namely, as a person of Italian ancestry.
Though the defendants did not argue the court's lack of
jurisdiction over Grillo's gender discrimination claims under
Title VII, the court will address the issue. Grillo did not
include a gender discrimination claim in his EEOC charge. In
fact, he did not allege gender discrimination in the complaint or
the First Amended Complaint. Grillo's gender claim appeared for
the first time in his Second Amended Complaint.
Because the gender discrimination claim was not included in
Grillo's EEOC charge and gender discrimination claims are not
"reasonably related" to discrimination claims based on race or
national origin, the court will dismiss Grillo's claim of gender
discrimination under Title VII. See Dennis v. Pan American World
Airways, 746 F. Supp. 288, 291 (E.D.N.Y. 1990).
Grillo's claim of racial discrimination charged before the EEOC
is properly before the court under both Title VII and
42 U.S.C. § 1981. Grillo is a white male of Italian heritage. He claims that
he had performed his duties satisfactorily, that an adverse
employment action was taken against him, and that the action
occurred under circumstances giving rise to an inference of
discrimination because of his "race." McDonnell Douglas Corp. v.
Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973).
To make out a prima facie case Grillo was required to present
evidence showing he had met all of the elements set forth in
McDonnell Douglas. His demotion from supervisor of light
maintenance to light maintainer was an adverse employment action.
But Grillo has presented no substantial evidence other than his
own say so that he had been performing his job duties
satisfactorily. "The ultimate inquiry is whether an employee's
performance meets [his] employer's legitimate expectations."
Meiri v. Dacon, 759 F.2d 989, 995 (2d Cir. 1985), quoting Huhn
v. Koehring Co., 718 F.2d 239, 244 (7th Cir. 1983), see also
Viola v. Philips Medical Systems of North America, 42 F.3d 712,
718 (2d Cir. 1994).
Karl Miller's detailed evaluation of plaintiff's performance
has a ring of legitimacy. He had approved Grillo's promotion to
the probationary position of supervisor, and Grillo has pointed
to no evidence that Karl Miller bore any malice toward him or had
any interest other than that of the Transit Authority.
Plaintiff's brief misquotes the deposition of Anthony Aceto, a
deputy to Karl Miller and the immediate supervisor of Grillo, to
read that Grillo's "performance" was "satisfactory." In fact
Aceto testified that Grillo did not have the "supervisory skills"
to be a supervisor. Grillo was, after all, on probation, and Karl
Miller was not obligated to retain a supervisor whose work he
Moreover, Grillo's behavior before the class was, to say the
least, inappropriate, or could reasonably be perceived as such by
his supervisors and superiors. Finally, Peter Ingoglia, like
Grillo a white male of Italian ancestry, was the male labor
relations official who in fact demoted Grillo to his previous
position. The instructors did not demote him or suggest that he
be demoted. They simply prepared their statement at the request
of their supervisors.
Grillo suggests that the three instructors of the class were
prejudiced against him because all three were female, two Black
and one Hispanic. No doubt those who saw Grillo in class were not
pleased with his behavior, but that did not mean that they were
"prejudiced against" him. His own self serving statement is not
to permit an inference of prejudice on the part of the
instructors, and Grillo has submitted no other testimony to
support such an inference.
Grillo makes three other Federal Claims. He says some of the
defendants, including Karl Miller, Ingoglia and the instructors,
each with an evil motive, conspired to deprive him of his
"property" right to remain in his job as a supervisor in
violation of the Due Process clause and 42 U.S.C. § 1985.
The premise for this claim is false. As a probationary employee
Grillo had under New York law no entitlement to his job. He could
be returned to his former job without a hearing. The claim does
not have faintest merit. In addition, there is no substantial
basis to infer that any of the defendants acted for personal
reasons outside their roles as employees of the Transit
Grillo also says his First Amendment right was violated because
his removal from the training class was occasioned by what he
said in the class, including his interruptions and his "hey you"
comment. His remarks were not of public concern involving weighty
or civic matters. The claim is meritless.
Both the Due Process claim and the First Amendment claim will
Plaintiff agrees that the balance of his claims are pendent and
based on New York law. The court's jurisdiction is based on the
The court declines to consider the state law claims. They will
The defendants' motion for summary judgment on all of
plaintiff's claims is granted.
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