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Doroz v. Tect Utica Corp.

United States District Court, N.D. New York

April 27, 2015

TECT UTICA CORP., Defendant.

BOSMAN LAW OFFICE AJ BOSMAN, ESQ., DANIEL W. FLYNN, ESQ., Rome, New York, Attorneys for Plaintiff.

CLARK, HILL LAW FIRM JAMES R. STADLER, ESQ., Grand Rapids, Missouri, Attorneys for Defendant.


MAE A. D'AGOSTINO, District Judge.


On April 9, 2012, Plaintiff brought this action pursuant to Title VII of the Civil Rights Act of 1964 and 42 U.S.C. § 1981, alleging that Defendant both discriminated and retaliated against him based on his national origin and Polish descent. See Dkt. No. 3. In a January 28, 2013 Memorandum-Decision and Order, the Court granted Defendant's motion for judgment on the pleadings as to counts I and II, dismissing Plaintiff's Title VII claims of discrimination and retaliation, with leave to replead within thirty (30) days of that Memorandum-Decision and Order. See Dkt. No. 13. After Plaintiff failed to replead counts I and II within the thirty-day period, pursuant to a Memorandum-Decision and Order dated October 28, 2013, this Court dismissed Plaintiff's Title VII claims with prejudice and denied Plaintiff's cross motion to amend the complaint. See Dkt. No. 20.

Presently before the Court is Defendant's motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure, moving to dismiss Plaintiff's remaining clams and requesting an award of attorneys fees under 42 U.S.C. § 1988(b). See Dkt. No. 34.


On October 28, 2010, Plaintiff was terminated from his employment with Defendant after allegedly committing insubordination when he failed to comply with the instructions of his supervisors. See Dkt. No. 3 at ¶¶ 6, 8. Prior to his termination, Plaintiff had been employed by Defendant since June, 2005, holding the position of a "[p]rocess grinder." Id. at ¶¶ 3-4. On October 28, 2010, Plaintiff was told by George Derby, another of Defendant's employees, that William Brown had "told Mr. Derby that Plaintiff was being moved to the stamping department."[1] Dkt. No. 39 at 4. Plaintiff alleges that he did not know whether Mr. Derby was joking about the reassignment, and so he remained at his work station in process grinding. Id.; Dkt. No. 40 at ¶ 9. Later that day, the foreman, William Brown, approached Plaintiff at his work station in process grinding and asked him why he had not moved to the stamping department, to which "Plaintiff responded that he would try to stamp.'"[2] Dkt. No. 3 at ¶ 6. During his deposition, Plaintiff testified that Mr. Brown told him on two different occasions that he wanted him to go to the stamp operation. See Dkt. No. 42-3 at 4. Plaintiff claims that he asked Mr. Brown why people with less seniority were not required to move to stamp operation. See id. at 5. Despite twice being asked by Mr. Brown to go to the stamp operation, Plaintiff admits that he still did not go and that he did not provide him with any explanation for his failure to comply with this order. See id. at 4-5. When Mr. Brown questioned Plaintiff as to why he had not gone to the stamping department, Plaintiff allegedly stated "I am not telling you I want to go and I am not telling you I don't want to go over there.'" Dkt. No. 40 at ¶ 11.

After failing to comply with the multiple instructions for him to move to the stamping department, Mr. Brown took Plaintiff to the supervisors office where he called Steve Petrowski, his union representative, asking him to come and speak to Plaintiff.[3] Id. at ¶ 12. During his conversation with Mr. Petrowski, Plaintiff was told that if he did not go to the stamping department, then Mr. Brown would send Plaintiff home. Id. at ¶ 13. Plaintiff then contends that "Mr. Brown began a countdown for Plaintiff, at which point Plaintiff stated that he would go to the stamping department, " and that Mr. Brown allegedly answered ""Too late! You're going home!'"[4] Id. at ¶ 14. Despite being told to gather his personal belongings and go home, Plaintiff refused and instead went back to his work station. See Dkt. No. 42-3 at 6. Plaintiff alleges that he then attempted to walk to the office to speak with a human resources representative, but was physically prevented from doing so by Mr. Service. Dkt. No. 40 at ¶ 15. Although Plaintiff did not provide a reason for his refusal to go to the stamping department at the time, Plaintiff now contends that he did not want to go because of "private medical issues." Id. at ¶ 20.

At some point thereafter, Mr. Petrowski asked Donna Prentice, the Human Resource Manager, to come down and speak with Plaintiff. Ms. Prentice was told that Plaintiff "had refused his job assignment, and had subsequently refused to leave the building after having been told to do so because of his insubordination." Id. at ¶¶ 16, 18. Ms. Prentice then instructed Plaintiff "to go home and come to see her at 10:00 a.m. the following morning. Doroz again refused. He gave Prentice no explanation for his actions." Id. at ¶ 20. Plaintiff denies that Ms. Prentice verbally advised him that he was terminated at this time, but instead alleges that he did not discover that he was terminated until the following Monday morning. Id. at ¶ 21. After Plaintiff failed to comply with the numerous instructions to leave the premises, Ms. Prentice instructed operations manager, Mike Findley, to call the police. Id. at ¶ 22.

Shortly thereafter, a police officer arrived at Defendant's property, whereupon he was advised of the situation at hand. Id. at ¶ 23. Although Plaintiff contests this fact, the first police officer had an initial conversation with Plaintiff, but then found it necessary to call for police backup because Plaintiff refused to comply with his instructions to leave the premises. Id. Although Plaintiff denies the fact that he refused to listen to the instruction of the first police officer, after the second police officer arrived on the scene, Plaintiff finally agreed to leave. Id. at ¶ 25. At the request of one of the police officers, Ms. Prentice asked Mr. Brown to draft a letter for her signature, which would terminate Plaintiff's employment. Id. at ¶¶ 26-27. Plaintiff contests Defendant's argument that he was handed this notice of termination by the police officers before leaving the premises. Id. at ¶ 28.

The following day, Plaintiff returned to Defendant's place of employment and was met by Defendant's general manager in the parking lot. Id. at ¶ 29. Plaintiff requested that he receive a three-day suspension as a punishment for his insubordination, which the general manager denied. Id. at ¶ 30. Subsequent to his termination, Plaintiff's union chose not to file a grievance on his behalf, but instead submitted a request for a last chance agreement, [5] which Defendant denied. Id. at ¶ 31. On November 5, 2010, Plaintiff filed a charge of discrimination with the New York State Division of Human Rights ("NYSDHR"), alleging that Defendant discriminated against him based on his national origin and age. See Dkt. No. 13 at 2. On May 2, 2011, after conducting an investigation, the NYSDHR determined that there "is NO PROBABLE CAUSE to believe that the respondent has engaged in or is engaging in the unlawful discriminatory practice complained of." Dkt. No. 42-5 at 2 (emphasis in original). Plaintiff then filed the same charge of discrimination with the EEOC, and on July 8, 2011, "the EEOC issued a Dismissal and Notice of Rights adopting the findings of the state or local fair employment practices agency that investigated this charge.'" Dkt. No. 13 at 2. Plaintiff was then notified that if he wished to bring a federal suit, he had ninety (90) days to do so. Id. Plaintiff initially filed a Summons with Notice in Supreme Court in the County of Oneida on October 11, 2011, but Defendant subsequently removed this matter to this Court on March 1, 2012. Id. at 3.


A. Standard of Review

A court may grant a motion for summary judgment only if it determines that there is no genuine issue of material fact to be tried and that the facts as to which there is no such issue warrant judgment for the movant as a matter of law. See Chambers v. TRM Copy Ctrs. Corp., 43 F.3d 29, 36 (2d Cir. 1994) (citations omitted). When analyzing a summary judgment motion, the court "cannot try issues of fact; it can only determine whether there are issues to be tried." Id. at 36-37 (quotation and other citation omitted). Moreover, it is well-settled that a party opposing a motion for summary judgment may not simply rely on the assertions in its pleading. See Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986) (quoting Fed.R.Civ.P. 56(c), (e)).

In assessing the record to determine whether any such issues of material fact exist, the court is required to resolve all ambiguities and draw all reasonable inferences in favor of the nonmoving party. See Chambers, 43 F.3d at 36 (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 2513-14, 91 L.Ed.2d 202 (1986)) (other citations omitted). Where the non-movant either does not respond to the motion or fails to dispute the movant's statement of material facts, the court must be satisfied that the citations to evidence in the record support the movant's assertions. See Giannullo v. City of N.Y., 322 F.3d 139, 143 n.5 (2d Cir. 2003) (holding that not verifying in the record the assertions in the motion for summary judgment "would derogate the truth-finding functions of the judicial process by substituting convenience for facts").

B. Summary Judgment Standards for Employment Discrimination Cases

Courts are cautious in granting summary judgment in employment discrimination cases where the employer's intent is at issue, Holcomb v. Iona Coll., 521 F.3d 130, 137 (2d Cir. 2008), "because direct evidence of an employer's discriminatory intent is rare and must often be inferred from circumstantial evidence.'" Serby v. New York City Dep't of Educ., No. 09-CV-2727, 2012 WL 928194, *5 (E.D.N.Y. Mar. 19, 2012) (quoting Schiano v. Quality Payroll Sys., Inc., 445 F.3d 597, 603 (2d Cir. 2006)). However, "[s]ummary judgment is appropriate even in discrimination cases, for... the salutary purposes of summary judgment - avoiding protracted, expensive and harassing trials - apply no less to discrimination cases than to other areas of litigation.'" Hongyan Lu v. Chase Inv. Servs. Corp., 412 Fed.Appx. 413, 415 (2d Cir. 2011) (quoting Weinstock v. Columbia Univ., 224 F.3d 33, 41 (2d Cir. 2000)). Indeed, "[i]t is not beyond cavil that summary judgment may be appropriate even in the fact-intensive context of discrimination cases.'" Feingold v. New York, 366 F.3d 138, 149 (2d Cir. 2004) (quoting Abdu-Brisson v. Delta Air Lines, Inc., 239 F.3d 456, 466 (2d Cir. 2001)). Furthermore, "[e]ven in the discrimination context... a plaintiff must provide more than conclusory allegations to resist a motion for summary judgment." Holcomb, 521 F.3d at 137 (citing Meiri v. Dacon, 759 F.2d 989, 998 (2d Cir. 1985)). A "nonmoving party must offer some hard evidence showing that its version of the events is not wholly fanciful.'" Jeffreys v. City of New York, 426 F.3d 549, 554 (2d Cir. 2005) (quoting D'Amico v. City of New York, 132 F.3d 145, 149 (2d Cir. 1998)). "If the evidence [presented by the non-moving party] is merely colorable, or is not significantly probative, summary judgment may be granted." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50 (1986) (citations omitted). The Second Circuit has held that:

In discrimination cases, the inquiry into whether the plaintiff's sex (or race, etc.) caused the conduct at issue often requires an assessment of individuals' motivations and state of mind, matters that call for a "sparing" use of the summary judgment device ...

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