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DE LA CONCHA v. FORDHAM UNIV.

May 11, 1998

HARRY de la CONCHA, Plaintiff, against FORDHAM UNIVERSITY, Defendant.


The opinion of the court was delivered by: MOTLEY

OPINION

 Motley, J.

 Plaintiff Harry de la Concha ("De La Concha") sued his former employer, defendant Fordham University ("Fordham"), alleging that his termination constituted discrimination on the basis of his race (Latino) and national origin (Puerto Rican). Fordham moved for summary judgment and in so doing articulated legitimate, non-discriminatory reasons for the discharge. Because de la Concha could not prove that the circumstances of his dismissal gave rise to an inference of discrimination on the basis of national origin, Fordham's motion is GRANTED as to this claim. Because de la Concha could not meet his burden of showing that Fordham's reasons for the discharge were pretextual, Fordham's Fed.R.Civ.Proc. 56 motion is also GRANTED as to the race claim. Therefore, de la Concha's Title VII claim is DISMISSED IN ITS ENTIRETY.

 I. BACKGROUND

 De la Concha was employed by Fordham from December 1989 to December 1995 as a locksmith in the Facilities Operations Department ("Department") in the Bronx. At the time of de la Concha's discharge, the workforce in the Facilities Operations Department was approximately one-third Latino. During plaintiff's tenure at Fordham, three individuals served as Director of the Department: Julio Vazquez (from 1990 until February, 1995); Peter Girvan, the erstwhile deputy director (February, 1995 until May, 1995); and Marco ['Marc'] Valera (May through December 1995). Once Mr. Valera assumed the position, Girvan again assumed the position of deputy director. Throughout de la Concha's employment, the Director of Personnel was Anthony Ruggiero.

 As a locksmith, de la Concha was adjudged by his appraisers to be more than competent; he received positive annual reviews and several letters of commendation. Moreover, he was not without popularity among some of the other workers. After his arrest in 1992 or 1993 for carrying a concealed weapon, Fordham employees wrote letters in support of plaintiff. See Pre-Trial Order, 2. *fn1" However, even viewed in the most favorable light, de la Concha had problems with other Fordham employees. In 1990, he had an altercation with a co-worker. In 1993, there was an incident with another employee wherein a member of the Department claimed that de la Concha had threatened sexual violence against him. Plaintiff does not dispute that there was an incident and notes only that the vice president of Fordham concluded that it was not a case of sexual harassment by plaintiff against the other employee. See Tr. at 14. *fn2"

 Most of the relevant events in this case occurred in 1995. In the beginning of 1995 Peter Girvan assumed the role of Acting Director of the Department. Girvan employed racially offensive terminology, such as use of the word "spic" to describe Latinos. In May 1995, the directorship was assumed by Marc Valera.

 In September 1995, three students complained that de la Concha had entered their dorm room uninvited on three separate occasions. De la Concha denies that there were three incidents but does state that he called a student a "smart ass" or "little asshole" after an incident when de la Concha, thinking no one was home, entered the students' room to allegedly fix a lock. Tr. at 5, 47. After the incident with the students, de la Concha signed a "last chance agreement" in early October 1995 wherein he agreed that any further infraction would result in his being terminated without recourse to arbitration.

 At the end of October, 1995, de la Concha was summoned by Ruggiero, the Personnel Director, to act as shop steward in a meeting regarding another employee's allegedly problematic time sheets. At the meeting, it is undisputed that de la Concha and Ruggiero had words and that Ruggiero called security to have de la Concha removed from the room. De la Concha alleges, and the court will assume for purposes of this motion, that Ruggiero hit de la Concha on the back as he shepherded him out of the room. See, e.g., Pl. Pre-Trial Order, P 41. However, plaintiff has put forth no compelling evidence to allow a rational juror to conclude that the incident disabled or seriously injured plaintiff. Following the incident, plaintiff filed a worker's compensation claim that was adjudged to be without merit. Plaintiff also tried to compel the police to arrest Ruggiero and, following their refusal, de la Concha brought a court action against the police department which was later dismissed.

 In the wake of these and other incidents, including an incident in which plaintiff presented unauthorized locksmith invoices, plaintiff was terminated on December 13, 1995. There are no facts suggesting that plaintiff's race or national origin were mentioned or played a role in the incident with the students, the incident at the personnel meeting, or at any other time, except insofar as Peter Girvan, who was not a decision-maker in the decision to discharge plaintiff, made remarks.

 De la Concha did not complain about discrimination prior to or at the time of his discharge. He did timely file a complaint with the EEOC, receiving a right-to-sue letter on February 6, 1996. Plaintiff filed his complaint with this court less than 90 days later, on March 15, 1996. The complaint only alleged federal civil rights causes of action. However, de la Concha has brought no fewer than ten causes of action against Fordham. He has alleged, under oath, three separate and distinct reasons for his termination from Fordham, aside from the national origin and race discrimination alleged in this action. De La Concha has claimed his discharge was the result of sexual orientation, union activity, and retaliation for filing a worker's compensation claim. See Def. Exh. 1. Summary judgment has been granted against De La Concha on two of the other actions he has brought, one action was dismissed, De La Concha has withdrawn the unfair labor practice charges, and five other actions (including this one) are ongoing. See Def. Exh. 8, 11, 12.

 II. CONCLUSIONS OF LAW

 A. Standard for Granting Summary Judgment

 "Uncertainty as to the true state of any material fact defeats [a summary judgment] motion." Gibson v. American Broadcasting Corp., 892 F.2d 1128, 1132 (2d Cir. 1989). It is not the role of the trial court to weigh the evidence presented or to resolve any factual issue, but rather it is the court's job to determine whether, after the parties have conducted adequate discovery, any such issues remain to be tried. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986); Fed.R.Civ.P. 56(c). A factual issue is unresolved if a reasonable fact finder could determine in favor of either party. See Anderson, 477 U.S. 242, 249, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986); Gibson, 892 F.2d at 1132. Moreover, the court must view the inferences to be drawn from the facts in the light most favorable to the non-movant. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986); Eastway Constr. Corp. v. City of New York, 762 F.2d 243, 249 (2d Cir. 1985), cert. denied, 484 U.S. 918, 98 L. Ed. 2d 226, 108 S. Ct. 269 (1987). The non-moving party may defeat the motion for summary judgment by producing sufficient facts to establish a genuine issue of material ...


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