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Akinyemi v. Chertoff

April 25, 2008

YEMISI AKINYEMI, PLAINTIFF,
v.
MICHAEL CHERTOFF, SECRETARY, DEPARTMENT OF HOMELAND SECURITY, DEFENDANT.



The opinion of the court was delivered by: Andrew J. Peck, United States Magistrate Judge

OPINION AND ORDER

Plaintiff Yemisi Akinyemi brought this Title VII action against the Department of Homeland Security alleging discriminatory termination of her employment on the basis of race, national origin and color. (See Dkt. No. 1: Compl.) The parties have consented to decision of this case by a Magistrate Judge pursuant to 28 U.S.C. § 636(c). (Dkt. No. 10.) Presently before the Court is defendant Department of Homeland Security's summary judgment motion. (Dkt. No. 25: Notice of Motion.)

For the reasons set forth below, defendant's summary judgment motion is DENIED.

FACTS

Akinyemi and Her Termination

Plaintiff Yemisi Akinyemi began working as a probationary Customs and Border Protection ("CBP") Officer on December 29, 2003 as part of a two-year Federal Career Intern Program.*fn1 (See Dkt. No. 29: Def. Rule 56.1 Stmt. ¶¶ 1, 2; Dkt. No. 43: Akinyemi Rule 56.1 Stmt. ¶¶ 1, 2.) On December 2, 2005, while off-duty, Akinyemi escorted her husband to the departure area of Newark International Airport, bypassing the Transportation Security Administration security screening area through an access area reserved for those possessing an "Access to Operations Area" card ("AOA card"). (See Def. & Akinyemi Rule 56.1 Stmts. ¶¶ 3-4.) Akinyemi wore her work uniform, and her weapon and AOA card were visible. (Def. & Akinyemi Rule 56.1 Stmts. ¶ 4.)

By letter dated December 20, 2005, Director of Field Operations Susan Mitchell terminated Akinyemi's employment for using her position and authority to gain access to a restricted area of Newark Airport while off-duty and not conducting official business.*fn2 (Clopper Aff. Ex. 3: Akinyemi Termination Letter; see Def. Rule 56.1 Stmt. ¶ 5.) Mitchell terminated Akinyemi during her two-year probationary period. (See Def. & Akinyemi Rule 56.1 Stmts. ¶ 7.) As Director of Field Operations, Mitchell was "six supervisory levels above the position of CBP Officer." (Dkt. No. 28: Mitchell Aff. ¶ 4.) Immediately below Mitchell were two Area Directors. (Id.)

Mitchell never made any racially derogatory comments to Akinyemi, who is an African-American born in Nigeria. (See Def. & Akinyemi Rule 56.1 Stmts. ¶ 8; see also Dkt. No. 42: Akinyemi Br. at 5.) Akinyemi claims that Mitchell discriminatorily fired Akinyemi because CBP treated non-African-American, non-Nigerian employees more leniently when they engaged in similar misconduct.*fn3 (See Akinyemi Rule 56.1 Stmt. ¶ 8.) As Akinyemi has conceded: "This is not a case which is based upon the use of racial epithets. The case is based on the contention that other CBP officers who are similarly situated were treated differently from Akinyemi." (Akinyemi Rule 56.1 Stmt. ¶ 8.)

Akinyemi's Claimed Comparators

Akinyemi lists four named and ten un-named CBP officers as similarly situated comparators. (See generally Dkt. No. 29: Def. Rule 56.1 Stmt. ¶¶ 9-18; Dkt. No. 43: Akinyemi Rule 56.1 Stmt. ¶¶ 9-18; Dkt. No. 42: Akinyemi Br. at 10-18.)

The Unnamed Comparators

The ten unnamed comparators actually comprise nine persons: seven were terminated by Mitchell for misconduct and two were suspended or reprimanded, both of whom were permanent non-probationary employees at the time of their misconduct. (See Dkt. No. 42: Akinyemi Br. at 15-18; Dkt. No. 47: Def. Reply Br. at 10-11.) Akinyemi provides no evidence regarding the unnamed conspirators' race, color or national origin, without which Akinyemi cannot raise an inference of discrimination. See, e.g., Graham v. Long Island R.R., 230 F.3d 34, 39 (2d Cir. 2000) ("A plaintiff may raise such an inference [of discrimination] by showing that the employer subjected him to disparate treatment, that is, treated him less favorably than a similarly situated employee outside his protected group.") (emphasis added).*fn4 Accordingly, evidence regarding the unnamed comparators will not be further considered in this motion, and such evidence will be precluded at trial.

The Four Named ...


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