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Fox v. National Railroad Passenger Corp.

February 19, 2009



This action arises out of Plaintiff Terrance D. Fox's ("Plaintiff" or "Fox") employment with the National Railroad Passenger Corporation ("Defendant" or "Amtrak") at its maintenance facility in Rensselaer, New York. See Compl. (Dkt. No. 1). Before the Court is a Motion for summary judgment, pursuant to Rule 56 of the Federal Rules of Civil Procedure, filed by the Defendant. Mot. (Dkt. No. 23). Fox alleges that the Defendant created a hostile work environment and took various actions in retaliation for Fox's previous filing of an Equal Employment Opportunity Commission ("EEOC") charge and civil action against the Defendant, in violation of Title VII of the Civil Rights Act of 1964, as amended, codified at 42 U.S.C. § 2000e et seq. ("Title VII"). See Compl. ¶¶ 19-26. For the reasons discussed below, the Defendant's Motion is granted and this case is dismissed.


Fox was employed as an electrician at Amtrak's Albany/Rensselaer mechanical facility from approximately 1982 until April 2006. Compl. ¶ 8; Affidavit of Laurence M. Lohman, Mechanical Superintendent at the Albany/Rensselaer Facility ("Lohman Aff.") ¶ 5 (Dkt. No. 23, Attach. 1). Electricians at Amtrak are covered by a collective bargaining agreement ("CBA") between Amtrak and the International Brotherhood of Electrical Workers ("IBEW"). Lohman Aff. ¶ 6. Amtrak contends that all employees at the Albany/Rensselaer facility are also subject to the code of conduct embodied in Amtrak's Standards of Excellence ("Standards"). Lohman Aff. ¶ 9; Standards (Dkt. No. 23, Attach 3). Violations of the Standards can result in disciplinary action, including termination. Lohman Aff. ¶ 10. Fox contends that Amtrak enacted a more diversified work policy in 2000, which superseded the Standards. Affidavit of Terrance D. Fox ("Fox Aff.") ¶ 8 (Dkt. No. 25, Attach. 2); Amtrak Business Diversity Policy ("Diversity Policy") (Dkt. No. 25, Attach. 4, Ex. B).

The Standards prohibit an employee from "padding" the payroll by accepting pay for time not actually worked or otherwise earned, such as when an employee leaves work before his shift ends and asks a co-worker to punch his timecard at the end of his shift. Lohman Aff. ¶¶ 11-12. On March 12, 1997, Fox filled out a form acknowledging his receipt of a copy of the Standards. Dkt. No. 23, Attach. 4.

By letter dated May 27, 2005, Amtrak charged Fox with padding the payroll on six occasions throughout the month of May. Dkt. No. 23, Attach. 5. Fox alleges that these charges were false, and that Amtrak applied a different standard than traditionally applied to other workers. See Compl. ¶ 15. On June 10, 2005, Amtrak sent Fox a letter offering to discuss a settlement before the investigation of the charges was to begin. Dkt. No. 23, Attach. 7. On June 28, 2005, Amtrak sent Fox a letter notifying him that the hearing regarding the charges was adjourned by mutual agreement. Dkt. No. 23, Attach. 11.

On July 5, 2005, Fox took a medical leave of absence from Amtrak. Fox Dep. at 28 (Dkt. No. 23, Attach. 38-39; Dkt. No. 25, Attach. 5). Fox alleges that his medical leave was necessitated by the stress caused by the Defendant's discriminatory conduct towards him. See Compl. ¶ 17. On April 4, 2006, Amtrak notified Fox that he was considered as having resigned his employment, due to his alleged failure to comply with the company's leave of absence policy and failure to contact Amtrak to schedule a return to work physical. See Dkt. No. 23, Attach. 13-20.

On July 25, 2005, Fox filed a charge of discrimination with the EEOC, alleging that the Defendant discriminated against him based upon his race and in retaliation for Fox's filing of a previous EEOC charge against Amtrak in December 2003 and a federal lawsuit against Amtrak in September 2004. Dkt. No. 23, Attach. 31. On June 27, 2006, the EEOC sent Fox a Right-to-Sue letter, stating that the agency was unable to conclude that Amtrak had violated the applicable statutes. Dkt. No. 23, Attach. 32.

Plaintiff filed the instant Complaint on September 21, 2006. He commenced this action pro se, but was represented by counsel during his deposition. Fox Dep. at 4.


Rule 56 of the Federal Rules of Civil Procedure provides that summary judgment is proper when "the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c); Beard v. Banks, 548 U.S. 521, 529 (2006) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)). A court must "'resolve all ambiguities, and credit all factual inferences that could rationally be drawn, in favor of the party opposing summary judgment.'" Brown v. Henderson, 257 F.3d 246, 251 (2d Cir. 2001) (quoting Cifra v. General Electric Co., 252 F.3d 205, 216 (2d Cir. 2001)). However, "[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

If the moving party meets its initial burden of demonstrating that no genuine issue of material fact exists for trial, the non-movant "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986) (citations omitted). The non-movant "must come forth with evidence sufficient to allow a reasonable jury to find in her favor." Brown, 257 F.3d at 251 (citation omitted). The nonmoving party "may not rely merely on allegations or denials in its own pleadings;" bald assertions or conjecture unsupported by evidence are insufficient to overcome a motion for summary judgment. Fed. R. Civ. P. 56(e)(2); see Carey v. Crescenzi, 923 F.2d 18, 21 (2d Cir. 1991); Western World Ins. Co. v. Stack Oil, Inc., 922 F.2d 118, 121 (2d Cir. 1990). "Factual allegations that might otherwise defeat a motion for summary judgment will not be permitted to do so when they are made for the first time in the plaintiff's affidavit opposing summary judgment and that affidavit contradicts her own prior deposition testimony." Brown, 257 F.3d at 251 (citation omitted).


A. Hostile Work Environment Claims

Title VII prohibits race-based employment discrimination that results from the creation of a hostile work environment. To succeed on a hostile work environment claim, the plaintiff must demonstrate (1) that the workplace was permeated with "harassment [that] was 'sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment,'" and (2) that "a specific basis exists for imputing the objectionable conduct to the employer." Alfano v. Costello, 294 F.3d 365, 373 (2d Cir. 2002) (quoting Perry v. Ethan Allen, Inc., 115 F.3d 143, 149 (2d Cir. 1997)). The first part of this test has both an objective and a subjective element. The demonstrated transgressions "must be 'severe or pervasive enough to create an objectively hostile or abusive work environment,' and the victim must also subjectively perceive the environment to be abusive." Alfano, 294 F.3d at 374 (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993)) (abrogated on other grounds by Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 753 (1998)). The plaintiff must also show that the objectionable conduct occurred because of the plaintiff's race. See Alfano, 294 F.3d at 374.

In evaluating whether a workplace environment is sufficiently abusive so as to support a hostile work environment claim, courts look to the totality of the circumstances. Cruz v. Coach Stores, Inc., 202 F.3d 560, 570 (2d Cir. 2000). Factors that a court may examine in deciding whether the workplace environment was so pervasively discriminatory as to be actionable include "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." Alfano, 294 F.3d at 374 (quoting Harris, 510 U.S. at 23). "Isolated incidents typically do not rise to the level of a hostile work environment unless they are 'of sufficient severity' to 'alter the terms and conditions of employment as to create such an environment.'" Demoret v. Zegarelli, 451 F.3d 140, 149 (2d Cir. 2006) (quoting Patterson v. County of Oneida, 375 F.3d 206, 227 (2d Cir. 2004)); see also Alfano, 294 F.3d at 373-74 ("The plaintiff must show that the workplace was so severely permeated with discriminatory intimidation, ridicule, and insult that the terms and conditions of [his] employment were thereby altered.")

(internal citations omitted).

Plaintiff cites various incidents in support of his claim that Defendant created a hostile work environment. Plaintiff claims that Jim Shelgren, Plaintiff's supervisor/foreman, observed Plaintiff's co-workers "verbally degrading" Plaintiff and took no corrective action to address the racial discrimination. Compl. ¶ 21. More specifically, Plaintiff explained in his deposition that a co-worker said in the presence of Shelgren, "Is that a black man over there? Oh, we better hurry up and get out of here because we're in a bad neighborhood and we might get in trouble." Fox Dep. at 255. Allegedly, Shelgren laughed at this comment before the group dispersed. Id. at 256, 257. Fox also claims that Shelgren called him a "militant black troublemaker" in the presence of co-workers. Fox Aff. ¶ 8. Plaintiff further claims that Shelgren told Plaintiff's co-workers and supervisors that other co-workers were supporting Plaintiff's efforts in a prior civil action against Defendant. Compl. ¶ 20. Finally, Plaintiff claims that Shelgren told several of Plaintiff's co-workers that they should "watch their backs" due to their support of Plaintiff, and that Shelgren initiated work standard charges against them using a different standard than traditionally applied against other workers. Compl. ¶ 22.

The Defendant argues that the Court may not consider the "militant black troublemaker" comment, because the comment does not appear in Fox's EEOC charge. While courts generally may not consider Title VII claims not alleged in an employee's EEOC charge, "claims that were not asserted before the EEOC may be pursued in a subsequent federal court action if they are 'reasonably related' to those that were filed with the agency." Shah v. New York State Dept. of Civil Services, 168 F.3d 610, 614 (2d Cir. 1999). Circumstances where allegations are reasonably related to those in a plaintiff's EEOC charge include (1) "allegations where the complained-of conduct can reasonably be expected to grow out of the charge of discrimination and therefore fall within the scope of the EEOC investigation[;]" (2) claims alleging retaliation for the filing of the EEOC charge; and (3) "further incidents of discrimination carried out in precisely the same manner alleged in the EEOC charge." Daigle v. West, 225 F. Supp. 2d 236, 242 (N.D.N.Y. 2002) (internal quotations and citations omitted). The Second Circuit has noted that the "reasonably related" exception to Title VII's exhaustion ...

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