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Uribe v. Kellogg's Snacks/ Keebler

April 22, 2009


The opinion of the court was delivered by: Paul G. Gardephe, U.S.D.J.


In this action, Plaintiff Edgar Uribe claims that Defendant Kellogg's Snacks/ Keebler, Inc. ("Keebler") violated 42 U.S.C. § 1981 ("Section 1981") and New York Executive Law § 296 by terminating his employment because he is Hispanic. (Cmplt. ¶¶ 34-35) Keebler has moved for summary judgment with respect to both claims, arguing that it terminated Uribe's employment solely because it believed Uribe had violated its policies prohibiting workplace violence. (Def. Br. at 1) For the reasons stated below, Keebler's motion (Docket No. 20) is GRANTED.


Uribe was employed by Keebler as a driver and warehouseman at Keebler's distribution center in Orangeburg, New York from December 15, 1999 until July 15, 2004. (Def. Rule 56.1 Stat. ¶¶ 1, 6, 20)*fn1

A. The June 29, 2004 Incident

On June 29, 2004, a physical altercation occurred between Uribe, who is Hispanic, and his co-worker Walter Smith, who is not Hispanic*fn2 and who serves as the union shop steward, in the drivers' break room. (Def. Rule 56.1 Stat. ¶ 12;*fn3 Pltf. Ex. 11 (Uribe Statement)) According to Uribe, the incident began when the door to the room opened, creating a breeze. (Pltf. Ex. 11) Uribe "sa[id] real loud 'Close the door,'" because the breeze was disturbing his paperwork. (Id.) Smith then came toward him, saying "I'm going to show you, mother fucker, how you got to talk to your shop steward," and that he wanted to kill Uribe. (Uribe Dep. 43:5-11, 43:18-23) Smith then pushed Uribe "real hard" into some mailboxes and onto a table. (Pltf. Ex. 11) Uribe put his hands on Smith's hands or arms. (Uribe Dep. 45:20-23) Two other employees, Bob Bizzoco and Milo Selin, pulled Smith and Uribe apart, and Smith left. (Id.)

Uribe reported this incident to a supervisor on June 30, 2004. (Def. Rule 56.1 Stat. ¶ 15) Joseph Didio, Uribe's supervisor, consulted the company's labor relations department that same day and then took statements from Uribe and Smith. (Def. Rule 56.1 Stat. ¶¶ 11, 15; Didio Dep. 23:8-20; Reczek Aff. ¶¶ 1-4) Uribe also showed Didio a mark on his back, which he claimed had been caused by Smith pushing him. (Didio Dep. 57:20-58:4)

In his statement, Smith wrote that Uribe had "yelled, 'Shut the fucking door,'" and that as Smith had walked toward Uribe to retrieve his lunch bag, he and Uribe continued to "exchange[] words." (Pltf. Ex. 1) Smith also stated that Uribe head-butted him, after which he pushed Uribe. (Id.)

Didio faxed Uribe's statement to the company's Director of Labor Relations, Tom Reczek. Reczek, who was based at the time in Elmhurst, Illinois (Didio Dep. 12:25-13:3), instructed Didio to suspend Smith and assigned Lyn Frantz of the Company's human resources department to investigate Uribe's allegations. (Didio Dep. 26:13-22; Reczek Decl. ¶¶ 5-6) Didio suspended Smith on June 30, 2004. (Def. Rule 56.1 Stat. ¶ 15; Didio Dep. 27:7-18)

B. Keebler's Investigation

On July 1 and July 2, 2004, Frantz conducted telephone interviews of Smith, Uribe and the three other employees who had been in the driver's room when the incident occurred. (Def. Rule 56.1 Stat. ¶ 16; Def. Ex. 14) Frantz's notes of the Smith interview state that Smith said "that he never touched [Uribe]." (Id.) Frantz's notes of her interview of Uribe describe Smith's alleged threats, and also state that Uribe said that his head and Smith's "may have touched when he was trying to get [Smith] off of him but it wasn't an intentional head butt." (Id.)

Of the three employees present in the room, one -- Eric Slockblower -- told Frantz that he had seen nothing. (Def. Rule 56.1 Stat. ¶ 16) The other two employees, Bob Bizzoco and Milo Selin, told Frantz that the incident occurred when Smith opened the door to the driver's room and Uribe shouted "close the fucking door." (Id. ¶ 17; Pltf. Ex. 4 (notes from Bizzoco interview)) Frantz's notes state that Bizzoco and Selin confirmed Smith's statement that Uribe had "head-butted" Smith, and that Selin reported that the head-butt occurred before Smith grabbed Uribe. (Id. ¶ 18; Pltf. Ex. 4 (notes from Bizzoco interview, also stating that Bizzoco had been in the restroom at the beginning of the incident); Pltf. Ex. 5 (notes from Selin interview))

C. The Resulting Disciplinary Actions

Reczek "reviewed the results of . . . Frantz'[s] investigation," concluded that both Smith and Uribe had "willingly participated in the altercation," and decided that Uribe should also be suspended. (Reczek Decl. ¶ 7) Accordingly, at Reczek's direction, Warehouse Manager Tara Cantatore informed Uribe in writing on July 6, 2004 that he was "immediately suspended pending final resolution of an investigation" into the June 29 incident, and that the incident was a "serious and direct violation of Kellogg's/ Keebler 'Workplace Violence Policy'" and the governing agreement between Keebler and Uribe's union. (Pltf. Ex. 12; Reczek Decl. ¶ 7)

Keebler's workplace violence policy prohibits, inter alia, "unwelcome touching of another employee," "[v]erbal threats," and "[a]ggressive or hostile behavior that creates a reasonable fear of injury to another person or subjects another individual to emotional distress." (Def. Ex. 6) The policy states that employees who violate the policy may be terminated. (Id.)*fn4 During the relevant time period, Keebler also maintained a "Rules and Policies" statement listing conduct that might result in termination of employment, including "[s]triking, threatening or using abusive language toward other employees." ...

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