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Brooks v. D.C. 9 Painters Union

United States District Court, Second Circuit

July 2, 2013

D.C. 9 PAINTERS UNION, Defendant.


J. PAUL OETKEN, District Judge.

Pro se Plaintiff Edward Avery Brooks ("Plaintiff") brings this action against Defendant District Council 9, International Union of Painters and Allied Trades ("Defendant" or "DC 9") under Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. §§ 2000e et seq., the Age Discrimination in Employment Act of 1967 ("ADEA"), 29 U.S.C. §§ 621 et seq., and New York State Human Rights Law ("NYSHRL"), N.Y. Exec. Law § 290 et seq. Plaintiff claims that Defendant unlawfully discriminated against him on the basis of race and age, and retaliated against him for engaging in protected activity. Defendant has moved for summary judgment. For the reasons that follow, Defendant's motion is granted and this action is dismissed.

I. Background[1]

Plaintiff, a 65 or 66 year-old African-American male, has been a member of Local Union No. 18, International Union of Painters and Allied Trades, an affiliate of Defendant DC 9, for approximately 26 years. (Def. R.56.1 Stmt. ¶ 6.) Plaintiff claims that Defendant DC 9 failed to provide him with adequate work opportunities and that any union assignments he did receive were on a short-term basis. (Complaint ¶¶ 3, 10-11.) In lieu of long-term work through the union, Plaintiff either found work independently or took various temporary assignments with "the City." However, because these were not private-sector jobs or were short term, he did not receive pension-eligibility credit from the union. (Pl. Mem. Opp. at 6.) As a result of these lengthy gaps between union assignments, Plaintiff alleges that he eventually lost his eligibility to receive a pension. (Complaint ¶¶ 3, 5.)

Plaintiff filed a charge with the New York State Division of Human Rights ("NYSDHR") on July 20, 2009. (Def. R.56.1 Stmt. ¶ 1; Elfeld Decl., Ex. A.) On December 17, 2009, the NYSDHR issued a "Final Investigation Report and Basis of Determination" concluding that there was no probable cause for Plaintiff's complaint because of the "lack of evidence in support of complainant's allegations of age and race/color discrimination." (Elfeld Decl., Ex. B at 1.) The EEOC adopted the NYSDHR's findings on July 7, 2010 and issued a Notice of Right to Sue Letter. (Elfeld Decl., Ex. C.) Plaintiff filed the Complaint in this case on October 7, 2010. On March 15, 2012, Plaintiff's motion for appointment of counsel was denied because Plaintiff did not meet the threshold test that his claims are "likely to be of substance, and that they appear to have some chance of success." Defendant moved for summary judgment on June 7, 2012.

II. Discussion

A. Legal Standard for Summary Judgment

Summary judgment is appropriate in a case where the evidence, viewed in the light most favorable to the non-moving party, demonstrates "that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a); see also Vacold, L.L.C. v. Cerami, 545 F.3d 114, 121 (2d Cir. 2008). The moving party bears the burden of showing that there is no genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). A fact is "material" only if it will affect the outcome of the suit under governing law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). For there to be a "genuine" issue about the fact, the evidence must be such "that a reasonable jury could return a verdict for the nonmoving party." Id. In determining whether there is a genuine issue of material fact, the Court must resolve all ambiguities and draw all permissible inferences in favor of the non-moving party. See Sec. Ins. Co. of Hartford v. Old Dominion Freight Line, Inc., 391 F.3d 77, 83 (2d Cir. 2004). "Resolutions of credibility conflicts and choices between conflicting versions of the facts are matters for the jury, not for the court on summary judgment." United States v. Rem, 38 F.3d 634, 644 (2d Cir. 1994) (citations omitted). Where there is no evidence in the record "from which a reasonable inference could be drawn in favor of the non-moving party on a material issue of fact, " summary judgment is proper. Catlin v. Sobol, 93 F.3d 1112, 1116 (2d Cir. 1996). For that reason, summary judgment on fact-intensive questions of subjective intent and state of mind is generally inappropriate. See Gelb v. Bd. of Elections of City of New York, 224 F.3d 149, 157 (2d Cir. 2000). While the nonmoving party can defeat summary judgment by presenting evidence sufficient to create a genuine issue of material fact, it is well-established that "[m]ere speculation and conjecture [are] insufficient to preclude the granting of the motion." Harlen Assocs. v. Vill. of Mineola, 273 F.3d 494, 499 (2d Cir. 2001).

B. Plaintiff's Title VII and NYSHRL Race Discrimination Claims

Plaintiff claims he was discriminated against on the basis of his race in violation of Title VII and NYSHRL. Title VII makes it unlawful for an employer or labor organization to "discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin; or... to limit, segregate or classify employees in any way which would deprive or tend to deprive any individual of employment opportunities, or otherwise adversely affect his status as an employee." 42 U.S.C. §§ 2000e-2(a)(1)-(2), (c)(1).

Under both state and federal law, Plaintiff's race discrimination claim is analyzed under the three-step burden-shifting framework set forth by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See Vivenzio v. City of Syracuse, 611 F.3d 98, 106 (2d Cir. 2010); Spiegel v. Schulmann, 604 F.3d 72, 80 (2d Cir. 2010); Mandell v. County of Suffolk, 316 F.3d 368, 377 (2d Cir. 2003). Under this familiar framework, a plaintiff must first demonstrate a prima facie case of discrimination by showing that "(1) he is a member of a protected class; (2) he was qualified for the position he held; (3) he suffered an adverse employment action; and (4) the adverse action took place under circumstances giving rise to the inference of discrimination." Ruiz v. Cnty. of Rockland, 609 F.3d 486, 492 (2d Cir. 2010). "The burden of proof that a plaintiff must meet at the prima facie stage in order to survive summary judgment is de minimis. Nonetheless, a plaintiff must proffer some admissible evidence of circumstances that would be sufficient to permit an inference of discriminatory motive." Bennett v. Watson Wyatt & Co., 136 F.Supp.2d 236, 246 (S.D.N.Y. 2001), aff'd in part, appeal dismissed in part, 51 F.Appx. 55 (2d Cir. 2002) (citations omitted). "Once a plaintiff meets this initial burden, the burden then shifts to the defendant to offer a legitimate nondiscriminatory reason for the termination. If [a] defendant does so, the burden returns to the plaintiff to show that the real reason for plaintiff's termination was [his race]." Ruiz, 609 F.3d at 492 (citations omitted). In conducting all of this analysis, the Court must "examine the record as a whole, just as a jury would, to determine whether a jury could reasonably find an invidious discriminatory purpose on the part of an employer." Byrnie v. Town of Cromwell, Bd. of Educ., 243 F.3d 93, 102 (2d Cir. 2001).

Plaintiff claims that Defendant failed to provide him with adequate employment opportunities "due to [his] race as a black man" and that he lost pension-eligibility credits as a result. ( See Complaint ¶¶ 5, 7.) These claims, standing alone, do not suffice to defeat summary judgment. Griffin v. Ambika Corp., 103 F.Supp.2d 297, 308 (S.D.N.Y. 2000) ("Statements that are devoid of any specifics, but replete with conclusions, are insufficient to defeat a properly supported motion for summary judgment." (citations omitted)).

Plaintiff's claim does not succeed because he has not provided any evidence showing that Defendant denied him work opportunities or that Defendant was motivated by racial prejudice. During the period of time covered by this action, union members seeking work were required to contact their local union representative to inquire about available job opportunities. According to Defendant, Plaintiff has not contacted his local representative to inquire about potential work assignments since 2005 or 2006. Plaintiff admits that he was aware of these work assignment procedures yet concedes he has not sought work through his union representative or otherwise communicated with Defendant Union in at least several years. Indeed, he has not had a job in nearly six or seven years. It appears instead that Plaintiff chose to search for jobs independently because of the limited work available, having told an investigator from the NYSDHR that he had not called his union representative because "he heard that it is very slow... [and] there is no work due to the recession." In any event, there is no record evidence suggesting a racially discriminatory motive on the part of Defendant in its treatment of Plaintiff. As a result, Plaintiff cannot satisfy the third and fourth requirements of a prima facie case; specifically, that he suffered adverse employment action or that this action took place under circumstances giving rise to an inference of racial discrimination. Indeed, given that Plaintiff has not provided evidence demonstrating that he was qualified for the work at issue, it is doubtful that ...

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