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Error to deny pro se plaintiff overtime records, dismiss claims of racist OT assignments

By Lorene D. Park, J.D.

Vacating summary judgment against an African-American electrician’s claim that white electricians were given nearly twice as much overtime in violation of federal and state law, the Second Circuit in an unpublished opinion found that the lower court was too quick on the trigger in finding the plaintiff’s discovery request untimely and then tossing the suit for lack of evidence. It was significant not only that the plaintiff was pro se and should be afforded leniency, but also that the company had informed the court it was recovering the requested overtime records and needed only three weeks to produce them (though it never did). Those records may very well raise a triable issue of fact, the appeals court noted. However, summary judgment on the plaintiff’s retaliation claim against his supervisor was affirmed (Gachette v Metro North-High Bridge, January 18, 2018, per curiam).

Racist overtime assignments? Claiming he was given less overtime than other employees because he identifies as “black African or Afro-American,” the pro se plaintiff filed suit against his former employer and supervisor under Section 1981, the New York State Human Rights Law, and the New York City Human Rights Law.

Rebuffed requests for OT records. The record suggested that the plaintiff tried to gather proof of this allegation on May 21, 2013 by serving the employer with a request for overtime records. When the employer failed to respond he repeatedly notified both the company and the court of its non-compliance, filing letters with the court on June 28, July 19, and October 24, 2013.

The district court construed his October letter as a motion to compel, which it summarily denied on October 25, reasoning that discovery had closed on May 31 and the defendants had already moved for summary judgment on July 12.

Request for records should have been considered timely. Vacating and remanding, the Second Circuit concluded that summary denial of the plaintiff’s motion to compel was not warranted. For one thing, the record showed the employer had represented to the court in a June 19 letter that it was searching for overtime records and needed extra time (until July 12) to complete its search.

Moreover, the appeals court at oral argument ordered the employer to explain why it did not respond to the plaintiff’s May 21 request for OT records. In its response, it did not dispute that it was served with the request on May 21 and that it failed to produce the records, nor did it explain why it never produced them even though it told the lower court it needed only three more weeks “to rebut plaintiff’s allegation” that Metro-North “assign[ed] white electricians to work more overtime than black electricians.”

Based on this record, and considering the leniency afforded pro se litigants when confronted with summary judgment motions, the appeals court could not conclude the pro se plaintiff’s request for overtime records was untimely.

Summary judgment premature. Though the employer now also argued that the plaintiff’s discovery request was “speculative and overbroad,” the district court had not yet reached the merits of that discovery dispute and should be allowed to do so in the first instance.

Along those lines, the appeals court found that the lower court was premature in granting summary judgment without first resolving the discovery dispute, particularly since it had specifically observed that “[a]lthough [the plaintiff] believes he receive as little as half the overtime of white electricians, he concedes that he does not have proof other than ‘common sense’ and his own complaint.” Even the employer represented to the court that its overtime records were relevant to proving the claims. “These overtime records could very well create a disputed issue of material fact and preclude summary judgment,” concluded the court of appeals.

Retaliation claims fail. However, the appeals court affirmed summary judgment against the plaintiff’s claim against his supervisor for retaliation. He was fired for refusing to take a drug test and he claimed the supervisor administered the test in retaliation for his discrimination complaint. However, there was no evidence the supervisor knew about his overtime complaints made to the company’s president. Even if he could, there was too much of a temporal gap to establish causation. He was selected for the drug test nearly a year after his last complaint.