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Jose R. Lopez, Richard Colon and James E. Cromer, On Behalf of v. Flight Services & Systems

May 23, 2012

JOSE R. LOPEZ, RICHARD COLON AND JAMES E. CROMER, ON BEHALF OF THEMSELVES AND ALL OTHER EMPLOYEES SIMILARLY SITUATED, PLAINTIFFS,
v.
FLIGHT SERVICES & SYSTEMS, INC. AND TODD DUNMYER, DEFENDANTS.



The opinion of the court was delivered by: Charles J. Siragusa United States District Judge

DECISION AND ORDER

INTRODUCTION

This is an action alleging employment discrimination and retaliation, pursuant to Title VII of the Civil Rights Act of 1964 ("Title VII), as amended, 42 U.S.C. § 2000e et seq., the New York Human Rights Law ("NYHRL"), Executive Law § 290 et seq., and 42 U.S.C. § 1981. Now before the Court is Defendants' motion for summary judgment. (Docket No. [#69]). The application is granted in part and denied in part.

BACKGROUND

Unless otherwise noted, the following are the undisputed facts of this case, viewed in the light most-favorable to Plaintiffs. In April 2005, Defendant Flight Services & Systems, Inc. ("Flight Services") was awarded a contract to provide flight services for U.S. Air at the Rochester International Airport. Such "flight services" included directing aircraft, which had landed, to the proper gates for discharging passengers, loading and unloading luggage, and cleaning the aircraft. At all relevant times, Flight Services' manager and supervisor at the Rochester airport was Defendant Todd Dunmyer ("Dunmyer").

At or about the same time that Flight Services was awarded its contract in April 2005, it hired various employees, including Plaintiffs Jose Lopez ("Lopez"), Richard Colon ("Colon"), and James Cromer ("Cromer"). Lopez and Colon are of Puerto Rican ancestry and are bilingual in English and Spanish, and Cromer is African American. Lopez and Colon were hired for the entry-level position of "Ramp Agent." Cromer, who had prior experience working with U.S. Air, was hired as a "Lead Ramp Agent." Plaintiffs all worked for Flight Services for seven months or less. In this regard, Colon stopped working due to an injury on or about August 29, 2005, and Flight Services terminated Lopez and Cromer in August 2005 and October 2005, respectively.

Colon and Lopez contend that they were required to work alone, while white employees were allowed to work in groups. Colon and Lopez also allege that they were required to work past the end of their shifts, while white employees were not. See, Colon Aff. ¶ ¶ 21-23. Colon states that he complained to Dunmyer about this, but the unequal treatment continued. Id. at ¶ 24.

Colon and Lopez sometimes spoke in Spanish amongst themselves at work. Dunmyer directed Colon and Lopez not to speak in Spanish, purportedly because it bothered non-Spanish speaking employees. See, Lopez Aff. ¶ ¶ 5-8.*fn1 However, at times Flight Services asked Colon and Lopez to speak in Spanish when it was necessary to communicate with a Spanish speaking passenger. Lopez disagreed with the no-Spanish policy, and in or about August 2005, he complained about it to Flight Services' Human Resources employee Sarah Collier ("Collier"). Lopez Aff. ¶ 11; Lopez Dep. at p. 77. According to Lopez, he left Collier a message, but she did not return his call. Lopez Dep. at pp. 80, 85. The following day, Dunmyer terminated Lopez's employment. Lopez states that when Dunmyer fired him, he told him to "go home and sit on your Puerto Rican bum[,]" and that Lopez should "write him a letter telling him why [he] should give [Lopez his] job back." Lopez Aff. ¶ 13.

Flight Services maintains that it fired Lopez because he was unreliable. Specifically, Flight Services maintains that Lopez was frequently tardy or absent, without excuse. Lopez admits that he failed to show up for work one day, because he thought he was able to do so, after working four 12-hour shifts, but he disputes every other alleged instance of tardiness, absenteeism or poor work performance upon which Flight Systems relies. See, e.g., Lopez Dep. at pp. 76.

Prior to terminating Lopez's employment, Dunmyer told Cromer that he was going to fire Lopez for speaking Spanish, and Cromer responded that the no-Spanish policy was discriminatory. According to Cromer, Dunmyer asked him to lie, and support Dunmyer's false contention that Lopez was a bad employee, but he refused to do so. Subsequently, in or about October 2005, Flight Services accused Cromer of damaging a luggage cart, and then lying about the accident. Cromer denied that he damaged the cart, and threatened to file a discrimination complaint. Dunmyer terminated Cromer's employment, purportedly because Cromer was not being truthful about the accident. Subsequently, following an investigation into the luggage-cart accident by the U.S. Occupational Safety and Health Administration ("OSHA"), which determined that Cromer may not have been at fault, Flight Services gave him back pay, and offered to reinstate him. However, Cromer declined the offer of reinstatement.

During the period that Plaintiffs were employed by Flight Services, they were not promoted. However, six other individuals were either hired or promoted for supervisory positions above those held by Plaintiffs. None of the vacant supervisory positions were posted before they were filled, so Plaintiffs had no opportunity to apply for them.*fn2 Five of those promoted were white, and one was "Hispanic." The five white employees are Dave Gauck ("Gauck"), Aaron Hartman ("Hartman"), Shawn Ostrowski ("Ostrowski"), Shane Ladue ("Ladue") and John Consul ("Consul"). The Hispanic employee is Pablo Barcelo ("Barcelo").

Although Flight Services never posted the vacant supervisory positions, it maintains that the job qualifications included "at least two years previous commercial airline/aircraft services company ramp experience at a supervisor/management level or military flight line experience." See, Def. Stmt of Facts ¶ 21.

Prior to being hired by Flight Services, Cromer had worked as a Ramp Agent for 17 months with U.S. Airways. Cromer further states that he had "extensive supervisory experience," as a result of his 17 months of prior airline experience, and from managing his own business for over ten years. Cromer Aff. ¶ 19. Cromer denies that the men who were hired for the supervisory positions were more experienced than him, and he indicates that he trained some of them. However, it does not appear that Cromer has personal knowledge concerning the other mens' qualifications. See, e.g., Cromer Aff. ¶ 18 (Suggesting that it is unclear how his qualifications compare to the other candidates, since the jobs were never posted); see also id. at ¶ 20 ("When you compare my experience to that of some of the individuals that were hired, I think I would have been competitive for any one of the positions that they were promoted to."). The Court understands Cromer to mean that although he does not know the other mens' exact qualifications, he believes that he was well qualified, and that therefore he would compare favorably to them.

Cromer states in conclusory fashion that, "Typically [the men who were promoted] were men who I had trained, who have no supervisory experience and who had been on the job for less time than I was." Cromer Aff. ¶ 10. Cromer states that Ostrowski was promoted to "Lead Agent Supervisor" "within a few months of being hired," and that Ostrowski had been fired from a previous job because he had "called another employee nigger." Cromer Aff. ¶ 12. Cromer further states:

For example, David Gauck had no supervisory experience. Aaron Hartman also had no supervisory experience and only had experience as a fueler at the airport. John Consul had only worked for US Airways for six months*fn3 prior to coming to [Flight Systems] and he had absolutely no supervisory experience. Shane Ostrowski who also had no supervisory experience had been fired from two major airlines.*fn4 And Shane Ladue had no supervisory experience whatsoever in the military or airline industry.

One minute these guys would walk into Defendant Dunmyer's office and the next minute they'd come out a supervisor. That's how it was with absolutely no notice that a supervisory position had opened up.

Cromer Aff. ¶ ¶ 21-22.

Colon contends that he was "clearly qualified" for the positions that were filled. Colon Aff. ¶ ¶ 9-11. On this point, Colon states that he previously was a forklift operator for 15 years, whose duties were similar to that of a Lead Ramp Agent. Id. at ¶ ¶ 15-16. Colon apparently does not have personal knowledge regarding the specific qualifications of the men who were hired for the positions, but he complains that "some of the white employees which they selected for this position came 'right off the street' without any experience whatsoever as a ramp agent." Id. at ¶ 19.

Cromer states that Dunmyer "would sometimes greet employees with the phrase "Yo my nigger" and "What up my nigga." He even referred to me as 'black boy' and 'black james.'" Cromer Aff. ¶ 34. Cromer states that he complained about this, though he does not say to whom he complained. Id.

After their employment was terminated, Plaintiffs filed discrimination complaints with the New York State Division of Human Rights ("NYSDHR"), which were dual-filed with the U.S. Equal Employment Opportunity Commission ("EEOC"). Cromer, Colon and Lopez filed their administrative complaints on June 27, 2006, July 12, 2006 and August 2, 2006, respectively. Cromer filed his administrative complaint less than 300 days after being terminated, while Colon and Lopez both filed their complaints more than 300 days after they stopped working.

On April 10, 2007, Plaintiffs commenced the instant action. The First Amended Complaint [#10] purports to assert the following claims, on behalf of all Plaintiffs: 1) Title VII disparate treatment discrimination; 2) Title VII retaliation; 3) § 1981 race/color disparate treatment discrimination; 4) § 1981 retaliation; 5) NYHRL disparate treatment discrimination; and 6) NYHRL retaliation.*fn5

Lopez is asserting claims for disparate treatment and retaliation under Title VII, Section 1981 and NYHRL. His disparate treatment claim is twofold: He alleges that he was improperly forbidden from speaking Spanish, and that he was given less-favorable working conditions and assignments than white employees. His retaliation claim alleges that Flight Systems terminated him because he complained about the no-Spanish rule.

Colon is asserting claims for disparate treatment under Title VII, Section 1981 and NYHRL. His disparate treatment claim is three-fold: He alleges that he was not promoted, improperly forbidden from speaking Spanish, and given less-favorable working conditions and assignments than non-Hispanic employees.

Cromer is asserting claims for disparate treatment and retaliation under Title VII, Section 1981 and NYHRL.*fn6 Cromer's disparate treatment claim alleges a failure to promote him. His retaliation claim is twofold: He alleges that he was fired because he expressed the opinion that the no-Spanish rule was discriminatory, and because, on a different occasion, he threatened to file a discrimination complaint. See, Amended Complaint [#10] at ¶ 66.

Following a period of discovery, Defendants filed this motion [#69], seeking summary judgment as to all claims. On May 10, 2012, counsel for the parties appeared before the undersigned for oral argument. At oral argument, Plaintiff's counsel agreed that Lopez's and Colon's Title VII claims are time-barred.

ANALYSIS

Rule 56

Summary judgment may not be granted unless "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). A party seeking summary judgment bears the burden of establishing that no genuine issue of material fact exists. See, Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970). "[T]he movant must make a prima facie showing that the standard for obtaining summary judgment has been satisfied." 11 MOORE'S FEDERAL PRACTICE, § 56.11[1][a] (Matthew Bender 3d ed.). "In moving for summary judgment against a party who will bear the ultimate burden of proof at trial, the movant may satisfy this burden by pointing to an absence of evidence to support an essential element of the nonmoving party's claim." Gummo v. Village of Depew, 75 F.3d 98, 107 (2d Cir. 1996)(citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986)), cert denied, 517 U.S. 1190 (1996). Once that burden has been established, the burden shifts to the non-moving party to demonstrate "specific facts showing that there is a genuine issue for trial." Fed. R. Civ. P. 56(e); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). To carry this burden, the non-moving party must present evidence sufficient to support a jury verdict in its favor. Anderson, 477 U.S. at 249. The parties may only carry their respective burdens by producing evidentiary proof in admissible form. FED. R. CIV. P. 56(e). The underlying facts contained in affidavits, attached exhibits, and depositions, must be viewed in the light most favorable to the non-moving party. U.S. v. Diebold, Inc., 369 U.S. 654, 655 (1962). Summary judgment is appropriate only where, "after drawing all reasonable inferences in favor of the party against whom summary judgment is sought, no reasonable trier of fact could find in favor of the non-moving party." Leon v. Murphy, 988 F.2d 303, 308 (2d Cir.1993).

Courts must be "particularly cautious about granting summary judgment to an employer in a discrimination case when the employer's intent is in question. Because direct evidence of an employer's discriminatory intent will rarely be found, affidavits and depositions must be carefully scrutinized for circumstantial proof which, if ...


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