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Razzac Abdullah v. Panko Elec. & Maint.

March 23, 2011

RAZZAC ABDULLAH, PLAINTIFF,
v.
PANKO ELEC. & MAINT., INC.; BARBARA PANKO; MIKE PANKO, SR.; AND MIKE PANKO, JR., DEFENDANTS,



The opinion of the court was delivered by: Hon. Glenn T. Suddaby, United States District Judge

MEMORANDUM-DECISION and ORDER

Currently before the Court in this employment discrimination action filed by Razzac Abdullah ("Plaintiff") is a motion for summary judgment filed by Panko Electrical & Maintenance, Inc., Barbara Panko, Mike Panko, Sr. and Mike Panko, Jr. ("Defendants"). (Dkt. No. 35.) For the reasons set forth below, Defendants' motion is granted in part and denied in part.

I. RELEVANT BACKGROUND

A. Plaintiff's Claims

Generally, liberally construed, Plaintiff's Amended Complaint alleges, inter alia, as follows: (1) Plaintiff was employed by Defendant Panko Electrical & Maintenance, Inc. ("Panko") from April 1999 until December 2005; (2) throughout his employment, he was subjected to a hostile work environment based on of his race and/or religion as a black Muslim;

(2) he was paid differently than were other Panko employees based on his race and/or religion;

(3) he did not receive adequate training because of his race and/or religion; (4) he was laid off and terminated because of his race and/or religion; and (5) he was terminated also in retaliation for filing a complaint with the New York State Division of Human Rights regarding the discriminatory environment to which he had been subjected. (See generally Dkt. No. 17 [Plf.'s Am. Compl.].)

Based on these allegations, Plaintiff's Amended Complaint asserts two causes of action that can be liberally construed as asserting the following claims: (1) a claim of racial and/or religious discrimination under 42 U.S.C. § 1981 and Section 296 of the New York State Human Right's Law ("NYHRL"); (2) a claim of hostile work environment based on race and/or religion under 42 U.S.C. § 1981 and the NYHRL; (3) a claim of retaliation based on race and/or religion under 42 U.S.C. § 1981 and the NYHRL; and (4) a claim of disparate treatment based on race and/or religion under 42 U.S.C. § 1981 and the NYHRL. (Dkt. No. 17.)

Familiarity with the remaining factual allegations supporting these claims in Plaintiff's Amended Complaint is assumed in this Decision and Order, which is intended primarily for the review of the parties. (Id.)

B. Undisputed Material Facts

The following is a general summary of material facts that are undisputed by the parties. (Compare Dkt. No. 35, Attach. 1 [Defs.' Rule 7.1 Statement] with Dkt. No. 39 [Plf.'s Rule 7.1 Response and Counter Statement] and Dkt. No. 41, Attach. 1 [Defs.' Rule 7.1 Counter Statement].)

1. Summary of Plaintiff's Employment History with Panko

Plaintiff is a black Muslim. In February 1999, he commenced his employment with Panko. At some point on or about his start date, Plaintiff received a copy of an Employee Handbook.*fn1

At the time, Plaintiff was hired as an electrician's helper.*fn2 He held that position for approximately three months while his application for a New York State apprenticeship was pending. During that time, he reported directly to Mike Jr., Mike Sr. or Barbara Panko ("Barbara"), doing work in the shop or, occasionally, in the field.

In May 1999, after his application for the apprenticeship program was approved, Plaintiff began working as an apprentice. Plaintiff's wage scale while an apprentice was set out in his apprenticeship agreement, which he, Panko, and the State of New York signed. As an apprentice, Plaintiff was required to attend a number of hours of classroom hours as well as on-the-job training.

Plaintiff subsequently passed his journeyman's license exam, and completed the apprenticeship program on August 15, 2005. At that time, Plaintiff became a journeyman electrician.

Plaintiff was terminated from Panko in December 2005.

2. Incidents of Discrimination Involving Jim McDermott

Jim McDermott was a foreman at Panko who Plaintiff was assigned to work with on certain occasions. Plaintiff testified that, on many occasions, McDermott would refer to him as his "slave." Plaintiff also testified that, on other occasions, when McDermott would get upset with him, McDermott would stand in front of other workers on the job site, curse and act like a madman, and call him a "stupid nigger."

In 1999, while working at Barbara's house, McDermott referred to Plaintiff in an offensive manner.*fn3 Barbara heard McDermott make the offensive reference and told him to calm down.*fn4 Plaintiff testified that, on a separate occasion in October 1999, he overheard McDermott ask Mike Sr. why he had to work with a "green nigger." Plaintiff also testified that he heard Mike Sr. tell McDermott to "calm down."

In 2001, Plaintiff worked with McDermott on a job site in Oneonta, New York. Plaintiff testified that, while on the job site, McDermott used racially offensive language toward him, such as "stupid nigger," "porch monkey" and "Muslim nigger." At some point during the same year, McDermott began "spitting and cursing" while working with Plaintiff. Plaintiff complained to his foreman, Joe Panko (the brother of Mike Sr. and the uncle of Mike Jr.), that he could not work with McDermott. Neither Joe Panko nor Plaintiff communicated this complaint to Panko management. However, at an unspecified date and time, Plaintiff complained to Mike Jr. about McDermott's behavior. After he complained about McDermott, Plaintiff did not have to work with him as frequently. In April or May 2003, McDermott, who was abusive to all employees at Panko, was terminated for his outbursts.

3. Incidents of Discrimination Involving Bill Cummings

In 2001, Plaintiff worked with Bill Cummings at Keuka Park. Plaintiff testified that Cummings made statements to him to the effect that black and white people should not intermingle, and that Plaintiff's Caucasian wife was a "mud shark lover."*fn5

Plaintiff also testified that, during that same year, while he was speaking with Bill Cummings about the events of September 11, 2001, Cummings told Plaintiff that "what we're going to do with the Allah freaks is give them 13 wraps to all you guys." Plaintiff did not tell anyone at Panko about Cummings's comment. Plaintiff also testified that, in 2001, Bill Cummings called him a "Muhammadan" or an "Allah freak," and that, at an unknown date and time, Cummings referred to him as "Buddha."

In March 2003, Plaintiff was working with Bill Cummings on a Burlington Coat Factory job site. Plaintiff testified that he thought he overheard Bill Cummings call him a "nigger" during a conversation with other employees, including Mike Jr.*fn6 Plaintiff testified that, shortly thereafter, he confronted Cummings about the conversation. Bill Cummings then complained about Plaintiff's work and/or behavior on the job site. In order to eliminate the conflict, Plaintiff was removed from the job site and placed on a different job.

4. Incidents of Discrimination Involving Bill Pickens

On September 11, 2001, Plaintiff was working with foreman Bill Pickens at a job site. After learning about the terrorist attacks, Pickens searched Plaintiff's lunch box for bombs.*fn7

Plaintiff testified that Pickens also questioned him about what he was doing in the United States, offered him a "conversion kit" of beer and scissors, and called him a "sleeper cell" and a relative of Saddam Hussein.

Plaintiff testified that, shortly after September 11, 2001, he told Chris Hagen, the office secretary, that he was being harassed about his religion and needed to take a week off from work. Plaintiff testified that Ms. Hagen told him that she hoped everything was all right and that she would see him when he came back. Plaintiff did not ask Ms. Hagan to tell anyone in Panko management about the incident. However, Plaintiff testified that, in late 2001 or early 2002, he complained to Mike Jr. about his lunch box being searched.

Plaintiff testified that, in 2002, Bill Pickens made fun of his middle name (Hussein), stating "we've got a Hussein here." Plaintiff did not complain to anyone at Panko about the Hussein comment. Plaintiff also testified that, during the same year, Bill Pickens laughed when a circuit exploded and stated that he wanted to see Plaintiff get darker than he was. Plaintiff testified this was the second time that Pickens laughed at him when he worked on an active circuit.*fn8 Plaintiff further testified that, on unspecified occasions, Bill Pickens told him not to take electrical wire home, because Pickens believed that Plaintiff would try to blow something up.*fn9

5. Incidents of Discrimination Involving Chris DiLuzio

Plaintiff testified that, in 2002 or 2003, Chris DiLuzio called him a "nigger" on a job site.*fn10 Plaintiff also testified that, in 2005, while on a job site in Ithaca, New York, DiLuzio called him a "stupid nigger." At another point during the same year, and at the same job site in Ithaca, Plaintiff was working on a ladder and climbing through the rafters of a building. When Plaintiff appeared to have difficulties moving around in the rafters, DiLuzio said to Mark Travis (a white employee), in Plaintiff's presence, "Oh, so they didn't evolve from monkeys." Plaintiff does not think that he complained about this incident. However, after Plaintiff was terminated in December 2005, Mike Jr. confronted DiLuzio about the "evolution" comment and reprimanded him for it.

6. Incidents of Discrimination Involving Richard Harmon

In 2002, Plaintiff brought a bottle of salad dressing to his work site and shared it with co-workers. Richie Harmon took the salad dressing bottle and used it in such a manner that the nozzle of the bottle touched his ham sandwich. Plaintiff became angry and threw the bottle at the wall. Later that week, on the drive home from a job site, Harmon bumped Plaintiff's car with his vehicle on the highway.*fn11 Plaintiff reported the incident to Mike Jr., complaining that Harmon's behavior threatened Plaintiff's life. Plaintiff also testified that, in 2002 or 2003, Harmon asked Plaintiff to buy him cocaine and stated, "[This is] what you people do." Plaintiff informed Harmon that he did not do that.*fn12

7. Incident of Discrimination Involving Dave Martin

Plaintiff testified that, while working on a job site with Dave Martin at an unknown date and time, he was working near a "bussed up electrical system" and Martin told him to be careful because he would be a "darker nigger" if he fell into the system. Plaintiff did not tell anyone at Panko about this incident.

8. Facts Regarding Plaintiff's Training

Joe Panko trained Plaintiff in blueprint reading. On at least one occasion, Bill Pickens gave Plaintiff a set of blue prints to work with while he was an apprentice. Plaintiff also purchased books to assist himself with reading blue prints. Plaintiff did not fully learn to read blue prints until after his employment with Panko.

9. Facts Regarding Plaintiff's Pay

Upon receiving his journeyman's license, Plaintiff was not initially paid as a journeyman. After Plaintiff provided management with documentation that he had received his license (in the form of a certificate for completion of the apprenticeship program), he began being paid at the journeyman's rate. Dan Hawk, a white employee, was likewise required to produce documentation (i.e., a ...


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