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Warren v. Johnson

United States District Court, W.D. New York

March 18, 2015



WILLIAM M. SKRETNY, Senior District Judge.


Plaintiffs commenced the present action in September 2011 pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. Presently before this Court is Defendant's motion for summary judgment dismissing the Second Amended Complaint. This Court finds the matter fully briefed and oral argument unnecessary. For the reasons that follow, Defendant's motion is granted in its entirety.


Plaintiff was hired by the Immigration and Naturalization Service in 1988 and began working as a Customs and Border Protection Officer ("CBPO") at the Toronto, Canada airport in 2005. (Def's Stmt ¶¶ 4, 8, [1] Docket No. 42.) She was promoted to a Supervisory CBPO position in January 2008. (Id. ¶ 10.)

In October 2008, CBPO Elmer Jarvara told a coworker that she (the coworker) should apply for a supervisory position because she was black. (Def's Stmt ¶¶ 16-19.) Plaintiff reported Jarvara's comment to both the CBP's Equal Employment Opportunity Office ("EEO") and her supervisor Chief James Hawkins. (Pl's Decl ¶¶ 33-39, Docket No. 47.) The EEO informed her that this was the type of statement that should be handled by Port Director Kenneth Haefner. (Id. ¶ 39.) That complaint "never moved forward because, according to what Chief Hawkins told [Plaintiff], Port Director Haefner would never go forward with this because he was friends with CBPO Jarvara." (Pl's Decl ¶¶ 38, 42.) Plaintiff asserts that it was "common knowledge that Port Director Haefner had his favorites, " none of which were female or African-American, and that he would retaliate against those who spoke out against or stood up to him. (Pl's Decl ¶¶ 36, 43, 44, 157, 161, 163, 173.)

In December 2008, Plaintiff intervened in a dispute over a baggage fee between a CBPO and an American Airline agent. (Pl's Decl ¶¶ 47-52.) As Plaintiff describes the incident, the CBPO had been promised a baggage fee waiver by a different American Airlines agent with whom the CBPO was friends. (Pl's Decl ¶ 52.) The American Airlines agent at the counter, however, became "confrontational" and demeaning. (Pl's Decl ¶¶ 52, 54.)

As a result, Plaintiff spoke with the American Airlines agent's supervision regarding the rude treatment of the CBPO officer. (Pl's Decl ¶¶ 59-61.) Plaintiff asked the supervisor if the officer "could get a refund [of the baggage fee] because of the treatment he endured and because he was promised the waiver by his friend, " and the supervisor consented to the refund. (Pl's Decl ¶ 63.) Although Plaintiff emphatically disputes that she used her status as a CBP officer to obtain a refund (Pl's Decl ¶¶ 52, 66), she nonetheless asserts that it was not uncommon "for airline personnel to waive baggage fees for CBP as a professional courtesy, not due to any compulsion." (Pl's Decl ¶ 57.)

After being informed of the incident, Plaintiff's supervisor Chief James Hawkins consulted with the port's Labor Employee Relations Specialist and Port Director Haefner. (Pl's Decl Ex 6 at 25.) He was advised to refer the matter to the CBP Office of Internal Affairs, which he did. (Pl's Decl Ex 6 at 25, Ex 7 at 7.) Hawkins further testified at his deposition that he "reported the incident up the chain of command" because "if I was aware that an employee was trying to use their position to have a bag fee waived, I wouldn't stand for it." (Id. Ex 6 at 24.) Plaintiff similarly testified that a request by a CBP for a baggage fee waiver could be viewed as using one's position for personal gain. (Cerrone Decl Ex 4 at 55-56.)

Plaintiff was notified on September 3, 2009, that her requested reassignment to West Palm Beach, Florida had been approved. (Def's Stmt ¶ 104.) She was subsequently notified by a letter dated August 13, 2009, that the proposed discipline for charges resulting from this American Airlines incident was termination. (Def's Stmt Facts ¶¶ 71-72; Cerrone Decl Ex 18.) As a result, the transfer was placed on hold and she was reassigned to administrative duties. (Def's Stmt ¶ 105.) Plaintiff remained assigned to administrative duties for almost two years while the charges underlying the proposed termination were reviewed. (Pl's Decl ¶ 140.) In September 2011, only a single charge that Plaintiff had engaged in unprofessional conduct in requesting the baggage fee waiver was sustained, and Plaintiff was suspended for fourteen days without pay. (Def's Stmt ¶ 112; Pl's Decl ¶¶ 140-42.) The West Palm Beach position was no longer available following the delayed resolution of the disciplinary action, and Plaintiff ultimately transferred to Miami International Airport in December 2011. (Pl's Decl ¶¶ 272-74; Def's Stmt ¶¶ 120-26; Pl's Stmt ¶ 120.)

Plaintiff commenced the instant action on September 23, 2011. Following the filing of Plaintiff's Second Amended Complaint, Defendant moved for summary judgment dismissing that complaint in its entirety. (Docket No. 40.)


"A motion for summary judgment may properly be granted... only where there is no genuine issue of material fact to be tried, and the facts as to which there is no such issue warrant the entry of judgment for the moving party as a matter of law." Kaytor v. Elec. Boat Corp., 609 F.3d 537, 545 (2d Cir. 2010). A court's function on a summary judgment motion "is not to resolve disputed questions of fact but only to determine whether, as to any material issue, a genuine factual dispute exists." Kaytor, 609 F.3d at 545 (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). "A dispute regarding a material fact is genuine if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.'" Weinstock v. Columbia Univ., 224 F.3d 33, 41 (2d Cir. 2000) (quoting Anderson, 477 U.S. at 248), cert denied, 540 U.S. 811 (2003). A court must also ...

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