EMILY PINES, Judge.
ORDERED , that the motion (motion sequence number 001) by plaintiff for a default judgment against defendants is granted; and it is further
ORDERED , that a hearing on counsel fees is scheduled for September 27, 2010 at 9:30 a.m. before the undersigned; and it is further
ORDERED , that submission of Judgment shall abide the determination of counsel fees.
This is an action for breach of a Promissory Note and failure to pay on a personal guaranty and seeks damages in the amount of $520,923.01, plus interest and attorneys' fees. Plaintiff commenced the instant action by filing of a Summons and Complaint on September 21, 2009 and service upon defendants was effectuated as follows: upon Madison Avenue Diamonds Holding, LLC and Madison Avenue Diamonds, LLC, by service upon the Secretary of State pursuant to Limited Liability Company Law § 303, on November 18, 2009; and service upon Moshe Lax pursuant to CPLR § 308(2) by leaving with a person of suitable age and discretion, to wit, "D. Rudich" at 580 5th Avenue, #501, New York, New York, on November 19, 2009, followed by mailing a copy of the Summons and Complaint on November 23, 2009. Defendants have not answered or otherwise moved with respect to the Complaint and Plaintiff now seeks a default judgment. Plaintiff has provided proof of the additional mailing to the individual defendant pursuant to CPLR § 3215(g)(3)(i).
Plaintiff is the successor in interest to North Fork Bank who entered into the Promissory Note with defendant.
In support of the motion, plaintiff has annexed a copy of the Verified Complaint, the affidavits of service, the Promissory Note and personal guarantees, and an affidavit by Gerard Waters, Vice President of plaintiff. According to Waters, or about July 12, 2007, defendant Madison Avenue Diamonds, LLC ("MAD") executed a Promissory Note, wherein MAD was permitted to borrow up to the sum of $ 1,000,000.00 payable in equal monthly payments at an interest rate of prime rate plus 1.5% per annum. Under the terms of the Promissory Note, MAD also agreed in the event of a default that plaintiff was entitled to accelerate the loan and also agreed to the payment of default interest at a rate of 5% over the current rate, plus late fees and attorneys' fees. On the same day, defendant Moshe Lax executed a guaranty of payment of the Promissory Note and on July 17, 2007, defendant Madison Avenue Diamonds Holding, LLC ("MAD Holding") also executed a guaranty of payment of the Promissory Note. Moshe Lax executed the guaranty on behalf of MAD Holding.
Plaintiff asserts MAD failed to pay as required under the Agreement in that it has failed to pay the monthly payment since on or about August 1, 2009, plaintiff has elected to accelerate all payments due and owing and there is now the sum of $521,923.01 due and owing, plus interest in the amount of $33,339.07 (and continuing to accrue until entry of judgment), plus late charges in the amount of $1,012.57, plus costs and attorneys' fees. Plaintiff states that defendants Moshe Lax and MAD Holding have failed to pay pursuant to the terms of the guaranty. Plaintiff now seeks the entry of a default judgment against defendants based upon their failure to answer or otherwise move with respect to the Summons and Complaint.
Defendants oppose the motion for a default judgment and request that the Court excuse their default, and extend them time to answer the Complaint. Defendants submit an affirmation of counsel and a proposed Verified Answer with affirmative defenses. Defendants argue that they have both a reasonable excuse for their default and a meritorious defense warranting denial of the motion for a default judgment and granting additional time to serve a Verified Answer. Initially, with regard to Moshe Lax, defendants assert that while the affidavit of service indicates he was served pursuant to CPLR § 308(2), the person listed in the affidavit of service "D. Radich", was not authorized to accept service on his behalf. Defendants do not challenge the service upon the limited liability companies via the Secretary of State, but indicate they are not aware whether they actually received the papers.
Defendant's counsel sets forth a lengthy recitation of unrelated disputes between plaintiff and a non-party, the Chaim Lax Family Trust, which he claims were ongoing during the time period when this action was commenced, as a basis for his excuse in responding to the Verified Complaint. Additionally, counsel states that he was also engaged in discussions with plaintiff's counsel and sought copies of the affidavits of service but never received them. Thus, he believed the Summons and Complaint had not been properly served, and thus did not respond thereto, and as such claims law office failure pursuant to CPLR § 2005 as a basis for the Court excusing the default. Defendants further claim that plaintiff will not be prejudiced by vacatur of the default since no judgment has yet to be entered.
Defendants also claim they have a meritorious defense to this action and submit a proposed Verified Answer containing affirmative defenses in support thereof. Defendants set forth the affirmative defenses of failure to state a cause of action, statute of limitations, statute of frauds, estoppel, release, waiver, ratification and acquiescence, unclean hands, laches, failure to mitigate damages, plaintiff's breach of contract, documentary evidence, lack of personal and subject matter jurisdiction, accord and satisfaction, comparative negligence, failure to satisfy conditions precedent, and failure to name an indispensable party. Defendants' proposed Answer also contains a reservation of rights and defendants argue that this action should be decided on the merits, rather than upon default. With regard to Moshe Lax, since defendants claim he was not served by personal delivery, that he should be entitled to defend this action on the merits pursuant to CPLR § 317 and even though the companies were properly served, inconsistent judgments could result if the default was not vacated against all of the defendants. Therefore, defendants urge the Court to deny the motion for a default judgment and allow them to interpose an Answer.
In reply, plaintiff argues that defendants have failed to demonstrate a reasonable excuse for their default and note that defendants' counsel admits having received a copy of the Complaint as far back as October of 2009. Plaintiff asserts that if defendants believed they were not properly served, their remedy was to move to dismiss based upon lack of personal jurisdiction and instead chose to simply ignore the Complaint and the requirements of the CPLR. Plaintiff notes that it was not under any obligation to provide the affidavits of service to defendants' counsel and further that plaintiff's counsel repeatedly advised defendants' counsel that it was proceeding with the litigation. Thus, plaintiff argues that defendants have failed to demonstrate any reasonable excuse for their failure to answer the Complaint. Plaintiff states that it waited more than five months before it sought a default judgment and that there is no law office failure that warrants vacating the default.
Additionally, plaintiff argues that defendants have wholly failed to establish a meritorious defense in that the conclusory affirmative defenses of the proposed Verified Answer is insufficient and there are no questions of fact in this case. Defendants failed to demonstrate they had a defense to their nonpayment of their obligations on the Promissory Note and guarantees and thus, their motion for a default judgment should be granted.
CPLR § 3215(a) allows a plaintiff to seek a default judgment against a defendant who has failed to appear, plead or proceed to trial of any action. A party who has defaulted in appearing or pleading may seek relief pursuant to CPLR § 5015 or CPLR § 317. CPLR § 5015(a) states in relevant part:
The court which rendered a judgment or order may relieve a party from it upon such terms as may be just, on motion of any interested person with such notice as the court may direct, upon the ground of:
1. excusable default, if such made motion is made within one year after service of a copy of the judgment or order with written notice of its entry upon the moving party, or, if the moving party has entered the judgment or order, within one year after such entry;
To vacate the default however, the Courts have held that defendant must demonstrate both a reasonable excuse for the default and a meritorious defense to the action. Westchester Medical Center v. Hartford Casualty Insurance Co. , 58 A.D.3d 832, 872 N.Y.S.2d 196 (2d Dept. 2009); Weiss v. Croce , 58 A.D.3d 832, 872 N.Y.S.2d 196 (2d Dept. 1990). Pursuant to CPLR § 317, a defendant who has been served by other than personal delivery may seek relief from a default judgment upon a showing that it did not receive actual notice of the summons in time to defend and has a meritorious defense. Franklin v. 172 Aububon Corp. , 32 A.D.3d 454, 819 N.Y.S.2d 785 (2d Dept. 2006). Under CPLR § 317, the movant does not have to demonstrate a reasonable excuse for the default as under CPLR Rule 5015. D D Asphalt Construction Corp. v. Corealty, LLC. , 296 A.D.2d 432, 744 N.Y.S.2d 713 (2d Dept. 2002). However, in a case in which "part of the service consists of a mailing to the defendant (e.g., CPLR 302(2) (4)), the defendant's uncorroborated denial of receipt will be insufficient to rebut the presumption that a properly mailed letter was received by the addressee." C.P.L.R. § 317, McKinney's Practice Commentaries (Alexander 2001), citing, Facey v. Heyward , 244 A.D.2d 452, 664 N.Y.S.2d 119 (2d Dept. 1997). The Second Department has repeatedly held that a process server's affidavit of services creates a presumption of proper mailing and defendant's conclusory allegations that he did not personally receive notice in time to defend the action is insufficient overcome this presumption. See, Prospect Park Managment v. Beatty , 73 A.D.3d 885, 900 N.Y.S.2d 433 (2d Dept. 2010); Cavalry Portfolio Services, LLC , 55 A.D.3d 524, 865 N.Y.S.2d 286 (2d Dept. 2008); Udell v. Alcamo Supply Contracting Corp. , 275 A.D.2d 453, 713 N.Y.S.2d 77 (2d Dept. 2000).
Based on the foregoing, plaintiff's motion for a default judgment is granted and defendants' application to vacate the default is denied. With respect to CPLR § 5015, the Court finds that defendants have failed to demonstrate a reasonable excuse for the default or a meritorious defense. Defendants have failed to proffer any defense to their nonpayment under the terms of the promissory note and guarantees and the conclusory affirmative defenses set forth in the proposed Answer are insufficient to demonstrate a defense. Defendant Lax's application pursuant to CPLR § 317 is likewise without merit as he has failed to establish that he did not receive notice of the summons and complaint in time to defend the action. Sturino v. Nino Tripicchio Son Landscaping , 65 A.D.3d 1 327, 885 N.Y.S.2d 625 (2d Dept. 2009).
This matter is set down for a hearing on counsel fees on September 27, 2010 at 9:30 a.m. before the undersigned. Submission of Judgment shall abide the determination of counsel fees.
This constitutes the DECISION and ORDER of the Court.
., Tr. 152:11-18; 208:22-210:25; 314:4-5.)
During this litigation, plaintiff has contended that he acted appropriately by dropping off Hopkins and Ridge at the unauthorized stop because it was an emergency situation. ( See, e.g., Pl.'s Proposed Findings of Fact and Conclusions of Law with Calculations of Plaintiff's Claim ¶¶ 15-16.) STS policy tells drivers that, in an emergency, they are to "[u]se [their] judgment on [their] first course of action [and n]otify the Dispatcher immediately either by radio or phone." ( See Pl.'s Ex. 5, at 37 (emphasis added).) Plaintiff argues that he followed these procedures here because he believed Hopkins was having a medical emergency, he "used [his] judgment" to drop her and Ridge off, and — although he never notified the dispatcher — "about five minutes" after he dropped off Hopkins and Ridge, he received a phone call from Tully, the STS road supervisor, who had observed his stop. Plaintiff claims that because of this phone call, he believed he did not need to notify the dispatcher.
(Tr. 68:12-20.)
(Tr. 51:8-10.)
The Court rejects plaintiff's assertion that he followed the appropriate procedures for an emergency situation. As a threshold matter, the Court does not view the situation as an emergency. In any event, the Court rejects plaintiff's argument that Tully's call to plaintiff "five minutes" after the fact somehow absolved plaintiff of his duty to contact the dispatcher "immediately." Notably, plaintiff had no idea that Tully would call him five minutes after the event, and plaintiff provided no credible explanation as to why he did not call the dispatcher either before dropping Hopkins and Ridge off or immediately after. Additionally, Tully was a road supervisor driving in her car, not a dispatcher. Thus, the Court rejects plaintiff's attempt to justify the stop as an emergency and finds instead that the stop violated STS policy.
Tully testified that she did not call plaintiff on his cell phone following the drop-off. She did state that she may have called plaintiff "later in the day" after she spoke to her supervisors about the incident. (Tr. 296:16-297:2). For the sake of argument, the Court will credit plaintiff's testimony that Tully in fact called him "about five minutes" after the stop.
As a matter of logic and common sense, the dispatcher could presumably do things in an emergency situation — i.e., contact school officials and emergency services — that a road supervisor driving around in her car might be less able to do.
C. Evidence Regarding Female Drivers and Unauthorized Stops
At trial, plaintiff attempted to introduce evidence that female drivers had, like plaintiff, made unauthorized stops but, in contrast to plaintiff, were not disciplined. As described in more detail below, plaintiff focused his efforts on attempting to show that (1) an after-school activities bus driven by a female made unauthorized drop-offs; (2) two female drivers, Carla Chica and Isaura Flores, brought their children into the bus yard and transported them to school on their buses; and (3) Chica also used her school bus to transport her son from her home to school.
1. Unauthorized Stops of the After-School Activities Bus
First, plaintiff asserts that an after-school activities bus driven by a female driver made unauthorized stops. Unlike the normal school buses, the after-school activities bus did not have designated stops. Instead it followed a designated route along which it stopped as needed. Cassandra Hopkins, the same student who plaintiff dropped off at an unauthorized stop, testified that a female bus driver on the after-school activities bus would drop her off "two to three times a month" "wherever [she] asked to be dropped off," even at points that were not along the designated route. (Tr. 23:6-24:5.) Hopkins also testified that the female driver was never disciplined for this. (Tr. 24:19-22.) There was no testimony, however, that STS knew about the unauthorized stops.
2. Children in the Bus Yard
Second, plaintiff asserted that two female drivers, Carla Chica and Isaura Flores, brought their children into the STS bus yard in the morning and then transported them on their buses. Plaintiff's testimony was the only evidence that this occurred. ( See Tr. 57:2-15.) Plaintiff also testified that "occasionally," when Flores and Chica would return their buses to the bus yard at the end of the day, their children would be with them. ( See Tr. 59:3-19.) Plaintiff testified that it would have been "obvious" to STS supervisors that Chica and Flores were using the bus to transport their children. (Tr. 57:14.)
STS argued that it was unaware that Chica and Flores were bringing their children into the bus yard. (Tr. 462:19-463:9.) The two supervisors who worked in the yard each morning, Barbara Tully and Leonilia Alarcon, both testified that they never saw Chica or Flores bring their children onto their buses. (Tr. 266:17-19; 273:8-274:7; 303:10-17.) According to Tully and Alarcon, during the time when bus drivers were arriving at work, they were sitting at a desk in a trailer "checking in" the approximately 100-120 drivers who drove buses out of the yard. (Tr. 261:17-265:3; 280:15-281:16.) The process of checking in the drivers occupied most of Tully's and Alarcon's attention during this time, and although Alarcon would occasionally step out the back of the trailer to smoke a cigarette, they were not actively observing the yard. (Tr. 265:4-11; 282:6-10.) Furthermore, DiDomenico, STS's Executive Vice President, testified that it is dark for much of the school year during the times when bus drivers are arriving for work and in the evenings. ( See Tr. 395:8-21.) DiDomenico also testified that the bus yard is six acres and "a little bit L shaped." (Tr. 395:4-7.)
DiDomenico also testified that while standing behind the trailer it was possible, but difficult, to observe people entering the bus yard and that it was also possible to observe people coming into the bus yard from the window of the trailer. (Tr. 393:22-395:7.) In his post-trial submission, plaintiff asserts that this testimony is irreconcilable with Alarcon's and Tully's. The Court disagrees and finds any inconsistencies to be minor and immaterial. The gist of Tully's and Alacron's testimony regarding their observation of the bus yard was that, during the mornings, they were focused on tasks inside the trailer and were not actively observing the yard. The Court finds that this is not irreconcilable with DiDomenico's testimony regarding what a person could potentially observe from in and around the trailer.
Based on this testimony — and particularly because Tully and Alarcon worked inside a trailer during the mornings and because of the size and shape of the bus yard — the Court finds that even if Chica and Flores brought their children into the bus yard, STS was unaware of this.
3. Home Pickups and Drop-offs
Plaintiff also asserted that Chica violated Company policy by using her bus to pick up her son at home and drop him off at school. Plaintiff introduced videotape and surveillance evidence showing that Chica used her school bus on five occasions in May 2009 to pick up her son at her home. ( See Pl.'s Exs. 16-A; 16-B.) All five pickups occurred between 7:15 and 7:21 a.m. ( See Tr. 223:14-18; 225:8-20; 226:18-24; 226:25-227:5; Pl.'s Ex. 16-A.) Following three of the pickups, the bus was observed traveling to Brentwood High School — approximately one-quarter to one-half mile away — where the child was dropped off. (Tr. 224:8-20; 226:3-4; Pl.'s Ex. 16-A.)
Plaintiff additionally claimed that Flores did the same thing. However, he introduced no credible evidence to support this assertion.
There was no evidence or testimony regarding where the bus went after the other two pickups.
Defendant argued that the pickups and drop-offs were permitted by STS policy and introduced evidence to support this argument. Specifically, DiDomenico, the Executive Vice President of STS, testified that during down time between routes, STS school bus drivers are allowed to use their bus for personal errands. (Tr. 378:20-379:3.) These personal errands can include using the bus to transport members of the driver's family. (Tr. 379:4-7.) Based on DiDomenico's testimony at trial and on a review of Chica's run sheet, the Court concludes that the pickups and drop-offs occurred during Chica's off-time and, accordingly, were permitted by STS policy.
(Tr. 378:1-379:25; Def.'s Ex. II.)
D. Evidence Regarding the Termination of Female Bus Drivers
During the time plaintiff worked for defendant, defendant terminated nine female drivers. ( See Def.'s Exs. U-W; Y-1, Y-2, ZCC.) The separation records for these employees reflect a variety of reasons for termination including failing an alcohol test; being involved in an accident; being rude to school staff and entering the school facility without permission; being disqualified from three school districts; and repeated disciplinary issues.
(Def.'s Exs. V, W.)
(Def.'s Ex. Y-1; Tr. 368:12-24.)
(Def.'s Ex. Z; Tr. 371:9-13.)
(Def.'s Ex. AA.)
(Def.'s Ex. U.)
III. BURDEN OF PROOF
Plaintiff bears the burden of proof in this case. He must prove by a preponderance of the evidence that defendant discriminated against him on the basis of gender. See St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 507-08 (1993); Patterson v. County of Oneida, 375 F.3d 206, 221 (2d Cir. 2004); Vails v. Police Dep't of City of N.Y., 54 F. Supp. 2d 367, 378 (S.D.N.Y. 1999).
IV. DISCUSSION AND CONCLUSIONS OF LAW A. Applicable Law
For the reasons that follow, the Court concludes that plaintiff has failed to meet his burden on his Title VII claim against defendant.
Title VII of the 1964 Civil Rights Act provides, in relevant part:
It shall be an unlawful employment practice 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 . . . sex. . . .
42 U.S.C. § 2000e-2(a). When, as here, the plaintiff presents no direct evidence of discriminatory treatment based on his gender, courts use the three-step, burden-shifting framework established by the Supreme Court in
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), to determine whether plaintiff has shown unlawful discrimination. Under the
McDonnell-Douglas framework, a plaintiff must first establish a prima facie case of discrimination by showing "`(1) that he belonged to a protected class; (2) that he was qualified for the position he held; (3) that he suffered an adverse employment action; and (4) that the adverse employment action occurred under circumstances giving rise to an inference of discriminatory intent.'"
Sassaman v. Gamanche, 566 F.3d 307, 312 (2d Cir. 2009) (quoting
Holcomb v. Iona Coll., 521 F.3d 130, 138 (2d Cir. 2008)). The Second Circuit has characterized the evidence necessary for the plaintiff to satisfy this initial burden as "minimal" and "de minimis."
See Zimmermann v. Assocs. First Capital Corp., 251 F.3d 376, 381 (2d Cir. 2001).
Once plaintiff establishes a prima facie case, the burden shifts to the defendant to "`articulate some legitimate, nondiscriminatory reason for the' termination." Patterson, 375 F.3d at 221 (quoting O'Connor v. Consol. Coin Caterers Corp., 517 U.S. 308, 311 (1996)). If the defendant carries that burden, "the burden shifts back to the plaintiff to demonstrate by competent evidence that `the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination.'" Patterson, 375 F.3d at 221 (quoting Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981)). To meet this burden, the plaintiff may rely on evidence presented to establish his prima facie case as well as additional evidence. Such additional evidence may include direct or circumstantial evidence of discrimination. Desert Palace v. Costa, 539 U.S. 90, 99-100 (2003).
The McDonnell-Douglas test is not, however, "`intended to be rigid, mechanized, or ritualistic.'" St. Mary's Honor Ctr., 509 U.S. at 502 (quoting U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 715 (1983)). The ultimate question is whether plaintiff has proven by a preponderance of the evidence that the defendant has intentionally discriminated against him. See Patterson, 375 F.3d at 221; Vails, 54 F. Supp. 2d at 376.
Here, this Court has already held, in its opinion denying defendant summary judgment, that plaintiff had established a prima facie case. Additionally, defendant has proffered a non-discriminatory reason for plaintiff's discharge — specifically plaintiff's unauthorized drop-off of passengers on March 16, 2006 and his previous disciplinary history. Thus defendant has articulated a legitimate reason for termination. Cf. Pacenza v. IBM Corp., No. 04 Civ. 5831 (PGG), 2009 WL 890060, at *12 (S.D.N.Y. Apr. 2, 2009) (finding that discharge of plaintiff for violating company "internet usage and harassment policies" was a legitimate, non-discriminatory reason for termination), aff'd, 363 F. App'x 128 (2d Cir. 2010); Brown v. The Pension Boards, 488 F. Supp. 2d 395, 406 (S.D.N.Y. 2007) ("`Certainly, an employer is entitled to discharge an employee who fails to follow company rules. . . .'" (quoting Jackson v. Nor Loch Health Care Facility, 297 F. Supp. 2d 633, 636 (W.D.N.Y. 2004), aff'd, 134 F. App'x 477 (2d Cir. 2005))); Costello v. St. Francis Hosp., 258 F. Supp. 2d 144, 155-57 (E.D.N.Y. 2003) (stating that violations of, inter alia, hospital's sexual harassment policy and no solicitation policy were legitimate reasons for termination); E.E.O.C. v. Nat'l Cleaning Contractors, Inc., No. 90 Civ. 6398 (BSJ), 1997 WL 811494, at *1 (S.D.N.Y. Sept. 2, 1997) (stating, in an opinion following a Title VII bench trial, that defendant "had legitimate, non-discriminatory reasons for terminating [plaintiff]: [plaintiff's] . . . lengthy record of continuing disciplinary problems and finally her altercation with a security guard").
As such, both sides have met their burdens of production, and the purpose of the bench trial was to resolve disputed issues of fact (including credibility determinations) and determine the "ultimate question" of whether plaintiff has shown discrimination by a preponderance of the evidence. See Aikens, 460 U.S.at 714-15 ("But when the defendant fails to persuade the district court to dismiss the action for lack of a prima facie case, and responds to the plaintiff's proof by offering evidence of the reason for the [adverse employment action], the fact finder must then decide whether the [adverse employment action] was discriminatory within the meaning of Title VII." (footnote omitted)); Vails, 54 F. Supp. 2d at 376.
Accord Jiminez v. Mary Washington Coll., 57 F.3d 369, 377 (4th Cir. 1995) ("[G]iven that this appeal comes to us following a bench trial on the merits, we no longer concern ourselves with the vagaries of the prima facie case because subsequent to a trial in a Title VII action, the ultimate issue is one of discrimination vel non."); Am. Fed. of State, County Mun. Employees, AFL-CIO (AFSCME) v. County of Nassau, 799 F. Supp. 1370, 1411 (E.D.N.Y. 1992) ("Thus, once the defendant has presented evidence, the question of whether the plaintiff has established a prima facie case of discrimination is irrelevant: At that point, the court has all the evidence probative of the ultimate factual issue in a Title VII disparate treatment case — whether the defendant intentionally discriminated against the plaintiff." (internal quotation and citation omitted)).
B. Application
Plaintiff has not shown by a preponderance of the evidence that defendant intentionally discriminated against him.
Plaintiff's theory of the case was that female drivers routinely violated rules regarding unauthorized pickups and drop-offs but — unlike plaintiff — were not terminated. As discussed in the Court's Findings of Fact, plaintiff asserted (1) that an after-school activities bus made unauthorized stops but that the driver was not disciplined; (2) that two female drivers, Karla Chica and Isaura Flores, brought their children into STS's bus yard and transported them on buses; and (3) that Chica was observed — in 2009, three years after plaintiff's termination — using her school bus to pickup her child from her home and then transport him to school.
Although it is well settled that a plaintiff can raise an inference of discrimination by showing disparate treatment, Dinkins failed to provide credible evidence at trial of disparate treatment. For disparate treatment to be probative of discrimination, a plaintiff must show that the employees who were treated differently from him were "similarly situated." See Shumway v. United Parcel Service, Inc., 118 F.3d 60, 63 (2d Cir. 1997). "An employee is similarly situated to coemployees if they were (1) `subject to the same performance evaluation and discipline standards' and (2) `engaged in comparable conduct.'" Ruiz v. County of Rockland, ___ F.3d ___, Docket No. 09-0759-cv, 2010 WL 2541179, at *5 (2d Cir. June 25, 2010) (quoting Graham v. Long Island R.R., 230 F.3d 34, 40 (2d Cir. 2000)). "[T]he standard for comparing conduct requires a reasonably close resemblance of the facts and circumstances of plaintiff's and comparator's cases, rather than a showing that both cases are identical. In other words, the comparator must be similarly situated to the plaintiff in all material respects." Id. (internal quotations and citations omitted).
See Int'l Bhd. of Teamsters v. United States, 431 U.S. 324, 335 n. 15 (1977); Mandell v. County of Suffolk, 316 F.3d 368, 379 (2d Cir. 2003); Norville v. Staten Island Univ. Hosp., 196 F.3d 89, 95 (2d Cir. 1999).
For several reasons, plaintiff did not make that showing at trial. First, plaintiff's conduct violated STS policy and some of the conduct Carla Chica engaged in did not. Second, even if certain conduct of Chica, Flores, and other drivers did violate STS policy, there was no credible evidence that STS was aware of this. Third, plaintiff has not shown that Chica, Flores, or any female driver had a similar long history of disciplinary problems like plaintiff's but was allowed to remain on the job.
1. Conduct That Violates Company Policy vs. Conduct That Does Not
First, with respect to Chica picking up her child at home and driving him to school in her school bus, as discussed in the Findings of Fact, this did not violate STS's rules. As also discussed above, plaintiff's drop-off of Cassandra Hopkins and Melissa Ridge, however, did violate the rules. Clearly, an employee who violates a company policy is not similarly situated to an employee who does not violate the policy. See Santiago v. Gen. Dynamics Elec. Boat Div., Civil Action No. 3:04-CV-2062 (JCH), 2006 WL 3231413, at *6 (D. Conn. Nov. 7, 2006) (finding plaintiff not similarly situated to comparator employee who engaged in similar conduct because, when comparator employee engaged in conduct, company policy permitted conduct but when plaintiff engaged in conduct, company policy prohibited conduct); see also Padilla v. Harris, 285 F. Supp. 2d 263, 270 (D. Conn. 2003) (finding comparator employee not similarly situated to plaintiff where plaintiff produced no evidence that comparator employee had violated company rule that plaintiff violated).
Accordingly, plaintiff and Chica are not similarly situated simply because Chica used her bus to drive her son to school. Chica's conduct did not violate STS policy, but plaintiff's did.
2. STS's Awareness of Conduct
Second, even assuming Flores, Chica, or other female drivers made unauthorized pickups and drop-offs or brought their children into the bus yard, plaintiff has failed to produce credible evidence that STS knew about this. An employee who allegedly engaged in misconduct comparable to the plaintiff's is not similarly situated to the plaintiff when the employer is unaware of what the comparator employee supposedly did. See Elam v. Regions Fin. Corp., 601 F.3d 873, 881 (8th Cir. 2010) (affirming district court's grant of summary judgment to defendant where, inter alia, "[plaintiff] did not present any evidence that . . . supervisors were aware of the alleged misconduct of [co-workers.]"); Wallace v. Methodist Hosp., 271 F.3d 212, 221 (5th Cir. 2001) (affirming judgment as a matter of law for defendants in gender discrimination case and explaining that co-workers were not similarly situated to plaintiff because, inter alia, "no one in a supervisory capacity was aware of the" co-workers' alleged misconduct); Brasic v. Heinemann's Inc., 121 F.3d 281, 286 (7th Cir. 1997) (affirming summary judgment for defendant in Title VII sex discrimination case where there was no evidence "that management personnel responsible for enforcing the rules were aware of the incidents" involving supposedly similarly situated employees); accord Knight v. Baptist Hosp. of Miami, Inc., 330 F.3d 1313, 1317 n. 5 (11th Cir. 2003); Kipp v. Mo. Highway Trans. Comm'n, 280 F.3d 893, 897 (8th Cir. 2002).
Here, there is no credible evidence that STS knew about (1) alleged unauthorized drop-offs by the after-school activities bus, or (2) Chica and/or Flores bringing their children into the bus yard, even assuming arguendo that this in fact occurred, or (3) Chica's use of her bus to pickup her child at home. Regarding (2), as discussed in the Findings of Fact, during the morning hours, Tully and Alarcon focused on work inside the trailer and were not actively observing the six-acre bus yard. Thus, the Court credits their testimony that they never saw Chica or Flores bring their children into the yard. Moreover, plaintiff has produced no evidence that any other STS supervisory employee observed Chica or Flores bring their children into the yard. In sum, even assuming female STS employees violated the rules regarding pickups and drop-offs, STS was not aware of these violations.
Similarly, although plaintiff asserts that female drivers violated STS policy by picking up "walkers" — students who lived too close to school to take the bus (Tr. 21:12-22:5) — there is no credible evidence that STS was aware of this.
3. Plaintiff's Disciplinary Record
Finally, plaintiff has not shown that Flores, Chica, or, for that matter, any female driver had the extensive disciplinary record that he did. It is well settled that employees are not similarly situated if they have materially different disciplinary records. See, e.g., Saenger v. Montefiore Med. Ctr., ___ F. Supp. 2d ___, No. 07-CV-488 (KMK), 2010 WL 1529400, at *15 (S.D.N.Y. Mar. 31, 2010) ("[The comparator employee] was also materially different from Plaintiff because she did not have an extensive disciplinary history, and had not been repeatedly warned that additional misconduct could result in termination."); McKinney v. Bennett, No. 06 Civ. 13486 (SCR) (MDF), 2009 WL 2981922, at *7 (S.D.N.Y. Sept. 16, 2009) (finding plaintiff not similarly situated to comparator employees because, inter alia, he "has not shown these people to have a comparable disciplinary history to his own or to have any disciplinary history at all. . . ."); Babcock v. N.Y. State Office of Mental Health, No. 04 Civ. 2261 (PGG), 2009 WL 1598796, at *12 (S.D.N.Y. June 8, 2009) (finding plaintiff, who had received a "counseling memo" two years before employer made relevant employment decision, was not similarly situated to co-worker who had received a counseling memo eleven years before and maintained an "unblemished" performance record since then); Guerrero v. Conn. Dep't of Children Families, 315 F. Supp. 2d 202, 210 (D. Conn. 2004) ("Under this standard, [plaintiff] is not similarly situated to the comparator. Put simply, the comparator did not have the history of past disciplinary problems that [plaintiff] had.")
Here, as explained above, plaintiff had an extensive disciplinary history, including multiple "final" warnings, multiple accidents, and two transfers from one school district to another. Although plaintiff argues that he accrued much of his disciplinary record in the mid-to late 1990s — years before the 2006 incident — the Court rejects this argument. Even if the Court only examined plaintiff's disciplinary record from his last several years at STS, plaintiff's record still shows repeated instances of dangerous and inappropriate conduct, complaints from parents and school personnel, and multiple "final warnings." By any measure, plaintiff had an extensive disciplinary record. Moreover, plaintiff acknowledged that he had been specifically warned about making unauthorized drop-offs and pickups. (Tr. 156:3-157:2.) Thus, even if female employees made unauthorized drop-offs or pickups, there is no evidence that any such female employee had a disciplinary record comparable to plaintiff's but was allowed to remain on the job. Indeed, there is evidence STS fired female employees who engaged in conduct that plaintiff was not fired for. Specifically, female employees were fired for, inter alia, "not adhering to our rules and regs," and being involved in an accident. Plaintiff's Summary of Problems reflects that he was involved in multiple accidents and repeatedly violated STS rules but, unlike these female employees, was not fired.
To the extent plaintiff relies on his "Ten Years of Outstanding Service" certificate (Pl.'s Ex. 2) as evidence of his good history of performance, the Court rejects that contention. The Court, as the trier of fact, finds credible DiDomenico's testimony that every employee received that award on their 10th anniversary of employment regardless of performance (despite the reference on the certificate to "outstanding service") (Tr. 362:10-363:24) and finds that this certificate has no probative value regarding plaintiff's actual performance. Instead, the Court finds plaintiff's extensive disciplinary record makes clear that there were numerous performance problems over the years.
(Def.'s Ex. U.)
(Def.'s Ex. Y-1.)
To sum up, plaintiff attempted to show intentional discrimination by demonstrating that female employees also made unauthorized drop-offs and pickups but were not disciplined by STS. However, in order for the Court to infer gender discrimination, plaintiff must show that these female employees were similarly situated. Plaintiff has not done this. Indeed, the female employees were not similarly situated because they either (1) engaged in conduct that was actually permitted by STS; (2) engaged in conduct that, even if prohibited, was unknown to STS; or (3) did not have the extensive disciplinary record that plaintiff did. As such, plaintiff has not shown by a preponderance of the evidence that STS discriminated against him on the basis of gender. In short, having carefully analyzed the evidence at trial, the Court finds that plaintiff was not fired because of his gender; rather, the Court finds that plaintiff was fired because of a long history of disciplinary problems that culminated in the March 2006 incident. Even though plaintiff disagrees with that decision, the Court finds that there was nothing discriminatory about it.
Defendant also argues that the plaintiff's claim should fail because it is undisputed that DiDomenico both hired and fired the plaintiff and because DiDomenico, a male, is also in the protected class. Under the so-called "same actor inference," "when the person who made the decision to fire was the same person who made the decision to hire, it is difficult to impute to her an invidious motivation that would be inconsistent with the decision to hire." Grady v. Affiliated Cent., Inc., 130 F.3d 553, 560 (2d Cir. 1997). The inference grows stronger when, as here, the decisionmaker is also a member of the protected class. Earvin v. City Univ. of N.Y., No. 03 CV 9521 (BSJ) (DCF), 2008 WL 5740359, at *6 (S.D.N.Y. Jan. 17, 2008) ("[T]he decisionmakers' status as protected class members enhances the inference that there was no discriminatory motive."); Connell v. Consol. Edison Co. of N.Y., 109 F. Supp. 2d 202, 210 (S.D.N.Y. 2000). The inference grows weaker, however, with the passage of time between the hiring and firing. See, e.g., Carlton v. Mystic Transp., 202 F.3d 129, 138 (2d Cir. 2000) (finding seven years between plaintiff's hiring and firing "significantly weaken[ed]" the inference). The inference was originally developed in age-discrimination cases, and the Second Circuit has not expressly decided whether it should be applied in the Title VII context. See Feingold v. N.Y., 366 F.3d 138, 155 n. 15 (2d Cir. 2004) (declining to "pass judgment on the extent to which this inference is either required or appropriate outside the Age Discrimination in Employment Act (ADEA) context in which it generally is applied" but applying inference to a Title VII claim arguendo). Nonetheless, district courts in this circuit have applied the inference to Title VII claims, including gender discrimination. See, e.g., Woodward v. Monticello Cent. Sch. Dist., No. 06-Civ-13361 (KMK), 2008 WL 5062125, at *14 (S.D.N.Y. Dec. 1, 2008) (race discrimination case); Zuffante v. Elderplan Inc., No. 02 Civ. 3250 WHP, 2004 WL 744858, at *6-7 (S.D.N.Y. Mar. 31, 2004) (gender discrimination case). The Court agrees with these district court decisions and finds no basis to restrict the same-actor inference to age-discrimination claims. Thus, despite the fact that twelve years passed between plaintiff's hiring and firing, the fact that DiDomenico both hired and fired plaintiff and is also in the protected class makes it at least somewhat more "difficult to impute . . . invidious motivation" to STS, although it is in no way dispositive of plaintiff's claim. Cf. Grady, 130 F.3d at 560. In any event, even in the complete absence of the same-actor inference, plaintiff's claim fails for all of the reasons discussed surpa.
V. CONCLUSION
Plaintiff has not shown by a preponderance of the evidence that STS discriminated on the basis of gender when it terminated him. Thus, the Court finds in favor of defendant on plaintiff's claim. The Clerk of the Court shall enter judgment accordingly and close the case.
SO ORDERED.