White v. Town of Huntington

• Decision Date: 15 February 2019
• Docket Number: CV 14-7370 (GRB)
• Parties: ANDREW B. WHITE, Plaintiff, v. TOWN OF HUNTINGTON, THOMAS BOCCARD, in his official and individual capacity, JERRY RICKERT, in his official and individual capacity, MARK J. TYREE, in his official and individual capacity, NEAL SHEEHAN, in his official and individual capacity, and PATRICIA IRVING, in her official and individual capacity. Defendants.
• Court: U.S. District Court — Eastern District of New York

ANDREW B. WHITE, Plaintiff, v. TOWN OF HUNTINGTON, THOMAS BOCCARD,in his official and individual capacity, JERRY RICKERT,in his official and individual capacity, MARK J. TYREE,in his official and individual capacity, NEAL SHEEHAN,in his official and individual capacity, and PATRICIA IRVING,in her official and individual capacity. Defendants.

CV 14-7370 (GRB)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

February 15, 2019

AMENDED MEMORANDUM & ORDER

GARY R. BROWN, United States Magistrate Judge:

Pending before the Court in this matter, which, upon consent of the parties is before the undersigned for all purposes, is a summary judgment motion filed by Defendant Town of Huntington ("Defendant" or the "Town"). For the reasons that follow, the motion is granted in part and denied in part.

UNDISPUTED FACTS

Upon an examination of the parties 56.1 statements, it appears the following facts are undisputed:

From 2008-2011, Plaintiff Andrew White, who is African-American, worked in several temporary positions with the Town. He was a member of Local 342 of the Long Island Public Service Workers ("Local 342") while employed by the Town. Docket Entry # ("DE") 66 at ¶ 4. As a member of Local 342, Plaintiff's terms and conditions of employment were governed by a collective bargaining agreement, which entitled him to certain wage increases and provided that non-permanent, seasonal employees may not work for more than six months at a time. Id. at ¶¶ 4-6. White did, in fact, receive certain pay increases. Id. at ¶¶ 7, 18. Throughout his time working as a temporary employee for the Town, Thomas Boccard, then-Director of the Department of General Services for the Town, encouraged Plaintiff to obtain a Commercial Driver's License ("CDL"), telling him that having one would give him a better chance to get a full-time job with the Town. Id. at ¶¶ 9, 25. Plaintiff obtained his CDL in or about 2009. Id. at ¶ 26.

Plaintiff's last temporary assignment with the Town ended in October 2011, after which Thomas Boccard offered Plaintiff a regular part-time position in the Department of General Services as a laborer at the Dix Hills Ice Rink ("Ice Rink") for 16 hours per week, weekends only. Id. at ¶¶ 8-10. William Foley, who is Caucasian, was also hired to work as a 16 hour per week, part-time laborer at the Ice Rink in 2011. Id. at ¶¶ 13-14.

Defendant Gerald Riekert was the foreman in charge of the employees working at the Ice Rink, while Mark Tyree, an African-American man, was the Deputy Director of the Department of General Services in 2011. Id. at ¶¶ 15-17. After a year of part-time work, Plaintiff received a pay increase. Id. at ¶ 18. In or about April 2013, after two full-time employees had been hired to work at the Ice Rink, Boccard reduced the hours of both part-time employees, Plaintiff and Mr. Foley, from 16 hours per week to 8 hours per week. Id. at ¶¶ 20-21. Plaintiff notified Mr. Riekert that he was going to quit his job upon learning that he was being reduced to one day per week. Id. at ¶¶ 22, 24.

Plaintiff applied unsuccessfully for a number of full-time positions with the Town, as follows:

1. In or about September 2012, Plaintiff applied for a Heavy Equipment Operator ("HEO") position in the Department of Maritime Services, a position for which 13 people applied.

Id. at ¶¶ 27, 29.

2. In February 2013, Plaintiff applied for a HEO II position in the Town's Highway Department, for which a total of 37 people applied. Id. at ¶¶ 32-33.

3. Plaintiff applied for a Tree Trimmer I position in the Highway Department in February 2013, for which 17 people applied. Id. at ¶¶ 37-38.

4. Plaintiff applied for a HEO II position in the Department of General Services in February 2013, for which 33 people applied. Id. at ¶¶ 43, 45. Cory Reinard and Joseph Bichko, existing full-time employees of the Town, were ultimately hired for the HEO II positions in the Department of General Services in or about March 2013. Id. at ¶¶ 48-49.

5. Plaintiff applied for the position of Animal Control Officer I in the Department of Public Safety in February 2013, for which 18 people applied. Id. at ¶¶ 52, 54. The Animal Control Officer I position is a competitive Civil Service position which required the successful applicant to take a Civil Service examination and be selected off a certified Civil Service list. Id. at ¶ 55. Plaintiff was not on a Civil Service list for the Animal Control Officer position. Id. at ¶ 57. Plaintiff did not take any Civil Service examinations. Id. at ¶ 58.

6. Plaintiff applied for an HEO II position in the Department of Environmental Waste Management in September 2013, for which 26 people applied. Id. at ¶¶ 60, 62. Michael Caleb, a Town employee, was hired for the HEO II position in Environmental Waste Management in or about October 2013. Id. at ¶ 67.¹ Mr. Caleb is African-American. Id. at ¶ 69.

7. In September 2013, Plaintiff applied for an HEO I position in the Highway Department, for which 19 people applied. Id. at ¶¶ 74, 76.8. Plaintiff applied for a Custodian position in the General Services Department in October 2014, for which 41 people applied. Id. at ¶¶ 81, 83. Jamaal Collins was selected to fill the Custodian position in October 2014. Id. at ¶ 84. Mr. Collins is African-American. Id. at ¶ 85.

Plaintiff never (1) filed a complaint of discrimination with the Town regarding any of his job applications, (2) went to the Personnel office or the Town Equal Employment Opportunity officer to complain about not receiving any full-time positions, nor (3) filed a grievance with the union regarding his failure to be hired for a full-time position. Id. at ¶¶ 89-97. He had discussions about the situation with a union representative. DE 69 at ¶ 209. In December 2013, Plaintiff filed a charge of discrimination with the New York State Division of Human Rights and the EEOC. DE 66 at ¶¶ 90-91. Plaintiff's charge of discrimination does not allege a claim of retaliation under the New York Human Rights Law or Title VII. Id. at ¶ 92.

LEGAL STANDARD

As the Court has previously observed, an employment discrimination claim is governed by the following analytical framework:

As an initial matter, a plaintiff bears the burden of establishing a prima facie case. Ruiz v. Rockland, 609 F.3d 486, 491 (2d Cir. 2010) (citing Holcomb v. Iona Coll., 521 F.3d 130, 138 (2d Cir. 2008)); Pathania v. Metro. Museum of Art, No. CV-11-2119 (JMA), 2013 WL 1182076, at *11 (E.D.N.Y. Mar. 21, 2013); see Whethers, 956 F. Supp. 2d at 374-75; Moultrie v. VIP Health Care Servs., No. 08-CV-0457 (DLI)(RML), 2009 WL 750219, at *4 (E.D.N.Y. Mar. 19, 2009). To this end, a plaintiff must prove: (1) he was a member of a protected class; (2) he was qualified for his position; (3) he suffered an adverse employment action; and (4) the adverse employment action took place under circumstances which give rise to an inference of discrimination. Broich v. Inc. Vill. of Southampton, 462 F.Appx. 39, 42 (2d Cir. 2012) (quoting Sassaman v. Gamache, 566 F.3d 307, 312 (2d Cir. 2009)); Pathania, 2013 WL 1182076, at *12. The required proof at this stage is low and plaintiff will succeed with a de minimis showing. Abdu-Brisson v. Delta Air Lines, Inc., 239 F.3d 456, 467 (2d Cir. 2001); see, e.g., Panjwani v. Jet Way Security & Investigations, LLC, No. 13 Civ. 7186 (SLT) (VMS), 2016 WL 3675331, at *9 (E.D.N.Y. Feb. 26,2016) (concluding plaintiff failed to establish prima facie case of discrimination despite his "de minimis burden"). The burden then shifts to the defendant to produce a legitimate, non-discriminatory justification for its action. Ruiz, 609 F.3d at 492; Sethi v. Narod, 12 F. Supp. 3d 505, 522 (E.D.N.Y. 2014) (citing St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 506-07 (1993)); see Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142-43 (2000) (describing defendant's burden as "one of production, not persuasion; it 'can involve no credibility assessment'" (quoting St Mary's Honor Ctr., 509 U.S. at 509)). "[A]n 'employer's explanation of its reasons must be clear and specific' in order to 'afford the employee a full and fair opportunity to demonstrate pretext.'" Byrnie v. Town of Cromwell, Bd. of Educ., 243 F.3d 93, 105 (2d Cir. 2001) (quoting Meiri v. Dacon, 759 F.2d 989, 996-97 (2d Cir. 1985)), superseded on other grounds by rule, Fed. R. Civ. P. 37(e); see, e.g., McDonnell v. Schindler Elevator Corp., No. 12-CV-4614 (VEC), 2014 WL 3512772, at *9 (S.D.N.Y. July 16, 2014) ("[Defendant's] evidence establishes clear and specific reasons for Plaintiff's termination...."); Graham v. City of N.Y., No. 05-CV-5428 (CBA)(JMA), 2009 WL 909620, at *9-10 (E.D.N.Y. Mar. 31, 2009), adopted as modified by, 2009 WL 909620 (E.D.N.Y. Mar. 31, 2009). Like plaintiff's burden at the prima facie stage, defendant's burden here is not especially high. Sethi, 12 F. Supp. 3d at 522 (quoting Hyek v. Field Support Servs., 702 F. Supp. 2d 84, 93 (E.D.N.Y. 2010)); Whyte, 969 F. Supp. 2d at 254.

Upon defendant's articulation of a legitimate, neutral reason for plaintiff's termination, the burden-shifting framework dissipates and the onus is on plaintiff to prove defendant's actions were motivated, at least in part, by discrimination. See Hongyan Lu v. Chase Inv. Servs. Corp., 412 F.Appx. 413, 415-16 (2d Cir. 2011); Joseph v. Owens & Minor Distribution, Inc., 5 F. Supp. 3d 295, 308 (E.D.N.Y. 2014) (citing Henry v. Wyeth Pharm., Inc., 616 F.3d 134, 156 (2d Cir. 2010)); Zhengfang Liang v. Café Spice SB, Inc., 911 F. Supp. 2d 184, 205-06 (E.D.N.Y. 2012). To defeat summary judgment, plaintiff "must show circumstances to permit a rational finder of fact to infer that the defendant's employment decision was more likely than not based in whole or in part on discrimination." Stern v. Trs. of Columbia Univ., 131 F.3d 305, 312 (2d Cir. 1997); see Terry v. Ashcroft, 336 F.3d 128, 138 (2d Cir. 2010); Pathania, 2013 WL 1182076, at *12 ("If the employer carries this burden, the burden shifts back to the plaintiff to

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