The opinion of the court was delivered by: Robert P. Patterson, Jr., U.S.D.J.
Plaintiff Larry Pouncy ("Plaintiff" or "Pouncy") was hired by Defendant Danka Office Imaging ("Danka" or "Defendant") as a Senior Sales Representative ("SSR"), an entry-level sales position, in December 1999. Danka is a distributor of office imaging equipment (photocopy and fax machines, multi-function devices and related software, services and supplies). On July 1, 2001, Plaintiff was promoted to the position of Named Account Executive ("NAE"), and on December 20, 2004, approximately six months after Plaintiff filed a complaint of discrimination with the EEOC, Defendant terminated Plaintiff's employment. Plaintiff filed suit in this Court on May 12, 2006, and in a September 27, 2007 amended Complaint, Plaintiff alleged racial discrimination in violation of Title VII of the Civil Rights Act, 42 U.S.C. §2000e et seq. ("Title VII"), the Civil Rights Act of 1972, 42 U.S.C. §1981 ("Section 1981"), and New York City Administrative Code §8-107 ("New York City Human Rights Law" or "NYCHRL"), as well as retaliation under Title VII and the NYCHRL.
At the close of discovery, Defendant moved for summary judgment, asking this Court to dismiss all of Plaintiff's claims. Oral argument on the motion was held on March 25, 2009. For the reasons stated below, Defendant's motion is GRANTED in part and DENIED denied in part. The parties are ordered to appear before this Court for trial on July 20, 2009 at 9:00 a.m. A joint pre-trial order, voir dire requests, requests to charge, in limine motions, and proposed jury instructions are to be filed by July 2, 2009.
Plaintiff alleges that Defendant's allocation of accounts and territories to him during the course of his employment (2001 to 2004) was discriminatory, and further, that the number and size of accounts and territories that were assigned to him were reduced over the course of his employment in retaliation for his internal complaints to Danka management concerning this discrimination. Plaintiff also contends that his termination by Danka in December 2004 was discriminatory, and that this termination was in retaliation for his discrimination complaint to the EEOC.*fn1 Defendant has moved for summary judgment on the grounds that most of Plaintiff's discrimination claims are statutorily time-barred, and further, that Plaintiff's claims under the NYCHRL are jurisdictionally defective. In the alternative, Defendant argues that Plaintiff cannot establish valid claims of race discrimination and retaliation because his allegations "are devoid of any competent evidentiary support" sufficient to "oppose and defeat a motion for summary judgment." Defendant asks for the dismissal of Plaintiff's complaint in its entirety.
A. Standard for Summary Judgment
Summary judgment is appropriate only 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); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Guilbert v. Gardner, 480 F.3d 140, 145 (2d Cir. 2007). "[S]ubstantive law will identify which facts are material," Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986), and an issue of "material fact is 'genuine' . if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id.; Mitchell v. Shane, 350 F.3d 39, 47 (2d Cir. 2003). All ambiguities must be resolved, and all inferences drawn, in favor of the non-moving party. Slattery v. Swiss Reinsurance Am. Corp., 248 F.3d 87, 91 (2d Cir. 2001).
However, a "non-moving party cannot avoid summary judgment simply by asserting a metaphysical doubt as to the material facts." Woodman v. WWOR-TV, 411 F.3d 69, 75 (2d Cir. 2005). A non-moving party "may not rely on mere conclusory allegations nor speculation, but instead must offer some hard evidence showing that [his] version of the events is not wholly fanciful." Id. Thus, a non-moving party "must 'set forth specific facts showing that there is a genuine issue for trial.'" Id.
In employment discrimination cases such as this, summary judgment is "ordinarily inappropriate" where the employer's intent and state of mind are in dispute. Carlton v. Mystic Transp., Inc., 202 F.3d 129, 134 (2d Cir. 2000); see Gallo v. Prudential Residential Services, Ltd. Partnership, 22 F.3d 1219, 1224 (2d Cir. 1994). Additionally, in discrimination cases summary judgment may not be granted merely because the court believes that the plaintiff will be unable to meet his or her burden of persuasion at trial. There must either be a lack of evidence in support of the plaintiff's position, or the evidence must be so overwhelmingly tilted in one direction that any contrary finding would constitute clear error. Danzer v. Norden Sys., Inc., 151 F.3d 50, 54 (2d Cir. 1998); Weber v. Parfums Givenchy, Inc., 49 F.Supp.2d 343, 354 (S.D.N.Y. 1999).
And in all cases, but in employment discrimination cases particularly, "nonmovants' affidavits alone can[ ] -- as a matter of law -- suffice to defend against a motion for summary judgment." Danzer, 151 F.3d at 57; see also Davis v. New York, 316 F.3d 93, 100 (2d Cir. 2002). However, "even in the discrimination context . a plaintiff must provide more than conclusory allegations to resist a motion for summary judgment." Holcomb v. Iona College, 521 F.3d 130, 137 (2d Cir. 2008); Bickerstaff v. Vassar College, 196 F.3d 435, 451-2 (2d Cir. 1999) (disregarding plaintiff's Rule 56(e) affidavit because it lacked "concrete particulars"); Meiri v. Dacon, 759 F.2d 989, 998 (2d Cir. 1985) ("To allow a party to defeat a motion for summary judgment by offering purely conclusory allegations of discrimination, absent any concrete particulars, would necessitate a trial in all Title VII cases"); see also Fisher v. Vassar College, 70 F.3d 1420, 1439 (2d Cir. 1995) (Plaintiff's "sense of being discriminated against" is not evidence).
B. Statute of Limitations
Defendant contends that many of Plaintiff's claims -- under both the federal (Title VII and Section 1981) and New York City (NYCHRL) statutes -- are time-barred. Defendant's arguments are rejected.*fn2
Under Title VII, individuals claiming discrimination or retaliation must file a discrimination charge with the EEOC within 300 days of the date of the alleged incident or retaliation. See 42 U.S.C. §2000e-5(e); Elmenayer v. ABF Freight Sys., Inc., 318 F.3d 130, 133-4 (2d Cir. 2003); Gomes v. Avco Corp., 964 F.2d 1330 (2d Cir. 1992). Plaintiff filed his charge of discrimination with the EEOC (duly-filed with the New York State Human Rights Commission) on June 21, 2004. (Mokotoff Aff., Ex. 31[EEOC Charge].) Accordingly, allegations of discrimination or retaliation prior to August 2003 are generally time-barred under Title VII. NYCHRL claims have a three-year statute of limitations, but the statute of limitations is tolled by Plaintiff's filing of his EEOC complaint on June 21, 2004. See N.Y. City Admin. Code. §8-502(d); Siddiqi v. New York City Health & Hosps., 572 F. Supp. 2d 353 (S.D.N.Y. Aug. 12, 2008).*fn3
Accordingly, any allegations of discrimination or retaliation prior to August 21, 2001 (three-year statute of limitations, but excluding 59 days between when the right to sue letter was issued by the EEOC on March 14, 2006 and when Plaintiff filed his complaint) are time-barred under NYCHRL. (Mokotoff Aff., Ex. 46 [Right to sue letter].) Finally, a four-year statute of limitation applies to most Section 1981 claims. Jones v. R.R. Donnelley & Sons Co., 541 U.S. 369 (2004). This lawsuit was filed on May 12, 2006. Accordingly, incidents of discrimination under 42 Section 1981 occurring prior to May 12, 2002 are time-barred.
As noted, Plaintiff alleges that Defendant's allocation of accounts and territories to him from time to time during the course of his employment was discriminatory, and further, that his assigned accounts and territories were reduced over the course of his employment in retaliation for his internal complaints to Danka management concerning this discrimination. Specifically, Plaintiff takes issue with: 1) Defendant's January 2001 assignments of the Health Plus and SUNY Downstate accounts, which were located within Plaintiff's assigned geographic territory, to two white NAEs, Dennis Launer and Arthur Sperber, respectively; 2) Defendant's removal of half of Plaintiff's Brooklyn territory from his account pool in March/April 2002; 3) Defendant's April 2002 reassignment of Dick Launer's non-pay-for-print accounts to white NAEs, but not to Plaintiff; 4) Defendant's halving of the commission he earned from his July 2002 sale of equipment to the Premiere Home Healthcare account; 5) Defendant's December 2003 assignment to Plaintiff of a list of accounts comprised solely of minority-owned businesses, and; 6) Defendant's removal of all public sector accounts from Plaintiff's named account list in April 2004. Hence, the alleged incidents of discrimination and retaliation occurring in January 2001 would ordinarily be time-barred.
To escape the statute of limitations time-bar with regard to the two alleged discriminatory and retaliatory assignments of accounts/territories occurring prior to August 21, 2001, Plaintiff asserts that Danka's allocation of accounts and territories constituted a continuing violation for which Plaintiff may recover under Title VII and the NYCHRL. The continuing violation doctrine provides for a "narrow exception" to the Title VII and NYCHRL limitations period "when an otherwise time-barred claim is part of a 'continuing violation," and at least one discriminatory act falls within the limitations period." Blake v. Bronx Lebanon Hosp. Ctr., 2003 U.S. Dist. LEXIS 13857, at *5 (S.D.N.Y. 2003); see also Washington v. County of Rockland, 373 F.3d 310, 317 (2d Cir. 2004). In National Railroad Passenger Corporation v. Morgan, 536 U.S. 101 (2002), the Supreme Court clarified the 'continuing violation' doctrine, ruling that it does not apply to "discrete discriminatory acts . even when they are related to acts alleged in timely filed charges . each discriminatory act starts a new clock for filing charges alleging that act." Id. at 113-4. Rather, conduct that has been characterized as a continuing violation is "composed of a series of separate acts that collectively constitute one unlawful employment practice." Id. at 111.
Here, the repeated removal over a number of years of accounts/territories from Plaintiff's sales list is analogous to the hostile work environment claim addressed in Morgan, and therefore, amounts to a continuing violation under federal law. See Collins v. Cohen Pontani Lieberman & Pavane, 2008 U.S. Dist. LEXIS 58047 (S.D.N.Y. Jul. 30, 2008) (numerous instances of withheld work assignments over a number of years "collectively constitute[d] one [allegedly] unlawful employment practice" amounting to a continuing violation).*fn4 In that regard, Plaintiff alleges that his superiors at Danka first began relieving him of accounts and territories in 2001, and he presents multiple examples from 2001 through 2004 of Danka superiors taking away accounts and territories from him and reassigning them to other salesmen. Collectively, these acts harmed Plaintiff by leaving him with insufficient territory and accounts, which affected his ability to meet his monthly and yearly sales quota. Thus, Plaintiff's assignment of accounts and territories claim is "based on the cumulative effect of individual acts," Morgan, 536 U.S. at 115, which "collectively constitute one [allegedly] unlawful employment practice," id. at 117; see also Collins, 2008 U.S. Dist. LEXIS 58047, at *20.
Accordingly, the following claims are timely and are addressed on the merits: 1) that Defendant's allocation of accounts and territories to Plaintiff during the course of his employment was discriminatory, and further, that his assigned accounts and territories were reduced over the course of his employment in retaliation for his internal complaints to Danka management concerning this discrimination, and 2) that Plaintiff's termination by Danka in December 2004 was discriminatory, and that this termination was in retaliation for his discrimination complaint to the EEOC.
2. Plaintiff's Claims of Employment Discrimination
Defendant's motion for summary judgment is denied with respect to Plaintiff's claims of discrimination relating to Defendant's assignment of accounts/territories, and granted with respect to Plaintiff's ...