Graham v. Long Island Rail Road

Citation230 F.3d 34
Decision Date01 August 1999
Docket NumberDocket No. 99-7316
Parties(2nd Cir. 2000) CHRISTOPHER GRAHAM, Plaintiff-Appellant, v. LONG ISLAND RAIL ROAD, Defendant-Appellee
CourtU.S. Court of Appeals — Second Circuit

CHARMAINE M. STEWART, Rosedale, New York (Law Offices of Charmaine M. Stewart & Assocs., Rosedale, New York, of counsel), for Plaintiff-Appellant.

SHARON PATTERSON GLENN, Jamaica, New York (Michael R. Ambrect, LIRR Law Department, Jamaica, New York, of counsel), for Defendant-Appellee.

Before: CARDAMONE, WINTER, and STRAUB, Circuit Judges.

CARDAMONE, Circuit Judge:

Christopher Graham, a black employee of the Long Island Rail Road (LIRR), appeals from the grant of summary judgment in the United States District Court for the Eastern District of New York (Trager, J.) entered February 12, 1999 in favor of LIRR. The district court dismissed plaintiff's Title VII claim, which alleged the railroad discriminated on the basis of race when it terminated him from its employ. In a paraphrase of George Orwell's observation that all employees are equal, but some are more equal than others, plaintiff complains that LIRR treated white employees better than it treated him. Even-handed justice in the workplace surely means that an employer should deal with all its employees equally. Because we think there are some material questions of fact as to whether there was equal treatment in this case, we reverse and remand.

BACKGROUND

The LIRR hired Graham in 1975 as a car appearance maintainer and six years later promoted him to the position of car repairman. Graham was not a model employee of the LIRR. He was suspended three times - in 1983 for loafing, failure to follow a direct order, and leaving his job assignment without permission; the following year for disobeying a supervisor's orders and being off assignment without permission; and in 1988 for sleeping while on duty.

The LIRR issued a revised policy in May 1987 entitled "Control of Alcohol and Drug Use," under which a supervisor with reasonable suspicion that an employee was under the influence of drugs or alcohol could order the employee to take a urine test. On August 3, 1988, Chuck Mabie, the General Foreman of the Maintenance of Equipment Car Shop where Graham worked, ordered plaintiff to submit to a urine test. The sample tested positive for cocaine. LIRR held a disciplinary trial at which plaintiff was found guilty of drug use. He was dismissed on September 21, 1988 without being given a "last chance waiver."

The last chance waiver (or last chance agreement) is the means by which LIRR allows a worker who fails a substance abuse test to be reinstated after passing a fitness exam, and on condition that he submit to future random drug or alcohol testing at LIRR's request. Any subsequent positive test or failure to submit to a test is grounds for immediate dismissal. According to Graham, LIRR customarily offered last chance waivers to employees upon their first drug or alcohol offense.

For that reason, he appealed his dismissal to a mediation board consisting of representatives of LIRR and the United Transportation Union. On April 15, 1991 the board restored Graham to work under a last chance waiver. Two months later, on June 17, 1991, General Foreman Mabie again ordered Graham to submit to drug and alcohol testing. That same morning, Graham submitted a urine sample both to the LIRR medical center and to Dr. Abraham, his personal physician. LIRR had its sample tested by the Princeton Diagnostic Laboratories of America Inc. (Princeton Laboratory), which reported the presence of 61 mg/dl of alcohol in Graham's urine. Graham's own physician sent his sample to Roche Biomedical Laboratories (Roche), which reported no alcohol in Graham's urine.

On the basis of the Princeton Laboratory report, LIRR effectively terminated Graham's employment on June 19, 1991 by issuing him an "out of service" notice, and then held a disciplinary trial on August 6, 1991. At this disciplinary trial, Graham offered the results of the sample submitted to Dr. Abraham to show that the result found in the LIRR sample was inaccurate. In support of the Princeton Laboratory report, a doctor and a nurse from the LIRR medical center testified that the center had handled its sample of Graham's urine properly. Nurse Eileen Stocker also stated that Graham told her on the morning the urine sample was taken that he had consumed alcohol as recently as six hours earlier, a statement Graham denies making. The LIRR Maintenance of Equipment Department on October 17, 1991 upheld Graham's dismissal.

Graham unsuccessfully appealed to the mediation board, and after receiving a "right to sue" letter from the Equal Employment Opportunity Commission, filed the instant suit alleging that LIRR violated his rights when it disciplined him. His principal claim is that LIRR intentionally discriminated against him because he is black, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §2000e-5. His complaint also alleged a violation of Title VII based on retaliation and state law causes of action for negligent infliction of emotional distress and fraud.

After discovery that produced the disciplinary records of other LIRR employees who had tested positive for alcohol or drugs and depositions of several LIRR officials, LIRR moved for summary judgment, contending that Graham could not make out a prima facie case of discrimination, and that his other claims lacked merit. Finding plaintiff produced insufficient evidence to establish a genuine issue of material fact that he was discharged under circumstances giving rise to an inference of discrimination, the district court granted LIRR's motion. In particular, the court observed that the disciplinary records revealed that black and non-black employees were treated alike in disciplinary proceedings involving alcohol or drug infractions. Individuals whom Graham alleged had been more favorably treated, it ruled, were not similarly situated. The record before us is in many respects confusing or incomplete, but we think it contains sufficient information set out clearly enough for our purposes, to decide the issues upon which we focus in this appeal.

DISCUSSION
Standard of Review

We review a grant of summary judgment de novo applying the same standard as the district court. See Belfi v. Prendergast, 191 F.3d 129, 135 (2d Cir. 1999). Such relief should be granted by the district court only when it determines there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). In deciding the motion, the trial court must first resolve all ambiguities and draw all inferences in favor of the non-moving party, and then determine whether a rational jury could find for that party. See Gallo v. Prudential Residential Servs., Ltd. Partnership, 22 F.3d 1219, 1223-24 (2d Cir. 1994).

At the same time, the non-moving party must offer such proof as would allow a reasonable juror to return a verdict in his favor, see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986), and only when that proof is slight is summary judgment appropriate, see Dister v. Continental Group, Inc., 859 F.2d 1108, 1114 (2d Cir. 1988). The trial court's function at this stage is to identify issues to be tried, not decide them. Summary judgment is sparingly used where intent and state of mind are at issue, see Montana v. First Fed. Sav. & Loan Ass'n, 869 F.2d 100, 103 (2d Cir. 1989), because, as we have emphasized, careful scrutiny of the factual allegations may reveal circumstantial evidence to support the required inference of discrimination, see Belfi, 191 F.3d at 135; Chertkova v. Connecticut Gen. Life Ins. Co., 92 F.3d 81, 87 (2d Cir. 1996); Chambers v. TRM Copy Ctrs. Corp., 43 F.3d 29, 37 (2d Cir. 1994); Gallo, 22 F.3d at 1224.

Title VII
I Prima Facie Case

Graham appeals only the grant of summary judgment dismissing his claim against LIRR for discrimination on the basis of race in violation of Title VII. Under the burden-shifting analysis outlined in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), a plaintiff first must establish a prima facie case of discrimination based on race. See Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 252-53 (1981); McDonnell Douglas, 411 U.S. at 802. If he does so, the burden shifts to the employer to articulate a legitimate, non-discriminatory reason for the employee's dismissal. See McDonnell Douglas, 411 U.S. at 802. If such a reason is proffered, the burden shifts back to the plaintiff to prove that discrimination was the real reason for the employment action. See id. at 804; Fisher v. Vassar College, 114 F.3d 1332, 1336 (2d Cir. 1997) (en banc), cert. denied, 522 U.S. 1075 (1998).

To meet the burden of production required for a prima facie case of discrimination, a plaintiff must show that he (1) is a member of a protected class; (2) was performing his duties satisfactorily; (3) was discharged; and that (4) his discharge occurred under circumstances giving rise to an inference of discrimination on the basis of his membership in the protected class. See Chambers, 43 F.3d at 37. The burden a plaintiff, alleging that he was discriminated against by his employer, carries to survive a summary judgment motion at the prima facie stage is a minimal one. See St Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 506 (1993); Fisher, 114 F.3d at 1340 n.7.

In this case, the parties agree that Graham can establish the first three elements of his prima facie case, disputing only...

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