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Randolph M. Jones v. Onondaga County Resource Recovery Agency

March 31, 2011

RANDOLPH M. JONES, PLAINTIFF,
v.
ONONDAGA COUNTY RESOURCE RECOVERY AGENCY, A. THOMPSON RHOADS,
JOSEPH FONTANELLA, AND MAUREEN NOSICK, INDIVIDUALLY AND IN THEIR OFFICIAL CAPACITIES, DEFENDANTS.



The opinion of the court was delivered by: Scullin, Senior Judge

MEMORANDUM-DECISION AND ORDER

I. INTRODUCTION

On October 1, 2008, Plaintiff filed his complaint, in which he asserted six causes of action.*fn1 In his first and second causes of action, Plaintiff claimed that Defendants subjected him to discrimination, disparate treatment and a hostile work environment in violation of Title VII. In his third cause of action, Plaintiff asserted that Defendants retaliated against him in violation of Title VII. In his fourth cause of action, pursuant to 42 U.S.C. § 1983, Plaintiff contended that Defendants violated his rights under the Equal Protection Clause. In his fifth cause of action, Plaintiff alleged, pursuant to 42 U.S.C. § 1981a, that Defendants violated his rights under the Equal Protection Clause. Finally, in his sixth cause of action, Plaintiff claimed that Defendants subjected him to discrimination, disparate treatment, and a hostile work environment in violation of New York's Human Rights Law.

On May 6, 2010, Defendants filed a motion for summary judgment. See Dkt. No. 35. Plaintiff opposed that motion. See Dkt. No. 37. Defendants filed an affidavit in further support of their motion on June 30, 2010. See Dkt. No. 38. On July 29, 2010, the Court heard oral argument in support of, and in opposition to, that motion. See Minute Entry dated July 29, 2010. At oral argument, Plaintiff agreed to dismiss all claims against Defendant Nosik, to dismiss all 42 U.S.C. § 1981a claims against all Defendants, and to dismiss his Title VII claims against the individual Defendants. At the close of oral argument, the Court dismissed Plaintiff's claims under 42 U.S.C. § 1983 against all Defendants and reserved decision with regard to Plaintiff's claims against the individual Defendants under New York's Human Rights Law and his Title VII claim against Defendant Onondaga County Resource and Recovery Agency ("OCRRA"). The following is the Court's written disposition of Plaintiff's remaining claims.

II. BACKGROUND

Plaintiff, an African American, began his employment with Defendant OCRRA on April 13, 1987, as a tractor trailer driver and has been so employed for more than twenty-one years. See Defendants' Statement of Material Facts at ¶¶ 1-3 (citing Complaint ¶ 16). Defendant Rhoads is the Executive Director of Defendant OCRRA and reports to its fifteen-member Board of Directors. See id. at ¶ 8 (citing Complaint ¶ 12). Defendant Fontanella is Defendant OCRRA's Transfer Director with responsibility for overall management of operations at two sites, Ley Creek Transfer Station and Rock Cut Road Transfer Station. See id. at ¶ 9 (citing Complaint ¶ 3).

At Defendant OCRRA's Ley Creek Transfer Station, Leroy Sabin, a union member, was the permanent Plant Operator and, as such, was a working team leader with supervisory responsibility over the employees at the station, including Plaintiff. See id. at ¶ 13 (citing Fontanella Affidavit ¶ 4). Joseph Broome, an African American, was the Plant Supervisor at the Rock Cut Road Transfer Station; unlike Mr. Sabin, Mr. Broome was a member of Defendant OCRRA management and not a union member. See id. at ¶ 14 (citing Fontanella Affidavit ¶ 5).

The Plant Operator is responsible for supervising the daily operations of the transfer station, including customer service issues, maintenance of equipment, dispatch of drivers, delegation of duties to laborers, maintenance of the physical plant, and the safety and security of workers and customers. See id. at ¶ 15 (citing Fontanella Affidavit ¶ 7). On or about March 28, 2007, Plaintiff met with Defendant Fontanella and expressed his intention and desire to obtain a promotion to "Plant Operator" either on a permanent or temporary basis and to receive the necessary training to qualify for such position, the bulk of which is on-the-job training. See Complaint at ¶ 20. When he expressed this interest to Defendant Fontanella, Plaintiff did not complain about or mention discrimination. See Defendants' Statement of Material Facts at ¶ 18 (citing Jones Transcript dated November 19, 2009, p. 19; Fontanella Affidavit ¶¶ 15-22). At that time, Plaintiff did not want the permanent Plant Operator position, had not bid on that position, and had not taken the Civil Service Exam necessary for obtaining the permanent position. See id. at ¶ 19 (citing Jones Transcript dated November 19, 2009, pp. 9-30; Jones Transcript dated November 16, 2009, pp. 106-108).

When the incumbent Plant Operator took a day off, or for periods of less than two weeks, it was Defendant OCRRA's practice, consistent with its interpretation of Section 17.1 of the Collective Bargaining Agreement, to assign an employee familiar with the daily operations of the plant to perform the tasks of the Plant Operator necessary to keep the facility running in a safe and efficient manner. See id. at ¶ 20 (citing Fontanella Affidavit ¶ 14). On or about April 5, 2007, Plaintiff learned that Mr. Sabin had assigned Angel Luis Maldonado (a Latino) to fill a temporary job opening of less than two weeks as the Plant Operator at the Ley Creek Transfer Station. See id. at ¶ 21 (citing Jones Transcript dated November 16, 2009, pp. 37-38; Fontanella Affidavit ¶ 10).

Mr. Maldonado was hired on July 28, 1987, worked as a truck driver for approximately nine years, and then bid into a position operating equipment at the Ley Creek Transfer Station. See id. at ¶ 22. Unlike Plaintiff, as of April 2007, Mr. Maldonado had approximately eight years of experience working at the Ley Creek Transfer Station. See id. (citing Nosik Affidavit ¶ 4; Nosik Exhibit "A"). As of 2007, Plaintiff had always worked as a tractor trailer driver and had no experience working at the transfer station. See id. at ¶ 23 (citing Nosik Affidavit ¶ 5; Fontanella Affidavit ¶ 10).

When Plaintiff learned that Mr. Maldonado had been assigned to fill the temporary vacancy, Plaintiff approached Defendant Fontanella, with union representative Darryl Merriman, and complained that he should have been assigned to that position because he was senior to Mr. Maldonado. See id. at ¶ 24 (Fontanella Affidavit ¶ 15; Jones Transcript dated November 16, 2009, p. 125). Defendant Fontanella told Plaintiff that it was Defendant OCRRA's position that, pursuant to Section 17.1 of the CBA, management had the right to assign people to positions of less than two weeks without regard to the seniority list. See id. at ¶ 25 (citing Fontanella Affidavit ¶ 16).

Defendant Fontanella also told Plaintiff that it was Leroy Sabin's choice to pick who he thought would be best qualified to fill in for him on a temporary basis of less than two weeks. See id. at ¶ 26 (citing Fontanella Affidavit at ¶ 17). In response to Plaintiff's request for training to qualify for the Ley Creek position, Defendant Fontanella told him that he would ask Ms. Nosik, OCRRA's Personnel Analyst, to set up training classes for anyone who was interested but that it would take some time. See id. at ¶ 27 (citing Jones Transcript dated November 16, 2009, p. 128; Fontanella Affidavit ¶ 19).

Plaintiff described his March 28, 2007 discussion with Defendant Fontanella as "calm" and "cordial." See id. at ¶ 28 (citing Jones Transcript dated November 16, 2009, pp. 121, 124). Plaintiff did not claim at that time that he believed the appointment of Mr. Maldonado was discriminatory; rather, he claimed that it was a breach of the CBA. See id. at ¶ 32 (Fontanella Affidavit ¶ 22; Jones Transcript dated November 16, 2009, p. 38). When he was asked at his deposition whether he was seeking corrective action for discrimination, Plaintiff responded, "I would say a correctiv3 action according to our CBA with [Defendant] OCRRA." See id. at ¶ 33 (citing Jones Transcript dated November 19, 2009, pp. 74-75).

On May 3, 2007, two Caucasian employees, Doug Trudeau and Darren Brandt, filed grievances which Plaintiff, as union steward, processed, challenging OCRRA's interpretation of Section 17.1 of the CBA. See id. at ¶ 34. Both of these employees were tractor trailer drivers, like Plaintiff, and believed that, due to their seniority, they should have been asked to fill higher paid temporary vacancies at the Ley Creek Transfer Station. See id. at ¶ 34 (citing Fontanella Affidavit ¶ 23; Fontanella Exhibit "B").

On Friday, April 27, 2007, someone complained to Plaintiff's supervisor, Leroy Sabin, that Plaintiff was holding them up and not pulling his weight. See id. at ¶ 38 (citing Fontanella Affidavit ¶ 29; Jones Transcript dated November 16, 2009, p. 184). On the following Monday, Mr. Sabin investigated the complaint by looking at data showing Plaintiff's hours per trip between April 23 and April 27, 2007.

Plaintiff learned that Mr. Sabin had been asking questions about his whereabouts. On May 3, 2007, before Mr. Sabin raised any issues, Plaintiff approached him and told him, in words and substance, that, if he wanted to know where he was, he should contact him directly and not ask other employees. Plaintiff also told Mr. Sabin that he had been to the bank and Wendy's for lunch in his truck and that he would continue to do things the way he had always done them. See id. at ¶ 42 (citing Fontanella Affidavit ¶ 28; Jones Transcript pp. 136-142). Plaintiff initiated this confrontation with Mr. Sabin. See id. at ¶ 43 (Jones Transcript dated November 16, 2009, pp. 136-137).

On May 11, 2007, Defendant Fontanella issued a disciplinary report, citing Plaintiff with violating the following work rules: (1) Work Rule #12 - insubordination (2 day suspension); (2) Work Rule #14 - interfering with his supervisor; Work Rule #2 - exceeding break period wasting time (one day suspension); Work Rule #14 - coercing or intimidating supervisor on Agency property; Work Rule #29 - conducting personal business during work hours (one day suspension); and Work Rule #30 - using Agency vehicle for personal use. See id. at ¶ 47 (citing Fontanella Affidavit ¶ 35; Exhibit "D").

Plaintiff filed a union grievance the same day that Defendant Fontanella issued the disciplinary report, claiming "overly harsh discipline." See id. at ¶ 48 (citing Fontanella Affidavit ¶ 37; Exhibit "E"). Pursuant to the CBA, the grievance proceeded through Steps Two and Three, which Defendant OCRRA conducted. See id. at ¶ 49 (citing Fontanella Exhibits "E," "F," "G," and "H"). On June 22, 2007, during the Step Three grievance meeting that Defendant Rhoads conducted, Plaintiff told Defendant Rhoads that he was trying to "whip [Plaintiff]" with a pen. Plaintiff contends that this was his first complaint of discrimination to Defendant OCRRA. See id. at ¶ 50 (citing Jones Transcript dated November 19, 2009, p. 26). On July 25, 2007, during Step Three of the disciplinary grievance process, union counsel mentioned "discrimination" to Defendant Rhoads; Plaintiff was not present and did not make the claim himself. See id. at ¶ 51 (citing Jones Transcript dated November 19, 2009, pp. 20 and 22). In response to union counsel's statement, Defendant Rhoads suggested that, if Plaintiff believed there was discrimination, he should file a complaint with Defendant Nosik pursuant to Defendant OCRRA's anti-harassment/discrimination policy. See id. at ¶ 52 (citing Jones Transcript dated November 19, 2009, p. 20). Plaintiff never filed a complaint of harassment/discrimination with Defendant OCRRA. See id. at ¶ 53 (citing Jones Transcript dated November 19, 2009, p. 21; Nosik Affidavit ¶ 9).

Defendant Rhodes heard the grievance at Step Three and reduced the discipline pursuant to a written decision dated July 25, 2007, as follows: Work Rule #12 - dismissed; Work Rule #14 - dismissed; Work Rule #30 - written warning; Work Rule #29 - written warning; Work Rule #4 - one day suspension without pay; Work Rule #2 - one day suspension without pay. See id. at ¶ 54 (citing Fontanella Affidavit ¶ 39; Fontanella Exhibit "G").

The Union pursued an appeal of the step three grievance determination through binding arbitration with the Federal Mediation and Conciliation Service, Mona Miller, Arbitrator. See id. at ¶ 55 (citing Fontanella Exhibit "H"). The arbitration hearing was held on November 9, 2007, and November 29, 2007. Plaintiff attended and was represented by union counsel and his union representative. See id. at ¶ 56 (Fontanella Affidavit ¶ 41; Fontanella Exhibit "H"). Plaintiff was given a full and fair opportunity to introduce evidence and witnesses in support of his grievance and to challenge Defendant OCRRA's evidence and witnesses. See id. at ¶ 57 (citing Jones Transcript dated November 16, 2009, p. 177). On February 26, 2008, the arbitrator ...


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