Petition for Writ of Certiorari — Lockhart v. Hofstra University

(i) Supreme Court, U.S.

/ FILED

041558 May 18 200

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er: Pil a es es SY Oe ond wk

No.

In the

Supreme Court of the Anited States

LINDBIRG LOCKHART,

Petitioner,

Vv.

HorstrA UNIVERSITY,

Respondent.

On Petition for a Writ of Certiorari to the United

States Court of Appeals for the Second Circuit

PETITION FOR WRIT OF CERTIORARI

ALAN E. WOLIN

Counsel of Record

WoLin & WOLIN

420 JERICHO TURNPIKE

JERICHO, New York 11753

(516) 938-1199

Counsel for Petitioner

Becker Gallagher Legal Publishing, Inc. 800.890.5001

i

QUESTION PRESENTED

The courts below did not adhere to this Court’s established

principles concerning summary judgment.

il

LIST OF PARTIES

Petitioner

The petitioner, Lindbirg Lockhart, has no corporate

affiliations.

Respondent

The respondent is Hofstra University.

ili

TABLE OF CONTENTS

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NII on Sv ds ecésdcieeent.

Reasons for Granting the Writ .............. bits

1. The Courts below Did Not Adhere to this Court’s

Established Principles Concerning Summary

ES OAS pow GE 5 beled wha we bio bas

A. The Applicable Legal Standard ............

B. Petitioner Established That the Complained of

Actions Were Adverse Employment Actions . .

9

iV

C. Petitioner Established That the Complained of

Actions Occurred under Circumstances Giving

Rise to an Inference of Discrimination ....... 10

I ss 0 a4 4-56 4a OG ee a 12

POPPE OCTET aS ee TE TT Ce ee ee la

Appendix A

Summary Order of the United States Court of Appeals

for the Second Circuit dated February 18, 2005 ... la

Appendix B

Decision and Order of the United States District Court

for the Eastern District of New York dated March 29,

BU aid ale ge he oe cr ee a Sa

Appendix C

Judgment of the United States District Court for the

Eastern District of New York dated March 29,

BE <5 kw os VE ee ee 22a

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TABLE OF CITED AUTHORITIES

Cases

Adickes v. S.H. Kress & Co.,

wee COPED 66.6 os oe chee 6

Anderson v. Liberty Lobby, Inc.,

S75 UB. kh 68 oa 7

Binder v. Long Island Lighting Co.,

wad Oe BO? COGN, BOUND ib ak ea kok ees 8

Campbell v. Grayline Air Shuttle Inc.,

930 F.Supp. 794 (E.D.N.Y. 1996) ............ 9

Celotex Corp. v. Catrett,

OFF Ua Sat EE bse ee 6

Chambers v. TRM Copy Centers Corp.,

43 O06 cee Ge. TO oes HORS 8

Dortz v. City of New York,

904 F.Supp. 127 (S.D.N.Y. 1995) ............ 10

Galadya v. NYC Board of Education,

202 F.36 636 (id Cie. 2000). i cence snn 9

Greenway v. Buffalo Hilton Hotel,

4S F268 Se es Ee ki es He eee 8

McDonnell Douglas Corp. v. Green,

045 OD. Peer 6 ank a boa e eee 7,8

vi

Medwid v. Baker,

752 F.Supp. 125 (S.D.N.Y. 1990) ..........

Morris v. Lindau,

496 F.3d 102, 110 (2d Cir. 1999) ..........

Pazamickas v. NYS Office of Mental Retardation,

963 F.Supp. 190 (N.D.N.Y. 1997) .........

Preda v. Nissho Iwai Am. Corp.,

128 5.36 TEP GAG CR. FRG ccc vescsesecs

Texas Department of Community Affairs v. Burdine,

| eee rr re.

United States v. Diebold, Inc.,

369 U.S. 654, (1962) (per curiam) ..........

S Rul b Conetietionst Raake

» he hE Ber prroe re es rt ee ee

PETITION FOR WRIT OF CERTIORARI

Petitioner respectfully petitions for a writ of certiorari to

review the Summary Order of the United States Court of

Appeals for the Second Circuit in this case.

OPINIONS BELOW

To petitioner’s knowledge, previous opinions rendered in

this case have not been reported.

JURISDICTION

The Summary Order of the United States Court of Appeals

for the Second Circuit was rendered on February 18, 2005.

No rehearing was requested.

This Court has jurisdiction to review the judgment or

decree in question by writ of certiorari pursuant to 28 U.S.C.

§1254(1).

STATUTORY PROVISION INVOLVED

The statutory provision involved is Title VII of the Civil

Rights Act of 1964, as amended, 42 U.S.C. §2000e, et seq.

42 U.S.C. §2000e-2(a) provides:

(a) Employer practices

It shall be an unlawful employment practice for an

employer

(1) to fail or refuse to hire or to discharge any

individual, or otherwise to discriminate against

2

any individual with respect to his

compensation, terms, conditions, or privileges

of employment, because of such individual’s

race, color, religion, sex, or national origin;

or

(2) to limit, segregate, or classify his employees or

applicants for employment in any way which

would deprive or tend to deprive any individual of

employment opportunities or otherwise adversely

affect his status as an employee, because of such

individuai’s race, color, religion, sex, or national

origin.”

STATEMENT OF THE CASE

A. Relevant Facts

Petitioner is a member of the Black race. Between

December, 1978 and August, 1990, petitioner was employed

at respondent by Trans World Maintenance Corporation, a

maintenance company which provided custodial services to

respondent. While employed by Trans World, petitioner

performed custodial work.

While employed by Trans World, petitioner was a

member of Local 144 and, prior to 1990, served as Chief

Shop Steward. As Chief Shop Steward, petitioner had

oversight for grievances concerning the members of Local

144 and had responsibility, in consultation with management,

for assigning overtime or selecting people for overtime.

During that time period, petitioner selected people for

overtime based upon seniority. There was one seniority list

of custodians which covered the entire Hofstra Campus.

3

In August, 1990, petitioner became employed by

respondent as a custodian and has been employed by

respondent continuously ever since.

In 1988, petitioner and the other custodians became

members of Local 424 of the United Industry Workers. At

the time, petitioner moved from Chief Shop Steward to

Assistant Shop Steward. Petitioner was succeeded by Robert

Macaluso as Chief Shop Steward. Petitioner then, while

Assistant Shop Steward, only had the responsibility of

selecting people for overtime in the absence of Mr. Macaluso.

Petitioner’s duties and responsibilities are the same as they

were when he was employed by Trans World. In general,

petitioner is responsible for buildings in the area designated

as “South Campus”, more particularly the Law School.

There are approximately thirty-six (36) custodians assigned to

the South Campus.

Subsequent to 1990, petitioner reported directly to

Michael Rocchio, Assistant Director of Physical Plan

Department. He continues to report to Mr. Rocchio. Mr.

Rocchio, in turn, reported to and continues to report to

Kenneth Tyler, Associate Director of Physical Plan

Department.

Pursuant to the Collective Bargaining Agreement between

| respondent and Local 424, overtime is to be distributed to

custodians, including petitioner, on a voluntary basis, by

seniority. In accordance with this Collective Bargaining

Agreement, overtime is supposed to be assigned in the order

of seniority provided for in an official overtime list which is

. posted every week. This list contains those who wish to be

considered for overtime. Individuals who wish not to be

chosen are not on the list.

I leanne

4

Messrs. Macaluso, Rocchio and Tyler are all Caucasian.

Subsequent to 1990, Mr. Rocchio, in consultation with the

Union, which provides the names of employees, assigned

people for overtime. Mr. Macaluso and Mr. Rocchio then

began regularly approving overtime for custodians in

disregard of the rotation provided for in the official overtime

list and by giving overtime to individuals not on the list.

The actions of respondent and its agents favored

Caucasian and Hispanic custodians at the expense of Black

custodians, such as petitioner. This problem began when Juan

Perez became Foreman. Respondent ensured that Caucasians

and Hispanics were favored.

Custodians such as Juan Perez, Joseph Montura, Pedro

LaRosa, James Cameron, Jim Campbell and Vincent

Avallone, all of whom are Caucasian or Hispanic, were

favored and received overtime even if they were not on the

list.

Respondent’s attempt to justify its actions by claiming that

some of these individuals could receive overtime in disregard

of the overtime list because they had _ supervisory

responsibilities or special skills is without merit and

pretextual. In fact, Mr. Avallone is not even licensed to

repair vacuums.

Petitioner has received his fair share of overtime within

the past two years. However, before that, petitioner did not.

Although the rotation based upon seniority is supposed to be

based upon the entire campus, respondent has improperly

attempted to circumvent the selection process by having

different lists for particular portions of the campus and for

different shifts. There is currently no campus-wide list.

There are different numbers of custodians on each list.

ee ar ee os

5

Petitioner disputes the overtime hours that respondent

claims he worked. A review of the time sheets offered by

respondent will reveal that those off the list, such as Vincent

Avallone, received a disproportionate amount of overtime.

Petitioner complained about the way overtime was being

distributed. Petitioner filed grievances with the Union

regarding his overtime complaints. Respondent did not

remedy petitioner’s grievances.

Respondent concedes that there are inequities in the

amount of overtime «ach employee received.

B. Proceedings Below

Petitioner brought this action alleging that his employer,

respondent, Hofstra University, had violated Title VII of the

Civil Rights Act of 1964, as amended, 42 U.S.C. §2000e et

seq., under the theory of racial discrimination.

Respondent moved for summary judgment claiming (1)

petitioner could not establish a prima facie case of race ©

discrimination because there was no adverse employment

action occurring under circumstances giving rise to an

inference of discrimination; (2) petitioner could not show that

respondent’s alleged legitimate, non-discriminatory reasons

for all actions taken were a pretext for discrimination.

Petitioner duly opposed respondent’s motion.

On March 29, 2004, the Honorable Arlene R. Lindsay,

United States Magistrate Judge, issued a Decision and Order

granting respondent’s motion. [Pet. App. 22a]

A Judgment dated and entered March 29, 2004 followed.

[Pet. App. 5a] Judgment was entered ordering and adjudging

ee ne ee

6

that “plaintiff take nothing of defendant and that the

defendant’s motion for judgment is granted; and that the

complaint is dismissed.”

Petitioner duly appealed the District Court’s determination

to the United States Court of Appeals for the Second Circuit.

In a Summary Order dated February 18, 2005, the Court of

Appeals affirmed the judgment of the District Court. In so

doing, the Court of Appeals held that petitioner “failed to put

forward facts that satisfy the third and fourth requirements of

the prima facie case.” More specifically, the Court concluded

that petitioner had failed to sufficiently establish that he

suffered an adverse employment action under circumstances

that give rise to an inference of discriminatory intent.

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This Petition follows.

3

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3

REASONS FOR GRANTING THE WRIT

1. The Courts below Did Not Adhere to this Court’s

Established Principles Concerning Summary Judgment

A motion for summary judgment may not be granted

unless the court determines that there is no genuine issue of

material fact to be tried and that the facts as to which there is

no such issue warrant judgment for the moving party as a

matter of law. See, e.g., Fed.R.Civ.P. 56(c); see generally,

Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). The

burden of showing that no genuine factual dispute exists rests

on the party seeking summary judgment, see, e.g., Adickes v.

S.H. Kress & Co., 398 U.S.144, 157 (1970), and in assessing

the record to determine whether there is a genuine issue as to

any material fact, the court is required to resolve all

ambiguities and draw all factual inferences in favor of the

party against whom summary judgment is sought, see, e.g.,

7

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).

_ The inferences to be drawn from the underlying facts revealed

in materials such as affidavits, exhibits, interrogatory answers

and depositions must be viewed in the light most favorable to

the party opposing the motion. See, e.g., United States v.

Diebold, Inc. , 369 U.S. 654, 655 (1962) (per curiam).

The courts below, instead of determining whether there

are issues to be tried, actually tried those issues. Petitioner

respectfully submits that, in doing so, the courts below did

not adhere to the dictates of this Court with reference to the

appropriate summary judgment standards.

A. The Applicable Legal Standard

This Court set forth the standards to be applied in this

action in Texas Department of Community Affairs v. Burdine,

450 U.S. 248, 252-53 (1981) (citing and quoting McDonnell

Douglas Corp. v. Green, 411 U.S. 792, 802-804 (1973).

In Burdine, this Court held:

“First, the plaintiff has the burden of proving by a

preponderance of the evidence a prima facie case of

discrimination. Second, if the plaintiff succeeds in

proving the prima facie case, the burden shifts to the

defendant ‘to articulate some legitimate, non-

discriminatory reason for the employee’s rejection.’

Third, should the defendant carry this burden, the

plaintiff must then have an opportunity to prove by a

preponderance of the evidence that the legitimate

reasons offered by the defendant were not its true

reason but were a pretext for discrimination.” Jd. at

252-53.

By establishing a prima facie case, a plaintiff “creates a

presumption that the employer unlawfully discriminated

against the employee.” Burdine, supra. at 254. Making out

a prima facie case “is not a demanding burden.” Greenway

v. Buffalo Hilton Hotel, 143 F.3d 47, 52 (2d Cir. 1998). If

a plaintiff successfully establishes a prima facie case, the

burden then shifts to the defendant “to articulate some

legitimate, non-discriminatory reason for the employer’s

[action].” McDonnell Douglas, supra. at 802. This reason

must be “clear and reasonably specific.” Binder v. Long

Island Lighting Co., 933 F.2d 187, 191 (2d Cir. 1991).

If the defendant carries this burden, the plaintiff must then

prove “by a preponderance of the evidence that the legitimate

reasons offered by the defendant were not its true reasons, but

were a pretext for discrimination.” Burdine, supra. at 248.

A plaintiff can establish pretext “either directly, by

persuading the court that a discriminatory reason more likely

‘motivated the employer, or indirectly, by showing that the

employer’s proffered explanation is unworthy of credence.”

Burdine, supra. at 156.

In order to establish a prima facie case of race/color

discrimination, a plaintiff must show (1) that he/she belongs

to a protected class; (2) that he/she was performing his/her

duties satisfactorily; (3) that he/she suffered an adverse

employment action; and (4) that the adverse employment

action occurred under circumstances giving rise to an

inference of discrimination on the basis of his/her membership

in that class. Chambers v. TRM Copy Centers Corp., 43 F.3d

29, 36-37 (2d Cir. 1994). In moving for summary judgment,

the respondent herein alleged and the courts below agreed that

petitioner could not meet the third and fourth elements.

9

B. Petitioner Established That the Complained of

Actions Were Adverse Employment Actions

Under this Court’s standard for summary judgment, there

were triable issues as to whether the complained of actions

were adverse employment actions. In Galadya v. NYC Board

of Education, 202 F.3d 636 (2d Cir. 2000), the Second

Circuit recognized that “less flagrant reprisals” than

termination or a reduction in wages and benefits may be

sufficient. Jd. at 640. The key, said the court, is to

determine whether the alleged action creates a “materially

significant disadvantage.” Id. at 649; see also, Campbell v.

Grayline Air Shuttle Inc., 930 F.Supp. 794 (E.D.N.Y. 1996).

In Campbell, the court, citing Medwid v. Baker, 752 F.Supp.

125, 136-37 (S.D.N.Y. 1990), also noted that “a material

adverse change is one that has an attendant negative result, a

deprivation of a position or an opportunity.” In determining

whether there is an attendant negative result, one must look at

the totality of the circumstances. Campbell, supra. at 802-

803.

In Morris v. Lindau, 496 F.3d 102, 110 (2d Cir. 1999),

the Second Circuit also noted lesser actions may be considered

adverse employment actions, citing as examples” negative

evaluation letters, express accusations of lying, assignment of

lunchroom duty, reduction of class preparation periods,

failure to process teacher’s insurance forms, transfer from

library to classroom teaching as an alleged demotion, and an

assignment to classroom on fifth floor which aggravated

teacher’s physical disabilities.” Jd. In addition, the Second

Circuit has held that adverse employment actions are not

limited to “pecuniary emoluments.” Preda v. Nissho Iwai

Am. Corp., 128 F.3d 789, 791 (2d Cir. 1997).

10

An adverse employment action has been further defined as

one which “affects the terms, privileges, duration or

conditions of employment.” Dortz v. City of New York, 904

F.Supp. 127, 155 (S.D.N.Y. 1995), Pazamickas v. NYS

Office of Mental Retardation, 963 F.Supp. 190 (N.D.N.Y.

1997).

Therefore, petitioner respectfully submits that the alleged

denial of overtime. is an adverse employment action. The

lower courts should have found that whether petitioner

actually received more overtime than others and rejected

opportunities for overtime, in the face of his denials, were

triable issues of fact and should not have resulted in a finding

that no adverse employment action occurred.

C. Petitioner Established That the Complained of

Actions Occurred under Circumstances Giving

Rise to an Inference of Discrimination

Petitioner sufficiently established that the complained of

actions occurred under circumstances giving rise to an

inference of discrimination. We have seen that petitioner is

a member of the Black race. Pursuant to the Collective

Bargaining Agreement between respondent and Local 424,

overtime is to be distributed to custodians, including |

petitioner, on a voluntary basis, by seniority. In accordance |

with this Collective Bargaining Agreement, overtime is

supposed to be assigned in the order of seniority provided for

in an Official overtime list which is posted every week. This

list contains those who wish to be considered for overtime. |

Individuals who wish not to be chosen are not on the list.

Messrs. Macaluso, Rocchio and Tyler are all Caucasian.

Subsequent to 1990, Mr. Rocchio, in consultation with the

Union, which provides the names of employees, assigned

.

11

people for overtime. Mr. Macaluso and Mr. Rocchio then

began regularly approving overtime for custodians in

disregard of the rotation provided for in the official overtime

list and by giving overtime to individuals not on the list.

The actions of respondent and its agents favored

Caucasian and Hispanic custodians at the expense of Black

custodians, such as petitioner. This problem began when Juan

Perez became Foreman. Respondent ensured that Caucasians

and Hispanics were favored.

Custodians such as Juan Perez, Joseph Montura, Pedro

LaRosa, James Cameron, Jim Campbell and Vincent

Avallone, all of whom are Caucasian or Hispanic, were

favored and received overtime even if they were not on the

list.

Respondent’s attempt to justify its actions by claiming that

some of those individuals could receive overtime in disregard

of the overtime list because they had supervisory

responsibilities or special skills was without merit and

pretextual. In fact, Mr. Avallone is not even licensed to

repair vacuums.

Although the rotation based upon seniority is supposed to

be based upon the entire campus, respondent has improperly

attempted to circumvent the selection process by having

different lists for particular portions of the campus and for

different shifts. There is currently no campus-wide list.

There are different numbers of custodians on each list.

Petitioner disputed the overtime hours that respondent

claimed he worked. A review of the time sheets offered by

respondent revealed that those off the list, such as Vincent

Avallone, received a disproportionate amount of overtime.

12

Respondent concedes that there are inequities in the amount

of overtime each employee received.

Petitioner respectfully submits that all of the foregoing

facts, which are supported in the record, went beyond

petitioner’s own “belief.” As such, there were triable issues

as to whether petitioner established whether the complained

of actions occurred under circumstances giving rise to

discrimination.

The issue of whether petitioner received more overtime

than others or that he refused overtime assignments, in the

fact of petitioner’s denials, should have been considered an

issue of fact. The courts below, based upon this Court’s

precedents, should not have decided this issue upon a motion

for summary judgment.

CONCLUSION

For the foregoing reasons, the Petition for Writ of |

Certiorari should be granted.

Respectfully submitted,

WOLIN & WOLIN, ESQS.

By: Alan E. Wolin, Esq.

Attorney for Petitioner

420 Jericho Turnpike, #215

Jericho, New York 11753

Telephone: (516) 938-1199

— —s > ¥

CRITI ST

la

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

No. 04-2290

[February 18, 2005]

LINDBIRGH LOCKHART,

Plaintiff-Appellant,

¥.

HOFSTRA UNIVERSITY,

Defendant-A ppellee.

PRESENT: HON. JOSEPH M. McLAUGHLIN, HON.

PETER W. HALL, HON. JOHN R. GIBSON, * Circuit

Judges.

* The Honorable John R. Gibson, Judge of the United States

Court of Appeals for the Eighth Circuit, sitting by

designation.

SUMMARY ORDER

UPON DUE CONSIDERATION, IT IS HEREBY

ORDERED, ADJUDGED, AND DECREED that the

2a

judgment of said district court be and it hereby is

AFFIRMED.

Plaintiff-Appellant Lindbirgh Lockhart appeals from a

March 29, 2004 judgment of the United States District Court

for the Eastern District of New York (Arlene R. Lindsay,

Magistrate Judge) granting summary judgment to defendant-

appellee Hofstra University. On appeal, Lockhart argues that

the district court erred when it concluded that Lockhart could

not establish a prima facie case for discrimination based on

race in violation of Title VII of the Civil Rights Act of 1964,

as amended, 42 U.S.C. §§ 2000e-2000e-17. Familiarity with

the facts and proceedings below is assumed. We affirm.

We review a district court’s grant of summary judgment

de novo. See Okemo Mountain, Inc. v. U.S. Sporting Clays

Ass'n, 376 F.3d 102, 104 (2d Cir. 2004). In an employment

discrimination case, a plaintiff has the burden of showing at

the outset that (1) he belongs to a racial minority; (2) he

applied and was qualified for the job; (3) he suffered an

adverse employment action; and (4) the adverse employment

action occurred under circumstances that give rise to an

inference of discriminatory intent. See Sanders v. New York

City Human Res. Admin. , 361 F.3d 749, 755 (2d Cir. 2004).

Lockhart failed to put forward facts that satisfy the third

and fourth requirements of the prima facie case. An “adverse

[employment] action is one that affects the terms, privileges,

duration or conditions of employment.” Yerdon v. Henry, 91

F.3d 370, 378 (2d Cir. 1996). The only employment

statistics on Lockhart’s overtime before the district court came

from Hofstra. On a motion for summary judgment, a court

ordinarily must construe all evidence in the light most

favorable to the non-moving party and draw all reasonable

inferences in its favor. Quinn v. Green Tree Credit Corp.,

LS

3a

159 F.3d 759, 764 (2d Cir. 1998). Here, however, Hofstra

offered evidence of Lockhart’s overtime hours and that of his

co-workers, and Lockhart offered no contrary evidence.

Thus, it was proper for the district court to rely on Hofstra’s

figures. Goenaga v. March of Dimes Birth Defects Found., 51

F.3d 14, 18 (2d Cir. 1995) (“When the defendant moves for

summary judgment on the ground that there is an absence of

evidence to support this essential element, the plaintiff's

burden of producing such evidence in opposition to the

motion is de minimis. Nonetheless, the plaintiff cannot meet

this burden through reliance on unsupported assertions. ”)

(internal citations omitted). As Hofstra’s figures make clear,

Lockhart worked more overtime hours between 1998 and

2001 than did his co-workers, notably more than all but one

of his white co-workers. Furthermore, Lockhart was offered

certain emergency overtime opportunities and declined to

accept them. Thus, he cannot establish that he has suffered an

adverse employment action.

Lockhart also fails to allege facts that would support an

inference of racially discriminatory intent. Lockhart is black,

and he alleges that his superiors ignored a seniority-based

overtime assignment list and instead favored Hispanic and

white custodians in handing out overtime assignments. He

alleges that this practice is discriminatory regardless of the

actual hours worked. These opportunities, however, which

Lockhart alleges were wrongly diverted to his Hispanic and

white co-workers, were the very overtime opportunities for

which he declined to be considered. Thus, the facts he alleges

raise no inference of discriminatory intent.

We have carefully considered Lockhart’s remaining

arguments and find them to be without merit.

4a

For the reasons set forth above, the judgment of the

district court is hereby AFFIRMED.

Sa

APPENDIX B

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

CV 01-6547 (ARL)

[March 29, 2004]

LINDBIRG LOCKHART,

Plaintiff,

V.

HOFSTRA UNIVERSITY,

)

)

)

)

)

)

Defendant. )

. 2

DECISION AND ORDER

Plaintiff Lindberg Lockhart has brought this action against

defendant Hofstra University (“the University”) alleging that

the defendant discriminated against him in the assignment of

overtime on account of his race in violation of the Title VII of

the Civil Rights Act of 1964, as amended, 42 U.S.C.

§ 2000e, et seq. (Compl. {4 1, 14, 20-23).

Presently before the court is defendant’s motion for

summary judgment pursuant to Federal Rule of Civil

Procedure 56. The parties have consented to the disposition

of this action by a Magistrate Judge pursuant to 28 U.S.C.

6a

§ 636(c). For the reasons set forth below, the motion is

GRANTED.

I. The Undisputed Facts'

Plaintiff is an African-American employed by the

University as a custodian in its Physical Plant Department.

(Compl. at 44 14, 16; Pl. Dep. at 13; Def. 56.1 Statement at

{ 2). He is responsible for the cleaning and maintenance of

the building located on the University’s South Campus. (PI.

Dep. at 9-10; Def. 56.1 Statement at 4 3; P1.56.1 Statement

at ¢ 13). Plaintiff has held this position since 1990 and has

continuously reported to Michael Rocchio, Assistant Director

of the Physical Plants Department at the University. (Pl. Dep.

at 21-22; Def. 56.1 Statement at ¢ 4; P1.56.1 Statement at

q 15). Mr. Rocchio is Caucasian. (Pl. Aft. at 1 22; Rocchio

Dep. at 18). In addition to Mr. Rocchio, there are six other

custodial managers, each with responsibility for his own crew

of custodians. (Tyler Dep. at 9; Def. 56.1 Statement at { 7).

The custodial workforce at the University is unionized.

(Tyler Decl. at 4; Def. 56.1 Statement at ¢ 9; PI. 56.1

Statement at { 8). The collective bargaining agreement (“the

CBA”) governing the employment relationship between the

University, and the union members, including the plaintiff,

has an express overtime provision. (Compl. at { 18; Ex. 1 to

' Pursuant to Local Civil Rule 56. l(a), defendant has submitted a

statement of material facts as to which it contends that there is no

genuine issue to be tried. In response, plaintiff has submitted a

counter-statement pursuant to Local Civil Rule 56. 1(b) that fails to

address all of the facts set forth in defendant’s statement.

Accordingly, those factual averments that have not been

controverted by plaintiff's counter-statement are deemed admitted

pursuant to Local Civil Rule 56. l(c).

Ta

the Decl. of Aimee M. Florin; Def. 56.1 Statement at 416;

P1.56.1 Statement at { 17-18). The CBA provides, in

relevant part, that “[o]vertime shall be computed on a daily

and weekly basis .... The Chief Shop Steward shall divide any

overtime in conjunction with management on a voluntary

seniority basis.” (Def. 56.1 Statement at ¢ 17; PI. 56.1

Statement at ¢ 17). The CBA does not require that the

University maintain a list containing the names of employees

ranked by seniority from which the overtime assignments are

made. (P1. Dep. at 124-26; Def. 56.1 Statement at ¢ 18).

Likewise, the CBA is silent on whether the individual selected

for a particular overtime assignment should be the most senior

on a campus-wide basis or by location worked. (Ex. 1 to PI.

56.1 Statement).

A. Process By Which Overtime Is Assigned

Each of the seven custodial managers maintains his own

seniority-based overtime list. (Roccio Dep. at 3 1, 33; Def.

56.1 Statement at 4 29; Tyler Dep. at 13). According to

defendant, multiple lists are used because custodians provide

coverage seven days a week, 24 hours a day and if only one

list were used, individuals would often have to decline an

Overtime assignment because it would conflict with their

regular work hours. (Tyler Dep. at 14-15, 41; Tyler Decl. at

q 11 ; Def. 56.1 Statement at { 30). In addition, defendant

states that multiple lists are used so that custodial managers

can assign overtime jobs to individuals in their regular work

areas: (Tyler Dep. at 41-42; Tyler Decl. at { 13).

When overtime hours are available, the custodial manager

requests from the Union a number of people to work that

overtime assignment. The Union, in conjunction with the

custodial manager, then compiles a list of individuals who

will work the requested overtime. (Tyler Dep. at 13; Rocchio

8a

Dep. at 29, 37; Def. 56.1 Statement at | 25, P1.56.1

Statement at ¢ 21). The custodial manager then assigns the

individuals to the particular overtime assignment. (Rocchio

Dep. at 26; Def. 56.1 Statement at { 25).

There are exceptions when the seniority-based overtime

lists are not utilized in assigning overtime. (Rocchio Dep. at

43-44; Def. 56.1 Statement at { 33). For example, defendant

asserts that the custodial foreman is regularly required to

oversee certain Overtime jobs and receives overtime pay for

such work but is not listed on the seniority-based lists.

(Rocchio Dep. at 58-59: Tyler Dep. at 28-29; Tyler Decl. at

q 15; Def. 56.1 Statement at { 35). Also, defendant claims

that individuals with special skills, such as equipment repair,

may receive overtime assignments even if they are not

included on the seniority-based overtime lists. (Rocchio Dep.

at 58-59; Tyler Dep. at 28-29; Tyler Decl. at { 15; Def. 56.1

Statement at 4 36). In addition, according to defendant, when

there are a limited number of custodians who work in a

particular area of the campus and that area consistently

generates overtime assignments, those individuals may

regularly be offered the overtime assignments in their work

area irrespective of the seniority-based overtime lists.

(Rocchio Dep. at 55-56; Def. 56.1 Statement at { 34).

B. Plaintiff's Overtime Assignments

From 1998-2001, the plaintiff worked a total of 1156.25

overtime hours. (Tyler Decl. at ¢ 17 and Ex. 1; Def. 56.1

Statement at ¢ 19). The average number of overtime hours

during that time period for plaintiff's fourteen Hispanic co-

workers was 1150 hours. (Tyler Decl. at ¢ 18 and Exs. 1-2;

Def. 56.1 Statement at { 20). During that same time period,

the average number of overtime hours for plaintiff's fourteen

Caucasian co-workers was 420 hours. (Tyler Decl. at { 19

9a

and Exs. 1-2; Def. 56.1 Statement at ¢ 21). The average

number of overtime hours for the African-American

custodians assigned to the South Campus, including plaintiff,

was 703.18 hours. (Exs. 1-2 annexed to the Tyler Decl.).

In addition to the overtime hours actually worked, plaintiff

was offered the opportunity to work “off-list” overtime by the

Chief Shop Steward, but declined. (Def. 56.1 Statement at

q 38). Plaintiff was also included on the “emergency”

overtime list which provided him with the opportunity to

work additional overtime assignments. (/d. at 4 39).

However, he requested that he be removed from that list.

(Id.).

C. Plaintiff's Union Membership

From 1978 to 1990, plaintiff was employed by Trans

World Maintenance Corporation, a company that provided

custodial services to the University. (P1.56.1 Statement at

q 2; Def. 56.1 Statement at { 1). During that time, he served

as Chief Shop Steward of Local 144 and had responsibility,

in consultation with management, for assigning overtime or

selecting people for overtime. (/d. at 44 4-5; Def. 56.1

Statement at ¥ 10). Plaintiff selected people for overtime

based upon seniority and referred to the seniority list that

covered the entire Hofstra campus. (Id. at { 6). In 1988, the

custodians working at the University, including plaintiff,

became members of Local 424 of the United Industry

Workers. (/d. at 18).

In August of 1990, plaintiff became employed directly by

the defendant and moved from Chief Shop Steward to

Assistant Shop Steward. (/d. at {4 7, 9; Def. 56.1 Statement

at ¢ 2, 13). As Assistant Shop Steward, plaintiff was

responsible for selecting people for overtime only in the

10a

absence of the Chief Shop Steward. (/d. at { 11).

Approximately one year later, plaintiff resigned from the

Assistant Shop Steward position. (Def. 56.1 Statement at {

14).

In February, 1996, plaintiff filed a grievance with the

Union complaining about the distribution of overtime. (Jd. at

4 35; Def. 56.1 Statement at { 40; see also Ex. G to the

Lockhart Aff.). In that grievance, plaintiff complained that,

for the past four years, “off-list” overtime had been given to

six particular individuals in violation of the collective

bargaining agreement. (Def. 56.1 Statement at { 41; Ex. G.

to the Lockhart Aff.). Of those named as having received

preferential treatment with respect to the assignment of

overtime, there were two African-Americans, Jimmy Adams

and Michael Black. (Ex. G to the Lockhart Aff.; Def. 56.1

Statement at 42.). According to plaintiff, his grievance was

not remedied. (Pl. 56.1 Statement at 4 36).

II. The Plaintiff's Claims

Plaintiff claims that, beginning in 1998, defendant

regularly approved overtime assignments for custodians in

disregard of the rotation provided for in the official overtime

list.2 (Compl. at ¢ 19). This distribution of overtime

assignments, plaintiff alleges, intentionally favors Caucasian

and Hispanic custodians at the expense of African-Americans.

* It is important to note that plaintiff concedes that “he has received

his fair share of overtime within the past two years” and challenges

only the assignment of overtime from 1998 to 2001. (PI. Dep. at

40; P1.56.1 Statement at { 28).

lla

Accordingly, plaintiff filed a charge of discrimination with

the New York State Division of Human Rights (“NYSDHR”)

on December 4, 1998. (Compl. at { 6). The charge was dual

filed with the Equal Employment Opportunity Commission

(“EEOC”). (Id.). On May 22, 2001, after a fact finding

hearing, the NYSDHR dismissed the charge and issued a

finding of No Probable Cause. (Def. 56.1 Statement at { 50).

On July 11, 2001, the EEOC issued a “Notice of Right to

Sue” and plaintiff commenced this action on October 3, 2001.

(Compl. at { 8).

DISCUSSION

I. Standards Governing a Motion for Summary Judgment

A motion for summary judgment may be granted only

when it is shown “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. P. 56(c); see also

Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Lang v.

Retirement Living Pub. Co., 949 F.2d 576,580 (2d Cir.

1991).

The party seeking summary judgment “bears the initial

responsibility of informing the district court of the basis for

its motion,” and identifying which materials “it believes

demonstrate the absence of a genuine issue of material fact.”

Celotex, 477 U.S. at 323; see also Trebor Sportswear Co. v.

The Ltd. Stores, Inc., 865 F.2d 506.511 (2d Cir. 1989). The

substantive law governing the case will identify those facts

that are material, and “[o]nly disputes over facts that might

affect the outcome of the suit under the governing law will

properly preclude the entry of summary judgment.” Anderson

v. Liberty Lobby, Inc, 477 U.S. 242,248, 106 S. Ct. 2505,

2510 (1986).

12a

Once the moving party has come forward with support

demonstrating that no genuine issue of material fact remains

to be tried, including pleadings, depositions, interrogatory

answers, and affidavits, the burden shifts to the non-moving

party to provide similar support setting forth specific facts

about which a genuine triable issue remains. See Fed. R. Civ.

P. 56(e); see also Anderson, 477 U.S. at 250, 106 S. Ct. at

2511; Borthwick v. First Georgetown Sec., Inc., 892 F.2d

178, 181 (2d Cir. 1989). The court must resolve all

ambiguities and draw all reasonable inferences in favor of the

non-moving party. Anderson, 477 U.S. at 254-55, 106 S. Ct.

2513. Moreover, the court’s role on a motion for summary

judgment “in short, is confined.., to issue-finding; it does not

extend to issue-resolution.” Gallo v. Prudential Residential

Servs., Ltd. Partnership, 22 F.3d 1219, 1224 (2d Cir. 1994);

see also Consarc Corp. v. Marine Midland Bank, N.A., 996

F.2d 568,572 (2d Cir. 1993).

In evaluating the record to determine whether there is a

genuine issue as to any material fact, “[t]he evidence of the

non-movant is to be believed, and all justifiable inferences are

to be drawn in his favor.” Anderson, 477 U.S. at 255,106

S. Ct. at 2513. “If, as to any issue on which summary

judgment is sought, there is any evidence in the record from

any source from which a reasonable inference could be drawn

in favor of the nonmoving party, summary judgment is

improper.” Chambers v. TRM, 43 F.3d 29, 37 (2d Cir.

1994).

In a discrimization case, the court must examine “the

entire record to Gesermine whether the plaintiff could satisfy

his ‘ultimate burden of persuading the trier of fact that the

defendant intentionally discriminated against the plaintiff.’”

Schnabel v. Abramson, 232 F.3d 83, 90 (2d Cir. 2000)

13a

(quoting Reeves v. Sanderson Plumbing Prods., Inc., 530

U.S. 133,143,120 S.Ct. 2097, 2106 (2000)).

II. Defendant’s Motion

Defendant moves for summary judgment contending that

plaintiff cannot establish a prima facie case of race

discrimination under Title VII. Defendant also asserts,

assuming plaintiff can establish a prima facie case, that it has

set forth a legitimate, nondiscriminatory reason for the

manner in which overtime is assigned and plaintiff has not

offered any competent evidence to show that defendant’s

legitimate nondiscriminatory reason was _ pretextual.

Accordingly , defendant contends that it is entitled to summary

judgment and plaintiff's complaint should be dismissed in its

entirety.

A. Title VII Standards

Plaintiff's Title VII claim of discriminatory treatment on

account of his race is analyzed pursuant to the three-step

burden shifting test of McDonnell Douglas Corp. v. Green,

411 U.S. 792, 802-04, 93 S. Ct. 1817, 182.4-25 (1973),

Texas Dep’t of Community Affairs v. Burdine, 450 U.S.

248,252-53, 101 S. Ct. 1089, 1093 (1981), and St. Mary’s

Honor Center v. Hicks, 509 U.S. 502, 506-08, 113 S. Ct.

2742, 2746-47 (1993).

Under this framework, the plaintiff must establish, by a

preponderance of the evidence, a prima facie case of

discrimination. A prima facie case of race discrimination

under Title VII requires that the plaintiff demonstrate that: (1)

he is a member of protected class; (2) he was qualified for the

position held; (3) he suffered an adverse employment action;

and (4) the adverse action arose under circumstances giving

14a

rise to an inference of discrimination. See McDonnell

Douglas, 411 U.S. at 802, 93 S. Ct. at 1824 and its progeny.

These requirements for establishing a prima facie case are

“minimal.” Fisher v. Vassar College, 114 F.2d 1332, 1335

(2d Cir. 1997) (quoting St. Mary’s Honor Ctr., 509 U.S. at

506, 113 S. Ct. at 2747; Cronin v. Aetna Life Ins Co., 46

F.3d 196, 203-04 (2d Cir. 1995).

If the plaintiff demonstrates a prima facie case, a

presumption that the employer unlawfully discriminated

against the employee is raised, see Fisher v. Vassar College,

114 F.3d 1332, 1335 (2d Cir. 1997), and the burden of

production then shifts to the employer “to articulate a

legitimate, clear, specific and non-discriminatory reason” for

the adverse employment action at issue. Gallo, 22 F.3d at

1226. If the employer satisfies this burden, the presumption

raised by the prima facie case is rebutted and the burden is

then on the plaintiff to show by a preponderance of the

evidence that the employer’s reason is a pretext for unlawful

discrimination. Kerzer v. Kingly Manufacturing, 156 F.3d

396,401 (2d Cir. 1998).

B. Proof of a Prima Facie Case of Race Discrimination

It is undisputed, for the purposes of defendant’s summary

judgment motion, that plaintiff has satisfied the first two

elements of a prima facie case: (1) plaintiff is a member of a

protected class; and (2) he was qualified for his position as a

custodian with defendant.

The dispute revolves around the third and fourth elements.

Defendant asserts that the plaintiff has not suffered an adverse

employment action, and, even if he had, the alleged adverse

employment action did not arise under circumstances giving

rise to an inference of race discrimination.

15a

More specifically, defendant contends that during the

relevant time period (1998 - 2001), plaintiff worked, on

average, more overtime hours than nine of his Hispanic co-

workers and all but one of his Caucasian co-workers. Because

plaintiff's overtime hours are greater, on average, than the

majority of his Hispanic and Caucasian counterparts,

defendant asserts that plaintiff suffered no adverse

employment action as a matter of law.

Plaintiff's response to this argument is two-fold. First,

plaintiff disputes the number of overtime hours that rename

claims that he worked as compared to the other employees.’

Second, the court discerns from plaintiff’s papers that it is the

missed opportunities for overtime that he was allegedly denied

on account of his race that are the adverse employment

actions suffered, irrespective of the total overtime hours

worked.

3 The court regards the overtime hours that defendant claims

plaintiff worked as true. Defendant has supported its calculation of

plaintiff's overtime hours with documentary evidence reflecting not

only plaintiff’s overtime hours, but also that of his similarly situated

co-workers. Plaintiff self-serving statement that he “disputes the

overtime hours that defendant claims he worked” is insufficient as

a matter of law to rebut the defendant’s evidence. See e.g.,

Goenaga v. March of Dimes Birth Defects Foundation, 51 F.3d 14,

18 (2d Cir. 1995). This rule is particularly applicable here in light

of the fact that plaintiff has failed to provide any contrary evidence

despite his deposition testimony that he has paycheck stubs that

prove that the defendant’s calculation is in error. See Lockhart

Depo. at 86.

i6a

i. Whether Plaintiff Suffered An Adverse Employment

Action Within The Meaning of Title VII

It is well-settled that “[aJn adverse action is one that

affects the terms, privileges, duration or conditions of

employment.” See, e.g., Yerdon v. Henry, 91 F.3d 370, 378

(2d Cir. 1996) (citations omitted). “A materially adverse

change might be indicated by a termination of employment,

a demotion evidenced by a decrease in wage or salary, a less

distinguished title, a material loss in benefits, significantly

diminished material responsibilities, or other indices that

might be unique to a particular situation.” Galabya v. New

York City Bd. of Educ., 202 F.3d 63655, 640 (2d Cir. 2000).

“Adverse action” in Title VII cases has not been defined

“solely in terms of job termination or reduced wages and

benefits, and that less flagrant reprisals by employers may

indeed be adverse. Wanamaker v. Columbian Rope Co., 108

F.3d 462,466 (2d Cir. 1997) “There are no bright-line rules.

Courts must consider the facts of each case to determine

whether the challenged action reaches the level of ‘adverse.’”

(Id.). Moreover, “[i]t is a court’s responsibility to ‘pore over

each case to determine whether the challenged employment

action reaches the level of ‘adverse’.’” Ruggieri v.

Harrington, 146 F. Supp.2d 202, 215 (E.D.N.Y. 2001)

(citations omitted).

The issue here is whether the denial of the opportunity to

work overtime assignments rises to the level of an actionable

adverse employment action under Title VII. The court finds

that it does. While such a denial may not be tantamount to a

termination of employment, the denial of the opportunity to

work overtime assignments affects a term and condition of

employment and may constitute an adverse employment

action. See Austin v. Ford Models, Inc., 149 F.3d 148, 152

17a

(2d Cir. 1998) (finding that allegations of denial of overtime

pay were sufficient to meet element of prima facie case of

disparate treatment); Austin v. Ford Models, 2000 WL

1752966, No. 95 Civ 3731 (AJP), (S.D.N.Y. Nov. 29, 2000)

(“It is also arguable that [plaintiff] suffered an adverse

employment action in not receiving overtime compensation” );

Hall v. South Central Connecticut Regional Water Authority,

28 F. Supp.2d 76 (D. Conn. 1998) (“Making overtime or job

assignments... based upon an employee's gender or race can

constitute actionable discrimination under Title VII”).

While denial of overtime assignments may be an adverse

employment action, such is not the case here. Plaintiff has not

suffered any adverse employment action because his overtime

hours compare favorably with the average number of

overtime hours worked by his Hispanic and Caucasian

counterparts. Moreover, in addition to the plaintiff having

worked more overtime hours than several of his colleagues,

plaintiff was offered the opportunity to work additional “off-

list” overtime and/or “emergency” overtime and declined.

Plaintiff can hardly support a claim of discrimination based on

missed overtime opportunities when he deliberately removed

himself from consideration for such opportunities. There is

simply no evidence to support the claim that race

discrimination is why plaintiff has fewer overtime hours than

some of his Caucasian and Hispanic colleagues. Rather, his

own decision to decline additional overtime assignments, for

whatever reason,’ sufficiently explains why plaintiff's total

‘ Plaintiff apparently believes that “off-list” overtime assignments

violate the collective bargaining agreement. Whether his belief is

correct is irrelevant here because his own declination of overtime

opportunities belies his claim of race discrimination.

a

18a

overtime hours are lower than those of some of the other

employees.

ii. Whether the Alleged Denial of Overtime Opportunities

Occurred

Under circumstances giving rise to an inference of race

discrimination defendant argues that the employment actions

of which plaintiff complains did not occur under

circumstances giving rise to an inference of discrimination.

(Def. Mere. at 8-16). While plaintiff's burden in establishing

a prima facie case of disparate treatment is “de minimus”

McLee v. Chrysler Corp., 109 F.3d 130, 134 (2d Cir. 1995),

he has failed to present any evidence sufficient to support an

inference of race discrimination. This court finds that plaintiff

has not presented any facts sufficient to support the last

element of the prima facie case. Importantly, plaintiff does

not contend that he never received overtime assignments.

Rather, he asserts that the overtime opportunities were offered

to his Caucasian and Hispanic colleagues in disregard of the

seniority-based overtime list. It is this procedure that plaintiff

alleges is discriminatory, irrespective of the actual overtime

hours he worked.

However, plaintiff ignores the critical fact that he

removed himself from receiving additional overtime hours by

refusing those “off-list” opportunities offered to him. This

fact standing alone, defeats plaintiff's claim that his race had

anything to do with his overtime assignments.”

> To the extent that plaintiff asserts that persons other than he may

have been denied the opportunity to work off-list overtime, he lacks

standing to assert such claims. See, e.g., Murphy v. Board of

Education of Rochester City School District, 273 F. Supp. 2d 292,

19a

Although a “‘trial court must be cautions about granting

summary judgment’” when a case turns on the intent of one

party, as employment discrimination claims often do, Gallo

v. Prudential, 22 F.3d at 1224, this court finds that there

simply no evidence of race discrimination here. Accordingly,

the court finds that plaintiff has failed to set forth a prima

facie case of race discrimination.

iii. Legitimate, Nondiscriminatory Reason

Even if the court were to find that plaintiff had established

a prima facie case, defendant has met its burden to articulate

a legitimate, nondiscriminatory reason for the assignments at

issue. More specifically, defendant asserts three reasons: (1)

for efficiency purposes, where there are a limited number of

custodians who work in a particular area of the campus and

that area consistently generates overtime hours, those

custodians may regularly be offered the overtime generated in

their work area instead of referring to the seniority-based lists

(Def. 56.1 Statement at { 34); (2) the custodial foreman, who

is regularly required to oversee certain overtime jobs,

receives overtime even though he is not included on the

seniority-based overtime lists (Id. at { 35); and (3) individuals

with special skills, such as equipment repair, may receive

overtime hours even if they are not included on the seniority-

based overtime lists. (/d. at { 36).

The court finds that the reasons asserted by defendant are

sufficient to satisfy its burden of articulating a legitimate,

302-03 (W.D.N.Y. 2003) (citing Vermont Right to Life Committee,

Inc. v. Sorrell, 221 F.3d 376, 382 (2d Cir. 2000)).

20a

nondiscriminatory reason for the overtime assignments at

issue.

iv. Nondiscriminatory Reasons Are Pretextual

Because defendant has put forth “a legitimate non-

discriminatory reason” for the overtime assignments at issue,

Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133,

142, 120 S. Ct. 2097 (2000) (quoting Texas Dep’t of Cmty

Affairs v. Burdine, 450 U.S. 248, 254, 101 S. Ct. 1089

(1981)), “the burden shifts back to the plaintiff to prove, by

a preponderance of the evidence, that the real reason for the

adverse employment action was discrimination.” Mandell v.

County of Suffolk, 316 F. 3d 368,381 (2d Cir. 2003).

Plaintiff does not satisfy his burden. Plaintiff merely

concludes that defendant’s articulated reasons are a pretext for

race discrimination, but fails to offer any supporting evidence.

In fact, of the three reasons proffered by the defendant,

plaintiff addresses only the “special skill” rationale, and assert

that it is a pretext because one of the highest overtime

earners, James Avellone (who is Caucasian), “is not even

licensed to repair vacuums.” (Def. Mem. at 11). The court

finds that this unsupported claim is insufficient to prove that

the defendant’s reason is a pretext for race discrimination for

several reasons. First, there is no evidence in the record to

support plaintiff's conclusion that the “special skill” rational

corresponds to the overtime assignments worked by Mr.

Avellore or that he worked overtime assignments repairing

vacuums. Second, even if there were such evidence before

this court, there is no evidence establishing that a license is

even required. Simply stated, the unsupported fact that Mr.

Avellone may not be licensed to repair vacuums is wholly

irrelevant to the central issue of whether defendant’s

2la

justification for the manner in which overtime assignments

were made is a pretext for race discrimination.

Accordingly, this court finds that there is no basis to

conclude that defendant’s reasons for making off-list overtime

assignments is a pretext for unlawful discrimination.

Defendant has presented nondiscriminatory reasons for its

assignment of overtime, and plaintiff has not presented

evidence such that a jury could find that he has rebutted this

proffer or established the necessary discriminatory intent by

a preponderance of the evidence. Whether or not the

assignment of overtime was done fairly or even consistently

with the collective bargaining agreement is not relevant,

absent sonic indication that plaintiff's race had anything to do

with such assignments. Nothing in the record indicates

discriminatory animus and plaintiffs evidence has not placed

any of the material issues, those concerning defendant’s

proffered nondiscriminatory reasons for the assignment of

overtime, into genuine dispute. Accordingly, summary

judgment in favor of defendant is appropriate.

CONCLUSION

For the reasons stated herein, defendant’s motion for

summary judgment is GRANTED in all respects. The

complaint is dismissed. SO ORDERED.

Dated: Central Islip, New York

March 29, 2004

/s/

ARLENE ROSARIO LINDSAY

United States Magistrate Judge

22a

APPENDIX C

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

CV-01-6547 (ARL)

{March 29, 2004]

LINDBIRGH LOCKHART,

Plaintiff,

HOFSTRA UNIVERSITY,

)

)

)

V. )

)

)

Defendant. )

)

JUDGMENT

A Decision and Order of Honorable Arlene R. Lindsay,

United States Magistrate Judge, having been filed on March ‘

29, 2004, granting defendant’s motion for summary

judgment, and dismissing the complaint, it is

ORDERED AND ADJUDGED that plaintiff take

nothing of defendant; that defendant’s motion for summary

judgment is granted; and that the complaint is dismissed.

DATED: Long Island, New York

March 29, 2004

23a

ROBERT C. HEINEMANN

Clerk of the Court

By: /s/ Ralph Branciforte

Deputy Clerk

No. 04-1558 JUN 1 7 2005

OFFICE OF THE CLERK

IN THE

Supreme Court of the United States

LINDBIRG LOCKHART,

Petitioner,

v.

HOFSTRA UNIVERSITY,

Respondent.

On PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES CourRT OF APPEALS

FOR THE SECOND CIRCUIT

BRIEF IN OPPOSITION

AIMEE B. FLoRIN

Counsel of Record

JiLL L. ROSENBERG

Orrick, HERRINGTON

& Sutcurre LLP

666 Fifth Avenue

New York, New York 10103

(212) 506-5000

Counsel for Respondent

194971 ci

COUNSEL PRESS

(800) 274-3321 * (800) 359-6859

i

QUESTIONS PRESENTED

1. Whether the well-reasoned grant of summary

judgment by the United States District Court for the Eastern

District of New York in favor of Respondent Hofstra

University in a single plaintiff race discrimination case and

the decision of the United States Court of Appeals for the

Second Circuit to affirm that grant of summary judgment

raises a compelling issue of law so as to justify the “exercise

of [the] Court’s supervisory power” to grant a petition for

writ of certiorari?

2. Whether the District Court properly granted summary

judgment, and the Second Circuit properly affirmed the grant

of summary judgment, dismissing Petitioner’s Title VII claim

because Petitioner could not meet his burden to establish a

prima facie case of race discrimination?

3. Whether the District Court properly granted summary

judgment, and the Second Circuit properly affirmed the grant

of summary judgment, dismissing Petitioner’s Title VII claim |

because Petitioner could not meet his burden to prove that

Respondent’s legitimate, nondiscriminatory reason for the

assignment of certain overtime was a pretext for

discrimination and that discriminatory animus was the real

reason for the manner in which certain overtime was

assigned?

li

TABLE OF CONTENTS

OURS TIONS PRESENTED: 2. cio ck eae eas

TABLE OF CONTENTS

eke a ee ee a ee ee ae ee ee a ay ee ee ae er fen

OPINIONS AND ORDERS BELOW ............

BASIS FOR JURISDICTION «. oon

ASR VR EES oo ces os Ee aw ney ee

o.6 °@. 0 @..0..6: 6.8.2... 8 8) a S82 2-6

SUMMARY OF ARGUMENT ................-

PREIRINNEIES SiS ee ee e

I.

IT.

Il.

THERE ARE NO COMPELLING

REASONS TO GRANT CERTIORARI ..

THE DISTRICT COURT AND THE COURT

OF APPEALS ADHERED TO THIS

COURT’S ESTABLISHED PRINCIPLES IN

GRANTING RESPONDENT'S MOTION

FOR SUMMARY JUDGMENT ..........

SUMMARY JUDGMENT DISMISSING

PETITIONER’S RACE DISCRIMINATION

CLAIM WAS APTRUFRIAl Go... 555.

Page

iil

Contents

Page

A. Petitioner Cannot Prove A Prima Facie

Case Of Race Discrimination And, Thus,

Summary Judgment Was Proper ...... 9

B. Petitioner Did Not Offer Any Evidence

3 Of Circumstances Giving Rise To An

Inference Of Discrimination ......... 10

C. Summary Judgment Was Appropriate As The

Lower Courts Recognized That Petitioner

Advanced No Proof Of Intentional

PSUOOTMINATIOR 6 i i ve at

IE os re va ve Ca ee Uae 13

iv

TABLE OF CITED AUTHORITIES

CASES

Anderson v. Liberty Lobby, Inc.,

We REE oo ee ee nae

Bickerstaff v. Vassar College,

196 F.3d 435 (2d Cir. 1999Y, cert. denied, 530 U.S.

Pa oe oo as ee kek oe

Grillo v. New York City Transit Auth.,

rt et CO OO i i ba ws

Matsushita Elec. Indus. Co. v.

Zenith Radio Corp.,

re Re Ee OP oc eh woes FRO a pees

Reeves v. Sanderson Plumbing Prods., Inc.,

ns Be eG oe a ee

Weinstock v. Columbia Univ.,

224 F.3d 33 (2d Cir. 2000), cert. denied, 540 U.S.

ee I i oe eae ig ke so cok eae ee

Williams v. First Fed. Sav. & Loan,

554 F. Supp. 447 (N.D.N-Y. 1981), aff'd, 697 F.2d

We eg a pa ek a

Cited Authorities

Page

STATUTES

gS Te BS a1 RS aig aint kage re aanmesie crop l

RULES

POR ee Ba NN gy vrs pckie Rh ae 8b ee as Pe

Ue os eee ok ak Ra ke ea 5

l

OPINIONS AND ORDERS BELOW

The Decision and Order of the United States District

Court for the Eastern District of New York granting

Respondent’s motion for summary judgment in all respects

and dismissing Petitioner’s Complaint in its entirety

(Pet. App. B at 5a-21a) and the Judgment of the United States

District Court for the Eastern District of New York ordering

that Respondent’s motion for summary judgment is granted

and that the Complaint is dismissed (Pet. App. C at 22a-23a)

are unreported. The Summary Order of the United States

Court of Appeals for the Second Circuit affirming the

judgment of the District Court granting Respondent's motion

for summary judgment (Pet. App. A at la-4a) 1s reported at

2005 WL 387900 (2d Cir. Feb. 18, 2005).

BASIS FOR JURISDICTION

The Summary Order of the United States Court of

Appeals for the Second Circuit was issued on February 18,

2005. The petition for a writ of certiorari was filed on

May 18, 2005. The jurisdiction of this Court is invoked under

28 U.S.C. § 1254¢1).

RULES INVOLVED

The Rule involved is Federal Rule of Civil Procedure

56(c) which provides, in pertinent part:

Summary Judgment.

.... The judgment sought shall be rendered

forthwith if the pleadings, depositions, answers

to interrogatories, and admissions on file, together

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- with the affidavits, if any, show 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. ...

STATEMENT OF THE CASE

The crux of Petitioner’s claim is that from 1998 to 2001,

while working as a custodian for Respondent Hofstra

University (“Hofstra” or “Respondent”), Respondent

discriminated against him on the basis of his race (Black) by

denying him overtime hours while approving overtime hours

for custodians who are Caucasian or Hispanic.

Petitioner, who 1s currently employed by Hofstra as a

custodian, has reported to Michael Rocchio, Assistant

Director of the Physical Plants Department at Hofstra.

since 1990. (Pet. App. B at 6a). (Pet. App. B at 6a). In addition

to Mr. Rocchio, there are six other custodial managers,

each with responsibility for his own crew of custodians.

(Pet. App. B at 6a).

The custodial workforce at Hofstra is unionized and the

collective bargaining agreement (“CBA”) governing the

employment relationship between Hofstra and the union

members, including Petitioner, has an express overtime

provision. (Pet App. B at 6a). The CBA provides, in relevant

part, that “[o]vertime shall be computed on a daily and weekly

basis. . .. The Chief Shop Steward shall divide any overtime

in conjunction with management on a voluntary seniority

basis.” (Pet. App. B at 7a).

The CBA does not require that Hofstra maintain a list

containing the names of employees ranked by seniority from

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which the overtime assignments are made nor does the CBA

require that the individual selected for a particular overtime

assignment must be the most senior on a campus-wide basis

or by location worked. (Pet. App. B at 7a).

Each of the seven custodial managers maintains his own

seniority-based overtime list. (Pet. App. B at 7a). Because

the custodians provide coverage seven days a week, 24 hours

a day, multiple lists are used to avoid the assignment of

overtime which conflicts with regular work hours. (Pet. App.

B at 7a). Multiple lists are also used so that custodial

managers can assign overtime jobs to individuals in their

regular work areas. (Pet. App. B at 7a).

Generally, when overtime hours are available, the

custodial manager requests from the Union a number of

people to work that overtime assignment. (Pet. App. B

at 7a). The Union, in conjunction with the custodial manager,

then compiles a list of individuals who will work the

requested overtime and the custodial manager assigns the

individuals to the particular overtime assignment. (Pet. App.

B at 7a-8a).

There are, however, exceptions when the seniority-based

overtime lists are not utilized. (Pet. App. B at 8a).

For example, the custodial foreman is regularly required to

oversee certain overtime jobs and receives overtime pay for

such work even though he is not listed on the seniority-based

lists. (Pet. App. B at 8a). Also, individuals with special skills,

such as equipment repair, may receive overtime assignments

even if they are not included on the seniority-based overtime

lists. (Pet. App. B at 8a). And, when there are a limited

number of custodians who work in a particular area of the

campus and that area consistently generates overtime

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assignments, those custodians may regularly be offered the

overtime assignments in their work area irrespective of the

seniority-based overtime lists. (Pet. App. B at 8a).

In February 1996, Petitioner filed a grievance with the

Union complaining about the distribution of “off-list”

overtime to six particular individuals in violation of the CBA.

(Pet. App. B at 10a). Of those Petitioner claimed received

preferential treatment with respect to the assignment of

overtime, two were Black, Jimmy Adams and Michael Black.

(Pet. App. B at 10a).

Petitioner concedes that “he has received his fair share

of overtime within the past two years” and challenges only

the assignment of overtime from 1998 to 2001. (Pet. App. B

at 10a n. 2). From 1998-2001, Petitioner worked a total of

1156.25 overtime hours. (Pet. App. B at 8a). The average

number of overtime hours during that time period for

Petitioner’s fourteen Hispanic co-workers was //50 hours.

(Pet. App. B at 8a). During that same time period, the average

number of overtime hours for Petitioner's fourteen Caucasian

co-workers was 420 hours. (Pet. App. B at 8a-9a).

In addition to the overtime hours actually worked,

Petitioner was offered the opportunity to work “off-list”

overtime by the Chief Shop Steward, but declined. (Pet. App.

B at 9a). Petitioner was also included on the “emergency”

overtime list which provided him the opportunity to work

additional overtime assignments, but he requested that he be

removed from that list. (Pet. App. B at 9a).

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SUMMARY OF ARGUMENT

In direct contravention of the Rules of this Court,

Petitioner seeks review of the dismissal of his individual race

discrimination claim despite the fact that he does not assert

— let alone provide any support for — even one of the limited

number of compelling reasons recognized by the Court as

justification for such a grant.

Indeed, by filing ihe instant petition based on his

assertion that fact issues existed such that the lower courts

incorrectly granted summary judgment for Respondent,

Petitioner disregards completely the Court’s explicit

admonishment that “[a] petition for a writ of certiorari is

rarely granted when the asserted error consists of erroneous

factual findings or the misapplication of a properly stated

rule of law.” Rule 10, Rules of the Supreme Court of the

United States.

Even if, however, the Court did choose to exercise its

supervisory powers to consider the question before it, the

undisputed evidence in the record makes clear that the District

Court correctly found — and the Court of Appeals properly

affirmed — that there were no issues of fact requiring a trial

in this matter. Thus, summary judgment dismissing

Petitioner's Title VII race discrimination claim was

appropriately entered.

In particular, as recognized by the District Court — and

undisputed by Petitioner in his appeal to the Second Circuit

— Petitioner cannot establish even a prima facie case of race

discrimination because he has not suffered any adverse

employment action. (Pet. App. B at 17a). Nor can Petitioner

establish that overtime was distributed under circumstances

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giving rise to an inference of race discrimination where

“he removed himself from receiving additional overtime

hours,” (Pet. App. B at 18a), a fact which Petitioner did not

dispute on appeal.

Further, the District Court properly held that even if

Petitioner had established a prima facie case, Respondent

met its burden of articulating a legitimate, nondiscriminatory

reason for the overtime assignments at issue and, as a matter

of law, that Petitioner offered no evidence to even suggest

that his race “had anything to do with such [overtime]

assignments.” (Pet. App. B at 21a). Again, Petitioner’s appeal

offered nothing to contradict this finding and the

Second Circuit correctly found that “the facts [Petitioner]

alleges raise no inference of discriminatory intent.” (Pet. App.

A at 3a).

Petitioner's purported claim that the courts below

“did not adhere to this Court's established principles

concerning summary judgment,” :s nothing more than a

restatement of his opposition to Respondent’s motion for

summary judgment, which opposition was already rejected

after due consideration by both the District Court and the

Court of Appeals.

The lower courts applied the proper legal standard and

appropriately assessed the evidence in the record in granting

and affirming Respondent’s motion for summary judgment.