-ETB Bailey v. Huntington Hebrew Congregation, No. 2:2009cv00839 - Document 36 (E.D.N.Y. 2011)
Court Description: MEMORANDUM AND ORDER granting 30 Motion for Summary Judgment. For the foregoing reasons, Defendant's motion for summary judgment is GRANTED. The Clerk of the Court is directed to mail Plaintiff a copy of this Order and to mark this case CLOSED. So Ordered by Judge Joanna Seybert on 7/12/11. C/M; C/ECF (Valle, Christine)
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-ETB Bailey v. Huntington Hebrew Congregation Doc. 36 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK -------------------------------------X JULIUS C. BAILEY, Plaintiff, MEMORANDUM & ORDER 09-CV-0839(JS)(ETB) B against B HUNTINGTON HEBREW CONGREGATION d/b/a HUNTINGTON JEWISH CENTER, Defendant. -------------------------------------X APPEARANCES: For Plaintiff: Julius C. Bailey, pro se 120 Columbia Street Huntington Station, NY 11746-1220 For Defendant: Danielle M. Dandrige, Esq. Rhonda L. Epstein, Esq. Hoey King Toker & Epstein 55 Water Street, 28th Floor New York, NY 10041 SEYBERT, District Judge: In this employment discrimination case, plaintiff pro se Julius Bailey (“Plaintiff”) sued Defendant Huntington Hebrew Congregation (“Defendant” or the “Synagogue”) for alleged violations of Title VII of the Civil Rights Act (“Title VII”). Pending before the Court is the Synagogue’s motion for summary judgment. For the reasons that follow, that motion is GRANTED. BACKGROUND Plaintiff counter-statement or did not oppose serve a Local Defendant’s Civil motion. Rule The 56.1 Court therefore takes as true the facts contained in Defendant’s Local Dockets.Justia.com Rule 56.1 Statement that are supported by admissible evidence. See LOCAL CIV. R. 56.1(c); Baker v. Dorfman, 239 F.3d 415, 422 (2d Cir. 2000); 5477753, Marshall v. *1 (E.D.N.Y. at Recommendation) n.1 adopted No. Marshall, 2010 Dec. WL 08-CV-1420, 7, 5477152 2010) 2010 (Report (E.D.N.Y. WL and Dec. 30, 2010). Plaintiff, an African-American male, began working at the Synagogue as a custodian on March 29, 2007 and was eventually assigned a 40-hour work week on the 3 p.m. to 11 p.m. shift. (Def. Plaintiff was 56.1 Stmt. responsible ¶¶ 10, for 18.) mopping, Among other vacuuming, things, cleaning bathrooms and arranging classroom and meeting room chairs. ¶ 20.) to help (Id. In addition to these duties, Plaintiff was also required strip and wax the Synagogue’s floors as part of a refurbishment project that was ongoing when Plaintiff was hired. (Id. ¶¶ 20-21.) Soon after Plaintiff was hired, Plaintiff’s supervisor, head custodian Alberto Caballaro, complained to the Synagogue’s President, Cheryl Silberman, that Plaintiff spent inordinate amounts instead of working. observed Plaintiff of time socializing (Id. ¶ 22.). socializing 2 with with the congregants Ms. Silberman personally congregants instead of working. (Id.) She also learned that Plaintiff would try to pass his assignments off on his colleagues, which in her view caused resentment among the custodial staff and undermined Mr. Caballaro’s authority. (Def. 56.1 Stmt. ¶ 23; Silberman Aff. ¶ 14.) to Most troubling Defendant, though, was Plaintiff’s accrual of excessive overtime and his habit of remaining in the building well past the time at which everyone else had left (including more than one instance where Plaintiff stayed until 3:00 a.m.). Plaintiff’s (Def. 56.1 approximately Stmt. ¶¶ nine-week 25, tenure, 40, 45.) During worked 127.75 he hours of overtime, a number that far exceeded his colleagues’ overtime billing. (Id. ¶¶ 26, 36.) Silberman, Caballaro and Howard Novick, a Synagogue trustee, met with Plaintiff on Plaintiff’s excessive overtime. May 18, 2007 (Id. ¶ 37.) to discuss Novick ordered Plaintiff to stop working overtime and to begin punching in and out at lunchtime so that the Synagogue could Plaintiff was working when he was supposed to be. verify that (Id. ¶ 39.) The Synagogue’s only other African-American custodian did not have to punch out for lunch because Defendant was not concerned that this custodian was abusing overtime. (Id. ¶ 43.) Plaintiff was fired on May 31, 2007. 3 According to Defendant, Plaintiff could not complete his assignments in an efficient and timely manner, abused the overtime rules, and exhibited poor judgment by remaining in the Synagogue building (See Def. 56.1 Stmt. ¶¶ 45-46.) until 3 a.m. On October Employment 24, Opportunity 2007, Plaintiff Commission filed (“EEOC”) an Equal charge of discrimination, in which he alleged that his termination was the result of unlawful racial discrimination. Specifically, only three guys.” Plaintiff black (Id.) alleged employees Plaintiff and also that the replaced claimed (See Def. Ex. C.) Synagogue them that fired with he its “Spanish was treated differently than his Hispanic colleagues in that he was required to punch in and out for lunch. At his deposition, (Id.) Plaintiff admitted that neither Silberman nor Novick said anything racially derogatory toward him. (Def. 56.1 Stmt. ¶ 53.) And, Plaintiff testified that although Caballaro’s habit of speaking to other custodians in Spanish was rude, Caballaro never said anything rude to him or racially derogatory to him or the other black custodians. ¶¶ 49, 51.) the (Id. Plaintiff also admitted that during his tenure at Synagogue discrimination. he did not complain to anyone about racial Instead, he first complained of discrimination 4 after he was fired. (Id. ¶¶ 60-61.) DISCUSSION Plaintiff asserts three claims: that he was (1) unlawfully terminated; (2) unlawfully subjected to unequal terms and conditions of employment; and (3) retaliated against. Plaintiff’s Complaint contains few factual allegations, but his July 29, 2009 “Supplemental Complaint” amplifies his position by, among other things, denying that his overtime was unauthorized, stating that two other black employees were fired for false or disingenuous reasons, and claiming that an unqualified Spanish employee kept his job despite several verbal warnings. See Docket Entry 9. These allegations are similar to those in the narrative statement portion of Plaintiff’s EEOC Charge. See Docket Entry 33-3 at 3. For the following reasons, Defendant is entitled to summary judgment. I. Legal Standard Summary judgment is only appropriate where the moving party can demonstrate that there is “no genuine dispute as to any material fact” and that the moving party is entitled to judgment as a matter of law. FED. R. CIV. P. 56(a). In considering this question, the Court considers “the pleadings, 5 depositions, answers to interrogatories and admissions on file, together with any other firsthand information including but not limited to affidavits.” Nnebe v. Daus, __ F.3d __, 2011 WL 2149924, at *6 (2d Cir. May 31, 2011); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 2552, 91 L. Ed. 2d 265, 273 (1986); McLee v. Chrysler Corp., 109 F.3d 130, 134 (2d Cir. 1997); see also FED. R. CIV. P. 56(c). “In assessing the record to determine whether there is a genuine issue to be tried . . . the court is required to resolve all ambiguities and draw all permissible factual inferences in favor of the party against whom summary judgment is sought.” McLee, 109 F.3d at 134. The burden of proving that there is no genuine issue of material fact rests with the moving party. Gallo v. Prudential Residential Servs., L.P., 22 F.3d 1219, 1223 (2d Cir. 1994) (citing Heyman v. Com. & Indus. Ins. Co., 524 F.2d 1317, 1320 (2d Cir. 1975)). Once that burden is met, the non-moving party must “come forward with specific facts,” LaBounty v. Coughlin, 137 F.3d 68, 73 (2d Cir. 1998), to demonstrate that “the evidence is such that a reasonable jury could return a verdict for the nonmoving party,” Anderson, 477 U.S. at 257, 106 S. Ct. at 2514-15, 91 L. Ed. 2d at 218. or denials will not suffice.” “Mere conclusory allegations Williams v. Smith, 781 F.2d 319, 6 323 (2d Cir. 1986). And “unsupported allegations do not create a material issue of fact.” Weinstock v. Columbia Univ., 224 F.3d 33, 41 (2d Cir. 2000). When a party has appeared in an action, but has not opposed summary default. judgment, the moving party does not win by Instead, the Court must “examin[e] the moving party’s submission to determine if it has met its burden of demonstrating that no material issue of fact remains for trial.” Vt. Teddy Bear Co. v. 1-800 BEARGRAM Co., 373 F.3d 241, 244 (2d Cir. 2004) (citation and internal quotation marks omitted). And “[i]f the evidence submitted in support of the summary judgment motion does not meet [Plaintiff’s] burden of production, then summary judgment must be denied,” even though the non-movant failed to oppose it. Id. (internal quotation marks omitted). Courts are cautious in awarding an employer summary judgment in cases where its intent--i.e., plaintiff’s summary case material fact. is Id. judgment wholly alleged McLee, 109 F.3d at 135. discriminatory motive--is an issue. Nevertheless, its is lacking warranted in where the genuine questions of As discussed below, this is one such case. II. Application The Court first addresses 7 Plaintiff’s unlawful termination and unequal terms and conditions claims, and then considers his retaliation claim. A. Unlawful Termination & Unequal Terms and Conditions As to Plaintiff’s unlawful termination and unequal terms and conditions claims, Plaintiff has failed to show that Defendant’s nondiscriminatory reason for its actions was pretextual. These claims are analyzed using the familiar burden- shifting framework first articulated in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04, 93 S. Ct. 1817, 36 L. Ed. 668 (1973). In establishing this a analysis, prima facie Plaintiff case of has the discrimination, burden at of which point the burden shifts to Defendant to articulate a legitimate, non-discriminatory reason for its conduct. If Defendant can do so, the burden shifts back to Plaintiff to show that Defendant’s proffered reason discrimination. was simply a pre-text for unlawful See Clayborne v. OCE Business Svcs., 381 Fed. Appx. 32, 33-34 (2d Cir. 2010). Defendant argues that Plaintiff has established a prima facie case of discrimination. disagrees. not even The Court Plaintiff’s burden at the first level of McDonnell Douglas is “mimimal,” and it requires him to show only that: (1) he was a member of a protected class; (2) he was qualified for 8 his position; (3) he suffered an adverse employment action; and (4) the adverse employment action occurred under circumstances giving rise to an inference of discrimination. See, e.g., Wolf v. New York City Dept. of Educ., 708 F. Supp. 2d 327, 331 (S.D.N.Y. 2010). As Defendant concedes, Plaintiff satisfies the first three requirements: he self-identifies as black, he was minimally qualified for his position, and he was required to punch out for lunch and ultimately fired. Plaintiff asserts has that not he met and the fourth other Defendant argues that requirement, black employees but were Plaintiff fired and replaced with “Spanish guys,” a point that Defendant does not dispute. (See Def. Ex. C, Plaintiff’s EEOC Charge.) This is enough to satisfy the minimum showing required of Plaintiff at this stage. (S.D.N.Y. See Weiss v. LaSuisse, 260 F. Supp. 2d 644, 657 2003) (Defendant’s knowledge of plaintiff’s race combined with plaintiff’s being replaced with Caucasian worker was sufficient for prima facie showing of discrimination). Having concluded that Plaintiff can establish a prima facie case, the Court looks to whether Defendant has articulated a legitimate, non-discriminatory motive punch out at lunch and for firing him. Plaintiff worked significantly more 9 for requiring him to Defendant has done so. overtime hours than his colleagues and his supervisor complained to the Synagogue president that Plaintiff spent too much time socializing and not enough time working. Based on this, Defendant concluded that Plaintiff could not accomplish his assigned work in a reasonable time. Defendant warned Plaintiff about his overtime excesses, instituted the lunchtime punch-out requirement to help monitor his efficiency, inefficient and and eventually because he fired him demonstrated because poor he judgment remaining in the building into the early morning hours. were legitimate, actions. non-discriminatory reasons was for by These Defendant’s Nieves v. Angelo, Gordon & Co., 341 Fed. Appx. 676, 679 (2d Cir. 2009) (in age discrimination suit, employer who terminated employee in part for failure to complete assigned tasks had a non-discriminatory reason for its action); see also Romero v. Howard Johnson Plaza Hotel, No. 97-CV-3706, 1999 WL 777915, at *8 (S.D.N.Y. 1999) (employee’s failure to complete task properly and her relaxing instead of working were nondiscriminatory reasons for adverse employment action). It now becomes Plaintiff’s burden to show that Defendant’s proffered reasons were merely a pretext for unlawful discrimination. countered Plaintiff Defendant’s Local cannot Rule 10 do so 56.1 here. Statement, Having not Plaintiff admits Defendant’s version of events, at least insofar as it is supported by admissible evidence. See supra at 2. As discussed already, the facts show that Defendant believed Plaintiff was an inefficient, irresponsible employee. In response to Plaintiff’s perceived shortcomings, Defendant required Plaintiff to punch out at lunchtime and eventually fired him. Plaintiff trouble socialized completing when his he should assignments In Defendant’s eyes, have on been time, working, and had accrued an excessive amount of overtime. There Defendant’s is actions no evidence were in motivated this by case bias. showing that Plaintiff even testified that none of the key players in this saga--Caballaro, Silberman towards and Novick--ever him. Ultimately, said anything Plaintiff is racially left with derogatory just the allegations in his EEOC Charge and his Supplemental Complaint, including that: his overtime was authorized; the new Spanish supervisor only hired Spanish workers; that a Spanish employee was an ineffective worker yet still kept his job; and that two other black employees were fired without cause. Plaintiff has not supported any of these allegations with evidence, however, and unsupported allegations are insufficient to create issues of fact for trial. Weinstock, 224 11 F.3d at 41. Accordingly, Defendant is entitled to summary judgment on these claims. B. Retaliation Plaintiff also checked the “retaliation” box on the Eastern District’s form Title VII complaint. Defendant entitled to summary judgment on this claim as well. is Setting aside whether Plaintiff exhausted his administrative remedies as to this claim prior to filing suit, as he was required to do, Plaintiff simply cannot make out a prima facie retaliation case. A Plaintiff alleging retaliation must prove “(1) [he] was engaged in a protected activity; (2) [his] employer was aware of that activity; (3) [he] suffered a materially adverse action; and (4) there was a causal connection between protected activity and the adverse employment action.” the Martin v. MTA Bridges & Tunnels, 610 F. Supp. 2d 238, 254 (S.D.N.Y. 2009). Here, the evidence refutes the idea that Plaintiff engaged in any protected activity that could have prompted his dismissal. Plaintiff admitted that he never complained to his supervisors about racial discrimination while he was working for the Synagogue; he testified instead that he only complained of discrimination after he was fired. 124-125.) Accordingly, Defendant (See Def. Ex. D at 118-120, is judgment on Plaintiff’s retaliation claim. 12 entitled to summary CONCLUSION For the foregoing summary judgment is GRANTED. reasons, Defendant’s motion for The Clerk of the Court is directed to mail Plaintiff a copy of this Order and to mark this case CLOSED. SO ORDERED. /s/ JOANNA SEYBERT Joanna Seybert, U.S.D.J. Dated: July 12 , 2011 Central Islip, New York 13
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