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Elijah Turley v. Isg Lackawanna

March 23, 2011

ELIJAH TURLEY, PLAINTIFF,
v.
ISG LACKAWANNA, INC., ISG LACKAWANNA, LLC, MITTAL STEEL USA LACKAWANA, INC., MITTAL STEEL USA INC., D/B/A ARCELOR-MITTAL STEEL, LARRY D. SAMPSELL, GERALD C. MARCHLAND, THOMAS JAWORSKI, DEFENDANTS.



The opinion of the court was delivered by: William M. Skretny Chief Judge United States District Court

DECISION AND ORDER

I. INTRODUCTION

Plaintiff Elijah Turley commenced this employment discrimination action by filing a Complaint in the United States District Court for the Western District of New York. (Docket No. 1.) Therein, he alleges that Defendants discriminated against him based on his race (African American), subjected him to a hostile work environment, retaliated against him, and intentionally inflicted emotional distress.

Plaintiff brings this action pursuant to Section 1981 of the Civil Rights Act of 1866, 42 U.S.C. § 1981 (hereinafter, § 1981); Title VII of the Civil Rights Act of 1964, 42. U.S.C. §§ 2000(e) et seq. (hereinafter, "Title VII"); the New York State Human Rights Law, N.Y. EXEC. L. §§ 296 et seq. (hereinafter, "NYHRL"); and, common law of the State of New York.

Presently before this Court are (1) Defendants' Motion for Summary Judgment seeking dismissal of the Complaint in its entirety (Docket No.27)*fn1 ; (2) Defendants' Motion to Strike (Docket No. 92)*fn2 ; and (3) Plaintiff's Cross-Motion to Strike and/or in the alternative for Leave to File a Sur-Reply (Docket No. 93)*fn3 .

II. BACKGROUND

A. Facts

Defendant ISG Lackawanna Inc., a wholly-owned subsidiary of International Steel Group Inc., purchased the steel galvanizing operation at the former Bethlehem Steel Plant in Lackawanna, N.Y. in May 2003. (Defs.' Stmt. ¶ 1.)*fn4 In January 2004, ISG Lackawanna Inc. became ISG Lackawanna LLC, a Delaware limited liability company. (Id.) In April 2005, Mittal Steel Co. purchased International Steel Group, Inc., the parent of ISG Lackawanna LLC and shortly thereafter changed the name to Mittal Steel USA Inc. (Id. ¶ 2.) In June 2006, Mittal Steel Co. and Arcelor merged to create ArcelorMittal Inc. (Id. ¶ 3.) Shortly thereafter the name Mittal Steel USA Inc. was changed to Arcelor Mittal USA Inc. (Id. ¶ 3.) ISG Lackawanna LLC was then a wholly-owned subsidiary of ArcelorMittal USA Inc. and changed its name to ArcelorMittal Lackawanna LLC (hereinafter, "Lackawanna Plant" or "Company"). (Id. ¶ 3.)

Plaintiff Elijah Turley (hereinafter, "Plaintiff") began his employment at Bethlehem Steel in 1995. (Id. ¶ 8.) He worked in the Pickler Department of the Lackawanna Plant since 1996. (Id.) Since May 2003, Plaintiff has been employed as a Process Operator successively by ISG Lackawanna Inc., ISG Lackawanna LLC, and ArcelorMittal Lackawanna LLC. (Id.)

Defendant Larry Sampsell (hereinafter, "Sampsell") was the Manager of Labor Relations and Security at the Lackawanna Plant during the relevant time period. (Id. ¶ 5.) Defendant Gerald Marchand (hereinafter, "Marchand") was the Manager of Human Resources at the Lackawanna Plant from May 2003 to March 2007. (Id. ¶ 6.) After he retired, he continued to provide human resources services to the Plant as a consultant for several months. (Id.) Defendant Thomas Jaworski (hereinafter, "Jaworski") was the Area Manager of the Pickler and Tandem Mill Departments of the Lackawanna Plant from May 2003 to January 2007. (Id. ¶ 7.) Sampsell and Jaworski have both worked at the Bethlehem Steel/Lackawanna Plant in a management capacity since 1962. (Id. ¶¶ 5, 7.) Marchand has been an employee there since 1963. (Id. ¶ 6.)

Production employees at the Lackawanna Plant, including Plaintiff, are represented by the United Steelworkers Union (hereinafter, "Union"). (Id. ¶ 14.) The Union and International Steel Group, Inc. entered into a Collective Bargaining Agreement (hereinafter, "CBA"), which governs the terms and conditions of employment. (Id.) Article Four of the CBA prohibits discrimination and harassment in the workplace on the basis of race and color. (See Marchand Dec., Exhibit A; CBA pp.23-24, Article Four, Section (A)(1-6).)It also prohibits the Company from retaliating against an Employee who complains of discrimination. (Id.)

B. Procedural History

Plaintiff dually filed a charge of discrimination with the New York State Division of Human Rights ("NYSDHR") and the Equal Employment Opportunity Commission ("EEOC") on December 15, 2005. (Compl. ¶ 19.) Therein, Plaintiff alleged Defendants discriminated against him based on race/color and disability. (Biltekoff Dec., Ex. V.) He filed an amended charge on March 16, 2006, alleging further acts of discrimination based on race/color and disability. (Compl. ¶ 19; Biltekoff Dec., Ex. V.)

On March 16, 2006, Plaintiff also filed a second charge of discrimination with the NYSDHR and EEOC, claiming retaliation and continued acts of discrimination. (Compl. ¶ 20.) An amendment to the second charge was filed on June 5, 2006. (Id.) The EEOC issued a Notice of Dismissal and Right to Sue on December 1, 2006. (Id. ¶ 21.) Plaintiff filed his Complaint with the Clerk of this Court on December 6, 2006. (Docket No. 1.)

Plaintiff filed a third charge of discrimination with NYSDHR and the EEOC on December 21, 2007, alleging retaliation, hostile work environment, and continued discrimination. (Biltekoff Dec., Ex. V.)

Defendants' filed their Motion for Summary Judgment on September 30, 2008 and their Motion to Strike on February 27, 2009. (Docket No. 27, 92.) Plaintiff filed his Cross-Motion to Strike on March 6, 2009. (Docket No. 93.)

The Court first considers the motions to strike, as those decisions may affect the disposition of the pending summary judgment motion.

III. MOTIONS TO STRIKE

A. Standard

Defendants move to strike portions of Plaintiff's documents submitted in opposition to their motion for summary judgment on the basis that the documents allege new claims. Similarly, Plaintiff cross-moves to strike portions of Defendants' reply papers on the basis that they introduce new evidence and witnesses.

Rule 26 obligates a party to provide to the other party, without awaiting a discovery request, information such as names and addresses of witnesses and copies of documents the disclosing party has in its custody that support its claims or defenses. Fed. R. Civ. P. 26(a). Additionally, a party must supplement its disclosure or response in a timely manner if the party learns it is incomplete or incorrect, and if the additional information has not otherwise been made known to the other parties during the discovery process or in writing. Fed. R. Civ. P. 26(e).

Moreover, Rule 36 provides that "[i]f a party fails to provide information or identify a witness as required by Rule 26(a) or (e), the party is not allowed to use that information or witness to supply evidence on a motion. . . unless the failure was substantially justified or is harmless." Fed.R.Civ.P. 37(c)(1). This is to prevent the "sandbagging" of an opposing party with new evidence. Ventra v. United States, 121 F.Supp.2d 326, 332 (S.D.N.Y. 2000).

In determining whether the Court should use its discretionary power to impose sanctions for Rule 26 violations, it should consider these four factors: (1) the proponent's explanation for failing to provide the subject evidence; (2) the importance of such evidence to the proponent's case; (3) the opponent's time needed to prepare to meet the evidence; and (4) the possibility of obtaining a continuance to permit the opponent to meet the evidence. Outley v. City of New York, 837 F.2d 587, 589 (2nd Cir. 1988).

1. Defendants' Motion to Strike

Defendants have moved to strike portions of: (1) Plaintiff's Memorandum of Law; (2) the Declaration of Elijah Turley; and (3) the Affidavit of Ron Drayton, on the ground that they improperly raise new claims after the close of discovery. (Defs.' Memo in Support of Motion to Strike, p. 1.)

Specifically, Defendants argue that Plaintiff now alleges:

(1) he was subjected to racial slurs and death threats over the Pickler Department radio on September 18, 2008;

(2) co-worker Ron Drayton was subjected to racial slurs and death threats over the Pickler Department radio on September 19, 2008;

(3) threatening graffiti was written on a window in the Company parking lot in October 2008; and

(4) racial graffiti was written on a railcar in October 2008. (Id.)

Defendants contend that these allegations may not be considered in opposition to summary judgment because they are "new claims." (Id.) Plaintiff avers that he has not raised any new claims in response to Defendants' motion for summary judgment. (Pl.'s Memo. in Opposition to Motion to Strike, p.1.) Rather, these four incidents are "part of a continuing violation that resulted in a hostile work environment." (Id. at p. 2.)

It is well established that parties may not raise new claims in submissions in opposition to summary judgment motions. Hawana v. City of New York, 230 F.Supp.2d 518, 534 (S.D.N.Y. 2002). In this case, Plaintiff is not raising a new claim. He alleges in his Complaint that Defendants' conduct created a hostile and abusive working environment. (Compl. ¶ 84.) Plaintiff is now providing more circumstantial evidence to support his hostile work environment claim. Thus, the nature of Plaintiff's claim has not changed.

In addition, Plaintiff contends that "Defendants had a full and fair opportunity to investigate the ongoing harassment." (Pl.'s Memo. in Opposition to Motion to Strike, p. 2.) This is evidenced by the fact that on September 18, 2008, Plaintiff's counsel called Defendants' counsel to discuss the death threats and racial slurs, and sent a follow-up letter on September 19 detailing the continuing harassment and requesting documentation of any investigation. (Id. at p. 3; Biltekoff Supp. Dec., Ex. A.) Plaintiff's counsel also called Defendants' counsel on October 14, 2008 requesting information on the harassing graffiti at the Pickler Department. (Id.)

Despite Plaintiff's failure to formally supplement his discovery responses, the additional information was made known to Defendants in a timely manner. As required under Rule 26, the new information was brought to Defendants' attention on the day it occurred or soon after, and defense counsel acknowledged notice by agreeing to look into these events. Thus, Defendants were not deprived of the opportunity to investigate events alleged to have occurred at their own facility, and Plaintiff's failure to strictly comply with Rule 26(a) was harmless. Accordingly, those portions of Plaintiff's Memorandum of Law, the Declaration of Elijah Turley and the Affidavit of Ron Drayton, which refer to events that occurred after the close of discovery, will be allowed.

2. Plaintiff's Cross-Motion to Strike

Plaintiff has cross-moved to strike: (1) the Supplemental Declaration of Nevin Hope; (2) the Supplemental Declaration of Larry Sampsell; (3) exhibits attached to the Supplemental Declaration of Gerald Marchand; (4) portions of the Supplemental Declaration of Donald Kandefer; and (5) the Declaration of Richard Schwartz, on the ground they introduce new evidence or new witnesses in contravention of Rules 26(a)(1) and 37(c). In the alternative, Plaintiff requests leave to file an amended complaint, or sur-reply.

a. Supplemental Declarations of Nevin Hope and Larry Sampsell.

Defendants assert they filed the Supplemental Declarations of Nevin Hope and Larry Sampsell in order to respond to Plaintiff's raising new allegations. (Defs.' Reply in Support of Motion to Strike, pp. 4-5.) Specifically, the Supplemental Declarations pertain to the death threats, racial slurs, and graffiti in 2008.

Defendants have not violated Rule 26(a), as the Supplemental Declarations are in response to the continuing hostile work environment violations that Plaintiff brought up in his opposition papers, and therefore could not have been disclosed at the time of discovery. Moreover, because the Court declined to preclude Plaintiff's further hostile work environment allegations, it will not now preclude Defendants' response to same. Plaintiff's motion to strike is denied as to the Supplemental Declarations of Hope and Sampsell.

b. Supplemental Declaration of Gerald Marchand.

According to Plaintiff, Exhibits A-N of the Supplemental Declaration of Gerald Marchand should be stricken because these attached documents purporting to be investigation notes were provided for the first time in Defendants' reply. (Pl.'s Memo. in Opposition to Motion to Strike, p. 8.) Plaintiff argues he is prejudiced because he was deprived of the opportunity to challenge the foundation or credibility of the evidence. (Pl.'s Reply Memo. in Support of Cross-Motion, p. 1.)

Defendants argue that Plaintiff fails to state a proper basis on which the Exhibits attached to Marchand's Declaration should be stricken. (Defs.' Reply in Support of Motion to Strike, p. 5.) They state that the notes from the investigation into Plaintiff's complaints contained in Exhibits A through M have been in Plaintiff's possession since August 2007; therefore, this is not the first time these documents were produced. (Id. at p. 6.) Furthermore, Exhibit N contains the notes of then Operations Manager Chris Richards, as Manager of Human Resources at the time Mr. Marchand was competent to identify Mr. Richards's notes as a business record under Federal Rule of Evidence 802(6) [sic]. (Id. at p. 7.) Also, Defendants state the notes are not submitted for their truth, but to establish that an investigation occurred. (Id.)

It is apparent that the business records pertaining to Defendants' investigation of the alleged harassment are important to their defense of this case. Furthermore, the Court finds Exhibit N admissible as non-hearsay if offered not for its truth, but to show that an investigation was done. See LaSalle Bank Nat. Ass'n v. Nomura Asset Capital Corp., 424 F.3d 195, 205 (2nd Cir. 2005) (Evidence considered on summary judgment by a district court "must generally be admissible evidence."). Moreover, Plaintiff does not deny that he had been in possession of Exhibits A through M since 2007. In addition, Exhibits A through M were responsive to his request for information regarding investigations of the continuing harassment. Therefore, Plaintiff would not be prejudiced by allowing this evidence. Plaintiff's motion to strike the Supplemental Declaration of Marchand is denied.

c. Supplemental Declaration of Donald Kandefer.

According to Plaintiff, ¶¶ 3-9 and Exhibit B of Donald Kandefer's Supplemental Declaration lack foundation and should be stricken as unreliable. (Pl.'s Memo. in Opposition to Motion to Strike, p. 9.) Furthermore, Plaintiff argues the declaration is not "supplemental" in that it undermines Kandefer's original testimony and raises new issues regarding how hours at the Lackawanna Plant were reported. (Pl.'s Reply in Support of Cross-Motion to Strike, p. 1.)

Defendants contend that Kandefer's Supplemental Declaration concerns matters properly before the Court on Defendants' summary judgment motion, and is responsive to Plaintiff's questions regarding his job duties and procedures. (Defs.' Reply in Support of Motion to Strike, p. 5.) Also, Exhibit B is the same document attached to Kandefer's original declaration, which is a record of employee hours in the Pickler Department. (Id.)

The original Kandefer Declaration states that he is the Timekeeper, Payroll and Accounts Receivable Coordinator at the Lackawanna Plant. (Kandefer Dec. ¶ 1.) As such, he is responsible for entering employee hours into the computer system. (Id. ¶ 2.) The computer then calculates the employee's weekly pay based on the number of hours worked (including overtime) and the employee's base pay rate, plus any other related items. (Id.)

Kandefer's Supplemental Declaration was made in response to Plaintiff's assertion that his original declaration contradicted his deposition testimony. (Kandefer Supp. Dec. ¶ 1.) During his deposition, Kandefer was asked if the record keeping methods had changed when ownership of the Plant changed. (Id. ¶ 3.) Kandefer replied that they had not, which he still asserts was an accurate response. (Id.) He states that after the change of ownership, he collected employees' time from their sheets and entered them into the computer system the same way he had been. (Id.) Kandefer clarified that he only inputs regular time, and payment for overtime is calculated by the computer. (Id. ¶¶ 8-9; Kandefer Dep. 13:8-14:5.)

However, what did change was the way that employee hours were reported for the Lackawanna Plant. (Kandefer Supp. Dec. ¶ 3.) Kandefer states that the various owners of the Lackawanna Plant wanted employees' hours reported differently for their own internal processes. (Id. ¶ 4.) For instance, under the CBA, only overtime of four hours or more, referred to as an "overtime occurrence," is reported, for the Plant's purposes, as overtime. Therefore, if an employee worked an eight hour day as overtime, only four hours would be reported as overtime for the Plant's records. This reporting of overtime does not effect Kandefer's job of recording employee time in the payroll system. The computer would consider the eight hours as overtime and the employee would be paid accordingly.

The chart in Exhibit B in Kandefer's original declaration shows only the number of hours which are considered overtime under the CBA. (Kandefer Dec. ¶ 22.) The chart included in Kandefer's Supplemental Declaration shows the unadjusted overtime hours of Pickler Department Employees, meaning it includes all overtime worked. This shows how overtime was reported prior to the change of ownership in May 2003. Regardless of which overtime chart is used, Kandefer avers that the relative ranking of overtime of the Pickler Department employees is the same since the way the hours were reported applies to all employees in the same manner.*fn5 (Kandefer Supp. Dec. ¶ 5.)

Because Kandefer's Supplemental Declaration clarifies what exactly changed in regards to the reporting of employee hours with the change of ownership, the Court finds it to be truly supplemental and does not consider it new evidence. Furthermore, admission of the Supplemental Declaration would not be prejudicial to Plaintiff, since it does not substantially change the overall ranking of the employees. And, Plaintiff does not specify what further investigation he would need in order to respond to the declaration. Also, this information is probative in regards to Plaintiff's discrimination claims. Plaintiff's motion to strike Kandefer's Supplemental Declaration is denied.

d. Declaration of Richard Schwartz.

According to Plaintiff, the Declaration of Richard Schwartz should be stricken because the witness's identity was not disclosed pursuant to Rule 26 until February 25, 2009, five months after Defendants filed their original motion papers and two months after Plaintiff's response was filed. (Pl.'s Memo. in Opposition to Motion to Strike, p. 9.) Plaintiff argues he has been denied the opportunity to depose the witness. (Pl.'s Reply Memo. in Support of Cross-Motion, p. 1.)

Defendants state that their identification of Mr. Schwartz as a witness was timely under Rule 26(a), which requires supplemental information to be provided thirty days before trial. Fed. R. Civ. P. 26(a)(3). (Defs.' Reply in Support of Motion to Strike, p. 8.) Defendants assert that his identity was not initially known and they did not intend on relying on his testimony regarding the placement of surveillance cameras, therefore he was not included in their initial Rule 26(a) disclosures. (Defs.' Reply in Support of Motion to Strike, p. 8.)It was only after Plaintiff submitted affidavits of employees testifying where the surveillance cameras were directed that Defendants had a need for Mr. Schwartz's testimony. (Id.) Sampsell attests that in mid-February 2009, he contacted PBS Consultants, the company hired to install the cameras, to find out the name of the employee who installed them. (Sampsell Dec. in Opposition to Motion to Strike, ¶ 3.) Defendants state they provided Plaintiff with Mr. Schwartz's name and contact information as soon as they obtained it in February 2009. (Defs.' Reply in Support of Motion to Strike, p. 9.) Furthermore, Plaintiff was not prejudiced by this delay, as he already had ample opportunity to discover Mr. Schwartz's identity and served a subpoena on the company on August 14, 2007. (Id.)

Defendants are correct that Rule 26(a)(3) requires disclosures relating to the name and contact information of witnesses, their testimony, and exhibits to be submitted at least 30 days before trial, yet they cannot use section (a)(3) to circumvent the requirements of (a)(1). In other words, Defendants are not insulated because they provided the identity of the witness according to section 26(a)(3) without disclosing their information pursuant to (a)(1). Nevertheless, Plaintiff was not prejudiced, as he does not dispute that he had served a subpoena on the witness in 2007 and had the opportunity to take depositions and further investigate the placement of the surveillance camera. In fact, Defendants were not put on notice that the view of the surveillance camera was at issue until it was mentioned in the Affidavit of Daniel Ruger filed by Plaintiff on December 30, 2008. (Ruger Aff. ¶ 18.) Moreover, it appears that the information regarding the witness had been supplemented in a timely manner after Defendants identified him.Plaintiff's motion to strike the Schwartz declaration is denied.

Based on the foregoing, Plaintiff's cross-motion to strike is denied.

Plaintiff's request for leave to amend his Complaint is denied. Because the Court concludes that no new claims have been raised in opposition papers, there is no need to amend.

Moreover, Plaintiff's request to file a sur-reply is denied. Plaintiff does not specify what he needs to respond to in his sur-reply or what additional investigation is needed.

IV. SUMMARY JUDGMENT

A. Standard

Federal Rule of Civil Procedure 56 provides that summary judgment is warranted where "the pleadings, the discovery and disclosure material 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)(2). A "genuine issue" exists "if the evidence is such that a reasonable jury could return a verdict for the non-moving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). A fact is "material" if it "might affect the outcome of the suit under governing law." Id.

In deciding a motion for summary judgment, the evidence and the inferences drawn from the evidence must be "viewed in the light most favorable to the party opposing the motion." Addickes v. S.H. Kress and Co., 398 U.S. 144, 158-59, 90 S.Ct.1598, 1609, 26 L.Ed.2d 142 (1970). Summary judgment is proper "only when reasonable minds could not differ as to the import of evidence." Bryant v. Maffucci, 923 F.2d 979, 982 (2d Cir. 1991). The function of the court is not "to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Anderson, 477 U.S. at 249.

In the context of employment discrimination cases, the United States Court of Appeals for the Second Circuit has explicitly cautioned district courts to use extra care when deciding whether to grant summary judgment because "the ultimate issue to be resolved in such cases is the employer's intent, an issue not particularly suited to summary adjudication." Eastmer v. Williamsville Cent. Sch. Dist., 977 F. Supp. 207, 212 (W.D.N.Y. 1997) (quoting Gallo v. Prudential Residential Servs., 22 F.3d 1219, 1224 (2d Cir. 1994)). Nonetheless, "[t]he summary judgment rule would be rendered sterile . . . if the mere incantation of intent or state of mind would operate as a talisman to defeat an otherwise valid motion." Meiri v. Dacon, 759 F.2d 989, 998 (2d Cir. 1985). Indeed, the Second Circuit has noted that "the salutary purposes of summary judgment -- avoiding protracted, expensive and harassing trials -- apply no less to discrimination cases than to commercial or other areas of litigation." Id.

B. Disparate Treatment

Plaintiff alleges he has been discriminated against because of his race in regards to overtime, pay, job training, absence and leave from work, and being monitored on the job.

It is well settled that in discrimination cases where there is no overt evidence of discriminatory conduct, claims brought under Title VII, § 1981, and the NYHRL are analyzed under the burden-shifting analysis first set forth by the United States Supreme Court in McDonnell Douglas Corp. v. Green, 411U.S. 792, 802-04, 93 S. Ct. 1817, 36 L. Ed.2d 668 (1973). The burden-shifting test first requires that the plaintiff establish a prima facie case of discrimination.

"The burden of establishing a prima facie case of disparate treatment is not onerous." Texas Dep't of Comt'y Affairs v. Burdine, 450 U.S. 248, 253, 101 S. Ct. 1089, 1094, 67 L. Ed.2d 207 (1981); see also Carlton v. Mystic Transp., Inc., 202 F.3d 129, 134 (2d Cir. 2000) (characterizing the burden as "minimal"). To state a prima facie case, a plaintiff must show that (1) he is a member of a protected class, (2) he is qualified for his position, (3) he suffered an adverse employment action, and (4) the circumstances of the adverse action give rise to an inference of discrimination. Weinstock v. Columbia Univ., 224 F.3d 33, 42 (2d Cir. 2000) (citing McDonnell Douglas, 411 U.S. at 802). Defendants contend that Plaintiff cannot satisfy the third and fourth elements of a prima facie case.

As to the third element, an "adverse employment action is one that affects the terms, privileges, duration or conditions of employment." Yerdon v. Henry, 91 F.3d 370, 378 (2d Cir. 1996). Plaintiff avers that he has been subject to multiple adverse employment actions including: denial of overtime, unequal pay, failure to train, unequal treatment under the Absence and Leave Policy, and excessive monitoring.

To satisfy the fourth element, a plaintiff must show that the circumstances of the alleged adverse employment action give rise to an inference of discrimination. Evidence showing that the plaintiff was treated "less favorably than other similarly situated employees outside [the] protected group" is one method of raising an inference of discrimination. Mandell v. County of Suffolk, 316 F.3d 368, 379 (2d Cir. 2003). When employing this method, the other employees to whom a plaintiff compares himself must be "similarly situated" in all material respects and must have engaged in comparable conduct for which they were treated differently. Shumway v. United Parcel Service, Inc., 118 F.3d 60, 64 (2d Cir. 1997) (citing Mitchell v. Toledo Hosp., 964 F.2d 577, 583 (6th Cir. 1992).

If the plaintiff meets this initial burden and establishes a prima facie case, a rebuttable presumption of discrimination arises, and the burden then shifts to the defendant to articulate a legitimate, non-discriminatory reason for the employment action. Burdine, 450 U.S. at 254. "This explanation must be 'clear and specific.' " Gallo, 22 F.3d at 1226 (quoting Meiri, 759 F.2d at 997). If the defendant succeeds in making this showing, "the presumption of discrimination arising with the establishment of the prima facie case drops from the picture." Weinstock, 224 F.3d at 42 (citing St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 510-11, 113 S. Ct. 2742, 125 L. Ed.2d 407 (1993)).

Assuming that the defendant meets its burden at the second stage, the burden returns to the plaintiff to prove that the defendant's discrimination was intentional. In this regard, the plaintiff must produce "evidence that the defendant's proffered, non-discriminatory reason is a mere pretext for actual discrimination." Weinstock, 224 F.3d at 42."Where a plaintiff has alleged that an employer's reasons for an adverse employment action are pretextural, all reasonable inferences must be drawn in favor of the plaintiff's showing of pretext." Hudson v. Greyhound Lines, Inc., No. 04 Civ. 10285, 2008 WL 819687 at *7 (W.D.N.Y. 2008) (quoting Joseph v. Manhattan & Bronx Surface Transit Operating Auth., No. 96 Civ. 9015, 2004 WL 1907750, at *14 (S.D.N.Y. Aug. 25, 2004)). "In short, the question becomes whether the evidence, taken as a whole, supports a sufficient rational inference of discrimination." Id. However, "[i]t is not enough . . . to disbelieve the employer; the factfinder must [also] believe the plaintiff's explanation of intentional discrimination." Id. (quoting St. Mary's, 509 U.S. at 519).

1. Denial of Overtime

Plaintiff alleges he has been denied overtime in both the Pickler Department and the Shipping Department since 2004 because of his race. (Pl.'s Memo. in Opposition to Motion for Summary Judgment, pp. 37-38.) Defendants argue that the amount of overtime Plaintiff worked is not materially different when compared to all his white co-workers. (Defs.' Memo in Support of Motion for Summary Judgment., p . 47.)

a. Pickler Department

Plaintiff avers he was denied overtime while Frank Pelc (hereinafter, "Pelc") and Daniel Ruger (hereinafter, "Ruger"), two white Process Operators, were regularly allowed to arrive one-half hour early for the 7am-3pm shift, stay one half-hour after their 3pm-11am shift, or come in on weekends. (Pl. Dep. 92-93, Dec. 18, 2007.) Plaintiff states that the only time he was permitted to arrive early was to attend a scheduled crew meeting. (Pl. Dec. ¶ 44.)

The denial of overtime may constitute an adverse employment action in some circumstances. See Little v. National Broadcasting Co., Inc., 210 F.Supp.2d 330, 397 (S.D.N.Y. 2002) (noting plaintiff could be subject to an adverse employment action where he produced evidence he incurred an actual loss in income because of lost overtime even though he remained at the same pay level); see also Faggiano v. Eastman Kodak Co., 378 F.Supp.2d 292, 306 (W.D.N.Y. 2005) (finding plaintiff suffered an adverse employment action where he lost opportunities for earning overtime benefits and his title and job duties were altered.).

However, Plaintiff has not presented sufficient evidence that he has been treated unfavorably in the distribution of overtime work. It is clear that Plaintiff received overtime assignments in the Pickler Department continuously from 2003 through 2008. In fact, he often placed among the top half of employees for overtime hours worked.*fn6 Since Plaintiff argues he was denied overtime before work, after work, and on the weekends, it is unclear how he was able to obtain so many overtime hours through the years.

Furthermore, Plaintiff does not identify any instance where he was denied requested overtime work so that it could be given to others. See Ramsey v. New York City Health & Hosp. Corp., No. 98 CIV. 1594, 2000 WL 713045, at * 8 (S.D.N.Y. June 2, 2000) (Plaintiff alluded in his Amended Complaint to times when he was denied requested overtime so that it could be given to others, but after full discovery, presented no specific evidence of disparate treatment in the assignment of overtime work.). He simply asserts, in conclusory fashion, that he was not informed he could work overtime or was not allowed to work overtime.

Therefore, there is not enough for a rational jury to hold that Plaintiff was denied overtime based on his race, or that similarly situated employees were treated preferentially with respect to overtime opportunities.

b. Shipping Department

To the extent Plaintiff bases his claim on lack of overtime in the Shipping Department, the claim fails. Plaintiff fails to put forth any evidence that he was denied overtime in that department.

Based on the foregoing, summary judgment on Plaintiff's discrimination claim based on denial of overtime is granted.

2. Unequal Pay

To establish a prima facie case of unequal pay for equal work, a plaintiff must show:

(1) that he is a member of a protected class; (2) that he was paid less than similarly situated non-members of his protected class; and (3) evidence of discriminatory animus. Cruse v. G & J United States Publishing, 96 F.Supp.2d 320, 326 (S.D.N.Y. 2000). With respect to the second element, Defendants dispute that Plaintiff was paid less for working as a Process ...


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