United States District Court, E.D. New York
Plaintiff is represented by Steven A. Morelli, and Paul Bartels, The Law Offices of Steven A. Morelli, P.C., Garden City, NY.
Defendant is represented by Anjanette Cabrera, Littler Mendelson P.C., New York, NY.
MEMORANDUM AND ORDER
JOSEPH F. BIANCO, District Judge.
Plaintiff, a utility man employed by defendant Long Island American Water ("LIAW"), brought this action alleging racial discrimination and retaliation, under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 1981, and the New York Human Rights Law ("NYHRL"). In particular, plaintiff, who is a Hispanic male, alleges that LIAW terminated him on February 17, 2011, on the basis of his race, and retaliated against him because his wife filed a lawsuit in 2009 alleging that she was denied health benefits due to discrimination.
Defendants now move for summary judgment pursuant to Federal Rule of Civil Procedure 56, arguing that plaintiff cannot establish a prima facie case of unlawful discrimination because (1) the finding by the independent arbitrator that LIAW had just cause to terminate plaintiff should be given great weight; (2) there is no evidence of discriminatory comments or actions; and (3) plaintiff cannot point to any similarly situated employee who received preferential treatment. Defendant also argues that LIAW had a legitimate business reason for terminating plaintiff's employment after an internal investigation-namely, that plaintiff falsified his timesheet on December 4, 2010, in violation of LIAW's policy, and then lied about the falsification of the timesheet when confronted-and that plaintiff has not come forth with any evidence from which a rational jury could find that LIAW's stated reasons are pretextual. Similarly, with respect to the retaliation claim, defendant argues that summary judgment is warranted because there is no evidence to support such a claim.
For the reasons set forth below, the Court grants defendant's motion for summary judgment on the federal claims, and declines to exercise supplemental jurisdiction over the state claims. With respect to the race discrimination claim, as set forth in plaintiff's deposition and as confirmed at oral argument, it is uncontroverted that: (1) plaintiff falsified his timesheet for December 4, 2010, by recording that he was at various work locations during that day when, in fact, he was at the condominium that he was in the process of purchasing in Freeport, New York (where he received a parking ticket); (2) when confronted about the discrepancy on the timesheet, plaintiff lied about his whereabouts and provided additional false information in an effort to continue to conceal his falsification of the timesheet. Plaintiff has offered no evidence to attempt to rebut these legitimate, non-discriminatory reasons for his termination, other than to point to other workers whom he argues committed similar misconduct and were not fired. Having examined the entire record, reviewed the submissions of the parties, and heard oral argument, the Court concludes that no rational jury could find that these alleged comparators were similarly situated to plaintiff. It is uncontroverted that, inter alia, the comparators never affirmatively recorded that they were working when they were not and, even more importantly, did not deny their misconduct, or provide false information, when they were confronted. In short, even construing the evidence most favorably to plaintiff, there is no rational basis for a jury to conclude that his termination was based upon his race, rather than his undisputed falsification of a timesheet and repeated lies when questioned.
Similarly, with respect to plaintiff's retaliation claim, there is simply no evidence that could support such a claim. Although plaintiff claims in his complaint (and at his deposition) that LIAW's alleged retaliation in terms of unjustified discipline began soon after his wife's lawsuit, it is uncontroverted that his wife's lawsuit was filed in 2009, and the discipline about which he complains (for excessive absences, driving into a light post with his Company vehicle, and failing to stop at a stop sign) occurred in 2008, prior to his wife's lawsuit. Moreover, it is uncontroverted that the supervisor who recommended plaintiff's termination was not employed with LIAW at the time of his wife's lawsuit (which was dismissed on August 31, 2010) and did not learn about that lawsuit until after plaintiffs termination in February 2011. Thus, there is simply no evidence from which a rational jury could find that plaintiff's termination in February 2011 for admittedly falsifying his timesheet and lying repeatedly about it when confronted, or plaintiff's alleged lack of overtime and training compared to other workers, were acts of retaliation for a lawsuit filed by his ex-wife in 2009.
A. Factual Background
The Court takes the following facts from the parties' affidavits, depositions, exhibits, and Rule 56.1 Statements of Fact. The Court construes the facts in the light most favorable to the nonmoving party. See Capobianco v. City of New York, 422 F.3d 47, 50 (2d Cir. 2005). Although the Rule 56.1 statements contain specific citations to the record, the Court cites to the statements rather than to the underlying citations. Unless otherwise noted, where a Rule 56.1 statement is cited, that fact is undisputed or the opposing party has not pointed to any contradictory evidence in the record. Moreover, to avoid repetition, the Court summarizes the facts regarding the allegedly similarly situated employees, as well as certain facts regarding the retaliation claim, in the respective legal analyses for those claims.
Plaintiff began working for LIAW in 1994, and began his most recent position as a utility man in 2000. (Pl. 56.1 ¶ 6.) He was responsible for responding to emergencies and performing "flushes" when residents complained of rusty water. ( Id. ¶¶ 7-8.) When plaintiff was terminated in 2011, his supervisor was James Hahn, who reported to Richard Ruge, LIAW's Manager of Field Services. ( Id. ¶ 11.) Hahn and Ruge are both white, and plaintiff is Hispanic. ( Id. ¶ 12.)
Ruge began his employment with LIAW on December 1, 2010. ( Id. ¶ 12.) Three days later, on December 4, 2010, plaintiff received a parking ticket for parking in a handicapped spot in Freeport, New York. ( Id. ¶ 29.) The spot is located in front of a building where plaintiff now resides, and at the time, plaintiff was in the process of buying an apartment there. ( Id. )
Plaintiff received the parking ticket at 1:43 p.m., during his workday. On the timesheet that plaintiff submitted for December 4, 2010, he stated that he attended to a "leak" on "Grand Avenue" in Baldwin, New York (with no address identified) from 11:00 a.m. to 12:30 p.m. ( Id. ¶ 28.) From 12:30 p.m. to 1:50 p.m., plaintiff reported that he was in Woodmere, New York. However, plaintiff does not dispute that he was actually in Freeport at 1:43 p.m. (when he received the parking ticket), that Freeport and Woodmere are in opposite directions from Baldwin (the site of plaintiff's earlier recorded job), and that Freeport is outside of LIAW's service area. ( Id. ¶¶ 31, 33, 37.)
LIAW learned of plaintiff's ticket when Ruge received a copy of it through LIAW's vehicle leasing company. ( Id. ¶ 32.) In early February 2011, Ruge began to investigate the circumstances surrounding the ticket. ( Id. ¶¶ 32-34.) After learning that plaintiff was the driver who received the ticket, Ruge met with plaintiff, his union representative, and a Human Resources staff member to discuss the ticket. ( Id. ¶ 35.) At the meeting, plaintiff never mentioned that the parking spot where he received the ticket was in front of the apartment he was in the process of purchasing. Instead, he claimed that a road detour on his way to perform a "stack of flushes" led him to Freeport, where he decided to stop for lunch. ( Id. ¶ 36.) Ruge's investigation showed, however, that there was no evidence of a road detour, no evidence that plaintiff was dispatched to Grand Avenue on December 4, 2010, and no evidence that he completed any flushes that day. ( Id. ¶¶ 36-41.) In addition, all of plaintiff's cell phone calls on December 4, 2010, between the hours of 8:00 a.m. and 12:16 p.m., originated from a cellular tower in Freeport. ( Id. ¶ 46.)
Ruge recommended plaintiff's termination,  and he was terminated effective February 17, 2011. Plaintiff challenged his termination through his union, and the parties went to arbitration. ( Id. ¶ 47.) Before the arbitration, plaintiff's union president asked Ruge to grant plaintiff a Last Chance Agreement ("LCA"), which would allow plaintiff to return to work, but Ruge denied the request. ( Id. ¶¶ 44.2-3.) The arbitrator found that plaintiff was terminated for just cause, namely the falsification of his timesheet, because the timesheet did not reflect the fact that he was in Freeport at 1:43 p.m., and because there was no evidence of his claimed flushes nor of the alleged leak in Baldwin. ( Id. ¶ 52.) Plaintiff neither alleged, nor presented evidence of, racial discrimination at the arbitration.
B. Procedural History
Plaintiff filed the complaint in this action on June 13, 2012. Defendant moved for summary judgment on December 23, 2013, and plaintiff responded in opposition on February 14, 2014. Defendant replied in further support of the motion on March 7, 2014, and the Court heard oral argument on May 16, 2014.
II. STANDARD OF REVIEW
The standards for summary judgment are well settled. Pursuant to Federal Rule of Civil Procedure 56(a), a court may only grant a motion for summary judgment if "the movant shows 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). The moving party bears the burden of showing that he or she is entitled to summary judgment. Huminski v. Corsones, 396 F.3d 53, 69 (2d Cir. 2005). "A party asserting that a fact cannot be or is genuinely disputed must support the assertion by: (A) citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials; or (B) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact." Fed.R.Civ.P. 56(c)(1). The court "is not to weigh the evidence but is instead required to view the evidence in the light most favorable to the party opposing summary judgment, to draw all reasonable inferences in favor of that party, and to eschew credibility assessments." Amnesty Am. v. Town of W. Hartford, 361 F.3d 113, 122 (2d Cir. 2004) (quoting Weyant v. Okst, 101 F.3d 845, 854 (2d Cir. 1996)); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986) (summary judgment is unwarranted if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party").
Once the moving party has met its burden, the opposing party "must do more than simply show that there is some metaphysical doubt as to the material facts.... [T]he nonmoving party must come forward with specific facts showing that there is a genuine issue for trial." Caldarola v. Calabrese, 298 F.3d 156, 160 (2d Cir. 2002) (emphasis in original) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986)). As the Supreme Court stated in Anderson, "[i]f the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Anderson, 477 U.S. at 249-50 (citations omitted). Indeed, "the mere existence of some alleged factual dispute between the parties" alone will not defeat a properly supported motion for summary judgment. Id. at 247-48 (emphasis in original). Thus, the nonmoving party may not rest upon mere conclusory allegations or denials but must set forth "concrete particulars'" showing that a trial is needed. R.G. Grp., Inc. v. Horn & Hardart Co., 751 F.2d 69, 77 (2d Cir. 1984) (quoting SEC v. Research Automation Corp., 585 F.2d 31, 33 (2d Cir. 1978)). Accordingly, it is insufficient for a party opposing summary judgment "merely to assert a conclusion without supplying supporting arguments or facts." BellSouth Telecomms., Inc. v. W.R. Grace & Co., 77 F.3d 603, 615 (2d Cir. 1996) (quoting Research Automation Corp., 585 F.2d at 33).
The Second Circuit has provided additional guidance regarding summary judgment motions in discrimination cases:
We have sometimes noted that an extra measure of caution is merited in affirming summary judgment in a discrimination action because direct evidence of discriminatory intent is rare and such intent often must be inferred from circumstantial evidence found in affidavits and depositions. See, e.g., Gallo v. Prudential Residential Servs., 22 F.3d 1219, 1224 (2d Cir. 1994). Nonetheless, "summary judgment remains available for the dismissal of discrimination claims in cases lacking genuine issues of material fact." McLee v. Chrysler Corp., 109 F.3d 130, 135 (2d Cir. 1997); see also Abdu-Brisson v. Delta Air Lines, Inc., 239 F.3d 456, 466 (2d Cir. 2001) ("It is now beyond cavil that summary judgment may be appropriate even in the fact-intensive context of discrimination cases.").
Schiano v. Quality Payroll Sys., 445 F.3d 597, 603 (2d Cir. 2006) (quoting Holtz v. Rockefeller & Co., 258 F.3d 62, 69 (2d Cir. 2001)).
In his two causes of action, plaintiff asserts separate claims for unlawful termination and for retaliation. Both causes of action are brought under Title VII, 42 U.S.C. § 1981, and the NYHRL. As set forth below, the federal claims, ...