United States District Court for the Western District of New York

1992 U.S. Dist. LEXIS 12237; 62 Empl. Prac. Dec. (CCH) 42,366

April 14, 1992, Decided; pril 14, 1992, Filed.



This is an action brought pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. @@ 2000e et seq., alleging discrimination on the basis of race. This matter is before the Court on defendant Rochester Telephone Corporation's ("RTC") motion for summary judgment pursuant to Fed. R. Civ. P. 56. For the reasons stated below, defendant's motion for summary judgment is denied.


Plaintiff Joseph Walker, a black man, was hired by defendant RTC in 1969. In early 1988, plaintiff was working as a frame technician, performing telephone wiring work in defendant's central offices. At that time, RTC decided to add four installation/repair technician positions to its work force. Plaintiff was one of four people selected by RTC for possible promotion. RTC notes that of the four candidates selected, two were white and two were black. Defendant required that the four candidates attend installation/repair technician school for the purpose of receiving the training necessary to obtain the promotion. The course was a one-week classroom training program.

Defendant claims that to be eligible for the promotion, an applicant had to score at least seventy-five percent on the multiple choice examination given at the conclusion of the training course. Apparently, plaintiff did not score seventy-five percent on the exam but, instead, achieved a grade of seventy-three percent. In spite of that, RTC determined that plaintiff met the minimum qualifications necessary for the position and, therefore, promoted him in March 1988. According to Beverly Linzy, the Equal Employment Opportunity personnel manager for RTC, plaintiff was promoted based on his qualifications and not because of an Affirmative Action program.

After successfully completing the installation/repair technician course, the four trainees were then sent for on-the-job training. Soon after plaintiff began his training, serious problems arose. Plaintiff alleges that from the outset he received disparate treatment in his training. Initially, plaintiff was assigned, along with the others, to the West Henrietta station. Subsequently, and despite his strenuous objections, he was transferred to the Whitney Road Garage where he was under the immediate supervision of Frank Bihrle, RTC's service foreman. Plaintiff alleges that he was the only black installation/repair technician at that location. Plaintiff objected to the transfer primarily because he lived near the Henrietta station, and it was much easier for him to commute to work there. He did not understand the reason for his transfer since another trainee lived near the Whitney Road Garage and was eager to train there. Plaintiff claims that when he raised these concerns with Laverne Beaumont, RTC's manager of installation services, plaintiff was told that he did not have the experience and was not smart enough to work at the Henrietta station. Plaintiff contends that Beaumont did not know him or his intellectual capabilities at that point.

Plaintiff also contends that he was subjected continually to racial epithets and comments by supervisor Frank Bihrle during his training. In March 1988, plaintiff claims that he was assigned to set up a "cross-box" at 34 Balsam Lane. when he experienced some difficulty with the set-up, he requested Bihrle's help. Bihrle apparently became agitated over plaintiff's inability to understand his instructions. Bihrle then grabbed the tool out of plaintiff's hand and allegedly said "I forgot you people don't have any brains." See Plaintiff's Deposition at Exhibit K, pp. 189-90.

In another instance, plaintiff claims that he was assigned a job that had originally been assigned to another installer, Ron Bauman. The job was difficult and time consuming because it required movement through heavy shrubs. When plaintiff asked Bihrle why he had to do Bauman's job and why he was getting so many undesirable assignments, Bihrle replied that "you have thick skin, you will not feel the bites." Plaintiff notes that he was often given the difficult assignments and malfunctioning equipment that no one else wanted or would take.

On the other hand, defendant claims that almost immediately after plaintiff's field training began, Laverne Beaumont received reports that plaintiff was having difficulty with his new job. On March 29, 1988, Beaumont met with plaintiff and Bihrle to review plaintiff's performance. According to defendant, plaintiff expressed no concerns about racial discrimination or the training he was receiving. Moreover, a question arose regarding plaintiff's ability to see and read. Plaintiff confirmed that he had an appointment to see his eye doctor about a new eyeglass prescription. Plaintiff was then given a work order to read and Beaumont stated that plaintiff had difficulty seeing the print.

Plaintiff takes issue with defendant's characterization of the events leading up to the meeting. Plaintiff maintains that he complained in writing about his training almost immediately after he was assigned by Bihrle to train with Ron Bauman. Plaintiff wrote to Bihrle and requested a transfer to the Henrietta location because Bauman refused to take the time to train him or explain how to do things. Instead of taking any action, Bihrle allegedly shared plaintiff's letter with all of the workers on the crew, which only served to isolate plaintiff.

Plaintiff also disputes defendant's version of what occurred at the March 29, 1988 meeting with Beaumont and Bihrle. He claims that while he was suffering from glaucoma, it did not affect his ability to do his job. Plaintiff asserts that he experienced difficulty reading the work order only because the printing was of such poor quality, and the handwriting almost completely illegible. On April 21, 1988, plaintiff, Beaumont, Bihrle and a union representative met. Again, plaintiff's vision problems were discussed. Defendant claims that plaintiff did not raise issues of racial discrimination or dissatisfaction with the training he was receiving. In a May 20, 1988 meeting plaintiff did complain to Beaumont that he was being given special attention because of "a government suit."

On May 20, 1988, another service foreman, Ron Davis, was assigned to ride with plaintiff for the day and observe his progress. Davis reported that plaintiff had difficulty reading work orders and locating customer's addresses. Davis also delineated plaintiff's other difficulties in mastering his job. On June 20, 1988, Beaumont, Bihrle, a union representative and plaintiff met to review Davis' observations. Plaintiff was advised that his wage increase would be withheld due to unacceptable job performance. In addition, Beaumont gave plaintiff a specific number of work orders that plaintiff would have to complete each day in order to keep his position. Finally, plaintiff was offered additional training, which he refused.

It is undisputed that plaintiff did not meet the minimum performance targets set by Beaumont. Thereafter, in August 1980, Beaumont decided to demote plaintiff back to frame technician. According to defendant, this decision was based on various factors, including "inputs from Mr. Bihrle." Aff't of John F. LaFave, at Exh. Z; Aff't of David Rothenberg, at 6. In addition, laintiff's productivity was below that of the three other trainees who were promoted at the same time he was. Defendant contends that Beaumont was the one who decided to demote plaintiff and that he did not consider plaintiff's race in making that decision. RTC asserts that plaintiff was demoted because of his vision problems, poor performance and low productivity.

Plaintiff responds by claiming that race clearly played a part in the decision to demote him and cites Bihrle's racial comments and the disparate training he received. Plaintiff also cites Beaumont's June 20, 1988 decision to set performance targets as an example of disparate treatment. Plaintiff notes that no other installer in plaintiff's category was given such quotas. He also argues that most of the information relied upon by Beaumont in demoting plaintiff came from Bihrle. Defendant denies that any racial comments were made by any supervisor, but argues that even if such statements were made by Bihrle, they are irrelevant because Bihrle did not participate in the decision to demote plaintiff.


A. Summary Judgment in a Title VII Case: The Legal Standard.

Federal Rule of Civil Procedure 56(c) requires summary judgment where the record shows that "there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." A genuine issue of material fact exists if the evidence in the record when the motion is made would permit reasonable jurors to return a verdict in favor of the non-movant. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A party opposing summary judgment, if it bears the burden of proof at trial, must come forward with evidence showing the existence of facts from which a jury could return a verdict in favor of the non-movant. See Celotex Corp. v. Catrett, 477 U.S. 317, 324-25 (1986). In considering whether genuine issues of fact exist, the Court must examine the controlling substantive law to determine which facts are material. See Anderson, 477 U.S. at 248.

Furthermore, in deciding defendant's motion for summary judgment, I must consider all facts in a light most favorable to plaintiff, as well as make reasonable inferences in plaintiff's favor. Cinema North Corp. v. Plaza at Latham Assoc., 867 F.2d 135, 138 (2d Cir. 1989); Knight v. U.S. Fire Insurance Co., 804 F.2d 9, 11 (2d Cir. 1986), cert. denied, 480 U.S. 932 (1987).

Generally, in a Title VII action, where a defendant's intent and state of mind are at issue, summary judgment is inappropriate. Rosen v. Thornburgh, 928 F.2d 528, 533 (2d Cir. 1991); Montana v. First Federal Savings & Loan of Rochester, 869 F.2d 100, 103 (2d Cir. 1989). Nevertheless, "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." Dister v. Continental Group, Inc., 859 F.2d 1108, 1114 (2d Cir. 1988).

To defeat a motion for summary judgment in a Title VII case, plaintiff may rely on the three-step analytical framework first set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), and later refined in Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248 (1981), [*10] to establish a reasonable inference of discriminatory intent. See Montana, 869 F.2d at 103. The three steps are as follows: First, the plaintiff has the burden of proving by the 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, nondiscriminatory 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 reasons, but were a pretext for discrimination. Burdine, 450 U.S. at 252-53 (quoting McDonnell Douglas, 411 U.S. at 802, 804). "The plaintiff's burden of proving pretext thus merges with the ultimate burden of proving discrimination." Song v. Ives Laboratories, Inc., 1992 WL 32054 (2d Cir. February 25, 1992). The burden of persuasion concerning proof of discrimination remains at all times with the plaintiff. See Burdine, 450 U.S. at 252-53.

In order to prove a claim of racial discrimination, plaintiff must show that he was the victim of intentional discrimination. To establish a prima facie case of discriminatory treatment based on race in a Title VII action, plaintiff must show: (1) that he is a member of a protected class; (2) that he was qualified and satisfactorily performing the duties required by the position; (3) that he was demoted; and (4) that he was demoted from the position under circumstances giving rise to an inference of racial discrimination. See McDonnell Douglas Corp., 411 U.S. at 802; Rosen, 928 F.2d at 532; Ramseur v. Chase Manhattan Bank, 865 F.2d 460, 464 (2d Cir. 1989); Meiri v. Dacon, 759 F.2d 989, 995 (2d Cir.), cert. denied, 474 U.S. 829 (1985).

On summary judgment, however, the plaintiff is not required to meet the burden of proving his case by a preponderance of the evidence. Rather, the requirements of prima facie proof, legitimate explanation and pretext merge into a single standard. In order to survive a summary judgment motion, plaintiff need only produce evidence sufficient to support a reasonable inference of discrimination. Sorlucco v. New York City Police Dept., 888 F.2d 4, 7 (2d Cir. 1989); Foster v. Arcata Assoc., Inc., 772 F.2d 1453, 1459 (9th Cir. 1985), cert. denied, 475 U.S. 1048 (1986). Plaintiff may meet his burden at the summary judgment level with direct proof of discriminatory motive or he may produce evidence that defendant's explanation is not worthy of credence.

Direct evidence of discrimination is virtually nonexistent in employment discrimination cases against sophisticated corporate employers. Aggrieved employees must rely on circumstantial evidence and inferences to make out a case under Title VII. Ramseur, 865 F.2d at 465. If plaintiff's evidence, taken as a whole, creates an issue of fact as to the believability of defendant's articulated explanation, summary judgment must be denied. See Dister, 859 F.2d at 1113.

The prima facie standard is flexible and not hard to meet. In fact, the Burdine Court called plaintiff's burden "not onerous." 450 U.S. at 253; see also Meiri v. Dacon, 759 F.2d at 996 n.10] (referring to "the de minimus nature of a plaintiff's burden of proof at the prima facie stage").

B. Disparate Treatment: Plaintiff's Prima Facie Case.

As a member of a protected class, plaintiff clearly meets the first prima facie requirement. Likewise, the parties do not dispute that plaintiff was demoted from his position. Rather, the dispute here centers around whether plaintiff was qualified for the position of installation repair technician and whether he was satisfactorily performing the duties required of that position. Defendant argues that plaintiff has not established a prima facie case of discrimination because he did not even satisfy the minimum requirements necessary for successfully completing the training program. In short, defendant maintains that plaintiff failed to achieve a score of seventy-five percent on the written examination, which was necessary to qualify for the position.

Plaintiff responds that he was qualified and states that RTC must have believed that as well since they chose to promote him. In Owens v. New York City Housing Authority, 934 F.2d 405 (2d Cir. 1991), the court concluded that "McDonnell Douglas requires only a minimal showing of qualification to establish a prima facie claim. [Plaintiff] only needs to demonstrate that [he] 'possesses the basic skills necessary for performance of [the] job.'" 934 F.2d at 409 (quoting Powell v. Syracuse Univ., 580 F.2d 1150, 1155 (2d Cir.), cert. denied, 439 U.S. 984 [1978]). Whatever plaintiff's test scores were, it is significant that RTC still promoted him to the position of installation repair technician. In promoting him, RTC's senior corporate EEO coordinator, Beverly Linzy, stated that plaintiff met the minimum qualifications necessary for installation repair technician. In my view, a fact-finder could infer that plaintiff achieved a passing score, that he successfully completed the classroom training course and that he met the minimum qualifications for the position.

Next, defendant contends that because plaintiff did not satisfactorily perform the duties required of his position, he cannot show that he was qualified when he was demoted. Defendant also notes that plaintiff's demotion by itself does not give rise to an inference of racial discrimination. However, I cannot conclude on this record that the evidence clearly supports defendant's view so that judgment must now be entered in its favor. A rational fact-finder could infer that plaintiff was prevented by his immediate supervisor, Frank Bihrle, from satisfactorily performing his duties and that race was indeed a factor in the decision to demote him. In sum, there are issues of fact and issues of credibility that cannot be resolved here.

Plaintiff points to the many positive performance evaluations he received from RTC supervisors before he was promoted. Generally, plaintiff's work was characterized as satisfactory or above satisfactory. See Aff't of John F. LaFave, at Exh. E. In these evaluations, plaintiff was described as quality and service conscious, cooperative, knowledgeable and able to solve even complex problems with little assistance. See id. In some instances, it was noted that if plaintiff's production level was down, it was because he was so quality conscious.

Plaintiff notes that he was the only trainee to be assigned to work with Frank Bihrle. Following his promotion to installation repair technician, plaintiff asserts that Bihrle made clearly derogatory remarks concerning plaintiff's race. He allegedly stated that "you people don't have any brains" and referred to the thickness of plaintiff's skin. Plaintiff contends that Bihrle gave him the jobs that no one else wanted because of their difficulty and assigned him the trucks that others did not want because of their poor condition. According to plaintiff, Bihrle even sabotaged his work.

Plaintiff has also raised issues of fact concerning the training he received. First, he was the only trainee transferred to the Whitney Road Garage. When plaintiff objected, he was allegedly to Id by Laverne Beaumont that he was not smart enough to be trained at the other station. Second, plaintiff alleges that he requested to be transferred because of the lack of training he was receiving. Instead of considering his request, Bihrle shared his letter with the other employees, which only served to isolate plaintiff from them.

Finally, it is unclear whether RTC replaced plaintiff or sought other applicants for his position after he was demoted. While defendant claims that no one was hired to replace plaintiff in August 1988, it appears that the position was filled in November 1988 when a temporary installation repair technician, who is a white male, was reclassified from temporary to permanent. In January 1989, RTC hired a new employee, who also is a white male, for the position of installation repair technician. Thus, it appears that defendant at least sought other applicants to fill plaintiff's position. In any event, the Second Circuit has recognized that Title VII does not require proof that plaintiff was replaced by a person outside the protected class. Meiri v. Dacon, 759 F.2d 989, 996 (2d Cir.), cert. denied, 474 U.S. 829 (1985). In Meiri, the court found that requiring an employee, in making out a prima facie case, to demonstrate that he or she was replaced by a person outside the protected class "is inappropriate and at odds with the policies underlying Title VII." 759 F.2d at 995-96. The court stated that the appropriate inquiry is "whether the employer continued to seek applicants to fill the position." Id. at 996.

In my view, genuine issues of material fact concerning plaintiff's prima facie case preclude me from granting summary judgment in defendant's favor.

C. Legitimate Business Reasons or Pretext.

Defendant RTC proffers several legitimate, nondiscriminatory reasons for plaintiff's demotion, including his poor eyesight, low productivity, and failure to meet performance targets. These matters certainly could be viewed by the fact-finder as legitimate business reasons for plaintiff's demotion. At trial, the fact-finder may, after viewing all the evidence, determine that these reasons were valid and that discrimination was not a factor in the decision to demote plaintiff. Since defendant has articulated several legitimate reasons for his demotion, plaintiff "must be afforded an opportunity to prove the existence of factual issues demonstrating that the stated reasons were merely a pretext for discrimination." Meiri, 759 F.2d at 997. Again, the Court is mindful that it "must resolve all ambiguities and draw all reasonable inferences in favor of the party against whom summary judgment is sought, with the burden on the moving party to demonstrate the absence of any material issue genuinely in dispute." Meiri, 759 F.2d at 997 (quoting Patrick v. LeFevre, 745 F.2d 153, 161 (2d Cir. 1984)).

Plaintiff is not required to show that race was the only factor in RTC's decision to demote him. See Montana, 869 F.2d at 105. Nor is he required to show that RTC's proffered reason is false, "but only that its stated reason was not the only reason and that [his race] did make a difference." Id.

When viewed in a light most favorable to him, plaintiff's evidence is sufficient to defeat summary judgment. Plaintiff proffers evidence that could permit a trier of fact to draw a reasonable inference of pretext. RTC contends primarily that plaintiff was unqualified for the position of installation repair technician. Whether plaintiff was qualified at the time of his demotion is subject to dispute. There are certainly several troubling aspects related to plaintiff's performance but plaintiff has sufficiently established his qualifications at this juncture to survive RTC's summary judgment motion.

A fact-finder could infer that Frank Bihrle "stacked-the-deck" against plaintiff once he was promoted and that from the beginning plaintiff was not given a chance to succeed in his new position. Plaintiff claims that Bihrle continually made racially derogatory comments [*20] to him, assigned him the jobs and equipment that no one else wanted, falsely reported incidents in an effort to discredit him and even sabotaged his work product. Moreover, in a March 16, 1988 memorandum to Laverne Beaumont, only ten days after plaintiff was promoted, Bihrle determined that plaintiff was not qualified and would not work out. See LaFave Aff't at Exh. C. He concluded that "I have some doubt at this time, that he will ever become productive enough to qualify as an I/R man." Id. Thus, a fact-finder could infer that Bihrle was opposed to plaintiff's promotion from the outset, that he did not want him to succeed and that the subsequent reasons for plaintiff's demotion, including the failure to meet performance targets, were merely pretextual.

RTC maintains that because Bihrle did not play any part in the ultimate decision to demote plaintiff, his racial remarks and racial animus had no nexus to defendant's decision and do not raise an inference of discriminatory motive. Plaintiff responds that while Beaumont made the actual decision to demote plaintiff, he certainly relied on input from Bihrle--plaintiff's immediate supervisor. According to plaintiff, Bihrle's information was inaccurate and influenced by a discriminatory motive.

Whether and to what extent Bihrle had a role in the decision to demote plaintiff is an issue of fact, which cannot be decided on summary judgment. Significantly, Beaumont admitted that in reviewing plaintiff's performance and in deciding to demote him, he relied on "input from Mr. Bihrle." See LaFave Aff't at Exh. Z. Moreover, in deciding to withhold a wage increase from plaintiff, Beaumont noted that "Mr. Bihrle recommended it and I supported it." Id. Clearly, a rational fact-finder could conclude that Bihrle had an impact on the decision to demote plaintiff. RTC cannot escape liability by claiming that the ultimate decision-maker had no racial bias. Although the acts or statements of a supervisor are not automatically attributed to the company, an employer is not necessarily insulated from liability either. See Meritor Savings Bank v. Vinson, 477 U.S. 57, 72 (1986); see also Lopez v. S.B. Thomas, Inc., 831 F.2d 1184, 1189 (2d Cir. 1987) ("Whether the employer is aware of employee harassment by coworkers and whether the employer has taken reasonable steps to eliminate such offensive conduct present questions of fact. . . .") "Disparate treatment analysis requires that none of the participants in the decision-making process be influenced by radial bias." Jones v. Gerwens, 874 F.2d 1534, 1541 n. 13 (11th Cir. 1989). Thus, an employer may be liable under Title VII "'where the action complained of was that of a supervisor, authorized to hire, fire, discipline or promote, or at least to participate in or recommend such actions, even though what the supervisor is said to have done violates company policy.'" E.E.O.C. v. Gaddis, 733 F.2d 1373, 1380 (10th Cir. 1984) (quoting Miller v. Bank of America, 600 F.2d 211, 213 (9th Cir. 1979)) (emphasis added).

In the present case, the motivations of both Beaumont and Bihrle are pertinent. Furthermore, Bihrle was not merely a co-worker or non-decision-making employee of RTC. He was the plaintiff's immediate supervisor. If the input Beaumont relied on was inaccurate and tainted by Bihrle's alleged racial animosity to plaintiff, then a nexus may be shown and a discriminatory motive inferred. In Rosen v. Thornburgh, 928 F.2d 528 (2d Cir. 1991), the Second Circuit found unavailing a contention similar to one the defendant makes here. There the court rejected a claim that the person who actually dismissed the trainee was the sole individual responsible for the decision when the record provided ample evidence that others "played a role in the ultimate decision." 928 F.2d at 534.

These issues must be resolved at trial. I cannot conclude on this record that the evidence is so clear that no rational fact-finder could determine that RTC's stated reasons were pretexts for discrimination. I must, of course, refrain from making credibility determinations and should not evaluate conflicting evidence. It may be that after a trial the fact-finder will conclude that RTC did not act with discriminatory intent. On its face, there appear to be business reasons for plaintiff's demotion. But, that is an issue for another day. "The question of which inference to draw . . . is a matter exclusively within the province of the jury." See Ramseur, 865 F.2d at 467.

Although the matter is close, I believe that these issues must be resolved at trial and therefore defendant's motion for summary judgment is denied.


For the reasons stated above, defendant's motion for summary judgment is denied.