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Smith v. New Venture Gear

January 22, 2008

J.D. SMITH, JR., CHARLES W. PIQUET, ALFONSO DAVIS, LOUIS B. EUDELL AND CHERI MARTIN-WEATHERLY, PLAINTIFFS,
v.
NEW VENTURE GEAR, INC., DAIMLERCHRYSLER CORPORATION, MIKE ALLEN AS PRESIDENT OF UNITED AUTOMOBILE, AEROSPACE AND AGRICULTURAL IMPLEMENT WORKERS OF AMERICA LOCAL 624, STEPHEN YOKICH AS PRESIDENT OF UNITED AUTOMOBILE, AEROSPACE AND AGRICULTURAL IMPLEMENT WORKERS OF AMERICA, UAW INTERNATIONAL UNION, AND UAW LOCAL NO. 624, DEFENDANTS.



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 race and gender discrimination, there are three motions presently before the Court: first, a motion to sever (Dkt. No. 137) by defendants New Venture Gear, Inc. and DaimlerChrysler Corp. (collectively, "NVG"); second, a motion for summary judgment (Dkt. No. 139) by NVG; and third, a motion for summary judgment (Dkt. No. 140) by defendants Mike Allen as President of United Automobile, Aerospace and Agricultural Implement Workers of America Local 624 ("Local 624"), Stephen Yokich as President of United Automobile, Aerospace and Agricultural Implement Workers of America ("UAW International Union") (collectively, "union"). For the reasons set forth below, the motions for summary judgment are granted and the second amended complaint (Dkt. No. 39) is dismissed in its entirety. The motion to sever is denied as moot.

APPLICABLE LAW

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 material fact is one that would "affect the outcome of the suit under the governing law," and 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; a Statement of Material Facts is not a substitute for evidentiary proof of the facts. See Zhanghi v. Incorporated Vill. of Old Brookville, 752 F.2d 42, 47 (2d Cir. 1985); 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.'" New York State Teamsters, 426 F.3d at 649(quoting Holtz v. Rockefeller & Co., 258 F.3d 62, 74 (2d Cir. 2001)).

The submissions on behalf of plaintiffs Davis and Martin-Weatherly do not comply with these rules. In many instances, citations to the record appear only in the Memorandum of Law, not in the Statement of Material Facts. The Memorandum of Law contains numerous factual assertions which have no citation to the record and no support in the Statement of Material Facts. Further, some factual assertions found in the Statement of Material Facts and/or Memorandum of Law are not supported by the cited portions of the record.

The submissions on behalf of plaintiffs Davis and Martin-Weatherly in this unwieldy case -- in which five plaintiffs are joined despite the paucity of significant common factual grounds for their claims, and in which many hundreds of pages of evidence have been placed before the Court -- exemplify the need for organized presentation of arguments and clear citations to the record. These are needed not only to guide the Court but to enable moving counsel to reply to plaintiffs' submissions. The Court has reviewed all the evidence cited to it by the parties, including all cited portions of the depositions. The Court has not, however, dissected the entire record to determine whether somewhere there may be uncited factual evidence that might support plaintiffs' claims, nor has it attempted to discern whether evidence cited by a plaintiff in one context might support some other argument as to which it was not cited; such an onerous exercise would exceed the Court's proper role and could well be prejudicial to opposing parties.

PLAINTIFF J.D. SMITH, JR.

The allegations in the instant action with respect to plaintiff J.D. Smith, Jr. are virtually identical to, and arise from the same events as, those in J.D. Smith, Jr. and Charles W. Piquet v. New Venture Gear, Inc., DaimlerChrysler Corp., Mike Allen as President of United Automobile, Aerospace and Agricultural Implement Workers of America Local 624, Stephen Yokich as President of United Automobile, Aerospace and Agricultural Implement Workers of America, Action No. 99-CV-2086, decided by this Court on September 30, 2007.*fn1 For the reasons set forth in the Memorandum-Decision and Order granting defendants' motions for summary judgment dismissing Action No. 99-CV-2086, the Court holds that NVG and the union are entitled to summary judgment dismissing Smith's claims herein.

PLAINTIFF CHARLES W. PIQUET

The claims in the instant action of behalf of plaintiff Charles W. Piquet are essentially the same as, and arise from the same events as, those in J.D. Smith, Jr. and Charles W. Piquet v. New Venture Gear, Inc., DaimlerChrysler Corp., Mike Allen as President of United Automobile, Aerospace and Agricultural Implement Workers of America Local 624, Stephen Yokich as President of United Automobile, Aerospace and Agricultural Implement Workers of America, Action No. 99-CV-2086, decided by this Court on September 30, 2007. For the reasons set forth in the Memorandum-Decision and Order granting defendants' motions for summary judgment dismissing Action No. 99-CV-2086, the Court holds that NVG and the union are entitled to summary judgment dismissing Piquet's claims herein.

PLAINTIFF ALFONSO DAVIS

Second Amended Complaint

In the second amended complaint (Dkt. No. 39), plaintiff Alfonso Davis, a black man, states that he began working for NVG, an automobile parts manufacturer, in 1996; that on October 22, 1998, he and other black workers signed a letter alleging discriminatory treatment by supervisor Michael K. Sculley; and that thereafter, Sculley's discriminatory treatment intensified and "was apparently condoned by Area Manager, Rick Slowick." Davis alleges that on October 31, 1998, Slowick called him into his office, berated him, and "accused him of creating a hostile work environment which plaintiff interpreted as retaliation for the October 22, 1998 letter[.]"

The second amended complaint further describes an incident occurring on March 3, 1999, as follows. Davis arrived at his work area at 11:09 p.m., nine minutes late. Jason Wicks, a white temporary worker, was standing at Davis' work station. Davis asked Wicks to move away to allow Davis to work at the station, but Wicks refused to move, stating that Sculley had told him to work there. Davis states that when he persisted in attempting to work at the station, Wicks used a racial slur and "moved very aggressively and stepped into Plaintiff Davis' face." The second amended complaint further alleges that Davis "told Wicks in clear terms to back up and lifted his hands to ward Wicks off." Davis says that "[a]t no time did [he] make physical contact with Wicks' person." Davis was then called to Slowick's office, terminated, and walked from the premises without any investigation. After union intervention, the termination was modified to 33-day unpaid suspension; accordingly, Davis was out of work from March 4, 1999 to April 7, 1999.

He states, upon information and belief, that Wicks was suspended for some days and then hired full time.

Davis also says in the second amended complaint that after his return to work he began to experience racially motivated treatment from white coworkers. For example, Davis says, he "was hit by [a] component part thrown, had cigarette smoke blown into face, etc." According to Davis, Sculley condoned such conduct and did not discipline the coworkers.

In the second amended complaint, Davis further claims that he "had been (unofficially) written up by Mike Sculley for things that, upon information and belief, similarly situated non-Black workers on the line were never confronted about or written up for." As an example, Davis relates the following incident. On or about February 26, 2000, Davis was ill and had been seen by the plant nurse. He informed his supervisor, Tom Dickinson, that he would remain until 3 a.m. and then go home. At 3 a.m., the supervisor was not in the area and at 3:07, Davis left the plant. He was written up and suspended for unauthorized leave. Davis states upon information and belief that on September 3, 2000, a white employee, David Silver, told supervisor David Hogan that he had been released to go home. When it was discovered that Silver had lied about being released, Silver was not suspended for unauthorized leave.

Davis claims NVG subjected him to racially discriminatory discipline, racially hostile work environment, and retaliation for complaining about racial discrimination. He claims the union discriminated against him and breached its duty of fair representation based on his race.

The second amended complaint can be read to state causes of action on behalf of Davis against NVG under 42 U.S.C. § 1981 ("section 1981"); Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. ("Title VII"); New York's Human Rights Law, N.Y. Exec. Law § 296; and other state law claims. As against the union he asserts causes of action for racial discrimination under section 1981 and Title VII, as well as breach of contract and breach of the duty of fair representation. See 29 U.S.C. §§ 158(b)(1)(A); 185.

NVG's Motion, Generally

In support of its motion for summary judgment dismissing Davis' claims against it, NVG submits the affidavit of Andrew J. Quinn, Human Resources Coordinator and Labor Relations Representative at NVG during the times in question. According to Quinn, NVG employed about 3,500 hourly workers. About 17% of these, approximately 600, were minorities. Quinn's responsibilities included addressing personnel issues such as termination, discipline, labor relations, and benefits, as well as investigating complaints of discrimination and harassment. He avers that he is familiar with the facts and circumstances surrounding this action. Quinn states that NVG maintains a "Zero Tolerance" policy prohibiting discrimination or harassment in the workplace, and 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 adds that NVG maintains Standards of Conduct applicable to all employees prohibiting "fighting, horseplay, or other disorderly, disruptive, or unruly conduct." The standards are distributed at orientation and posted on bulletin boards throughout the plant.

NVG also submits affidavits and relies on deposition testimony from various supervisors and coworkers having first-hand knowledge of the incidents in issue. These, along with Davis' responses, are discussed below where relevant.

Racially Discriminatory Discipline

The March 3, 1999 Altercation with Wicks

Davis claims that his March 4, 1999 suspension stemming from the altercation with Wicks on the previous day was racially discriminatory. The same legal standard is applied to claims of race discrimination under Title VII, section 1981, and New York's Human Rights Law. Under the burden-shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973), plaintiff is required to prove a prima facie case of discrimination by showing membership in a protected class, possession of basic skills necessary for the job, an adverse employment action, and 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.

NVG argues that Davis fails to meet the fourth element required to make out a prima facie case, because he presents no evidence of circumstances giving rise to an inference of race discrimination in connection with his March 4, 1999 suspension. NVG further argues that, even assuming that Davis has made out a prima facie case, NVG has clearly met its burden of articulating a legitimate, nondiscriminatory reason for its actions, i.e., Davis' conduct in the altercation with Wicks, and Davis has not adduced any evidence upon which a trier of fact could find that he was the victim of intentional discrimination.

In its Statement of Material Facts pursuant to N.D.N.Y. L. R. 7.1(a)(3), NVG states: "On or about March 4, 1999, Plaintiff Davis was terminated for pushing co-worker Jason Wicks in violation of the Standards of Conduct." In support of this statement, NVG relies on Quinn's affidavit as follows:

As set forth in ... the Complaint, Plaintiff Davis was involved in an altercation with a coworker, Jason Wicks on March 3, 1999. The Union Representatives present for this incident were Carl Osborne and Vinnie Pagano. On this occasion, Davis had reported to the line late and was directed by his supervisor, Sculley to perform a different job as another employee (Wicks) had been assigned to cover his job. Subsequent investigation indicated that Davis caused physical contact to Wicks using his arms when Wicks refused to move off the job, having been directed to perform it by his supervisor. Other employees working at the time corroborated Wicks' complaint against Davis. Keith Nelipowitz witnessed Davis push Wicks. Beverly Carter, an African American employee, also witnessed Davis "move him out of his face".... It should be noted that no witnesses, including Carter, reported that Wicks used any racially offensive language towards Davis. It was the Company's determination that Davis had violated the Standards of Conduct by engaging in a physical confrontation and, as a result, he was terminated. However, as in all cases of grieved disciplines, we reviewed Davis' termination with the Union. It was agreed in the second step of the grievance procedure to return Davis to employment after thirty-three (33) calendar days. Davis resumed work at

New Venture Gear on April 7, 1999. (Paragraph numbering and references to record omitted.)

Sculley, who supervised Davis at the times in question, explains the Wicks incident in his affidavit as follows:

On the evening of March 3, 1999, Davis was late to the line which caused me to assign another employee to do his job. This was not uncommon as it was my practice to fill open positions for late or absent employees in order to get the assembly lines running. On this occasion, Davis had not called to say he was going to be late and I had no idea when to expect him. I instructed Jason Wicks to fill Davis' position on the line. It was subsequently reported to me that after Davis arrived, he shoved Wicks and threatened to beat him up in the parking lot. A subsequent investigation that evening confirmed this and Davis was escorted out of the plant. Wicks was not suspended as there was no indication that he was the aggressor in this incident or otherwise acted inappropriately. To the contrary, all Wicks did was attempt to perform the job that I directed him to do.

Attached to Quinn's affidavit are unsworn statements written by Wicks and coworkers Keith Nelipowitz and Rick Schwartz shortly after the incident, and one written by Beverly Carter about a week later. Wicks's statement supports Quinn's and Sculley's affidavits regarding the outcome of the investigation of the incident. Wicks states: "[Davis] continued to tell me to get out of his face approaching closer at which time he pushed me once and the parts flew out of my hand." Wicks adds that Davis threatened to beat him up and "said he would see me outside at seven outside the gates." Nelipowitz, who saw the incident, states that Davis pushed Wicks and said he would see him outside after work. Schwartz did not see the incident but heard the verbal exchange. Carter states that Davis "move[d] [Wicks] out of his face (not push)." None of the witnesses states that Wicks pushed Davis or made any aggressive physical contact with Davis, nor does any witness support the allegation in the second amended complaint that Wicks used a racial slur. Thus, the written statements show that, based on its investigation, NVG had a legitimate reason to conclude that Davis had violated the Standards of Conduct.*fn2 Quinn's description of NVG's conduct in relation to the incident is also supported by the discipline and grievance documentation attached to his affidavit. In sum, NVG has demonstrated that it had a legitimate nondiscriminatory reason for its handling of the Wicks incident.

The Court thus turns to consider whether Davis has come forward with evidence that the reason given was merely a pretext, that is, that it was not the true reason for the employment decision, and that race was. Davis relies in part on his deposition testimony regarding the Wicks incident.*fn3 In his deposition, Davis admitted that he was late arriving at his work station. Davis denied pushing or threatening Wicks. Although he claimed that Wicks used a racial epithet, Davis did not claim that Wicks touched or pushed him.

In her deposition testimony, Charryse Jones, a coworker who was working nearby when the Wicks incident took place, described it as follows:

Well, Alfonso came in a little late and Jason was on his job and Alfonso came in [and] said, I'm here, get off my job now. And he I guess - - He didn't leave I know that. I'm not sure if he left or came back. It's a long time ago. But he was there. Alfonso said, you can leave off my job now, and he wouldn't leave and they got close, but they never hit each other.

They were yelling.

When asked to explain her understanding of "the protocol when it comes to a line job where a part-timer or weekend warrior [such as Wicks] is working and the full-time employee whose job it is arrives" she stated "They have to get off the job as soon as they come over."

Beverly Carter, a coworker, described the incident in her written statement. According to Carter, Davis came in late and went to his position. Wicks said to Davis "that he was not going no - - - where." Carter continued: "Alfonso put on his apron and started to set up his parts. Jason was not giving [Alfonso] no room. Jason repeated that he was not moving. Alfonso and Jason exchange[d] unfriendly words. Jason continue[d] to move in Alfonso['s] face then Alfonso moved him out of his face (not push). Jason got back up in Alfonso['s] face, they continued to argue[.]" Then management intervened.

In her deposition, when asked how Davis "moved" Wicks out of his way, she indicated that Davis raised his hands up, palms outward, but did not push Wick. According to Carter, it was the practice that if a union employee such as Davis arrived late and his job was being done by a "weekend warrior" like Wicks, the weekend warrior "immediately comes off the job" and allows the union employee to take over. When asked whether this would be the case if the supervisor told the weekend warrior to run the job, she said "I don't know because I never had that happen." Carter explained that it was her belief that Davis was "set up" because ordinarily the weekend warrior would immediately leave the job, and because when Davis came in "as the conversation was going on it was - - you could look at them [apparently meaning Davis' coworkers] and tell that they were just waiting, they were just waiting to see what Alfonso was going to do."

Davis complains in the Memorandum of Law that NVG's investigation was faulty because NVG did not interview certain black workers who worked near Davis' workstation, specifically Carter, Jones, and one "Mr. Shaw." With respect to Shaw, the Memorandum of Law cites only to a page in the deposition of Paul Hawkins; this page does not mention Shaw. As such, Davis cites to no evidence of what Shaw would have said if he had been interviewed. Carter gave NVG her written statement a week after the incident, and presumably Jones, too, would have said that Davis did not push Wicks. Davis also stated in his deposition that Paul Hawkins and a woman named Charmaine, both black, were in a position to see the incident. Hawkins testified at his deposition that he did not see anyone hit anyone; he further stated that he was not looking at Davis and Wicks when they got into the altercation and that his job requires him to look at what he is doing "[a]ll the time." The evidence does not show what Charmaine would have said if she had been questioned about the incident. In any event, the fact that NVG accepted the version of the incident given by Wicks and Nelipowitz is not evidence that NVG acted in a racially discriminatory manner. Davis' disagreement with NVG's handling of the incident does not change the fact that NVG's action was based on firsthand statements from Wicks (the victim) and Nelipowitz (an eyewitness) that Davis had pushed Wicks.

As stated, NVG met its burden of articulating a legitimate, nondiscriminatory reason for its action in response to the Wicks incident. Even assuming that Wicks used a racial slur and that Sculley's order was inconsistent with the usual practice in the plant, this would not support a finding that NVG's manner of dealing with the incident was racially discriminatory. Likewise, even if in fact Davis did not push or threaten Wicks, the statements of Wicks and Nelipowitz nevertheless provided a legitimate nondiscriminatory basis for NVG's conclusion that Davis had violated the Standards of Conduct. In other words, even accepting that NVG erred in its conclusion that Davis was the aggressor, such an error is not in itself evidence of discrimination. Further, Carter's unsupported speculation that Davis was "set up" does not raise a material question of fact relative to this incident, nor is it evidence that NVG's proffered reason was false.

In sum, the evidence adduced by Davis with respect to the Wicks incident, viewed in a light most favorable to Davis, does not, without more, raise a material question of fact regarding whether an illegal discriminatory reason played a motivating role in NVG's handling of the incident.*fn4

Davis further alleges that a dual system of racially disparate discipline existed, and argues that this disparate system of discipline lends support to his claim that discrimination was the true reason for NVG's handling of the Wicks incident.*fn5 The Court now turns to the issue of a dual system of discipline.

Dual System of Discipline

In support of his contention that the reason given by NVG was not the true reason for NVG's manner of handling the Wicks incident and that race was, Davis alleges that a dual system of discipline existed at NVG whereby minority workers were disciplined more harshly than non-minority employees. Davis points to some specific incidents at the plant and also relies on an expert report purporting to show by statistical analysis that the severity of disciplinary action at NVG was influenced by race and/or gender.

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 second amended complaint includes the following allegations regarding a dual system of discipline:

Upon information and belief, and based thereon, Plaintiffs allege, Defendants New Venture Gear and DaimlerChrysler have maintained an impermissibly dual system of discipline in that it imposed more severe disciplinary sanctions on Black employees than similarly situated non-Black employees.

Plaintiff submits the following incidents as examples of the impermissible dual system of discipline. Upon information and belief, in April 1999, Steven Rodafox,*fn6 Black male, and William McMaster, White male, engaged in a physical altercation. Mr. Rodafox was terminated while Mr. McMaster was not.

Upon information and belief, David Stone, a White male, threatened to come in the plant with a gun to kill person(s) in management in May 1999. Mr. Stone was given three (3) months off, and then allowed to return to work.

Upon information and belief, two White males, Jim Loveless and Jim Lazero, were observed fighting outside. The witness, a company engineer, reported the fight. Neither individual received time off.

(Paragraph numbering omitted.) Davis also refers to the physical assault by plaintiff J.D. Smith, Jr., a black worker, upon James R. Reinhardt, a white coworker, which resulted in Smith's termination. Smith ultimately pled guilty to second degree harassment as a result of the assault.*fn7

Davis would have the Court compare the above alleged incidents with the Wicks incident and the Smith/Reinhardt incident and conclude that the differences in punishment are evidence of racially discriminatory discipline.

With respect to the first alleged incident, Quinn states that NVG's investigation revealed that Steven Rohadfox had confronted William McMasters "on top of a platform and began to physically assault him leaving McMasters with no room for escape." With respect to the second, it is obvious that a verbal threat made outside the plant to come into the plant with a gun to kill people is not comparable to an actual physical altercation during working hours inside the plant. Moreover, as Quinn points out, plaintiff J.D. Smith, Jr. 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. Thus, neither the threat by the white employee, Stone, nor the threat by the black employee, Smith, resulted in termination. And finally, with respect to the allegation that two white men, Loveless and Lazero, were not punished for fighting, Quinn states that he is not familiar with the incident and does not believe that, if it occurred, it was brought to the attention of management.

Davis adduces no competent evidence raising a question of fact regarding Quinn's explanations. Davis fails to present any competent evidence that these incidents are sufficiently comparable to the Wicks incident or the Smith/Reinhardt incident to enable a reasonable fact finder to find racially disparate discipline.

In plaintiffs' Memorandum of Law in opposition to the motion, Davis refers to other incidents as evidence that similarly situated white men engaged in physical confrontations and were not disciplined. The Memorandum of Law states:

Mr. Davis is aware that similarly situated Caucasian males have engaged in physical confrontations with supervisors present and were not disciplined. Such similarly situated Caucasian males include Danny Fiore, Ron Reid, and Mike the truck driver in Department 863.

Neither the pertinent section of plaintiffs' Statement of Material Facts nor the pertinent section of plaintiffs' Memorandum of Law cite to any evidence in support of the allegation that Danny Fiore "engaged in physical confrontations with supervisors present and [was] not disciplined." Not surprisingly, therefore, defendants do not address it in this context.*fn8

With respect to the incident involving Ron Reid and Mike the truck driver, plaintiffs' Memorandum of Law states: "Ms. Martin-Weatherly testified that she witnessed Ron Reid and Mike, the truck driver of Department 863 engage in a physical altercation in the presence of supervisor Liz McLaughlin." In fact, this statement misrepresents Martin-Weatherly's testimony. A review of the deposition pages cited shows that Martin-Weatherly testified that there was an exchange between Reid and "Mike that was 863's truck driver" and that Liz McLaughlin "actually intervened and one of the gentlemen['s] shirt got ripped." Counsel then asked: "Did you witness this?" Martin-Weatherly responded: "I did not." Counsel then asked: "What is the basis for your knowledge of that incident?" and she replied: "I spoke with Ron Reid about it. One of the individuals who was involved." This hearsay allegation is not competent evidence.

In response to this allegation, defendants submit the affidavit evidence of Elizabeth D. Mauro (known at all pertinent times as Liz McLaughlin) stating that she supervised MartinWeatherly at the times in question. McLaughlin explains:

I am aware of an incident involving a truck driver in Department 862 by the name of Ron Reid and a truck driver in Department 863. It is my understanding that Martin-Weatherly alleges that the other truck driver's name was Mike, but it was actually Guy Lamacchia. The incident took place on May 23, 1999. When I came upon the two of them, they were in a heated argument, which I had to break up. I did not witness any striking or other physical contact between these two employees. I recall that one of the employees, Ron Reid, had a rip in his shirt. He told me that he ripped it on a machine. Both employees denied that they had been fighting. An investigation of the incident did not produce any witness to a fight. The employees were each given disciplinary action in the form of a one day disciplinary layoff for disorderly conduct.

Quinn's reply affidavit discusses the same incident as follows:

In May 1999 there was an incident between Ron Reid and a truck driver, Guy Lamacchia. Both employees were suspended pending investigation. Ms. McLaughlin had witnessed only a verbal argument between the two, not physical contact. Both Reid and Lamacchia denied any physical contact and there were no witness statements to support any physical contact. These two employees still received a disciplinary layoff for disorderly and disruptive conduct. ... Contrary to Plaintiffs' allegations, this was not an incident in which white employees received more favorable treatment. There was no evidence to support physical contact to support a discharge as there was in the incidents involving Plaintiffs Smith and Davis.

Copies of the disciplinary notices stemming from the incident are attached to Quinn's affidavit. In sum, the undisputed evidence is that no witness came forward to state that there was physical contact between Reid and Lamacchia. Thus, as a matter of law, the Reid/Lamacchia encounter is not comparable to the Wicks incident or the Smith/Reinhardt incident and provides no support for Davis' claim of racially disparate discipline.

Quinn's reply affidavit describes another incident in March 1999 as follows:

There was another incident in March, 1999 involving a truck driver by the name of Mike, but Ms. McLaughlin was not the supervisor involved and the incident occurred in Department 261. In that situation, Ed Landers got into an altercation with truck driver Mike Rey on March 17, 1999. Again, both employees were suspended pending investigation. The investigation indicated this was a case of physical altercation and that Landers had bumped Rey with his chest. Landers was discharged. Rey received a 10 day disciplinary layoff. Both individuals are white.

Copies of their disciplinary notices are attached to Quinn's affidavit.

In the second amended complaint, Davis also states that he "had been (unofficially) written up by Mike Sculley for things that, upon information and belief, similarly situated non-Black workers on the line were never confronted about or written up for." As an example, Davis relates the following incident. On or about February 26, 2000, Davis was ill and had been seen by the plant nurse. He informed his supervisor, Tom Dickinson, that he would remain until 3 a.m. and then would go home. At 3 a.m., the supervisor was not in the area and at 3:07, Davis left the plant. He was written up and suspended for unauthorized leave. Davis states "upon information and belief" that on September 3, 2000, a white employee David Silver told supervisor David Hogan that he had been released to go home, and when it was discovered that Silver had lied about being released, Silver was not suspended for unauthorized leave.

With respect to Davis' suspension for leaving work without authorization on February 26, 2000, Quinn's affidavit states:

In ... the Complaint, Davis alleges he was disparately disciplined for unauthorized leave as a result of a February 26, 2000 incident. On this occasion, Davis requested and was given permission to go the medical department from his supervisor Tom Dickinson at around 1:00 a.m. Davis returned from medical and worked until the 3:00 a.m. lunch break. He did not report back to work after lunch but instead clocked out of the plant at 3:07 without telling either Dickinson or Area Manager Rick Slowik he was leaving.

Attached to the affidavit are Dickinson's written report of the incident and an e-mail from area manager Rick Slowick to manager Jim Hickey, copied to Quinn, describing the incident. There is nothing in these reports to suggest that the incident had anything to do with Davis' race. Further, Davis does not deny leaving work at 3:07 a.m. on February 26, 2000 without telling Dickinson or any other management representative that he was leaving, although he does claim he spoke to Dickinson some time earlier and told him he would leave later. Davis adduces no evidence supporting his allegation "upon information and belief" in his second amended complaint that Silver was treated more leniently for similar conduct; this unsubstantiated allegation does not aid Davis on this motion.

The second amended complaint also refers to a letter written to management by Davis and two other employees on October 22, 1998, claiming discriminatory treatment. The letter claims that white workers were allowed to leave work without requiring a nurse's excuse whereas black workers had to get a nurse's excuse. The one specific example given in the letter and referred to in the second amended complaint concerned a white worker, "Kirk" or "Kurt." The letter describes the incident as follows:

... Kirk walked off the line at about 11:20 p.m. He gave no reason, he was not excused by Scully or the nurse. He just left. From all that we know about procedure, he should have been suspended or perhaps even fired. However, he was allowed to return to work the next day as if nothing had ever happened. He was not suspended or fired.

When questioned about the incident at his deposition, Davis testified that "Kurt" was allowed to leave work "without going to medical." Davis explained that he saw Kurt speak to Sculley, then get his coat and lunch bag and go home. Thus, it appears from Davis' testimony that Kurt actually did speak to Sculley immediately before leaving. On its face this is not comparable to Davis' situation because Kurt spoke with a supervisor immediately before leaving, whereas Davis did not. Davis also acknowledged that he did not know what had taken place between Kurt and Sculley earlier. That Kurt was allegedly allowed to leave without "going to medical" does not support a finding of disparate treatment, particularly in the absence of any evidence of the reason for Kurt's departure. There is no evidence that the Kurt incident was sufficiently similar to Davis' February 26, 2000 incident to support a finding of disparate discipline. In any event, even assuming that Sculley was a more lenient supervisor than Dickinson in this respect, this in itself would not support a finding of race discrimination.

In his affidavit on this motion, Davis states with respect to disparate discipline:

There is a general policy at New Venture Gear plant that treats African Americans differently when it comes to discipline. Behavior that I have been disciplined for did not result in discipline for Caucasians.

Under the contract, any disciplinary infraction older than 12 months cannot be considered by the company in implementing discipline. Therefore at any given time, and at least once a year, workers should be on parity with each other from the perspective of same discipline record. But it doesn't matter. African Americans are going to be disciplined more severely.

For example, Mr. Mayfield, an African American employee at New Venture Gear plant, was disciplined because he caught the error of a Caucasian layout man. The company didn't discipline the set up man, but penalized Mr. Mayfield. In this instance, Mr. Mayfield is a victim of someone's conduct but he was disciplined as if he was the perpetrator.

The selective use of discipline disparately impacted me, and other African Americans at the plant. The disparate impact cuts both ways. I will be negatively affected if I am African American whether I am the victim in a situation. I have been the victim in situations and instead of the Caucasian aggressor being disciplined nothing is done.

So Caucasian perpetrators fare better under New Venture Gear discipline because either they are not disciplined for conduct towards a Black employee, or the Black victim [will] receive discipline. This was the case when Keith Neplowitz' brother used abusive language towards me with the supervisor standing right there.

(Paragraph numbering omitted.) This highly conclusory recitation does not raise a question of fact regarding racially discriminatory discipline and does not assist Davis in proving that NVG had a discriminatory motive in its handling of the Wicks incident or in any other respect. The Court finds no citation to evidence of the Mayfield incident in the pertinent sections of plaintiffs' Statement of Material Facts or Memorandum of Law, nor has the Court encountered such evidence in its review of the record.

Defendants have adduced competent evidence that discipline at NVG was administered according to the facts and circumstances of each individual case. Davis responds with a number of unsubstantiated and/or conclusory allegations and a few random anecdotes about factually distinguishable incidents.*fn9

As such, Davis' submissions do not raise a question of fact regarding whether NVG handled the Wicks incident, the Smith/Reinhardt incident, any other incident involving a black employee more harshly than comparable incidents involving white employees. Davis' submissions, viewed in a light most favorable to Davis, would not permit a reasonable factfinder to conclude that NVG administered discipline in a racially discriminatory manner.

Statistical Evidence

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, Davis 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." Nothing in the record suggests that plaintiffs made any effort 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 analysis, 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, such as differences in supervisors, departments, or types of infraction. 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 plaintiffs' 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 its handling of the Davis/Wicks incident was not discriminatory.

Conclusion

Viewing the evidence in a manner most favorable to Davis and in the light of all of the evidence upon which he relies (including the evidence discussed below in connection with the allegedly hostile work environment), there is no ground to find that an illegal discriminatory reason played a motivating role in NVG's discipline of Davis for the Wicks incident or in any other respect. NVG is entitled to summary judgment dismissing Davis' race discrimination claim. Hostile work environment

To make a showing of a hostile work environment sufficient to withstand summary judgment, a plaintiff must produce evidence "(1) that the workplace was permeated with discriminatory intimidation that was sufficiently severe or pervasive to alter the conditions of [his] work environment, and (2) that a specific basis exists for imputing the conduct that created the hostile environment to the employer." Richardson v. N.Y. State Dept. of Corr. Serv., 180 F.3d 426, 436 (2d Cir. 1999) (internal quotation marks and citations omitted). The first element of a hostile work environment claim has both an objective and subjective component: "the misconduct must be severe or pervasive enough to create an objectively hostile or abusive work environment, and the victim must also subjectively perceive that environment to be abusive." Terry v. Ashcroft, 336 F.3d 128, 148 (2d Cir. 2003) (internal quotation marks and citation omitted). Not all workplace harassment is prohibited; rather, the law prohibits only conduct involving statutorily proscribed forms of discrimination. See Gregory v. Daly, 243 F.3d 687, 692 (2d Cir. 2001) (citing Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 80 (1998)). Thus, courts "consider the extent to which the conduct occurred because of plaintiff's [membership in a protected class]." Demoret v. Zegarelli, 451 F.3d 140, 149-50 (2d Cir. 2006).

To analyze a hostile work environment claim, courts "look to the record as a whole and assess the totality of the circumstances, considering a variety of factors including 'the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance.'" Id. at 149 (quoting Harris v. Forklift Systems, 510 U.S. 17, 23 (1993)). For discriminatory comments, slurs, and jokes to constitute a hostile work environment, there must be more than a few isolated incidents or episodic conduct. See Richardson, 180 F.3d at 437. Because a hostile work environment claim focuses on the nature of the workplace environment as a whole, evidence of discriminatory harassment and hostility beyond that which is directed specifically at the plaintiff is relevant to the analysis. See Cruz v. Coach Stores, Inc., 202 F.3d 560, 570 (2d Cir. 2000). Similarly, the fact that a plaintiff was not present when a racially hostile incident occurred does not necessarily render the incident irrelevant to his or her hostile work environment claim. See Schwapp v. Town of Avon, 118 F.3d 106, 111 (2d Cir. 1997).

In moving for summary judgment dismissing Davis' claim of hostile work environment, NVG relies on Quinn's affidavit that NVG maintains a "Zero Tolerance" policy prohibiting discrimination or harassment in the workplace, 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, and that NVG maintains Standards of Conduct applicable to all employees.

In support of his claim that he endured a hostile work environment, Davis first alludes to offensive graffiti, racial epithets, and hangman's nooses in the plant. Although the Memorandum of Law alludes to a "recurrent appearance of hangman's nooses," it cites only to the deposition of coworker Zachary Oliver, who testified to a single incident occurring in April 2000. According to Oliver, he saw a noose draped over a pipe at a wash station. Quinn's affidavit states that the incident was thoroughly investigated by NVG, which found no evidence that anyone had intended to display the rope as an actual noose or that it was directed towards any individual or group. The UAW International Union sent representatives to the plant from Detroit to review the situation, and they agreed that NVG had handled the situation appropriately and that no further action was required.

With respect to racial graffiti, Davis' Memorandum of Law cites to the deposition testimony of coworker Dixie Cole that on one occasion he observed a reference to KKK written on a piece of cardboard. Cole added that when he reported this, NVG management investigated and caught the perpetrator. Davis' Memorandum of Law also cites to pages of deposition testimony of Melvin Flanagan, a black coworker. When asked whether he saw racial graffiti at the plant, Flanagan replied that when he first started working at the plant in 1971 he saw some racial graffiti, but "not towards the later years." He further testified that he hadn't seen any "for the last ten years."

With respect to racial jokes, in his own affidavit, Davis states: "I have heard racial jokes while working in the plant, and seen written jokes being [passed] around. Same of the ones that I remember involved references to Blacks as coons, eaters of watermelon, and fried chicken." He gives no specifics as to time, place, or frequency. Davis' Memorandum of Law also cites to the deposition testimony of Flanagan, who, when asked whether he ever heard racial statements and jokes, said "not really, only because the people that would be telling them wouldn't be telling them around me." Davis cites to the testimony of Oliver that he was called racially offensive names by coworkers in 1994 or 1995; Oliver testified that he did not report the comments. Davis also cites to the testimony of Douglas Medley, Jr. (apparently a black man), who stated generally that there was racial joking and graffiti in the plant. Medley could only remember one specific incident, which occurred three or four years previously, when a white coworker called him an "ape"; he did not report it.

In addition, with respect to racial epithets, Davis states in his Memorandum of Law that he was called "nigger" on one occasion by Gil Odjeck (a union official), once by Wicks in the context of the incident resulting in Davis' suspension, and once by Carl Osborne (an alternate union official). The evidence regarding Wicks' alleged racial epithet is discussed above in the section regarding racially discriminatory discipline. With respect to the other two alleged epithets, there are no citations to the record, nor is the allegation set forth in the Statement of Material Facts. In his affidavit, Davis relates one other incident:

The last time that Mr. Sculley came over Mr. Nelipowitz' brother began cursing about the situation [apparently referring to Davis' complaints about smoking on the line, discussed below] and called me a "black bastard". When I asked Mr. Sculley if he was going to allow this language to stand he told me that he considered it "shop talk." Mr. Sculley allowed the abusive language and did not discipline this individual.

Davis shows no basis for imputing to NVG the union officials' two alleged isolated racial slurs. With respect to Sculley, it is significant that Davis stated in his deposition that he had never heard Sculley use a racial epithet towards him.

In his Memorandum of Law, Davis also argues that "the disparate discipline of African American workers creates an objectively hostile work environment." Here Davis cites to Flanagan's deposition testimony regarding an altercation with Larry Sealy (apparently a white man). Flanagan stated that Sealy pushed him, that both men were "walked out" of the plant, that Flanagan was suspended for about a week and eventually was paid for the time he was out (although he claims he was paid at an improperly low rate), and that Sealy was suspended for about six months. This evidence does not show that Flanagan was treated more severely than Sealy or, indeed, was punished in any significant way. Davis also cites to the testimony of Lorenzo Davis in support of the proposition that the "disparate discipline of African American workers creates an objectively hostile work environment." Lorenzo Davis acknowledged, however, that he had no personal knowledge of the circumstances surrounding the discipline of minority employees. These are the only examples of disparate discipline cited in support of the hostile work environment claim. Further, with respect to the examples of disparate discipline cited in connection with the racially discriminatory discipline claim, the Court has already found that they amount to no more than unsubstantiated and/or conclusory allegations and a few random anecdotes about factually distinguishable incidents. They do not assist Davis in his effort to show a hostile work environment.

On the subject of hostile work environment, the Memorandum of Law next refers to a letter written on October 22, 1998, to union President Mike Allen from Davis, Dwayne Shaw, and Sean Hamilton. It was copied to Jerry Mallory, Vice President of Operations of NVG, and Tom Neal, Chair of the Human Rights Committee of the union. The letter states in full:

It is our belief and p[er]ception that our foreman, Mike Scully, on line 863, has a problem with African-Americans. On several occasions, we have watch[ed] what we feel has been strategic singling out of African American workers on the line. Here are some examples that make the discrimination evident.

For example, when the line is on break, Scully will wait at the line until all the Black workers return, and then leave and go to his office. Though our White counterparts have not fully returned, it appears that he feels that he does not have to supervise their return. It is as if he does not trust us to return to work on time, but does not have the same concern about the White workers. This is a practice that does not make sense unless Scully has decided that the Black workers on the line must be treated different than their White counterparts.

Another example is when White line workers have wanted or needed to go home, he/she were excused without a problem. Whereas, when a Black line worker needed to leave, it was required for that individual to go to the nurse to get an excuse versus just being excused.

A third example is when Kirk walked off the line at about 11:20 P.M. He gave no reason, he was not excused by Scully or the nurse. He just left. From all that we know about procedure, he should have been suspended or perhaps even fired. However, he was allowed to return to work the next day as if nothing had ever happened. He was not suspended or fired. In contrast, when Armen was unable to physically drive the truck because of pregnancy, she was fired. Though there are some differences between examples, the gist is that Black workers and White workers are not treated the same by Scully.

We realize that certain situations can come up. That is not what we are talking about. What we are talking about is a constant course of conduct by Scully that feels very much like discrimination. As you can imagine, such practices are unfair and have created much tension on the line. Something must be done about this problem.

Quinn discussed this letter in his affidavit as follows:

I note that letter was sent just after Davis had received a written warning from Mr. Sculley for excessive personal time (10/17/98) and a Department Managers Report for poor quality workmanship (10/19/98). The letter did not state that this discipline was unjustified or discriminatorily issued. While the letter did not contain any request for Mr. Mallory to investigate or take any actions, then-Employment Supervisor Billy Owens reviewed the allegations with Mr. Sculley and, to my recollection, found no problems or basis for corrective action. Mr. Owens is African-American and has since retired. The UAW Civil Rights Committee also investigated the allegations and found no basis for discrimination. Carolyn Wingate, the mother of one of the three employees who signed the letter, Sean Hamilton, was on the Civil Rights Committee at the time.

In the Statement of Material Facts, Davis denies that the October 22, 1998 letter had any connection with the discipline he received on October 17 and 19, 1998.

In his affidavit in support of NVG's motion, Sculley states:

From day one, Davis was a difficult employee who was regularly insubordinate towards me. He called me "cracker" and "white boy" and a "racist devil" and told me to "get the f___ out of his face." I was a relatively new supervisor at this time. At the outset, it was my impression that Davis was trying to intimidate me, but as time went on it appeared that Davis was reacting to my efforts to enforce the rules. Davis was late to the line and late back from breaks more than anyone else on the line. I enforced the rules for both white and minority employees. Davis' response was to try to brand me as a racist. I am not.

Davis' affidavit does not deny Sculley's statement that Davis used racial epithets towards him.

With respect to Sculley's monitoring of the line, Davis' affidavit states:

Mr. Sculley's office was near the front of the line. From this area, he could see the whole line with the exception of into the test buck. The center of the line did not offer a better vantage point. You could not see each [end] of the line clearly because the machinery ... hung between my area and the various ends of the line. Mr. Scully used the center of the line as his vantage point to view the several African Americans whose job operations were clustered in the center there.

In this respect, the Memorandum of Law cites to pages in the depositions of Sean Hamilton, Charryse Jones, Beverly Carter, Paul Hawkins, and J.D. Smith, Jr. On the cited pages, Hamilton testified that Sculley would watch him and Davis while "the white guy, Brian Peyat, he's over there at the next line talking with somebody[.]" Hamilton also testified to an incident where he got back from break, saw the line was not moving, and ran to the bathroom. When he came back from the bathroom, Sculley asked why he was late. Hamilton was not disciplined, but nevertheless felt that Sculley did not believe his explanation that he had already been back from break. Hamilton testified in part:

Q: Do you have any reason to believe that Mr. Scully did not accept your explanation that you had been to the bathroom?

A: Oh, yes. I mean, he -- he would think that, you know, I was probably using it as an excuse not to get written up....

Q: But if Mr. Scully didn't write you up, why did you believe he didn't accept your explanation?

A: Just, I mean, with his conversation, it's like, well, how do I know you telling me the truth or not? I'm like, you can go ask Jeff Harris, you can ask anybody on the line if I came back to break on time.

Q: Do you know if he did that?

A: I have no idea if he did it or not....

Hamilton also stated that Sculley would watch and see who left first for break and who came back last. And Hamilton speculated that other white workers on the line would report to Sculley if the black workers returned late from break.

Charryse Jones, when asked: "Did you ever observe Mr. Scully monitoring the return of African American employees back to the assembly line...?" responded, "Yes." In the pages of Jones' testimony provided to the Court, Jones states only that she saw Sculley monitoring the return to the line of black employees; she does not state that he did not monitor the return of white employees or that he monitored them less than blacks.

Beverly Carter testified that Sculley monitored black employees more than whites. She said she complained to Sculley but not to the union or anyone else at NVG.

Paul Hawkins testified: "[T]hey was watching [Davis] while he was doing his job and stuff, it was a lot of focus on him for some reason." In the pages of his deposition cited by Davis, J.D. Smith, Jr. testified that on one occasion about two years previously he saw a "tall, skinny" supervisor follow Davis to the bathroom. Smith did not know anything more about the incident except that it "seemed like" Davis was being followed.

With respect to the averment that he watches black workers on the line more closely than white workers, Sculley's affidavit states:

It was my practice to stand in the center of the line periodically to monitor breaks or otherwise observe employees' performance on the line. Alfonso Davis did work near the center of the line. I chose the middle not because of which employees worked there, but because I had the best view of the whole line from that middle location. When it appeared to me that everyone on the line had come back and started to work, I would typically leave and move on to something else. To the extent that Davis, Hamilton or Shaw, (the signatories to the letter) were frequently the last ones to return to the line (and I recall that they were), it may very well have appeared to them that I was waiting for them. However, I could not control the order in which employees returned.

Dwayne Shaw, a black employee and signatory to the October 22, 1998 letter, stated in his deposition: "I always came back late [to the line after break]. And it seemed every time I get back to the line, [Sculley] leaves. So, I don't know if -- to be honest, if he was waiting just for me or all the black workers or everybody." Asked whether he ever saw Sculley come and stand behind Davis as he performed his job, Shaw said: "Yes. And I seen him stand behind me, too." Shaw added: "He's always standing behind me, but that's -- that's me. I give him a hard time all the time."

The episode cited in the October 22, 1998 letter in which "Kurt" (or "Kirk"), a white man, allegedly left the plant without permission and was not punished has been addressed above in connection with the issue of a dual system of discipline. The Court has concluded that the evidence does not support a finding that the Kurt incident was sufficiently similar to any incident involving a black worker to enable a factfinder to determine that there was racially disparate discipline. For the same reason, it does not support a finding of hostile work environment. There are no other specific incidents described in the letter.

Davis' affidavit says NVG management did not investigate the complaints made against Sculley in the October 22, 1998 letter. Davis does not explain how he knows this. Quinn's affidavit states that "then-Employment Supervisor Billy Owens reviewed the allegations with Mr. Sculley and, to my recollection, found no problems or ...


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