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May 7, 2002


The opinion of the court was delivered by: John E. Sprizzo, United States District Judge.


Plaintiff Juanito Ongsiako ("plaintiff") brings the above-captioned action against the City of New York ("the City") and the City's Department of Environmental Correction ("the DEP") (collectively "defendants"). Plaintiffs complaint alleges that defendants impermissibly discriminated against him because of his national origin and alleged disability and that they constructively discharged him from his job as a City construction laborer. Following the completion of discovery, defendants moved for summary judgment against plaintiff on all of his claims.*fn1 For the reasons set forth below, the Court grants defendants' motion.


Plaintiff began working as a construction laborer for the City in April of 1993. See Declaration of Bryan D. Glass dated October 12, 2000 ("Glass Declaration"), Exhibit ("Exh.") A. Deposition of Juanito Ongsiako taken September 25, 2000 ("Ongsiako Depo.") at 73, 77. The job description for a City construction laborer indicates that employees in that category "us[e] a wide variety of heavy-duty, motor-powered equipment [to] perform[] work in construction, repair and maintenance of water supply distribution systems, drainage and sewer systems, buildings and plants." Glass Declaration, Exh. E., Construction Laborer Job Description ("Job Description"). Among the examples of "typical tasks" listed in this Job Description are: "[l]oads and unloads equipment," "[e]xcavates and refills in the performance of work [described] herein," and "[r]epairs broken water mains and leaking water services." Id.

Construction laborers perform these tasks at a number of different "yards" throughout the City; each yard performs a different function. The City assigned plaintiff to a variety of different yards between April, 1993 and April, 1994, when it sent him to the Manhattan Repair. Pike Street Yard ("Pike Street"). Plaintiff understood that he generally did not have any choice with respect to his yard assignment. See Ongsiako Depo. at 82. Plaintiff continued to work at Pike Street until June 1996, when he injured his back on the job. See Glass Declaration, Exh. L., Letters from Plaintiffs Doctor Re: June 1996 back injury. [n February 1997, after returning to Pike Street following a leave of absence. plaintiff requested and was granted a transfer to the Leak Detection yard — even though he did not have the level of seniority normally required for such an assignment. See Ongsiako Depo. at 94-95, 98-100. Plaintiff viewed Leak Detection as a yard that required less physical exertion than Pike Street. See id. at 98-100. In August, 1997 plaintiff again requested and was granted a transfer to the Construction Services yard — an assignment which he perceived as even less physically demanding than Leak Detection. See id. at 110-12.

While at Construction Services, defendants allege that plaintiff had an "uncooperative attitude" and that he performed substandard work, as evidenced by plaintiff's supposed responsibility for breaking a plate glass window sometime in January 1998. See Glass Declaration, Exh. B., Declaration of Kenneth Carchietta dated October 12, 2000 ("Carchietta Declaration") at ¶¶ 6-7; Ongsiako Depo. at 166-68. Defendants contend that as a result of these problems, Mr. Carchietta requested plaintiff be transferred out of Construction Services and back to a yard within the Bureau of Water and Sewer Operations. See Carchietta Declaration at ¶ 9. Defendants subsequently assigned plaintiff back to the Pike Street yard effective February 2, 2002; plaintiff was informed of this transfer in late January 1998. See Ongsiako Depo. at 148; Glass Declaration, Exh. O, January 21, 1998 Memorandum confirming Plaintiffs Transfer to Bureau of Water and Sewer Operations.

Plaintiff disputes defendants' characterization of his tenure at Construction Services. Moreover, plaintiff alleges that while he worked there his fellow construction laborers called him derogatory ethnic names based on his Filipino heritage. See Ongsiako Depo. at 223-35. It is not clear whether plaintiffs boss at that yard, Kenneth Carchietta, or any of Mr. Carchietta's superiors had any knowledge of these allegations prior to February 1998. The record is also unclear regarding whether, at the time of plaintiff s transfer back to the Pike Street yard, Mr. Carchietta or anyone else at the Construction Services yard was aware of the alleged work restrictions that resulted from plaintiffs 1996 back injury.

Immediately after the effective date of his transfer, plaintiff filed a complaint with the EEOC and sent a series of letters to defendants. See Amended Complaint dated April 23, 2001 ("Complaint"). Exh. 1, Plaintiffs February 2, 1998 EEOC complaint ("EEOC Complaint I"); Affirmation of Marshall B. Bellovin dated November 16. 2000 ("Bellovin Affirmation"). Exhs. 4-6. 8-9. In these documents plaintiff requested a rotating light duty assignment as an accommodation for his alleged disability. Plaintiff also accused defendants of discrimination on the basis of both his claimed disability and his Filipino heritage. See, e.g., EEOC Complaint I; Bellovin Affirmation. Exh. 7, June 22, 2002 Letter from Plaintiff to EEOC. Plaintiff also took, with defendants' approval, a psychiatric leave of absence from the DEP shortly after the effective date of his transfer back to Pike Street. Upon returning to work in June 1998, plaintiff worked at the Pike Street yard until September 1998, when he suffered a head injury; he subsequently took a leave of absence from which he has not returned.*fn2

Plaintiff initiated the instant action on July 27, 1999. Plaintiffs complaint, in its current amended form, charges that defendants: (1) failed to accommodate his disability as required under the Americans with Disabilities Act ("ADA"); (2) discriminated against him because of his Filipino heritage by treating him less favorably than similarly situated Caucasian employees and by failing to correct a racially hostile work environment; (3) constructively discharged him*fn3 (4) retaliated against him in violation of Title VII; and (5) violated various New York State anti-discrimination laws. Defendants respond that plaintiffs impairment — assuming he has one at all — does not qualify as a disability under the ADA. that plaintiff has failed to make out a prima facie case of national origin discrimination, or retaliation, and that the record does not contain sufficient evidence to support Plaintiff's constructive discharge allegations.


When ruling on a summary judgment motion, a court must construe the facts in the light most favorable to the nonmoving party and must resolve all ambiguities and draw all reasonable inferences against the moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). If no genuine issue as to any material fact exists, the moving party is entitled to summary judgment as a matter of law. See Celotex, 477 U.S. at 323.

A. Plaintiff's Disability Discrimination Claim

A plaintiff alleging employment discrimination under the ADA bears the initial burden of establishing a prima facie case. See Ryan v. Grae & Rybicki, P.C., 135 F.3d 867, 869 (2d Cir. 1998). In order to establish a prima facie case of disability discriminatory, a plaintiff must show that (1) his employer is subject to the ADA; (2) he suffers from a disability within the meaning of the ADA; (3) he coule perform the essential functions of his job with or without reasonable accommodation; and (4) he has suffered an adverse employment action because of his disability. See Giordano v. City of New York, 274 F.3d 740, 747 (2d Cir. 2001); Ryan, 135 F.3d at 869-70. Plaintiff has failed to meet this burden because he has not demonstrated that he suffers ...

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