Turley v. ISG Lackawanna, Inc.
| Decision Date | 23 March 2011 |
| Docket Number | No. 06–CV–794S.,06–CV–794S. |
| Citation | 803 F.Supp.2d 217 |
| Parties | Elijah TURLEY, Plaintiff, v. ISG LACKAWANNA, INC., ISG Lackawanna, LLC, Mittal Steel USA Lackawana, Inc., Mittal Steel USA Inc., d/b/a Arcelor–Mittal Steel, Larry D. Sampsell, Gerald C. Marchland, Thomas Jaworski, Defendants. |
| Court | U.S. District Court — Western District of New York |
OPINION TEXT STARTS HERE
Lisa T. Sofferin, Donald Eppers, Brown & Kelly, LLP, Buffalo, NY, for Plaintiff.
James R. Grasso, Phillips Lytle LLP, Buffalo, NY, for Defendants.
DECISION AND ORDER
Plaintiff Elijah Turley commenced this employment discrimination action by filing a Complaint in the United States District Court for the Western District of New York. (Docket No. 1.) Therein, he alleges that Defendants discriminated against him based on his race (African American), subjected him to a hostile work environment, retaliated against him, and intentionally inflicted emotional distress.
Plaintiff brings this action pursuant to Section 1981 of the Civil Rights Act of 1866, 42 U.S.C. § 1981 (hereinafter, § 1981); Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000(e) et seq. (hereinafter, “Title VII”); the New York State Human Rights Law, N.Y. Exec. L. §§ 296 et seq. (hereinafter, “NYHRL”); and, common law of the State of New York.
Presently before this Court are (1) Defendants' Motion for Summary Judgment seeking dismissal of the Complaint in its entirety (Docket No. 27) 1; (2) Defendants' Motion to Strike (Docket No. 92) 2; and (3) Plaintiff's Cross–Motion to Strike and/or in the alternative for Leave to File a Sur–Reply (Docket No. 93) 3.
Defendant ISG Lackawanna Inc., a wholly-owned subsidiary of International Steel Group Inc., purchased the steel galvanizing operation at the former Bethlehem Steel Plant in Lackawanna, N.Y. in May 2003. (Defs.' Stmt. ¶ 1.) 4 In January 2004, ISG Lackawanna Inc. became ISG Lackawanna LLC, a Delaware limited liability company. ( Id.) In April 2005, Mittal Steel Co. purchased International Steel Group, Inc., the parent of ISG Lackawanna LLC and shortly thereafter changed the name to Mittal Steel USA Inc. ( Id. ¶ 2.) In June 2006, Mittal Steel Co. and Arcelor merged to create ArcelorMittal Inc. ( Id. ¶ 3.) Shortly thereafter the name Mittal Steel USA Inc. was changed to Arcelor Mittal USA Inc. ( Id. ¶ 3.) ISG Lackawanna LLC was then a wholly-owned subsidiary of ArcelorMittal USA Inc. and changed its name to ArcelorMittal Lackawanna LLC (hereinafter, “Lackawanna Plant” or “Company”). ( Id. ¶ 3.)
Plaintiff Elijah Turley (hereinafter, “Plaintiff”) began his employment at Bethlehem Steel in 1995. ( Id. ¶ 8.) He worked in the Pickler Department of the Lackawanna Plant since 1996. ( Id.) Since May 2003, Plaintiff has been employed as a Process Operator successively by ISG Lackawanna Inc., ISG Lackawanna LLC, and ArcelorMittal Lackawanna LLC. ( Id.)
Defendant Larry Sampsell (hereinafter, “Sampsell”) was the Manager of Labor Relations and Security at the Lackawanna Plant during the relevant time period. ( Id. ¶ 5.) Defendant Gerald Marchand (hereinafter, “Marchand”) was the Manager of Human Resources at the Lackawanna Plant from May 2003 to March 2007. ( Id. ¶ 6.) After he retired, he continued to provide human resources services to the Plant as a consultant for several months. ( Id.) Defendant Thomas Jaworski (hereinafter, “Jaworski”) was the Area Manager of the Pickler and Tandem Mill Departments of the Lackawanna Plant from May 2003 to January 2007. ( Id. ¶ 7.) Sampsell and Jaworski have both worked at the Bethlehem Steel/Lackawanna Plant in a management capacity since 1962. ( Marchand has been an employee there since 1963. ( Id. ¶ 6.)
Production employees at the Lackawanna Plant, including Plaintiff, are represented by the United Steelworkers Union (hereinafter, “Union”). ( Id. ¶ 14.) The Union and International Steel Group, Inc. entered into a Collective Bargaining Agreement (hereinafter, “CBA”), which governs the terms and conditions of employment. ( Id.) Article Four of the CBA prohibits discrimination and harassment in the workplace on the basis of race and color. (See Marchand Dec., Exhibit A; CBA pp. 23–24, Article Four, Section (A)(1–6).) It also prohibits the Company from retaliating against an Employee who complains of discrimination. ( Id.)
Plaintiff dually filed a charge of discrimination with the New York State Division of Human Rights (“NYSDHR”) and the Equal Employment Opportunity Commission (“EEOC”) on December 15, 2005. (Compl. ¶ 19.) Therein, Plaintiff alleged Defendants discriminated against him based on race/color and disability. (Biltekoff Dec., Ex. V.) He filed an amended charge on March 16, 2006, alleging further acts of discrimination based on race/color and disability. (Compl. ¶ 19; Biltekoff Dec., Ex. V.)
On March 16, 2006, Plaintiff also filed a second charge of discrimination with the NYSDHR and EEOC, claiming retaliation and continued acts of discrimination. (Compl. ¶ 20.) An amendment to the second charge was filed on June 5, 2006. ( Id.) The EEOC issued a Notice of Dismissal and Right to Sue on December 1, 2006. ( Id. ¶ 21.) Plaintiff filed his Complaint with the Clerk of this Court on December 6, 2006. (Docket No. 1.)
Plaintiff filed a third charge of discrimination with NYSDHR and the EEOC on December 21, 2007, alleging retaliation, hostile work environment, and continued discrimination. (Biltekoff Dec., Ex. V.)
Defendants' filed their Motion for Summary Judgment on September 30, 2008 and their Motion to Strike on February 27, 2009. (Docket No. 27, 92.) Plaintiff filed his Cross–Motion to Strike on March 6, 2009. (Docket No. 93.)
* * *
The Court first considers the motions to strike, as those decisions may affect the disposition of the pending summary judgment motion.
A. Standard
Defendants move to strike portions of Plaintiff's documents submitted in opposition to their motion for summary judgment on the basis that the documents allege new claims. Similarly, Plaintiff cross-moves to strike portions of Defendants' reply papers on the basis that they introduce new evidence and witnesses.
Rule 26 obligates a party to provide to the other party, without awaiting a discovery request, information such as names and addresses of witnesses and copies of documents the disclosing party has in its custody that support its claims or defenses. Fed.R.Civ.P. 26(a). Additionally, a party must supplement its disclosure or response in a timely manner if the party learns it is incomplete or incorrect, and if the additional information has not otherwise been made known to the other parties during the discovery process or in writing. Fed.R.Civ.P. 26(e).
Moreover, Rule 36 provides that “[i]f a party fails to provide information or identify a witness as required by Rule 26(a) or (e), the party is not allowed to use that information or witness to supply evidence on a motion ... unless the failure was substantially justified or is harmless.” Fed.R.Civ.P. 37(c)(1) . This is to prevent the “sandbagging” of an opposing party with new evidence. Ventra v. United States, 121 F.Supp.2d 326, 332 (S.D.N.Y.2000).
In determining whether the Court should use its discretionary power to impose sanctions for Rule 26 violations, it should consider these four factors: (1) the proponent's explanation for failing to provide the subject evidence; (2) the importance of such evidence to the proponent's case; (3) the opponent's time needed to prepare to meet the evidence; and (4) the possibility of obtaining a continuance to permit the opponent to meet the evidence. Outley v. City of New York, 837 F.2d 587, 589 (2nd Cir.1988).
Defendants have moved to strike portions of: (1) Plaintiff's Memorandum of Law; (2) the Declaration of Elijah Turley; and (3) the Affidavit of Ron Drayton, on the ground that they improperly raise new claims after the close of discovery. (Defs.' Memo in Support of Motion to Strike, p. 1.)
Specifically, Defendants argue that Plaintiff now alleges:
(1) he was subjected to racial slurs and death threats over the Pickler Department radio on September 18, 2008;
(2) co-worker Ron Drayton was subjected to racial slurs and death threats over the Pickler Department radio on September 19, 2008;
(3) threatening graffiti was written on a window in the Company parking lot in October 2008; and
(4) racial graffiti was written on a railcar in October 2008.
( Id.)
Defendants contend that these allegations may not be considered in opposition to summary judgment because they are “new claims.” ( Id.) Plaintiff avers that he has not raised any new claims in response to Defendants' motion for summary judgment. (Pl.'s Memo. in Opposition to Motion to Strike, p. 1.) Rather, these four incidents are “part of a continuing violation that resulted in a hostile work environment.” ( Id. at p. 2.)
It is well established that parties may not raise new claims in submissions in opposition to summary judgment motions. Hawana v. City of New York, 230 F.Supp.2d 518, 534 (S.D.N.Y.2002). In this case, Plaintiff is not raising a new claim. He alleges in his Complaint that Defendants' conduct created a hostile and abusive working environment. (Compl. ¶ 84.) Plaintiff is now providing more circumstantial evidence to support his hostile work environment claim. Thus, the nature of Plaintiff's claim has not changed.
In addition, Plaintiff contends that “Defendants had a full and fair opportunity to investigate the ongoing harassment.” (Pl.'s Memo. in Opposition to Motion to Strike, p. 2.) This is evidenced by the fact that on September 18, 2008, Plaintiff's counsel called Defendants' counsel to discuss the death threats and racial slurs, and sent a follow-up letter on September 19 detailing the continuing harassment and requesting documentation of any investigation. Plaintiff's counsel also called D...
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