The legal standard applied to claims of race discrimination under Title VII is the same as that applied to section 1981 claims. The Court analyzes a plaintiff's race discrimination claim under the burden-shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973). The first step requires the plaintiff to prove a prima facie case of discrimination by showing (1) membership in a protected class; (2) possession of basic skills necessary for the job; (3) an adverse employment action; and (4) circumstances giving rise to an inference of race discrimination. See Slattery v. Swiss Reins. Am. Corp., 248 F.3d 87, 91 (2d Cir. 2001).
Where a plaintiff has made out a prima facie case, the burden of production shifts to the employer to articulate a legitimate, nondiscriminatory reason for its actions. See Bickerstaff v. Vassar College, 196 F.3d 435, 446 (2d Cir. 1999). The defendant's burden of production is not a demanding one; it need only offer an explanation for the employment decision. Id.
The burden then shifts back to the plaintiff to show "that the proffered reason was not the true reason for the employment decision, and that race was." Id. (internal quote omitted). "The plaintiff's opportunity to demonstrate that the employer's proffered reason was false [then] merges with [his] ultimate burden to persuade the trier of fact that [he] has been the victim of intentional discrimination (i.e., that an illegal discriminatory reason played a motivating role in the adverse employment decision)." Id. at 446-47.
Applying the first step of the McDonnell Douglas analysis to the case at bar, the Court notes that NVG does not dispute that Smith has met the first three elements of a prima facie case, i.e., he has shown that he is a member of a protected class, that he possessed the basic skills of the job, and that he experienced an adverse employment action. Rather, NVG argues that he fails to meet the fourth element, because there is no evidence of any circumstances giving rise to an inference of race discrimination. The Court agrees. In any event, even assuming that Smith has made out a prima facie case, NVG has clearly met its burden of articulating a legitimate, nondiscriminatory reason for its actions, i.e., Smith's assault of Reinhardt and his prior disciplinary record.
In an effort to demonstrate that the reason given was not the true reason for the employment decision and that race was, Smith alleges that a dual system of discipline exists at NVG whereby minority workers are disciplined more harshly than non-minority employees.
Smith attempts to support this allegation by pointing to specific incidents at the plant and also by relying on an expert report purporting to show by statistical analysis that the severity of disciplinary action at NVG is influenced by race and/or gender Specific incidents of allegedly unequal discipline Quinn states in his affidavit that he was "directly involved in or had personal knowledge of most disciplinary actions which rose to the level of a disciplinary layoff or a termination." He says he has no reason to believe that minority employees were treated differently; discipline was administered according to the facts and circumstances of each individual case.
The complaint alleges "upon information and belief" four incidents of allegedly unequal discipline in which black employees were treated more harshly than similarly situated white employees. Quinn specifically addresses these incidents. In the first incident, in March 1999, the complaint alleges upon information and belief that Alfonso Davis, a black man, and Jason Wicks, a white man, engaged in a verbal confrontation in which Wicks used a racial slur, but Davis was disciplined more harshly than Wicks. Quinn states that NVG's investigation revealed that Davis had physically shoved Wicks. In the second, in April 1999, the complaint alleges upon information and belief that Steven Rohadfox, a black man, and William McMaster, a white man, engaged in a physical altercation, and Rohadfox was terminated while McMaster was not. Quinn states that NVG's investigation revealed that Rohadfox had confronted McMasters "on top of a platform and began to physically assault him leaving McMasters with no room for escape." In the third, the complaint alleges upon information and belief that David Stone, a white man, threatened to come into the plant with a gun to kill people in management in May 1999, and was not terminated but rather only given three months off. Not only is this not comparable to Smith's actual physical assault of Reinhardt, but Quinn points out that Smith admitted at his deposition that he once made a threat that there would be a homicide at the plant and he (Smith) would be in prison as a result; Smith was not terminated for the threat. And finally, the complaint alleges upon information and belief that two white men, Jim Loveless and Jim Lazero, were observed fighting outside, that an unnamed company engineer witnessed and reported the fight, and that neither man was punished. Quinn states he is not familiar with the incident and does not believe that, if it occurred, it was brought to the attention of management. There is no competent evidence in plaintiffs' opposing papers disputing Quinn's factual averments regarding these incidents.
Further on the issue of disparate discipline, Quinn notes that plaintiff Charles W. Piquet testified about an incident in which a white and a black employee engaged in an altercation, and the white employee was "walked out" of the plant, while the black employee was not; thus, the black employee was treated more favorably. The record also contains deposition testimony by Melvin Flanagan (a black man), who stated that he had a "problem" with one Larry Sealy (apparently a white man), that it was Sealy's fault, that both were "walked out" of the plant, that Flanagan was suspended for about a week and eventually was paid for the time he was out, and that Sealy was suspended for about six months. Thus, Flanagan was treated less severely than Sealy.
In their memorandum of law in opposition to the motion, plaintiffs cite to the deposition transcript of Cheri Martin-Weatherly, who stated that, with respect to physical confrontations, blacks are disciplined differently from non-blacks. She described one incident which she witnessed, involving one Danny Fiore, apparently a white man, who "actually dragged Ron Reid off his truck." She said Fiore was not punished. She provided no other information about the incident; thus, the evidence cited fails to show that the incident was sufficiently comparable to Smith's assault of Reinhardt to be relevant on the question of disparate discipline. With respect to the other incidents Martin-Weatherly described in the pages cited by plaintiffs, she had no personal knowledge but relied on hearsay; this is not competent evidence regarding these events.
Defendants have adduced competent evidence that discipline at NVG was administered according to the facts and circumstances of each individual case and not based on race. The anecdotal evidence relied on by Smith does not support a finding that NVG administered discipline in a racially discriminatory manner.
In support of his contention that the reason given for his termination was not the true reason for the employment decision and that race was, Smith also relies on a report dated September 30, 2005, from Steven J. Schwager, Associate Professor of Biological Statistics at Cornell College of Agriculture and Life-Sciences. This report purports to show that the severity of disciplinary action at NVG is influenced by race and/or gender. A plain reading of the report discloses that, as Dr. Schwager acknowledges, the data files used "omit most of the information necessary for examination of this question[,]" and "omit detailed information about the incidents that led to discipline." The motion papers do not indicate that plaintiffs attempted to obtain further information. Dr. Schwager discusses the differences by gender and ethnicity in violation rates, which he says is statistically significant. Even accepting the validity of his statistical method, however, this difference in itself does not support an inference of discrimination, because it wholly fails to address other possible non-discriminatory reasons for the differences. Likewise, Dr. Schwager's report does not support a finding that whites are disciplined less harshly than blacks for the same violation. Again, other factors are not taken into account (including, it seems, the employees' prior disciplinary records). On its face, the report does not provide evidentiary support for Smith's claim of disparate treatment.
In reply, defendants submit a report from Bernard R. Siskin, who received a Ph.D. in Statistics from the University of Pennsylvania, and David W. Griffin, who received a Ph.D. in Economics from Cornell University. For the past 25 years, they have specialized in the application of statistical methods and economic theory to the analysis of various employment processes within the context of employment discrimination claims. This report discusses the defects in Dr. Schwager's analysis and concludes that his analysis of "violation rates" fails to meet the minimum professional standard for investigation of the question. The report further performs an alternative analysis that yields "absolutely no statistical evidence that employee race and/or gender are meaningfully correlated with the severity of discipline." Plaintiffs did not request an opportunity to rebut this report.
The statistical evidence relied on by plaintiffs fails to support a finding that NVG administered discipline in a racially discriminatory manner. As such, it does not raise a question of fact in the face of NVG's evidence that Smith's discharge was not discriminatory.
NVG has adduced competent evidence of a legitimate nondiscriminatory reason for Smith's discharge. The evidence relied on by Smith provides no support for a finding that the reason given was not the true reason for the employment decision and that race was. Smith has failed to present competent evidence on which a reasonable trier of fact could conclude that he has been the victim of intentional discrimination (i.e., that an illegal discriminatory reason played a motivating role in the adverse employment decision). Viewing the evidence in a light most favorable to Smith, the Court finds that NVG is entitled to summary judgment on this issue.
The second amended complaint also contains a general allegation that Smith has been the victim of retaliation. To make out a prima facie case of retaliation, a plaintiff must show participation in a protected activity known to the defendant; an employment action disadvantaging the plaintiff; and a causal connection between the protected activity and the adverse employment action. See Quinn v. Green Tree Credit Corp., 159 F.3d 759, 769 (2d Cir. 1998).
The second amended complaint does not set forth a protected activity known to NVG. The portions of Smith's deposition testimony placed before the Court do not support a finding that he engaged in any specific protected activity, although he describes in general terms some verbal complaints he made to his supervisors about various things. Nor do the cited portions of his testimony support a finding that his discharge was causally connected with any such activity. Smith also acknowledges that the only formal complaint he made was after his discharge; thus, he cannot show a causal connection between the formal complaint and his discharge. Smith does not present evidence on which a ...