Opinion
03 Civ. 8717 (RWS).
May 22, 2006
KHAWAR MAQSOOD, Bronx, NY, Plaintiff Pro Se.
SCOTT A. WEISS, ESQ., WEISS WEISS LLC, White Plains, NY, CLIFFORD J. INGBER, ESQ., INGBER LAW FIRM PLLC, White Plains, NY, Attorneys for Defendant.
OPINION
Defendant Bell Security, Inc. ("Bell") has moved for summary judgment pursuant to Rule 56, Fed.R.Civ.P., to dismiss the amended complaint of plaintiff pro se Khawar Maqsood ("Maqsood"), alleging discrimination based upon national origin and religious belief. For the reasons set forth below the motion is granted, and the amended complaint is dismissed.
Prior Proceedings
This action was initiated November 4, 2003, by Maqsood, pro se status was granted, and an amended complaint was filed on December 19, 2003, alleging a violation of Title VII, 42 U.S.C. § 2000(e), arising out of discrimination because of national origin (Maqsood was born in Pakistan) and religious belief (Maqsood is Muslim).
Discovery proceeded, and the instant motion was marked fully submitted on November 9, 2005.
The Facts
Bell has submitted its Local Rule 56.1 Statement of Material Facts. Maqsood has submitted affidavits dated September 28, 2005, November 16, 2005, and January 10, 2006 and a letter dated November 25, 2005. The facts set forth below are based upon the Bell Statement and are not in dispute except as noted.
Since 1973 Bell has been engaged in the business of providing security guards' services to various clients and buildings in the New York metropolitan area. Bell employed approximately 1,500 individuals as security guards including individuals who were Muslims and of Pakistani national origin.
Bell was an Equal Employment Opportunity Employer, a status that was reflected on classified employment advertisements and other documents related to employment at Bell. Bell's employee applications also reflected Bell's status as an Equal Employment Opportunity Employer and put employees on notice of Bell's status. Maqsood was aware of Bell's status as an Equal Employment Opportunity Employer.
Maqsood was employed in 1995 as a security guard. As a condition of employment, he was required to attend a certified security guard training course to obtain his security guard's license and was apprised of the terms and conditions of his employment. Maqsood was also aware that he would be assigned to various clients' sites and that he would be required to train on site so that he would be fully aware of all of the duties each client required of him at the specific sites. As part of his security guard duties, Maqsood was trained by the client's building superintendent concerning building procedures, including doors, locks, fire command, access, and computerized security systems.
At the time Maqsood was employed, his hourly rate ranged from $5.15 to $8.50 per hour depending on the client rate being charged by Bell and on whether Maqsood was engaged in training at the client's site. Bell paid Maqsood the following reported wages as a security guard for Bell's client buildings according to his employee W-2 and earnings summaries:
1999: $12,037.13 2000: 13,218.23 2001: 11,640.00
Benefits such as vacation pay and health insurance were covered under the collective bargaining agreement that was administered by Local Union No. 803 Union and Fringe Benefit Funds. Bell did not provide fringe benefits; rather, such benefits were provided by the Union and its Funds. Bell made contributions to those various funds on behalf of its employees, including Maqsood. Maqsood did not complain that Bell improperly deducted any union dues from his wages.
Maqsood alleged in his subsequent New York State Division of Human Rights ("SDHR") complaint that Bell's account manager Raghubir and Zack Hosain ("Hosain") are Indian and Hindu, respectively, and that in June 2000 they instructed a client hotel manager to tell the other security guards to hit him.
Maqsood in his deposition also cited two conversations in which he claims discrimination. He claims that in 1999 Raghubir in the presence of Hosain had a political conversation with him regarding a dispute between India and Pakistan over Kashmir and that Hosain had a conversation about religion with him during a drive. He alleges that both Raghubir and Hosain are Indian and Hindu. Hosain has submitted an affidavit stating that he practices the Muslim religion.
On September 1, 2000, Maqsood apparently was involved in a confrontation with another security guard at the Red Roof Inn at Six West 32nd Street in New York City, which was one of Bell's clients. When Bell Account Manager Ramkellawan Raghubir ("Raghubir") responded to the site, Maqsood was not present at the site and could not be found.
According to Maqsood, in mid September he went to Bell and to Raghubir who told him not to apply for unemployment benefits or workman's compensation and that he would receive "all the money back" when he came back to work. "He said you are Muslim, that is why I am doing this." Maqsood Affid. 9/25/05, p. 2. According to Bell, it did not have any contact with Maqsood until January 30, 2001, when he applied for and was employed as a security guard. According to Bell, Maqsood had apparently abandoned his position after the incident at the Red Roof Inn on September 1, 2000, and it was Bell's normal procedure to have potential new employees apply for employment. Maqsood agreed to and did in fact complete the job application, and submitted to a drug test, as was Bell's normal procedure.
According to Bell, when Maqsood applied for employment on January 30, 2001, he cited "back problems" for his reason for previously abandoning his job in September 2000. At no time did Maqsood mention any discrimination. No medical bills were submitted to Bell. There was no discussion of vacation and sick leave pay for which, according to Bell, Maqsood was not eligible for because he had abandoned his employment in September 2000.
According to Maqsood, "he [Raghubir] forced me to sign, and I asked him why he was doing this, and he said you are Muslim and this is why I am doing this to you." Maqsood Affid. 9/27/05, p. 3.
Maqsood remained in Bell's employ as a security guard for the next ten months until on or about October 25, 2001 when his last assignment ended.
On October 31, 2001, Maqsood returned to pick up his check. At this time, he was told to see one of Bell's account managers Dhanpaul Khemraj ("Khemraj") for another security guard assignment. According to Bell, Maqsood did not accept the assignment, or respond, and again apparently abandoned his position. Subsequently, Bell was unable to employ him because no jobs were available. According to Maqsood, he did not refuse to take a job in October 2001; he was fired.
The Union has not brought, nor has Maqsood pursued any grievance against Bell.
During his employment with Bell, Maqsood never made any comments about his national origin or religious beliefs or discrimination of any manner or form, nor did he pursue any grievance.
Maqsood filed his SDHR complaint on October 31, 2001, alleging discrimination based on creed and national origin. On May 30, 2003, following an investigation, the SDHR issued a determination of no probable cause.
In an appeal by Maqsood to The Unemployment Insurance Appeal Board, by decision of January 16, 2002, it was determined that Maqsood had been fired on October 24, 2001 and thereby entitled to benefits. "He told me, you have to leave the company and they threatened me. Here are the names: Mr. Raghubir, Zack, Bob, Mr. Davis." Amended Complaint Statement, p. 2. According to Maqsood, he was not paid full pay while working at sixteen different buildings. "And he sent me without an agreement to more than 16 buildings. They were doing illegal practices." Maqsood Affid. 9/27/05, p. 2. Maqsood has submitted copies of medical records relating to the September 1, 2000 incident. According to Maqsood, he is entitled to six year's back pay because of the terms of his initial employment.
Discussion
Summary Judgment StandardPursuant to Rule 56, summary judgment maybe granted only if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986); SCS Communications, Inc. v. Herrick Co., Inc., 360 F.3d 329, 338 (2d Cir. 2004). The court will not try issues of fact on a motion for summary judgment, but rather, will determine "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986).
Summary judgment is appropriate where the moving party has shown that "little or no evidence may be found in support of the nonmoving party's case. When no rational jury could find in favor of the nonmoving party because the evidence to support its case is so slight, there is no genuine issue of material fact and a grant of summary judgment is proper." Gallo v. Prudential Residential Servs., Ltd. P'ship, 22 F.3d 1219, 1223-24 (2d Cir. 1994) (internal citations omitted). If, however, "`as to the issue on which summary judgment is sought, there is any evidence in the record from which a reasonable inference could be drawn in favor of the opposing party, summary judgment is improper.'"Security Ins. Co. of Hartford v. Old Dominion Freight Line, Inc., 391 F.3d 77, 83 (2d Cir. 2004) (quoting Gummo v. Village of Depew, 75 F.3d 98, 107 (2d Cir. 1996)).
The moving party has the burden of showing that there are no material facts in dispute, and the Court must resolve all ambiguities and draw all reasonable inferences in favor of the party opposing the motion. Bickhardt v. Ratner, 871 F. Supp. 613 (S.D.N.Y. 1994) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986)). Thus, "summary judgment may be granted if, upon reviewing the evidence in the light most favorable to the non-movant, the court determines that there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law." Richardson v. Selsky, 5 F.3d 616, 621 (2d Cir. 1993).
A material fact is one that would "affect the outcome of the suit under the governing law," and a dispute about a genuine issue of material fact occurs if the evidence is such that "a reasonable jury could return a verdict for the nonmoving party."Anderson, 477 U.S. at 248; R.B. Ventures, Ltd. v. Shane, 112 F.3d 54, 57 (2d Cir. 1997).
"The salutary purposes of summary judgment — avoiding protracted, expensive and harassing trials — apply no less to discrimination cases than to commercial or other areas of litigation." Nicastro v. Runyon, 60 F. Supp. 2d 181, 183 (S.D.N.Y. 1999) (citing Dister v. Continental Group, Inc., 859 F.2d 1108, 1114 (2d Cir. 1988)). Greater caution must be exercised, however, in granting summary judgment in employment discrimination cases where the employer's intent is genuinely in issue. Belfi v. Prendergast, 191 F.3d 129, 135 (2d Cir. 1999). This is so because "employers are rarely so cooperative as to include a notation in the personnel file that the [action complained of] is for a reason expressly forbidden by law."Bickerstaff v. Vassar College, 196 F.3d 435, 448 (internal quotation marks and citation omitted; brackets in the original). However, even where an employer's intent is at issue, "a plaintiff must provide more than conclusory allegations of discrimination to defeat a motion for summary judgment." Schwapp v. Town of Avon, 118 F.3d 106, 110 (2d Cir. 1997); Meiri v. Dacon, 759 F.2d 989, 998 (2d Cir. 1985).
In considering Maqsood's papers submitted in this matter, the Court is mindful that he is proceeding pro se and that his submissions should be held "`to less stringent standards than formal pleadings drafted by lawyers. . . .'" Hughes v. Rowe, 449 U.S. 5, 9, 66 L. Ed. 2d 163, 101 S. Ct. 173 (1980) (per curiam) (quoting Haines v. Kerner, 404 U.S. 519, 520, 30 L. Ed. 2d 652, 92 S. Ct. 594 (1972)); see also Ferran v. Town of Nassau, 11 F.3d 21, 22 (2d Cir. 1993). Indeed, district courts should "read the pleadings of a pro se plaintiff liberally and interpret them `to raise the strongest arguments that they suggest.'" McPherson v. Coombe, 174 F.3d 276, 280 (2d Cir. 1999) (quoting Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994)). Nevertheless, pro se status "does not exempt a party from compliance with relevant rules of procedural and substantive law." Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir. 1983) (quotation marks omitted).
Summary Judgment is Appropriate
Title VII makes it unlawful "for an employer . . . to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race . . . [or] sex. . . ." 42 U.S.C. § 2000e-2(a)(1). The "ultimate issue" in any employment discrimination case is "whether the plaintiff has met her burden of proving that the adverse employment decision was motivated at least in part by an `impermissible reason.'" Stratton v. Department for the Aging, 132 F.3d 869, 878 (2d Cir. 1997).
Under the framework set forth by the Supreme Court inMcDonnell Douglas Corp. v. Green, 411 U.S. 792, 36 L. Ed. 2d 668, 93 S. Ct. 1817 (1973), a plaintiff asserting a claim of discrimination must first establish a prima facie case. To establish a prima facie case, a plaintiff must point to record evidence showing that: (1) he was a member of a protected class; (2) he was satisfactorily performing the duties required of the position; (3) he suffered an adverse employment action; and (4) the adverse employment action occurred under circumstances giving rise to an inference of discrimination. See e.g., McLee v. Chrysler Corp., 109 F.3d 130, 134 (2d Cir. 1997).
If that prima facie case is established, the burden of production, but not persuasion, shifts to the employer to set forth a legitimate non-discriminatory reason for the non-selection. St. Mary's Honor Society v. Hicks, 509 U.S. 502, 509, 125 L. Ed. 2d 407, 113 S. Ct. 2742 (1993). Once the employer has met its burden of showing a legitimate, non-discriminatory reason for the employment action, the employee must then show that the reason advanced is pretextual — i.e., that it masks the employer's true discriminatory reason for its actions. See Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 254-56, 67 L. Ed. 2d 207, 101 S. Ct. 1089 (1981).
Here Maqsood has failed to prove the essential elements of his federal employment discrimination claims. His failure renders all other facts immaterial, and summary judgment is warranted.Pearson, 2005 WL 1123754 (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)). Moreover, where as here, Maqsood's claim is "based on conclusory allegations of discrimination and the employer provides a legitimate rationale for its conduct[,]" summary judgment is appropriate. Lowcar v. Boston Market Corporation, 294 F. Supp. 2d 472, 477-78 (S.D.N.Y. 2003) (citing Tojzan v. N.Y. Presbyterian Hosp., 2003 WL 1738993 at 4 (S.D.N.Y. March 31, 2003)). Adverse Employment Action Is An Issue Of Fact
Bell employed Maqsood intermittently as a security guard from on or about 1995 until on or about October 31, 2001. Maqsood's allegation that he was permanently assigned to the "ABC Building" and the fact that he was assigned to various client sites, without more, does not constitute evidence of unlawful discrimination. Maqsood performed this security guard job without complaint for almost five years and admits that he was paid for this security guard work.
Maqsood has not offered, and there is no record evidence whatsoever that Bell assigned security guard services to him any differently than any other security guard and hired other individuals who are of Pakistani national origin and practiced Muslim beliefs on the same terms and conditions regardless of their national origin or beliefs.
After the alleged confrontation with the security guard on September 1, 2000, Maqsood admits that he left the Red Roof Inn and went to the hospital. Therefore, he was unreachable. Bell's account manager, Hosain, who Maqsood purportedly claims discriminated against him in the assignments of security guard work for his Muslim beliefs, is also Muslim, contrary to Maqsood's allegation, and was born in Guyana, according to his affidavit.
Maqsood has failed to controvert the fact that Bell employed Maqsood on and after January 30, 2001 and the fact that Bell attempted to reassign work to him on or after October 31, 2001.
Maqsood alleges that he was subjected to discrimination in that he was required to reapply for his position when he returned to Bell in January, 2001. When Maqsood returned to Bell's office on or before January 30, 2001, he read and completed the job application and cooperated and submitted to a drug test as was Bell's normal course of business. He worked for another ten months for Bell and was compensated for that work. Given that Maqsood was given work in January of 2001, he has failed to establish that the requirement to reapply for the position constituted an adverse employment action from which he suffered materially adverse consequences.
However, a factual issue is presented with respect to Maqsood's allegation that he was terminated from employment in October, 2001. Raghubir has denied that he met with Maqsood in October and the statements attributed to him. According to Bell, it attempted to give Maqsood another assignment on or after October 31, 2001, but was unable to do so because he failed to respond and disappeared. While, as Bell points out, Maqsood admits that he was no longer employed at Bell after October 23, 2001, he does not concede that he left voluntarily. Rather, he maintains that he was no longer employed because he was terminated. Khemraj, account manager for Bell, testified that he attempted to assign work to Maqsood but Maqsood failed to report for duty. According to Bell, after October 31, 2001, no other assignments were available. As set forth above, Maqsood has created an issue of fact surrounding whether or not he was fired on October 25, 2001.
A factual dispute as to adverse employment action on the part of Bell has been presented with respect to Maqsood's termination, and making the required inference in favor of the party opposing summary judgment, see Security Ins. Co. of Hartford v. Old Dominion Freight Line, Inc., 391 F.3d 77, 83 (2d Cir. 2004), it is assumed for purposes of this motion that an adverse employment action was taken by Bell.
No Discrimination Has Been Established
While there is an issue of fact with respect to whether Maqsood suffered an adverse employment action, he has not established a claim for discrimination.
During his employment at Bell, Maqsood never complained nor offered a single comment that he was subjected to discrimination based on his Pakistani national origin or Muslim beliefs.
Maqsood's allegation contained in his SDHR complaint that the guards on September 1 were instructed to attack him have not been repeated here. In addition, no evidence has been presented to link the incident with any statement of animus based upon religious or national origin. Maqsood has not established that the alleged 1999 conversation represented anything more than political differences. He also has not fixed the time or details of the conversation.
Isolated and ambiguous statements do not support a finding of discrimination. See Pasha, 2004 WL 188077 at p. 5; accord Phipps v. Comprehensive Community Development Corp., 2005 WL 287413 (S.D.N.Y. Feb. 4, 2005) at p. 11 (citing Soliman v. Deutsche Bank, AG, 2004 WL 1124689 (S.D.N.Y. May 20, 2004) at p. 9)). Even if these conversations took place, which are denied by Raghubir and Hosain, political and religious conversations are not evidence of an inference of discrimination. Boise v. New York University, 2003 WL 22390792 (S.D.N.Y. Oct. 21, 2003) at p. 5 (citing Fisher v. Vassar College, 114 F.3d 1332, 1337 (2d Cir. 1997), cert. denied, 522 U.S. 1075, 118 S.Ct. 851, 139 L.Ed.2d 752 and rehearing denied 523 U.S. 1041, 118 S.Ct. 1341, 140 L.Ed.2d 501 (1998)). Maqsood admits that he continued to work for Bell for two years after these conversations allegedly took place under the same terms and conditions of employment. There is no evidence of any causal connection between these conversations and the adverse employment action for which a factual issue has been presented — the alleged termination.
Maqsood has alleged that when he returned to Bell's office after the confrontation with another security guard at the Red Roof Inn, Bell's account manager Raghubir told him that because he was Muslim and of Pakistani national origin he was required to reapply for employment. However, as set forth above, the requirement to reapply for employment does not constitute an adverse employment action. Therefore, even assuming Maqsood's allegations to be true, a prima facie case has not been established with respect to this claim. Maqsood has failed to adduce any evidence to support that the above comments allegedly made by Raghubir were connected to his alleged termination. Given that the comments allegedly took place in January, after the alleged termination took place, it is concluded that there is no causal connection.
Maqsood's amended complaint alleged unequal terms of employment, but has not put forth any evidence establishing that he was treated differently. None has been established. The amended complaint also alleged termination of employment. However, no discriminatory animus has been established. Therefore, in the absence of evidence of discrimination, Bell is entitled to summary judgment.
Submit judgment on notice.
It is so ordered.