Opinion
CV-03-3006 (CPS).
November 24, 2004
MEMORANDUM AND ORDER
Wellington Hansberry brings this action against Father Flanagan's Boys' Home ("Father Flanagan") alleging that his employment was terminated in violation of Title VII, New York Executive Law § 290 et seq., and New York City Administrative Code § 8-101 et seq. Hansberry also alleges a common law claim — that he was wrongfully discharged in violation of Father Flanagan's employee handbook. Presently before the Court is Father Flanagan's motion for summary judgment on all claims pursuant to Federal Rule of Civil Procedure 56.
New York Executive Law § 296 provides:
It shall be an unlawful discriminatory practice
a) For an employer or licensing agency, because of the age, race, creed, color, national origin, sexual orientation, military status, sex, disability, genetic predisposition or carrier status, or marital status of any individual, to refuse to hire or employ or to bar or to discharge from employment such individual or to discriminate against such individual in compensation or in terms, conditions or privileges of employment.
New York City Administrative Code § 8-107 provides:
It shall be an unlawful discriminatory practice
(a) For an employer or an employee or agent thereof, because of the actual or perceived age, race, creed, color, national origin, gender, disability, marital status, sexual orientation or alienage or citizenship status of any person, to refuse to hire or employ or to bar or to discharge from employment such person or to discriminate against such person in compensation or in terms, conditions or privileges of employment.
For the reasons that follow, the motion for summary judgment is granted in its entirety.
BACKGROUND
Unless otherwise noted, the following facts are taken from the parties' depositions, affidavits, and Local Rule 56.1 statements. Disputes are noted.
Hansbery's response to Father Flanagan's Local Rule 56.1 statement of material facts consists largely of denials unsupported by citation to the record or denials made on "information and belief." Local Rule 56.1 requires the non-moving party to cite to admissible evidence to controvert the moving party's supported assertion of material fact. Soriano ex rel. Garcia v. Bd. of Educ. of City of New York, 2004 WL 2397610, at *2 n. 5 (E.D.N.Y. Oct. 27, 2004). To the extent that the Court is able to ascertain the basis for the denial from the record, the Court will do so. Some of the unsupported denials are, however, inexplicable. For example, Hansberry denies, without citation to evidence, that Father Flanagan provides shelter to "at risk" youths, but then makes this factual assertion in his memo in opposition to summary judgment. Compare Plaintiff's Rule 56.1 Statement ¶ A1 with Plaintiff's Memo.
Father Flanagan operates shelters in New York City for "at risk" youth. Father Flanagan hired Hansberry, an African American, in February, 1998, to be as a Youth Care Worker ("YCW") during the overnight shift in its Bergen Street Shelter. At the time he was hired and periodically throughout his employment, Hansberry received copies and updates of Father Flanagan's employee handbook. Father Flanagan did not tell Hansberry that he was to be employed for a specific duration or that he would not be terminated. Nor did the parties enter into an employment contract. During the duration of his employment with Father Flanagan, Hansberry worked a second job during the day as a welfare fraud investigator for the City of New York.
In June, 2000, Hansberry was promoted to the position of Shift Supervisor. Of the three other shift supervisors at the shelter, two were Hispanic and one was African American.
Hansberry's shift at the shelter ran from about 10:00 P.M. to 8:00 A.M. His primary responsibility was to ensure the safety of the children occupying the shelter. In addition, Hansberry was required to ensure that two logbooks and a checklist were maintained during each shift.
Anthony DiLauro, who was white, was Hansberry's supervisor from October, 2001, until Hansberry was fired.
In response to a report that youth had engaged in sexual activity while shelter workers were sleeping on the job in its Bronx shelter, Father Flanagan's management in Nebraska decided to conduct an internal audit of the overnight shift operations and staff at its shelters throughout the country.
On August 7, 2002, Father Flanagan's program directors conducted a surprise inspection of the overnight staff at the Brooklyn shelters. Lyn Corbett, the African American Program Operations Manager assigned DiLauro the task of inspecting the shelter at which Hansberry worked. (Corbett Aff. ¶ 11.) Meanwhile, Lyn and Marcus Corbett inspected another of Father Flanagan's shelters. (Corbett Aff. ¶ 11.) The events that occurred during the inspection of Hansberry's shelter are in dispute.
DiLauro testified that when he approached the shelter, he observed that the window to the conference room was slightly ajar. (DiLauro Dep. 133-34.) The lights were off in the conference room, and there was a figure slumped over in a chair with a blanket over his head. (DiLauro Dep. 134-37.) DiLauro stated that he observed the figure for over two minutes. (DiLauro Dep. 137.) He then entered the building, setting off an initial alarm and deactivating it. (DiLauro Dep. 139.)
After entering the building, DiLauro observed Hansberry in the hallway between the entrance to the shelter and the conference room. DiLauro asked Hansberry why he was in a dark room with the lights out, to which Hansberry replied, "That's where I be at." DiLauro stated, "I don't understand that, what do you mean? Why are you in there with the lights off? And it looks like you were sleeping." According to DiLauro, Hansberry's response was to hang his head and look embarrassed. (DiLauro Dep. 140.)
In his affidavit in opposition to summary judgment, Hansberry states that he entered the conference room and observed someone peering through the window. Hansberry became concerned that the person might be a potential intruder. "In an effort to dissuade the potential intruder from entering," Hansberry states, "I grabbed a blanket and covered myself." (Hansberry Aff. ¶ 9.) He then didn't move until he heard the alarm go off. (Hansberry Aff. ¶ 9.)
At his deposition, Hansberry testified that before DiLauro arrived, he was sitting in a chair in the conference room with the lights out. (Hansberry Dep. 119.) Although Hansberry testified that the alarm would go off if someone opened the shelter door, he did not recall it going off when DiLauro entered. (Hansberry Dep. 121.) In an internal grievance form filed with Father Flanagan, Hansberry stated that he was in the conference room with the lights out, but he was not asleep.
After confronting Hansberry, DiLauro inspected the remainder of the shelter. On the third floor, he found YCW Robert Spenser, an African American, alert with his log accurately completed. On the fourth floor, YCW Dan Coaxum, an African American, was sitting in the dark watching a DVD player. Coaxum's log was not filled out.
DiLauro conferred with Program Operations Manager Lyn Corbett, an African American, who arrived at the shelter shortly thereafter, and they decided to send Hansberry home. Corbett states in his affidavit that later that morning, he, Marcus Corbett, and DiLauro reported the results of the inspections to Father Flanagan's management team in Nebraska, which included Director of Human Resources Randolph Scott, an African American, Jerry Staffeld, Diane Schmidt, and Corbett's supervisor Mr. Kiesling. (Corbett Aff. ¶ 14.) Corbett recommended that Hansberry be terminated and that Coaxum be given a written warning. (Corbett Aff. ¶ 15.) DiLauro agreed with the recommendation.
Corbett Aff. ¶ 15. As of June 1, 2001, Father Flanagan's employee handbook stated that sleeping on the job was grounds for immediate termination. (Lauri Aff. Ex. J at D00407-08.) As a result of having two jobs, Hansberry slept on average about three to three-and-a-half hours a night. (Hansberry Dep. 238.) When prior to the surprise inspection, DiLauro questioned Hansberry about his ability to stay awake during the overnight shift, Hansberry assured him that he could do it. (DiLauro Dep. 61.)
In the first of two reports to John Daniel, the then Associate Director who is also African American, on August 9, 2002, Mr. Staffeld, Mr. Kiesling, and Ms. Schmidt made certain disciplinary recommendations, including that plaintiff and other shift supervisors be discharged. (Lauri Aff. Ex. R at D00234.) A report dated August 16, 2002, addressed to Mr. Daniel summarizes the final employment actions taken. (Lauri Aff. Ex. U at D00238.) Mr. Scott, the Director of Human Resources for Defendant and an African American, reviewed and approved the discipline decisions, including the decision to terminate plaintiff and to give written or verbal feedback to three other African American shift supervisors. (Scott Aff. ¶ 10.)
Neither party states what disciplinary action was taken with respect to the fifth African American Shift Supervisor.
On August 16, 2002, Corbett met with Hansberry and informed him that he was being terminated. During the course of his employment with Father Flanagan, Hansberry never complained that DiLauro was discriminating against him because of his race. In his internal grievance form, plaintiff did not allege that DiLauro or anyone else discriminated against him. (Lauri Aff. Ex. X at D0221.) Neither side presents evidence of who, if anyone, replaced Hansberry.
DISCUSSION Jurisdiction
The Court has jurisdiction over this action under 28 U.S.C. § 1331, which grants district courts jurisdiction over civil actions arising under federal law and principles of pendent jurisdiction.
Summary Judgment Standard
A court must grant a motion for summary judgment if the movant shows that "there is no genuine issue as to any material fact" and that "the moving party is entitled to a judgment as a matter of law." FED. R. CIV. PRO. 56(c). Summary judgment is appropriate "[w]hen the record taken as a whole could not lead a rational trier of fact to find for the non-moving party." Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
"An issue of fact is genuine if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Elec. Inspectors, Inc. v. Village of East Hills, 320 F.3d 110, 117 (2d Cir. 2003). A fact is material when it "might affect the outcome of the suit under the governing law." Id.
The party seeking summary judgment has the burden of demonstrating that no genuine issue of material fact exists. Apex Oil Co. v. DiMauro, 822 F.2d 246, 252 (2d Cir. 1987). In order to defeat such a motion, the non-moving party must raise a genuine issue of material fact. Although all facts and inferences therefrom are to be construed in the light most favorable to the non-moving party, the non-moving party must raise more than a "metaphysical doubt" as to the material facts. See Matsushita, 475 U.S. at 586; Harlen Assocs. v. Vill. of Mineola, 273 F.3d 494, 498 (2d Cir. 2001). The non-moving party may not rely on conclusory allegations or unsubstantiated speculation. Twin Labs., Inc. v. Weider Health Fitness, 900 F.2d 566, 568 (2d Cir. 1990). Rather, the non-moving party must produce more than a scintilla of admissible evidence that supports the pleadings. First Nat'l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 289-90 (1968); Niagara Mohawk Power Corp. v. Jones Chem. Inc., 315 F.3d 171, 175 (2d Cir. 2003).
"The trial court's function in deciding such a motion is not to weigh the evidence or resolve issues of fact, but to decide instead whether, after resolving all ambiguities and drawing all inferences in favor of the non-moving party, a rational juror could find in favor of that party." Pinto v. Allstate Ins. Co., 221 F.3d 394, 398 (2d Cir. 2000).
Title VII
The burden-shifting test articulated by the Supreme Court in McDonnell Douglas v. Green, 411 U.S. 792, 802 (1973), provides the elements of plaintiff's prima facie case of discrimination under Title VII. See St. Mary's IIonor Ctr. v. Hicks, 509 U.S. 502, 506 (1993). To meet his initial burden, Hansberry must provide evidence: (1) that he is a member of a protected class; (2) he applied and was qualified for the job from which he was terminated; (3) that the termination constituted an adverse employment action; and (4) circumstances surrounding the adverse employment action that raise an inference of discrimination. McDonnell Douglas, 411 U.S. at 802; Brown v. Coach Stores, Inc., 163 F.3d 706, 709 (2d Cir. 1998); Meiri v. Dacon, 759 F.2d 989 (2d Cir. 1985). Father Flanagan concedes that Hansberry has established the first three elements of his prima facie case.
Liability for purposes of Title VII and New York State and City human rights laws is essentially identical. Tomka v. Seiler Corp., 66 F.3d 1295, 1304 n. 4 (2d Cir. 1995); McCoy v. City of New York, 131 F. Supp. 2d 363, 375-76 (E.D.N.Y. 2001). Consideration of claims brought under New York State and City Human Rights Laws parallels the McDonnell Douglas framework applied to Title VII claims. Cruz v. Coach Stores, Inc., 202 F.3d 560, 565 n. 1 (2d Cir. 2000); Landwehr v. Grey Adver., Inc., 211 A.D.2d 583 (N.Y.App.Div. 1995). Accordingly, conclusions reached on the federal claims may resolve the corresponding state claims.
Once a plaintiff offers evidence establishing a prima facie case, the burden shifts to the defendant to offer a legitimate, non-discriminatory reason for the adverse employment action. Mario v. PC Food Mkts., Inc., 313 F.3d 758, 767 (2d Cir. 2003). The plaintiff must then offer evidence sufficient to support a finding that the defendant's true motivation was discriminatory. Patterson v. County of Oneida, N.Y., 375 F.3d 206, 221 (2d Cir. 2004). The plaintiff must show that defendant's stated reason was merely a pretext for the discrimination. Tex. Dep't of Cmty Affairs v. Burdine, 450 U.S. 248, 252 (1981); McDonnel Douglass, 411 U.S. at 804; Schnabel v. Abramson, 232 F.3d 83, 88 (2d Cir. 2000) (citing Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000)). Plaintiff retains the ultimate burden of persuading the trier of fact that the defendant has intentionally discriminated against him. Schnabel, 232 F.3d at 88 n. 2. Despite the fact that intent is the issue in a Title VII claim, summary judgment is available to reject discrimination claims that do not present genuine issues of material fact. See Chambers v. TRM Copy Cent. Corp., 43 F.3d 29, 40 (2d Cir. 1994); Ngwu v. Salvation Army, 1999 WL 2873, at *3 (S.D.N.Y. Jan. 4, 1999). The Court of Appeals has said that "[i]t is now beyond cavil that summary judgment may be appropriate even in the fact-intensive context of discrimination cases. This court has stated that: `the salutary purposes of summary judgment . . . apply no less to discrimination cases than to . . . other areas of litigation." Abdu-Brisson v. Delta Air Lines, Inc., 239 F.3d 456, 466 (2d Cir. 2001) (quoting Meiri, 759 F.2d at 998).
Circumstances Giving Rise to an Inference of Discrimination
The inference of discriminatory intent sufficient to establish a prima facie case can be drawn in several circumstances, including, but not limited to:
the employer's continuing, after discharging the plaintiff, to seek applicants from persons of the plaintiff's qualifications to fill that position; or the employer's criticism of the plaintiff's performance in ethnically degrading terms; or its invidious comments about others in the employee's protected group; or the more favorable treatment of employees not in the protected group; or the sequence of events leading to the plaintiff's discharge.Abdu-Brisson, 239 F.3d at 468 (age discrimination case) (citing Chambers, 43 F.3d 29, 37-38 (noting circumstances creating inferences of discriminatory intent).
In Abdu-Brisson, the Court of Appeals reversed a district court's decision that an acquired airline's pilots failed to meet their initial burden of showing that acquiring airline Delta discriminated against them through its integration and benefits policies. The Court held that while stray remarks of a decision-maker, without more, cannot prove an employment discrimination claim when other indicia of discrimination were properly presented, the remarks were no longer stray and the jury could conclude that the remarks had a discriminatory significance. Id. at 468.
The Court of Appeals held that stray comments about the pilots' age when viewed against a background of other evidence showing Delta's interest in the age and projected retirement rates of the pilots would satisfy plaintiffs' initial burden which was de minimus. Id. at 467-68. The Court of Appeals held that given this evidence (stray comments plus other evidence) the inference of age discrimination was raised because Delta's actions may have been motivated by age-based animus. Id. at 468.
Hansberry presents no evidence concerning the identity much less the race of any person hired to take his position. The only evidence that Hansberry presents to raise an inference that his termination was the product of a discriminatory motive on the part of his employer are a series of disconnected comments allegedly made by DiLauro.
In his brief, Hansberry does not argue that any of the four elements of his prima facie case has been satisfied. Instead, he merely attempts to show that Father Flanagan's reason for terminating him was pretextual.
Hansberry also states in his affidavit that an African American former co-worker of his would testify about bad experiences with DiLauro and that DiLauro said that DiLauro was "uneasy and apprehensive" about being near the co-worker and commented on the co-worker's dress and carriage. (Hansberry Aff. ¶ 11.) Hansberry's testimony about what another employee has told him is hearsay and inadmissible. See, e.g., Howley v. Town of Stratford, 217 F.3d 141, 155 (2d Cir. 2000) (in Title VII action, testimony by plaintiff that other firefighters told her of certain statements by her supervisor would be not admissible for fact that statements were made because not based on personal knowledge); Taylor v. Potter, 2004 WL 1811423, at *17 (S.D.N.Y. August 16, 2004). Plaintiff's lawyer informs the court that an affidavit from this witness could be provided in camera without disclosure of the identity to defendant because the witness fears reprisal from defendant. (Weinstein Affirmation ¶ 3.)
I decline to consider evidence submitted by one party in camera in ruling on a summary judgment motion. See, e.g., Vining v. Runyon, 99 F.3d 1056, 1057 (11th Cir. 1996) (adversarial legal system does not generally sanction ex parte determinations on the merits of a civil case unless submissions involve compelling security concerns or the statute granting the cause of action provides for in camera resolution of the dispute). In Vining, plaintiff sought to compel the production of certain personnel files and defendant opposed the motion claiming the information was protected. The defendant moved for summary judgment, and the district court ordered production of the files for in camera consideration. The 11th Circuit reversed the lower court and held that an individual's right to due process includes a party's right to be aware and refute evidence against the merits of his case. Id. at 1057. Other circuit and lower courts have similarly concluded that in camera consideration of evidence is not appropriate in the absence of special circumstances not present here. See Abourezk v. Reagan, 785 F.2d 1043, 1060-61 (D.C. Cir. 1986) (district court's reliance on in camera ex parte evidence submitted by government inappropriate in its granting of summary judgment for government; it is a firmly held main rule that a court may not dispose of the merits of a case on the basis of ex parte, in camera submissions); Kinoy v. Mitchell, 67 F.R.D. 1, 15 (S.D.N.Y. 1975) ( in camera exhibits submitted by government in connection with government's motion for summary judgment in civil case may not be considered except to determine privilege, and are either privileged or they should be disclosed at least to the parties).
Those comments consist of: (1) DiLauro is said to have stated that graffiti was criminal mischief and that those that engage in the practice should be prosecuted. (Hansberry Aff. ¶ 6.) (2) DiLauro allegedly asked shift supervisors at a staff meeting, "Do I have to slap one of you all to get things in order in this house?" (Hansberry Dep. 192-93.) (3) At another meeting, DiLauro allegedly stated that the meeting was "like a Puerto Rican battlefield." (Hansberry Dep. 186.) (4) DiLauro allegedly remarked about a young man to whom Hansberry was talking "let him go on to school" and that "what's going to happen he's going to get up here, do his time, go back to home, probably live in the projects or something like that, and he probably going to wind up back here again." (Hansberry Dep. 187-88.) Finally, (5) in his deposition, Hansberry describes a comment made by DiLauro on September 11, 2001, "that he shouldn't have let his `brother with the rag on his head, fly the plane'". (Hansberry Dep. 190.) In his affidavit, Hansberry describes the same incident and states that DiLauro said that "all dark skinned people" were responsible for the attack on the World Trade Center.
Hansberry Aff. ¶ 7. Comments (1) and (5) are to some extent corroborated by an affidavit of Adonis McDowell, an African American who worked with DiLauro and plaintiff.
As a general rule, isolated and disconnected derogatory remarks by a decision maker are by themselves insufficient to raise an inference of discrimination. Danzer v. Norden Sys., Inc., 151 F.3d 50, 56 (2d Cir. 1998); Hayes v. Compass Group USA, Inc., 2004 WL 2471640, at *7 (D. Conn. Oct. 8, 2004). The remarks must either be accompanied by additional evidence of discrimination, or the plaintiff must demonstrate a nexus between the remarks and the adverse employment action that he suffered. Schreiber v. Worldco, LLC, 324 F. Supp. 2d 512, 518 (S.D.N.Y. 2004). In deciding whether this nexus is established, a court should consider whether the person who made the remarks had some connection to the employment decision, when the remarks were made in relation to the employment decision, and the context and content of the remarks. Id.; see Turner v. N. Am. Rubber, Inc., 979 F.2d 55, 59 (5th Cir. 1992); O'Connor v. Viacom, Inc., 1996 WL 104299, at *5 (S.D.N.Y. April 23, 1996) (three isolated remarks by supervisor insufficient to establish pretext; stray remarks without a demonstrated nexus to the personnel actions complained of will not defeat employer's summary judgment motion), aff'd, 104 F.3d 356 (2d Cir. 1996);.
As an initial matter, it is difficult to interpret DiLauro's comment that graffiti was a crime and should be prosecuted as evidence that DiLauro harbored a discriminatory animus toward African Americans. Defacing property with graffiti is in fact illegal. N.Y. PENAL LAW § 145.60 (criminalizing "making graffiti"). The City and State of New York have taken substantial steps to curb its production. See N.Y. CITY CODE § 10-117.1 (creating community-based anti-graffiti task forces); N.Y. CITY CODE § 10-117.2 (permitting police commissioners to offer rewards to persons providing tips that lead to the arrest of graffiti artists). Advocating the enforcement of such race-neutral laws does not betray an animus against African Americans, much less raise an inference that DiLauro's behavior towards Hansberry was racially motivated.
Nor can DiLauro's threat to slap shift supervisors be construed as evidence of racial animus however boorish and unprofessional the statement may have been.
The "Puerto Rican battlefield" comment may illustrate a discriminatory animus towards Puerto Ricans but not towards African Americans. See Richardson v. N.Y. State Dept. of Correctional Service, 180 F.3d 426, 440 (2d Cir. 1999) (noting in hostile work environment case brought by African American that from three comments by a co-worker, one about Native Americans, another about Blacks, and a third about Jews, only one involved plaintiff's protected racial category and the sum of the three failed to establish that she was discriminated against because of her race); Krystek v. University of Southern Mississippi, 164 F.3d 251 (5th Cir. 1999) (for comments to provide sufficient evidence of discrimination, they must relate to the protected class of which plaintiff is a member).
DiLauro's statements about the young man living in the projects and winding up at the shelter again does not mention race or suggest a causal connection or correlation between being African American and criminal activity. Such comments are too ambiguous to be probative. See Wyvill v. United Co. Life Ins. Co., 212 F.3d 296, 304 (5th Cir. 2000) (age discrimination) (for age-based comment to be probative of discriminatory intent, must be direct and unambiguous); Fernandez v. Costa Bros. Masonry, Inc., 199 F.3d 572 (1st Cir. 1999) (mixed motive analysis) (statements open to several interpretations are not direct evidence of racial discrimination).
Finally, DiLauro's alleged comments on September 11, 2001, even if interpreted to display a discriminatory animus towards African Americans, are both temporally remote from the adverse employment action (which took place almost a year later in August, 2002) and unrelated to the decision process.
Stray offensive remarks with a minimal nexus to the adverse employment action cannot raise an inference of discrimination, even when made by a decision maker. See, e.g., Danzer, 151 F.3d at 56; Soliman v. Deutsche Bank AG, (S.D.N.Y. May 20, 2004) (comments to an Egyptian-American that he was a "sand nigger," that he was "like an Arab selling in a bazaar," and that "all blacks are good for is dancing" are insufficient to raise an inference of discrimination); Ahmad v. Nassau Health Care Corp., 234 F. Supp.2d 185, 193 (E.D.N.Y. 2002) (verbal comments are evidence of discrimination when they are related to race, proximate in time to the adverse decision, made by an individual with authority over the decision and related to the employment decision).
Defendant assumes without explanation or citation to authority that DiLauro was not a decision maker. (Def.'s Mem. Supp. Summ. J. at 19, 24, 26.) Courts have generally considered immediate supervisors who make recommendations to other supervisors or management about work actions such as terminations to be decision makers. See, e.g., Bickerstaff v. Vassar Coll., 196 F.3d 435 (2d Cir. 1999) ("[T]he impermissible bias of a single individual at any stage of the [terminating] process may taint the ultimate employment decision in violation of Title VII . . . This is true even absent evidence of illegitimate bias on the part of the ultimate decision maker, so long as the individual shown to have the impermissible bias played a meaningful role in the [termination] process."); Chiaramonte v. Fashion Bed Group, Inc., 129 F.3d 391, 397 (7th Cir. 1997) (test is whether low-level supervisor influenced decision); Penta v. Sears Roebuck, Co., 2003 WL 21143071, at *6 (E.D.N.Y. 2003) (if plaintiff's direct supervisor's report of event leading to decision to terminate plaintiff was tainted by racial animus, finder of fact could conclude the entire decision making process was tainted); Ngwu, 1999 WL 2873, at *5 (while both [immediate supervisor] and [higher supervisor] had the power to terminate the Plaintiffs or to recommend termination). Assuming that DiLauro was a decision maker because he had input into the termination decision via his observations and report and recommendation into the employment action, the comments made by DiLauro and offered as evidence of impermissible racism by Hansberry are not at all related to the termination decision and still fall under the rubric of stray comments analysis. A stray remark can be either a remark made by a non-decision maker or a remark made by a decision maker unrelated to the decision process. See, e.g., Price Waterhouse v. Hopkins, 490 U.S. 228, 277 (1989) (mixed motive) (overruled in part by the 1991 Civil Rights Act) (O'Connor, J., concurring); see also discussion of stray remarks infra.
Defendant's Reason for Termination
Even assuming that plaintiff established a prima facie case of race discrimination, defendant has articulated a legitimate, non-discriminatory reason for the termination and plaintiff has failed to show that this reason was pretextual. See Griffin v. Ambika Corp., 103 F. Supp. 2d 297, 302 (S.D.N.Y. 2000) ("Any legitimate non-discriminatory reason will rebut the presumption triggered by the prima facie case. The defendant need not persuade the Court it was motivated by the proffered reasons.") Unsatisfactory job performance as indicated in defendant's policies and procedures includes sleeping on the job and is a stated ground for immediate termination. (Lauri Aff. Ex. J. at D00408.)
Hansberry's Evidence of Pretext
Once defendant has articulated a non-discriminatory reason, plaintiff must show that the explanation offered by the defendant is false and that discrimination was the true reason for the employment decision. Burdine, 450 U.S. at 253; Norton v. Sam's Club, 145 F.3d 114, 119 (2d Cir. 1998) ("[P]laintiff's] very weak prima facie case, combined with an at best highly dubious showing of pretext, that in itself does not implicate discrimination, is simply not enough . . ."); Brennan v. Metro. Opera Ass'n., 192 F.3d 310, 317 (2d Cir. 1999) (plaintiff's evidence must allow a fact-finder to reasonably conclude that employer's reason was pretextual and the real reason was discrimination); Ahmad, 234 F. Supp. 2d at 196.
Here plaintiff's showing that the defendant's reason for terminating him was false is exceedingly weak. In one of his several inconsistent accounts of his behavior, plaintiff concedes that on the night of the surprise inspection, he was sitting in the conference room, in the dark, covered by a blanket. His explanation for this behavior is implausible. In his affidavit, Hansberry states that he entered the conference room, which was dark, and saw a person peering through the window from the outside. "[I]n an effort to dissuade the potential intruder from entering, I grabbed a blanket and covered myself. I then did not move until I heard the front door alarm go off." (Hansberr Aff. ¶ 9.)
In his deposition, taken on May 18, 2004, Hansberry testified that he told DiLauro when questioned about what he was doing in the conference room, that he was on his "downtime." (Hansberry Dep. 127.) In his grievance form, Hansberry did not mention the intruder but instead described the events as him sitting in the conference room with the lights out and telling DiLauro upon meeting him in the hallway that he (Hansberry) was on his lunch break. (Lauri Aff. Ex. X at D00222.)
DiLauro's explanation of his behavior that evening is both consistent and compelling. He reported his observations made from 3:50 a.m. to 5:00 a.m. on August 7, 2002, to Lyn Corbett the night of the inspection and wrote up his notes the next morning and then typed them. (Def.'s Rule 56.1 Stat. ¶ G.) The notes stated that "Shift Supervisor Wellington Hansberry was observed in the front conference room sitting slouched forward with a blanket on his head in the dark. He was still and did not move for over 2 minutes . . . 4th Floor . . . log not filled out since 11 p.m." (Lauri Aff. Ex. S at D00090-91.) Lyn Corbett recommended termination to the management team in Nebraska and the reason stated was "Program Director caught him sleeping in conference room with blanket over head." (Lauri Aff. Ex. R. at D00235.)
At the same time, plaintiff's evidence of discriminatory animus is weak in the extreme. As discussed above in reference to plaintiff's prima facie case, the disconnected and isolated remarks by DiLauro, and the absence of evidence that non-African American employees were treated differently, add little if anything to plaintiff's pretext argument. Abdu-Brisson, 239 F.3d at 468 ("[T]he stray remarks of a decision-maker, without more, cannot prove a claim of employment discrimination"); Schnabel, 232 F.3d at 90-91 (court must examine "entire record to determine whether the plaintiff could satisfy his `ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff'"); Danzer, 151 F.3d at 56 (remarks not stray when other indicia of discrimination are presented); Ngwu, 1999 WL 2873, at *5 (isolated discriminatory comments insufficient to defeat summary judgment); Burrell v. Bentsen, 1993 WL 535076, at *8 (S.D.N.Y. Dec. 21, 1993) (stray remarks in workplace, statements by decision makers, and statements by decision makers unrelated to decisional process do not satisfy plaintiff's burden of proving pretext). As noted above, the allegedly discriminatory remarks attributed to DiLauro were either not about African Americans, ambiguous, removed in time from the termination, or without a connection in subject matter to the employment decision.
In Ngwu, the plaintiffs, who were Nigerian, worked the night shift at a group home. A fire occurred during their shift and their supervisor questioned plaintiffs when investigating the fire. According to the supervisor, plaintiffs admitted they were sleeping when the fire occurred. Plaintiffs later denied they were sleeping. The supervisor reported the incident to her supervisor and to other managers of the defendant, the Salvation Army. The supervisor recommended probation or suspension but the higher supervisor directed termination based on the Salvation Army's written policy of immediate termination for an employee's sleeping while on duty. Plaintiffs later urged that their immediate supervisor had made discriminatory comments about Nigerians, including calling them "fucking Nigerians" on the morning after the fire. The court, noting that the supervisor had not recommended termination, found that her remarks did not support an inference of discrimination on the part of the Salvation Army. Although in this case, DiLauro recommended termination, some of the same logic relied on by the district court in Ngwu is persuasive — there is no evidence that any of DiLauro's stray remarks — influenced his decision to recommend termination and certainly no evidence that his stray remarks had any input on the other decisionmakers' rationale for terminating plaintiff. In fact, Scott, Daniels and Corbett, all involved in the decision to terminate plaintiff, are African Americans themselves. See, e.g., Connell v. Consolidated Edison Co. of N.Y., 109 F. Supp. 2d 202, 209 (S.D.N.Y. 2000) (inference against discriminatory intent when decision makers in same protected class as plaintiff).
In sum, I conclude that this record would not allow a rational fact finder to infer that Father Flanagan's decision to terminate Hansberry was motivated by a proscribed racial animus rather than by its stated reason that Hansberry was not fulfilling the duties of his position.
State Law Claims
Because the same analysis applies to plaintiff's state discrimination claims as does to the Title VII claim, summary judgment is also granted for defendant on those claims.
In his remaining state claim, plaintiff asserts that he was discharged in violation of the policies and procedures in the employee handbook and that defendant had breached the contract of employment. (Compl. ¶¶ 52-54.) However, plaintiff was an at-will employee of defendant as indicated in his employment application signed by plaintiff on January 12, 1998. See Ex. H at D00037. Further, plaintiff admits that he never entered into an employment contract with defendant or was told at any time that his employment would be for a specific period of time. (Hansberry Dep. 31-32, 35-36.)
In New York, employment for an indefinite term is "presumed to be a hiring at-will which may be freely terminated by either party at any time for any reason or even no reason." Murphy v. Am. Home Prods. Corp., 448 N.E.2d 86 (1983); see also Sabetay v. Sterling Drug, Inc., 506 N.E.2d 919 (1987). New York courts decline to infer terms in at-will contracts. Id. Plaintiff admits that no employment agreement for a fixed duration existed between himself and Father Flanagan's. Accordingly, plaintiff's claim for breach of contract fails. Plaintiff does not identify the existence of any contract upon which any liability could be predicated.
In his opposition papers, plaintiff does not address the argument that plaintiff's breach of contract claim fails because there was no employment contract. Plaintiff only contends without making any legal argument that defendant failed to follow its policies that require that any termination occur only following review by the "Associate Executive Director and the Director of Human Resources, or their designees". (Lauri Aff. Ex. G at D00406.) Plaintiff alleges in his affidavit that John Daniels did not review the termination decision and did not designate anyone to do so in his place. (Hansberry Aff. ¶ G.) Plaintiff has no personal knowledge of this event and offers no evidence that the review did not take place. In fact, defendant's evidence suggests that John Daniels did review the personnel action recommendations summarized in a memo to John Daniels prior to the final actions taking place. See Scott Aff. ¶¶ 10-11, Lauri Aff. Exs. R and U.
To the extent plaintiff argues that Father Flanagan's employee handbook created a contract of employment that limited Father Flanagan's right to discharge plaintiff, this argument fails. An employee handbook that lists certain grounds for termination but does not expressly exclude others, does not limit the employer's right to terminate the employee. See, e.g., Marvin v. Kent Nursing Home, 544 N.Y.S.2d 210, 211-12 (N.Y.App.Div. 1989).
CONCLUSION
For the aforementioned reasons, defendant's motion for summary judgment is granted in its entirety.The Clerk is directed to enter judgment dismissing the complaint and to furnish a filed copy of the within to all parties and to the magistrate.
SO ORDERED.