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UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

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ANGEL VARGAS, FELIX BONILLA, RYAN MCKENZIE,

BERNARDO RAMIREZ and SIMON NORALES,

Plaintiffs

-Against- 07-3343

PLAINTIFFS’ MEMORANDUM

OF LAW IN OPPOSITION TO

DEFENDANT’S MOTION FOR

SUMMARY JUDGMENT

MIDTOWN AIR CONDITION AND

VENTILATION, LTD.,

Defendant

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PRELIMINARY STATEMENT

Plaintiffs by their attorneys, Law Offices of Ambrose Wotorson, submit the instant

Memorandum of Law in Opposition to Defendant's Motion to for Summary Judgment pursuant

to Federal Rule of Civil Procedure 56. Plaintiffs submit that grant of summary judgment would

be inappropriate in the instant case, as there are numerous issues of material fact that can only

be resolved by neutral fact finders at trial.

STANDARD OF REVIEW AND STATEMENT

OF FACTS

Defendant contends that it is entitled to summary judgment because there are no genuine

issues of material fact as to whether plaintiffs were laid off and not called back because of their

protected activities. Defendant's arguments are wholly without merit, as the record clearly

supports reasonable inferences that defendant retaliated against plaintiffs because of their

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protected activities and that plaintiffs were subjected to discrimination due to their races and

ancestries.

In any event, Rule 56(c) of the Federal Rules of Civil Procedure provides that summary

judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories,

and admissions on file, together 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 judgment as a matter of law."

Fed.R.Civ.P. 56(c). When considering a motion for summary judgment, it is the court's

responsibility "not to resolve disputed issues of fact, but to assess whether there are any factual

issues to be tried, while resolving ambiguities and drawing reasonable inferences against the

moving party.” Knight v. U.S. Fire Insurance Co., 804 F.2d 9, 11 (2d Cir.1986) (emphasis

supplied).

Indeed, "the burden is upon the moving party to demonstrate that no genuine issue

respecting any material fact exists. Gallo v. Prudential Residential Services, 22 F.2d 1219 (2nd

Cir. 1994). The burden of demonstrating the existence of a genuine issue of material fact then

shifts to the nonmoving party. However, the non-movant’s burden of proof to survive summary

judgment is de minimis. Babcock v. CAE-Link Corp., 878 F.Supp. 377, 383 (N.D.N.Y. 1995).

Still, the non movant may not rely solely on its pleadings nor on conclusory factual

allegations in satisfying this burden. Gray v. Darien, 927 F.2d 69, 74 (2d Cir.1991). The

nonmoving party instead must offer specific evidence supporting its claim that there exists a

genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 327, 106 S.Ct. 2548, 91

L.Ed.2d 265 (1986). In demonstrating that the factual issue in dispute is "genuine", the

nonmoving party must offer inferences upon which a reasonable jury can return a verdict in its

favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202

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(1986). Critically, all ambiguities must be resolved and all inferences must be drawn in favor of

the party against whom summary judgment is sought. Gallo at 1223. Summary judgment is

therefore inappropriate if, resolving all ambiguities and drawing all inferences against the

moving party, there exist a dispute about a material fact such that a reasonable jury could return a

verdict for the nonmoving party. Gallo at 1223-4. Finally because intent is often the critical issue

in [employment] cases, the Second Circuit has repeatedly warned trial courts to be cautious

about granting summary judgment to the employer. Gallo at 1224.

Discrimination and retaliation claims under 42 U.S.C. Section 1981 are analyzed under

the burden-shifting framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93

S. Ct. 1817, 36 L. Ed. 2d 668 (1973). See Lizardo v. Denny's, 270 F.3d 94, 103 (2d Cir. 2001).

The plaintiff must first establish a prima facie case. Texas Dept. Of Cmty. Affairs v. Burdine,

450 U.S. 248, 254-55, 101 S. Ct. 1089, 67 L. Ed. 2d 207 (1981). Once a prima facie case has

been established, the employer must articulate a legitimate, non-discriminatory reason for having

taken the action of which the plaintiff complains. Id.; McDonnell-Douglas Corp., 411 U.S. at

802-03; Johnson v. Palma, 931 F.2d 203 (2d Cir. 1991). If this is done, the burden shifts back to

the plaintiff to prove that the allegedly legitimate reason is merely a pretext for discrimination.

McDonnell-Douglas Corp., 411 U.S. at 804.

In the summary judgment context, a plaintiff must "establish a genuine issue of material

fact either through direct, statistical or circumstantial evidence as to whether the employer's

reason for discharging him is false and as to whether it is more likely that a discriminatory

reason motivated the employer to make the adverse employment decision." Gallo v. Prudential

Residential Serv. Ltd., P'ship, 22 F.3d 1219, 1225 (2d Cir. 1994).

In any event, the relevant facts that are in dispute in this case are as follows:

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Background and racial composition of Midtown

Ilya Brodsky testified that he is the sole owner of Midtown. (Exhibit “23,” Brodsky

Deposition, page 5). Brodsky is white and he was born in Russia. (Wotorson Exhibit “23,”

Brodsky Deposition, page 9).

As the project manager, Roman Liberstein supervised all of plaintiffs at one time or

another, and he was familiar with them. (Wotorson Exhibit “24,” Liberstein Deposition, pages 6,

7, 8). Liberstein was also born in Russia, and he had worked for defendant for about 15 years.

(Wotorson Exhibit “24,” Liberstein Deposition, page 6, 19 20). Liberstein also admitted that

many of the company’s workers are from Eastern Europe. (Wotorson Exhibit “24,” Liberstein

Deposition, page 20). In fact, all of the other employees, with a single exception, were white and

Eastern European. (Wotorson Affirmation, Exhibits “18” and “26”).

The only Hispanics who worked for Midtown were Vargas, Norales, Bonilla and

Ramirez. The only other Blacks were Ramirez, Bonilla, Norales, and McKenzie. The rest of the

employees who worked for defendant, were white and Eastern European. (Wotorson

Affirmation, Exhibit “30,” paragraph 2; Exhibit 26).

Liberstein recalled that there were only six sheet metal workers left by the time all of the

plaintiffs had been laid off: Edward Levin, Alex Lyzhin, Arthur Kogan, Vlad Ponamarenko, Igor

Sinayuk and Edward Abromv. All of them are white and all of them are Eastern European

immigrants. (Wotorson Exhibit “24,” Liberstein Deposition, pages 31, 32, 33, 34).

Prior pay and layoff disparities

Bernardo Norales and Angel Vargas continuously complained in 2005 to management

about plaintiffs being paid considerably less than the other sheet metal workers who were white

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and Eastern European. (Wotorson Affirmation, Exhibit “30,” at paragraphs 4 and 5). On one

occasion, Roman Liberstein said that he did not have to listen to such complaints, or to respond

to them. (Wotorson Affirmation, Exhibit “30,” at paragraph 5).

Liberstein freely admitted in his deposition that “the men” complained “all of the time”

about others being paid more than they were being paid (Exhibit “24,” Liberstein Deposition,

page 14). Liberstein was unable to deny that Vargas, Bonilla, McKenzie, Ramirez, or Norales

“complained all of the time” about others being paid more than they were being paid. (Exhibit

“24,” Liberstein Deposition, pages 15, 16, 17, 18). Liberstein admitted that whenever workers

complained, he would always discuss those complaints with his boss, Ilya Brodsky. (Exhibit

“24,” Liberstein Deposition, page 19).

Ramirez was laid off several times before his final lay off in 2006. However, he observed

whenever he went back to pick up his checks or to seek new work reassignments, that similarly

situated white and Eastern European sheet metal workers were not laid off. (Wotorson

Affirmation, Exhibit “30,” at paragraph 7). Although it was common for layoffs to occur,

Ramirez never observed any white and Eastern European sheet metal workers being laid off the

entire time that he was employed with Midtown. (Wotorson Affirmation, Exhibit “30,” at

paragraph 7). Similarly, Felix Bonilla reports that he never observed sheet metal workers who

were white and from Eastern Europe being laid off. (Wotorson Affirmation, Exhibit “31,” at

paragraph 19).

As well, the company laid off Angel Vargas on prior occasions when business was

supposedly slow. White and Eastern European sheet metal workers who had less seniority than

Vargas continued to work when those prior layoffs occurred. In fact, Vargas also reports that he

never observed any white and Eastern European sheet metal workers being laid off. The only

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workers who were ever laid off in the history of the company were the five plaintiffs in this case.

So, only Black and Hispanic workers were ever laid off. (Wotorson Affirmation, Exhibit “27,” at

paragraph 5).

Simon Norales reports that he was laid off on at least one occasion prior to his final lay

off on February 28, 2006. On that prior occasion, Alex Gershgteyn, whom Norales trained, was

not laid off, even though Norales had more seniority than Gershgteyn. In Norales’ entire ten (10)

years of employment with Midtown, he had never observed any white and Eastern European

sheet metal workers being laid off. (Wotorson Affirmation, Exhibit “28,” at paragraph 6).

Liberstein offered in his deposition that the only white and Eastern European worker,

whom he recalled ever being laid off, was not a sheet metal worker. (Exhibit “24,” Liberstein

Deposition, pages, 30, and 31).

Comptroller’s investigation and June 2005 site visit

In June 2005, an Inspector from the New York City Comptroller’s Office visited

defendant’s job site. Mr. Vargas and Mr. Norales truthfully told the Inspector, on their own

behalf and on behalf of the other plaintiffs – who were present -- that they believed that other

Black and Hispanic sheet metal workers who were working on City contracts were being paid

less than white and Eastern European sheet metal workers working on City contracts. The

Inspector confirmed that the plaintiffs in this case were being underpaid. (Wotorson Affirmation,

Exhibit “31,” at paragraphs 11 and 12; Exhibit, “27,” at paragraph 9). Norales immediately told a

co-supervisor, Igor Sinayuk, that plaintiffs had spoken with an Inspector from the Comptroller’s

office about our being paid less than white and Eastern European sheet metal workers on City

contracts (Wotorson Affirmation, Exhibit “28,” at paragraph 8).

Liberstein claimed that he learned from unspecified “men” that an Inspector from the

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Comptroller’s office visited the site. Liberstein immediately discussed this with his boss, Ilya

Brodsky. (Exhibit “24,” Liberstein Deposition, pages 8, 9 10). Liberstein told Brodsky that the

Inspector from the Comptroller’s office had been asking questions and had some of the workers

to fill out some forms. (Exhibit “24,” Liberstein Deposition, pages 11, 12).

“Tony” Ukaj, one of the workers, told Brodsky that other workers had spoken with an

Inspector from Comptroller’s office that came to a site. This was a “couple of days” after the

Inspector visited the site, and it was towards the “beginning of the summer” in 2005. Brodsky

later spoke with Roman Liberstein, who confirmed that this site visit had occurred. (Exhibit

“23,” Brodsky Deposition, page 39, 41, 42, 43). Initially, Liberstein claimed in his deposition

that he did not recall if he spoke with the plaintiffs and told them that he was aware that they had

spoken with an investigator. Later, he offered that it was “possible” that he told plaintiffs that he

was aware of the Inspector’s site visit. (Exhibit “24,” Liberstein Deposition, page 12, 13). In fact,

Liberstein later addressed the plaintiffs as a group and told them that he was aware that an

Inspector had been on the job site to talk with them. (Wotorson Affirmation, Exhibit “27” at

paragraph, 10).

Brodsky recalled in his deposition that in the “early summer” of 2005, he learned that an

investigation was being conducted by the New York City Comptroller’s office. Brodsky claimed

that he received a “note” to that effect from KBF, a general contractor on one of Midtown’s

“jobs.” (Exhibit “23,” Brodsky Deposition, pages 13, 14). Brodsky gave a copy of this note to

Larissa Rudd, who handled Midtown’s payroll and personnel matters. (Exhibit “24,” Brodsky

Deposition, page 16, 17).

Brodsky does not deny that he spoke with Liberstein about the investigation and about

the individuals whose files the City was apparently interested in. (Exhibit “23,” Brodsky

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Deposition, pages 36, 37, 38). Brodsky also does not deny that Liberstein told him which

employees had spoken with the Inspector from the Comptroller’s officer. (Exhibit “23,” Brodsky

Deposition, pages 43, 44, 45).

A “couple of months later,” in the “late summer,” Brodsky received a second notice

about the Comptroller’s investigation. (Exhibit “24;” Brodsky Deposition, page 18, 19). Brodsky

was “concerned” by the time he received the second notice. Brodsky spoke with the KBF Project

Manager, who told him that the City had requested employee records, and would contact him

directly. (Exhibit “23,” Brodsky Deposition, pages, 20, and 21). After another month and a half,

the Comptroller’s office contacted Brodsky directly through Jennifer Caroleo. (Exhibit “24,”

Brodsky Deposition, page 23). Indeed, on August 4, 2005, Brodsky received notice that the City

was investigating prevailing wage issues at KBF. (Exhibit “24,” Brodsky Deposition, page 63).

The five plaintiffs and one other individual, Ed Levine – who is white, Russian-born and Jewish

-- were the only Midtown sheet metal workers who worked at the KBF sight by August 4, 2005.

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(Exhibit “23,” Brodsky Deposition, pages 63, 64, 66, 67, 68).

Prevailing wage complaints and protected activities under 42 U.S.C. Section 1981

Plaintiffs felt that they were being discriminated against because, according to the

Comptroller’s office, only Black and Hispanic employees were being underpaid. This is one of

the reasons that they filed Complaints in June 2005 with the Comptroller’s office. They were

opposing discrimination when they did so. (Wotorson Affirmation, Exhibits “2,” “4,” “5,” “6,”

“7,” “27,” at paragraph 9; “28,” at paragraph 7; “29,” at paragraph 9; 30, at paragraph 3; “31,” at

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Levine was not one of the prevailing wage complainants. (Exhibit “23,” Brodsky Deposition,

page 68).

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paragraph 14).

Liberstein asked plaintiffs two or three weeks after the Inspector’s site visit to tell him

what they had said to the Inspector. Mr. Vargas and Mr. Norales, speaking on behalf of all of the

plaintiffs and in the presence of the other plaintiffs, truthfully told Liberstein that they told the

Inspector that they believed that they were being paid less than white and Eastern European sheet

metal workers, and that they were interested in pursuing prevailing wage and discrimination

claims. They also told Liberstein that they had all cooperated fully with the Inspector from the

Comptroller’s office. (Wotorson Affirmation, Exhibits “27,” at paragraphs 10 and 11; “28,” at

paragraphs 9 and 10; “29 ,” at paragraphs 10, 11 and 12; 30, at paragraphs 9, 10 and 11; “31,” at

paragraphs 15 and 16).

Brodsky did not initially have a “list” of people who had complained to the Comptroller’s

office regarding Midtown’s failure to pay prevailing wages, but by August 5, 2005, he did “know

generally,” who had complained. (Exhibit “23,” Brodsky Deposition, page 62). Brodsky claims

that he learned for certain which employees had complained when Jennifer Caroleo of the

Comptroller’s office, gave him a copy of their Complaints during a meeting in the “beginning of

September” 2005. (Exhibit “23,” Brodsky Deposition, pages 32, 40, 49, 74). By September 22,

2005, Brodsky was specifically aware of who the Complainants were. (Exhibit “23,” Brodsky

Deposition, page 75).

Brodsky signed a stipulation in “late 2005,” admitting that Midtown had underpaid

plaintiffs in prevailing wages as sheet metal workers by some $208, 176.06 dollars. (Exhibit

“23,” Brodsky Deposition, page 45, 46, 48; Exhibit “25”). At first, Brodsky claimed in his

deposition that he did not know if any other workers -- other than the plaintiffs – had ever

claimed that Midtown failed to pay prevailing wages to them. (Exhibit “23,” Brodsky

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Deposition, page 49). Later in his deposition, Brodsky admitted that there were no other

employees who had ever claimed that Midtown had failed to pay prevailing wages to them.

(Exhibit “23,” Brodsky Deposition, page 51).

Adverse actions and alleged legitimate business reasons

Angel Vargas received disciplinary memos dated August 4, 2005, August 5, 2005,

August 9, 2005 and February 17, 2006. (Wotorson Affirmation, Exhibits “8,” “9,” “13” and

“19”). Norales received disciplinary memos dated, August 5, 2005, September 1, 2005, February

2, 2006 and February 17, 2006. (Wotorson Affirmation, Exhibits “10,” “12,” “17” and “20”).

Ramirez received a disciplinary memo dated February 17, 2006. (Wotorson Affirmation,

Exhibits “20” and “21”). Bonilla received a disciplinary memo dated February 17, 2005.

(Wotorson Affirmation, Exhibits “20”).

Brodsky initially claimed in his deposition that Vargas was laid off in March 2006, due to

“dishonesty and lack of performance and following the loss [a] client.” (Exhibit “23,” Brodsky

Deposition, pages 105 and 106). Brodsky admitted that there were no documents showing that

Vargas was ever counseled over his “dishonesty” that was allegedly discovered in November

2005 when he read complaints about the Ivy Walk project that Vargas was assigned to work on.

(Exhibit “23,” Brodsky Deposition, pages 108 and 109; Exhibits “14” and “15”). Similarly,

Brodsky claimed that McKenzie was also laid off because of “dishonesty” on the Ivy Sidewalk

project that McKenzie was assigned to work on. Brodsky claimed that McKenzie was

“dishonest” in applying himself to the Ivy Walk project because while the Ivy Sidewalk client

thought that McKenzie was a “competent mechanic,” he fell two weeks behind the project

schedule. (Exhibit “23,” Brodsky Deposition, pages 112, 113, Exhibit “14” and “15”).

The Ivy Walk project was unusual. Typically, ceiling jobs are between ten (10) to

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eighteen (18) feet. In this particular case, the ceiling height was approximately twenty-five (25)

feet. A man-lift had to be used, and even with a man-lift, the workers on the Ivy Walk project

had to stand on the railings of the man-lift to reach the ceiling. It was a huge safety concern for

them. The other workers needed to shoot holes into the ceiling to put their straps in. Also, sheet

metal workers are typically the first set of workers on a job site because their material

requirements are larger and it is usually more difficult for them to bend and to reshape materials

necessary for jobs. Sheet metal workers typically do their installations first, and then, the

carpenters, steamfitters and electricians come in and do their installations. In the Ivy Walk case,

everything had been done prior to their entering the job site and doing their job. The walls,

ceilings and pipes had already been constructed and were already up. Vargas and McKenzie had

to work around those structures. This made it unusually difficult for them to do their own

installations. Moreover, duct work typically involves one layer of installations, but in the Ivy

Walk project, several layers of duct work were required because of the ceiling height. Further, a

lot of the materials were not delivered on time. For example, Vargas and McKenzie had to hang

AC units in the ceiling, but the incorrect units were delivered to them the first time around. This

was beyond their control. Defendant was aware of this and never voiced any criticism to them

over the pace of the project. Neither Vargas not McKenzie was aware of the Ivy Walk criticisms

at any time before the discovery phase of the instant case. In any event, Vargas and McKenzie

were told that they were being taken off of the Ivy Walk project due to a “lack of work” and not

because of any alleged performance deficiencies on their part. Vargas was later assigned to

various other projects before his final lay off in March 2006. McKenzie was never given any

other work. (Wotorson Affirmation, Exhibit “27” at paragraphs 13, 14, 15, 16 and 17; Exhibit

“29,” at paragraphs 15, 16, 17, 18, 19 and 20).

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Brodsky admitted that even though alternate manpower, by way of a subcontractor, was

brought in to finish the Ivy Walk project, the project still finished significantly behind schedule.

(Exhibit “23,” Brodsky Deposition, page 114, 115). Brodsky testified that he did not think there

was anything unusually difficult about this particular job site that might have caused it to fall two

weeks behind schedule when McKenzie and Vargas were assigned to it. (Exhibit “23,” Brodsky

Deposition, pages 115, 116).

Brodsky initially claimed in his deposition that Norales was terminated because of his

alleged “dishonesty.” Brodsky testified that he did not recall if Norales’ termination letter

indicated that he had been dishonest. However, he admitted that Norales was terminated,

“approximately,” in late February 2006. (Exhibit “23,” Brodsky deposition, page 86).

Brodsky claimed that Norales was “dishonest” because he called from home stating that

he was just leaving the job. (Exhibit “19;” Exhibit “20;” Exhibit “23,” Brodsky Deposition, page

87). In a memo dated February 2, 2006, Norales was told that he inflated his hours and that this

was confirmed by his (Norales’) own written record. (Exhibit “17;” Exhibit “23,” Brodsky

Deposition, page 88). However, Brodsky admitted that he did not give this record to his attorneys

and that he did not know what he did with it. (Exhibit “23,” Brodsky Deposition, pages 89 and

90). In the same memo, Norales was told that certain employees “reported” that Norales had

“directed them” to inflate their hours. Not surprisingly, Brodsky claimed to not recall who these

employees are. (Exhibit “23,” Brodsky Deposition, pages 87, 88, 89, 90). Moreover, Brodsky

claimed that he did not know if there were any documents that would help him to remember who

these employees are. (Exhibit “23,” Brodsky Deposition, pages 90, 91). Brodsky admitted that he

did not recall the name of a single person who claimed that Norales “directed” that false hours be

reported. (Exhibit “23,” Brodsky Deposition, page 91, 92). Brodsky even claimed that he did not

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recall how he learned that certain employees claimed that Norales had directed them to report

false hours. (Exhibit “23,” Brodsky Deposition, page 96).

Another memo dated February 17, 2006, claimed that “other parties” on the job site

attested that Angel Vargas, Simon Norales and Felix Bonilla did not work through lunch to

justify their leaving a job site early. (Exhibit “20;” Exhibit “23,” Brodsky Deposition,

page 98 ).

2 Brodsky claimed that he did not exactly recall who these “other parties” were.

(Exhibit “23,” Brodsky Deposition, page 98). He claimed that two steam fitters were the other

“parties.” One of the steam fitters was named “Victor,” but Brodsky claimed to not recall the

other steam fitter’s name. Not surprisingly, both of the steam fitters no longer worked for

Midtown at the time of the deposition. Critically, defendant never identified them as potential

witnesses. (Exhibit “23,” Brodsky Deposition, page 99).

Brodsky claimed that that only thing that happened after February 17, 2006 that led to

Norales’ lay off was a “lack of work.” (Exhibit “23,” Brodsky Deposition, page 102). Indeed,

Brodsky changed his position in his own deposition and testified that Norales was not terminated

because of his alleged “dishonesty.” To the best of Brodsky’s “knowledge and belief,” Norales

was terminated due to “lack of work.” (Exhibit “23,” Brodsky Deposition, page 103 and 105).

Initially, Brodsky claimed in his deposition that Bonilla was laid off because of

“dishonesty, not correctly calling the time in, not performing the job correctly and having

constant absences.” (Exhibit “23,” Brodsky Deposition, page 78). Brodsky later admitted that he

could have confused Bonilla with somebody else in terms of his being “dishonest” with reporting

his work hours. (Exhibit “23,” Brodsky Deposition, pages 79 and 80). Brodsky did not know of

2 Defendant never identified theses individuals in their Automatic Disclosures or in their

interrogatory responses.

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any documents showing that Bonilla was ever counseled for lateness’s. (Exhibit “23,” Brodsky

Deposition, page 78). Brodsky also did not know of any documents showing that Bonilla was

told that he was absent too often. (Exhibit “23,” Brodsky Deposition, page 80 and 81).

Brodsky later switched positions in his deposition and claimed that Bonilla was

terminated because he frequently failed to give notice that he was going to be absent for “long

periods of time.” (Exhibit “23,” Brodsky Deposition, page 80 and 81). Brodsky was apparently

unsure of the official reason for Bonilla’s termination, and he later offered that Bonilla was

terminated for another reason: “maybe lack of work.” (Exhibit “23,” Brodsky Deposition, page

83).

Brodsky claimed in his deposition that he did not recall any justification for Bernardo

Ramirez’s lay off. (Exhibit “23,” Brodsky Deposition, pages 116, 117, 119).

ARGUMENT

POINT I

REASONABLE INFERENCES MAY BE DRAWN THAT

PLAINTIFFS WERE LAID OFF BECAUSE OF THEIR

RACES AND ANCESTRIES

Defendant claims that there is no evidence that plaintiffs were discriminated against

because of their races and ancestry. Defendant is wrong.

Discrimination and retaliation claims under 42 U.S.C. Section 1981 are analyzed under

the burden-shifting framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93

S. Ct. 1817, 36 L. Ed. 2d 668 (1973). See Lizardo v. Denny's, 270 F.3d 94, 103 (2d Cir. 2001).

The plaintiff must first establish a prima facie case. Texas Dept. Of Cmty. Affairs v. Burdine,

450 U.S. 248, 254-55, 101 S. Ct. 1089, 67 L. Ed. 2d 207 (1981). Once a prima facie case has

been established, the employer must articulate a legitimate, non-discriminatory reason for having

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taken the action of which the plaintiff complains. Id.; McDonnell-Douglas Corp., 411 U.S. at

802-03; Johnson v. Palma, 931 F.2d 203 (2d Cir. 1991). If this is done, the burden shifts back to

the plaintiff to prove that the allegedly legitimate reason is merely a pretext for discrimination.

McDonnell-Douglas Corp., 411 U.S. at 804. In the summary judgment context, a plaintiff must

"establish a genuine issue of material fact either through direct, statistical or circumstantial

evidence as to whether the employer's reason for discharging him is false and as to whether it is

more likely that a discriminatory reason motivated the employer to make the adverse

employment decision." Gallo v. Prudential Residential Serv. Ltd., P'ship, 22 F.3d 1219, 1225 (2d

Cir. 1994).

Here, the record evidence establishes that the overwhelming majority of Midtown’s

employees are of Eastern European and primarily Russian ancestry. The owner is Russian and

the project manager who supervised plaintiffs is Russian. As well, plaintiffs report that work

instructions were often given in Russian, causing confusion and feelings of exclusion. Jurors

may readily infer from these facts that, Ilya Brodsky, the who is Midtown’s owner, had a

preference for Eastern European workers and that his Russian supervisors preferred to

communicate with many of the workers in Russian.

Moreover, plaintiffs report that whenever they were laid off, similarly-situated sheet

metal workers were not laid off. Defendant has argued, without merit, that plaintiffs were unable

to specifically identify who those workers were, or when those prior layoffs specifically

occurred. Interestingly, defendant has not denied anywhere in its motion papers that the alleged

prior pattern of only laying off Black and Hispanic workers is false or that Eastern European

sheet metal workers were laid off as well. In fact, when confronted in depositions, defendant

could only name a single Eastern European worker who was ever laid off, and he was not even a

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sheet metal worker.

Defendant has not provided any evidence that a single Eastern European sheet metal

worker was ever laid off, or was laid off when the plaintiffs were laid off between November

2005 and March 2006. To the contrary, plaintiff’s Russian-born supervisor, Liberstein, admitted

that after plaintiffs were terminated, the only remaining sheet metal workers were Eastern

European immigrants: Edward Levin, Alex Lyzhin, Arthur Kogan, Vlad Ponamarenko, Igor

Sinayuk and Edward Abromv. Jurors may easily infer from this a purposeful intent to employ

Eastern European sheet metal workers, and to lay off all of the Black and Hispanic sheet

workers.

While defendant has now, in a post-hoc fashion, attempted to justify the lay-offs by

reference to alleged performance problems, defendant has claimed in depositions that the

plaintiffs were actually laid off due to a lack of work. These shifting explanations may cause

jurors to infer that the reasons offered for plaintiffs’ layoffs are pretextual. Indeed, defendant has

not offered a single document or any credible evidence that the layoffs were a business necessity

related to a general downturn in available work. If there was a general downturn in available

work, defendant has utterly failed to explain the rationale for laying off plaintiffs but not laying

off Edward Levin, Alex Lyzhin, Arthur Kogan, Vlad Ponamarenko, Igor Sinayuk and Edward

Abromv, all of whom are of Eastern European ancestry.

Further, in late 2005 Brodsky signed a stipulation that had “the full force and effect of an

order” specifically admitting that Midtown had failed to pay prevailing wages and supplemental

benefits to plaintiffs, Felix Bonilla, Ryan McKenzie, Simon Norales, Bernardo Ramirez and

Angel Vargas, all of whom were Black and/or Hispanic, by some $179,512.10 dollars. Critically,

Brodsky admitted that there was no stipulation that had “the full force and effect of an order”

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indicating that Midtown had failed to pay Eastern European sheet metal workers prevailing

wages and supplemental benefits. When juxtaposed to Midtown’s pattern of laying off Black and

Hispanic sheet metal workers but not Eastern European sheet metal workers, jurors may readily

conclude that there was purposeful racial discrimination and an illegal preference for Eastern

European sheet metal workers.

POINT II

PLAINTIFFS ENGAGED IN PROTECTED ACTIVITIES

AND REASONABLE INFERENCES MAY BE DRAWN

THAT PLAINTIFFS WERE LAID OFF BECAUSE OF

THOSE PROTECTED ACTIVITIES

The Second Circuit’s Court of Appeals has held that a retaliation claim may be brought

under 42 U.S.C. Section 1981. Hawkins v. 1115 Legal Serv. Care, 163 F.3d 684 (2d Cir. 1998).

To establish a prima facie case of retaliation, plaintiffs must demonstrate that (1) they

engaged in a protected activity; (2) that the employer was aware of the protected activity; (3) that

the employer took adverse employment actions; and (4) that there is a causal connection exists

between the protected activity and the adverse action. Wanamaker v. Columbian Rope Co., 108

F.3d 462, 465 (2d Cir. 1997); Cosgrove v. Sears, Roebuck & Co., 9 F.3d 1033, 1039 (2d Cir.

1993).

Proof of causal connection can be established indirectly by showing that the protected

activity was followed closely by discriminatory treatment or through other evidence such as

disparate treatment of fellow employees who engaged in similar conduct, or directly through

evidence of retaliatory animus directed against plaintiffs by the defendant." De Cintio v.

Westchester City. Med. Ctr., 821 F.2d 111, 115 (2d Cir. 1987). A plaintiff may establish the

necessary causal link directly by evidence of retaliatory animus. Manoharan, 842 F.2d at 593;

DeCintio, 821 F.2d at 115; Davis, 802 F.2d at 642; Oliver v. Digital Equip. Corp., 846 F.2d 103,

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110 (1st Cir. 1988), or by introducing evidence of disparate treatment of other employees

engaging in similar conduct. DeCintio, 821 F.2d at 115 (citing Simmons v. Camden County Bd.

of Educ., 757 F.2d 1187, 1188-89 (11th Cir.), cert. denied, 474 U.S. 981, 106 S. Ct. 385, 88 L.

Ed. 2d 338 (1985)).

Importantly, plaintiffs' burden is a light one, usually demanding only that the protected

activity preceded the adverse action in order to satisfy the causation requirement. Raniola v.

Bratton, 243 F.3d 610, 624 (2d Cir. 2001).

The Second Circuit’s Court of Appeals has stated that "[i]t is, of course, true that

temporal proximity can demonstrate a causal nexus." Slattery v. Swiss Reinsurance Am. Corp.,

248 F.3d 87, 95 (2d Cir. 2000) (citing Manoharan v. Columbia Univ., 842 F.2d 590, 593 (2d Cir.

1988)). However, the Court of Appeals has also observed that there is no "bright line rule" that

defines "the outer limits beyond which a temporal relationship is too attenuated to establish a

causal relationship between the exercise of [protected activity] and an alleged retaliatory action."

Gorman-Bakos v. Cornell Co-op Extension of Schenectady County, 252 F.3d 545, 554 (2d Cir.

2001). The Supreme Court has stated that "[t]he cases that accept mere temporal proximity

between an employer's knowledge of protected activity and an adverse employment action as

sufficient evidence of causality to establish a prima facie case uniformly hold that the temporal

proximity must be 'very close.'" Clark County School District v. Breeden, 532 U.S. 268, 273, 121

S. Ct. 1508, 149 L. Ed. 2d 509 (2001).

For retaliatory conduct to be "materially adverse" and, therefore, actionable, it must be

something that "might well have dissuaded a reasonable worker from making or supporting a

charge of discrimination." Burlington Northern, 126 S. Ct. 2405, 2415, 165 L. Ed. 2d 345

(2006). Generally, "materially adverse" acts affect an employee's pay or responsibilities, but they

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have also been found where an employee's chances for promotion were affected by the adverse

act. Malone v. City of New York, 2006 U.S. Dist. LEXIS 61866, No. 05-2882, 2006 WL

2524197 (E.D.N.Y. Aug. 30, 2006). “Reprimands and excessive scrutiny of an employee can

contribute to a finding that an adverse employment action has taken place,” depending upon the

circumstances. Uddin v. City of New York, 427 F. Supp. 2d 414 (S.D.N.Y. 2006).

However, courts in this circuit have found that reprimands, threats of disciplinary action

and excessive scrutiny do not constitute adverse employment actions in the absence of other

negative results such as a decrease in pay or being placed on probation, or eventually being

terminated. Honey v. County of Rockland, 200 F. Supp. 2d 311 (S.D.N.Y. 2002).

Here, there is no dispute that an Inspector from the New York City Comptroller’s Office

visited defendant’s job site, spoke with the plaintiffs and confirmed that they were being

underpaid on City contracts. Further, defendant is unable to deny that Vargas and Norales told

the Inspector that they believed that the Black and Hispanic sheet metal workers who were

working on City contracts were being paid less than white and Eastern European sheet metal

workers working on City contracts. Plaintiffs felt that they had been discriminated against

because, according to the Comptroller’s office, only Black and Hispanic employees were being

underpaid. This is one of the reasons that they filed Complaints in June 2005 with the

Comptroller’s office and jurors can conclude that they were intending to oppose discrimination

when they did so.

Defendant is unable to deny that Norales told a co-supervisor, Igor Sinayuk, that he and

the other plaintiffs had spoken with an Inspector from the Comptroller’s office about their being

paid less than white and Eastern European sheet metal workers on City contracts. While there is

no evidence that Sinayuk told Liberstein about this, Liberstein claims that unspecified “men”

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told him about the Inspector’s visit, that he immediately told Brodsky that an Inspector from the

Comptroller’s office had been asking questions and that the Inspector had some of the workers

fill some forms. Jurors may reasonably credit Liberstein assertion that he immediately informed

Brodsky about the Inspector’s visit, and that Brodsky immediately understood that some his

workers were engaged in protected activity, which cause him to become “concerned.”

Indeed, two months later, in August 2005, Liberstein told the plaintiffs that he was aware

that an Inspector had been on the job site to talk with them, and he asked them what they had

said to the Inspector. Jurors have no reason to disbelieve plaintiffs’ assertions that they told

Liberstein in August 2005, that they had complained to the Inspector that they were being paid

less than similarly-situated white and Eastern European sheet metal workers and that they were

interested in pursuing discrimination and prevailing wage claims.

Liberstein volunteered in his deposition that whenever he learned of complaints that the

workers had, he was diligent in promptly informing his boss, Brodsky, of such complaints. Jurors

may reasonably credit Liberstein’s assertion that he promptly informed Brodsky of any employee

complaints that he learned of. In this vein, it strains credulity to assume that while Liberstein told

Brodsky about all other employee complaints and even informed him that an Inspector had been

on site talking with Midtown employee, he somehow forgot to tell Brodsky that plaintiffs had

essentially complained to the Comptroller’s office that they were victims of race and ancestry

discrimination. In any event, Brodsky admitted that by the “late summer,” he had received a

second notice about the Comptroller’s investigation at the KBF site and that the only Midtown

employees at the KBF site were the five plaintiffs and a single Russian immigrant. By Brodsky’s

own admission, he had a good idea, by August 2005, who was complaining. By September 22,

2005, Brodsky knew for certain who had made complaints because he was given copies of the

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complaints.

Thus, jurors may reasonably infer, based upon the available proofs, that Brodsky was

aware of plaintiff’s protected activities in complaining generally about their prevailing wage

issues, and complaining specifically, about their being victims of race and ancestry

discrimination once Liberstein learned about this in August 2005.

Jurors will not fail to notice that in August 2005 when plaintiffs told Liberstein that they

were opposing race and ancestry discrimination when they filed complaints with the

Comptroller’s Office, that Angel Vargas and Simon Norales began to receive adverse

disciplinary memos. Angel Vargas received disciplinary memos dated August 4, 2005, August 5,

2005 and August 9, 2005, while Simon Norales a disciplinary memo dated on August 5, 2005.

Four months later, on November 21, 2005, Ryan McKenzie and Felix Bonilla were laid off,

allegedly due to a general downturn in work, even though no other sheet metal workers were laid

off at that time. Jurors may reasonably find that the temporal proximity between the plaintiffs’

informing Liberstein that they filed complaints, in part, to oppose race and ancestry

discrimination, and their being subjected to adverse actions, is highly suspicious.

Vargas and Norales received disciplinary memos, Norales was placed on “probation,”

and McKenzie and Bonilla were laid off all within the short space of four months after informing

Liberstein of their protected activities. Importantly, jurors may credit Liberstein’s assertion that

whenever the men complained about some work-related issues, he would promptly tell the boss,

Ilya Brodsky. Thus, more likely than not, Liberstein told Brodsky in August 2005, about

plaintiffs’ reasonable perceptions that they were being subjected to race and ancestry

discrimination, and that they had filed complaints with the Comptroller’s office, in part, to

oppose this discrimination.

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Brodsky claims to have known for certain who complained by September 22, 2005.

Within two months, McKenzie and Bonilla were laid off. Within six months from September 22,

2005, all of the plaintiffs had received their first disciplinary memos and all of them had been

laid off, permanently. Again, jurors can reasonably find this chronology to be highly suspicious,

and eventually conclude that plaintiffs were subjected to retaliation. In fact, jurors are unable to

overlook the fact that it was Liberstein who approached the plaintiffs, told them that he was

aware that they had spoken with the Investigator and demanded to know what they had said to

him. Jurors can reasonably infer that defendant was so concerned about the Comptroller’s

investigation that it sent a supervisor, Liberstein, to interrogate them and to discover what

plaintiffs had said. This could be perceived as retaliatory animus.

More importantly, jurors may reasonably infer that defendant has given too many shifting

explanations for plaintiffs’ layoffs. These shifting explanations may be perceived as being

pretextual, especially in light of the fact that defendant has not offered any documents or any

credible testimony evincing that there was a downturn in business that necessitated plaintiffs’

layoffs. In fact, defendant has not rebutted plaintiffs’ claims that defendant kept White and

Eastern European sheet metal workers, but laid of all of the black and/or Hispanic sheet metal

workers. Defendant has not come forward in its brief-in-chief with the name of a single white

and/or Eastern sheet metal worker who was laid of around the same time that the plaintiffs’ were

laid off. In fact, the irrefutable evidence establishes that Edward Levin, Alex Lyzhin, Arthur

Kogan, Vlad Ponamarenko, Igor Sinayuk and Edward Abromv, all of whom are white and of

Eastern European ancestry, were kept on.

Brodsky initially claimed in his deposition that Vargas and McKenzie were laid off due

to “dishonesty and lack of performance and following the loss [a] client.” Jurors may credit

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assertions from Vargas and McKenzie that the Ivy Walk project was plagued with problems that

were beyond their control, and that defendant was well aware of this. Proof positive of this is the

fact that the project still finished significantly behind schedule, even with a new subcontractor.

Also, Vargas was not terminated until March 2006, some five months after he learned of Vargas’

alleged non-performance on the Ivy Walk project.

Jurors may conclude that the explanations for Vargas’ and McKenzie’s layoffs are

pretextual.

Brodsky initially claimed in his deposition that Norales was terminated because of his

alleged “dishonesty.” Yet, Brodsky changed his position at his deposition and testified that

Norales was not terminated because of his alleged “dishonesty,” but for a “lack of work.”

Defendant cannot have it both ways, and jurors may conclude that these conflicting explanations

reveal that Brodsky’s explanations are pretextual and were designed as a cover for retaliation.

Initially, Brodsky claimed that Bonilla was laid off because of “dishonesty,” not correctly

calling the time in, not performing the job correctly and having constant absences.” Then,

Brodsky claimed that Bonilla was terminated because he frequently failed to give notice that he

was going to be absent for “long periods of time.” Later still, Brodsky offered that Bonilla was

terminated for another reason: “maybe lack of work.” Jurors are likely to find such shifting

explanations are a ploy to mask the retaliatory reasons for Bonilla’s layoff.

Brodsky claimed that he did not recall why Bernardo Ramirez was laid off. Thus, jurors

could conclude that Brodsky did not have a legitimate business reason for laying off Ramirez,

and that retaliation was the real motive behind his lay off.

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CONCLUSION

For the foregoing reasons, defendants’ Motion for Summary Judgment should be denied

in its entirety, as there are numerous material issues of fact that can only be resolved by a jury.

Dated: Brooklyn, New York

May 12, 2008

Respectfully Submitted,

___________/s/__________________

Ambrose W. Wotorson, Jr. (AWW-2412)

Law Offices of Ambrose Wotorson

26 Court Street, Suite 1811

Brooklyn, New York 11242

718-797-4861

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