Chambers v. TRM Copy Centers Corp., 313

CourtUnited States Courts of Appeals. United States Court of Appeals (2nd Circuit)
Citation43 F.3d 29
Docket NumberD,No. 313,313
Parties66 Fair Empl.Prac.Cas. (BNA) 1133, 65 Empl. Prac. Dec. P 43,404 Lorenzo CHAMBERS, Plaintiff-Appellant, v. TRM COPY CENTERS CORPORATION, Defendant-Appellee. ocket 94-7253.
Decision Date19 December 1994

Page 29

43 F.3d 29
66 Fair Empl.Prac.Cas. (BNA) 1133,
65 Empl. Prac. Dec. P 43,404
Lorenzo CHAMBERS, Plaintiff-Appellant,
No. 313, Docket 94-7253.
United States Court of Appeals,
Second Circuit.
Argued Aug. 29, 1994.
Decided Dec. 19, 1994.

Page 31

Michael H. Sussman, Goshen, NY (Scott Thornton, Stephen Bergstein, on the brief), for plaintiff-appellant.

Tarquin Jay Bromley, Liberty Corner, NJ (James L. Plosia, Jr., Apruzzese, McDermott, Mastro & Murphy, on the brief), for defendant-appellee.

Before: NEWMAN, Chief Judge, KEARSE and CARDAMONE, Circuit Judges.

KEARSE, Circuit Judge:

Plaintiff Lorenzo Chambers appeals from a final judgment of the United States District Court for the Southern District of New York, Vincent L. Broderick, Judge, dismissing his complaint against defendant TRM Copy Centers Corporation ("TRM"), for the termination of his employment on the basis of his race and national origin, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. Sec. 2000e et seq. (1988) ("Title VII"). The district court granted summary judgment in favor of TRM on the ground that Chambers had failed to establish that his discharge occurred in circumstances giving rise to an inference of discrimination. On appeal, Chambers contends that the district court impermissibly credited an after-the-fact rationale proffered by TRM for his discharge and that there are genuine issues to be tried as to TRM's reason for discharging him. Though we disagree with Chambers's characterization of the district court's ruling, we agree that there are genuine issues of material fact to be tried, and we therefore vacate the judgment and remand for further proceedings.

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Certain of the facts are not in dispute. TRM is an Oregon-based company engaged in the business of operating self-service copy centers in retail establishments in the United States and elsewhere. In July 1989, TRM hired Chambers, "a black person of dark skin and Jamaican national origin" (Complaint p 7), to work as a shop technician in its newly opened facility in Elmsford, New York. Unbeknownst to TRM, Chambers also continued to work an eight-hour "graveyard" shift at his prior job at the Bank of New York ("BNY").

At TRM, Chambers's duties included cleaning, fixing, and maintenance of used copy machines, and training at least one other person in the shop technician responsibilities. In February 1990, he received a pay increase. Prior to April 13, 1990, Chambers's personnel file apparently contained no document indicating any criticism of his performance.

Chambers's supervisor at TRM was branch service manager Daryl Perteet, an African-American. On April 13, 1990, Perteet sent Chambers a letter stating as follows:

It has been necessary on several occasions to mention to you that your performance was not satisfactory. It has now become necessary for us to write this letter of reprimand. If there is no significant improvement immediately, we will take disciplinary action, including discharge.

If you have any questions regarding the above matter, or if we can be of further assistance, please feel free to discuss it with me.

(TRM Letter dated April 13, 1990.) On April 20, 1990, TRM discharged Chambers. Perteet informed Chambers of the discharge.

In August 1990, Chambers filed a complaint of employment discrimination with local and federal administrative agencies. After receiving a right-to-sue letter, Chambers commenced the present action in 1992. Chambers alleged that he had performed all of his duties "adequately, properly and satisfactorily" (Complaint p 16) and had done nothing to warrant any criticism. He alleged that, contrary to the TRM April 13 letter, neither Perteet nor any other TRM employee had informed Chambers of any unsatisfactory job performance. Despite Chambers's request, Perteet refused to provide an explanation for the termination.

The complaint alleged that after TRM discharged Chambers, it retained non-black employees who had been trained by Chambers and whose job performance was less satisfactory than that of Chambers. It alleged that in June 1990, TRM was expanding its operations and that it continued to hire shop and field technicians for at least another year. The complaint asserted that TRM had terminated Chambers's employment on the basis of his race and his national origin, in violation of Title VII. Chambers alleged that he had not been able "to find a comparable second job" (Complaint p 26), and he sought damages, costs, and attorneys' fees.

A. TRM's Motion for Summary Judgment

During the ensuing discovery period, TRM took Chambers's deposition, and from his testimony it learned for the first time that Chambers had continued to work at BNY while he was employed by TRM. TRM thereafter moved for summary judgment dismissing the present action on the grounds (1) that it had "discovered evidence during the pendency of this action which would have subjected plaintiff to immediate termination and precluded his employment with defendant in the first instance"; (2) that Chambers's "interim earnings [from his BNY job] completely offset his alleged damage claims against defendant"; and (3) that Chambers had failed to state a claim on which relief could be granted. (TRM Notice of Motion for Summary Judgment dated April 23, 1993.) In support of its motion, TRM submitted a statement pursuant to Local Rule 3(g) detailing the material facts as to which it contended that there existed no genuine issue to be tried and that entitled it to judgment as a matter of law. This statement, in addition to detailing salary and other employment terms, stated principally (a) that while working for TRM, Chambers had a full-time job with BNY; (b) that this "moonlighting" was contrary to TRM policy, would

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have disqualified him from being hired, and would have sufficed, had TRM known of it, to warrant his being fired; and (c) that since TRM would not have permitted Chambers to work for it while holding another job, his earnings from BNY meant he had suffered no damages from the loss of employment with TRM. (TRM Rule 3(g) Statement dated April 23, 1993 ("First TRM Rule 3(g) Statement").) In addition to documents relating to Chambers's job application and earnings, TRM submitted affidavits from its vice president Matthew J. Shawcross, who had conducted the job interview with Chambers, and its director of human resources Kenneth Wolfe. Shawcross stated that Chambers had promised during his job interview to leave his job with BNY if TRM hired him. Wolfe stated that Chambers's "personnel file contain[ed] a document signed by Daryl Perteet, a black male and then-Branch Service Manager of the Elmsford Facility, indicating that Plaintiff's employment with TRM was terminated on April 20, 1990 based on his unsatisfactory 'job performance.' " (First Wolfe Affidavit, dated April 22, 1993 p 17.)

Chambers admitted many of the assertions made in the First TRM Rule 3(g) Statement, including the allegations that TRM had a policy, as set forth in its employee handbook, against moonlighting, and that that policy had never permitted a full-time employee to have full-time outside employment. In his "Counter 3(g) Statement," however, supported by his affidavit dated May 7, 1993 ("First Chambers Aff."), Chambers disputed TRM's characterization of the policy as absolute and its assertions as to how it would have been applied to him. He stated, inter alia, that the handbook went no further than stating (a) that the company "prefer[red]" that full-time employees not engage in outside employment, and (b) that the only outside employment the handbook said "cannot be allowed" was employment "with a competitor." (First Chambers Aff. p 3.) Chambers stated that although he had volunteered during his job interview that he would give BNY notice, he had never been told that leaving BNY was a condition of his employment with TRM. He stated, "[a]fter the interview and upon reflecting about the financial consequences of so proceeding, I decided that I could not relinquish my other job." (First Chambers Aff. p 2.)

TRM's first Rule 3(g) statement, filed with its April 23, 1993 motion for summary judgment, did not assert that there were any undisputed facts with regard to Chambers's job performance or as to the reasons for or circumstances of his discharge. In December 1993, TRM submitted an additional Rule 3(g) statement asserting, inter alia, that the decision to fire Chambers had been made by Perteet after warning him about poor job performance and after consulting with company officials in Oregon (TRM Supplemental Rule 3(g) Statement dated December 10, 1993 ("Second TRM Rule 3(g) Statement") pp 16, 22), and that Perteet "never made any statement, took any action, or gave any document to plaintiff which indicated any racial bias or bigotry. No TRM employee ever heard Daryl Perteet make any derogatory comment concerning an employee's race or country of origin" (id. p 21). TRM stated that in April 1990, the month when Chambers was warned and discharged, the racial composition of TRM's 12-person workforce at Elmsford was "5 Caucasian, 4 African-American or dark-skinned West Indians (including the plaintiff and the Service Center Manager), 2 Asians, and 1 Hispanic." (Id. p 23.) TRM stated that "[p]laintiff was not replaced by a Caucasian worker; in fact, his Shop Technician position was not filled at all by TRM." (Id. p 24.)

According to the Second TRM Rule 3(g) Statement, which was accompanied by affidavits and deposition testimony from other TRM employees, Chambers's coworkers were critical of his alertness and his performance. Various employees said that Chambers frequently did not meet TRM standards with respect to the number of copier parts to be cleaned or refurbished, that he was ineffective in loading and unloading trucks for visits to customer sites, that he did not do proper installations...

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