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United States District Court, S.D. New York

March 9, 2004.


The opinion of the court was delivered by: DENISE COTE, District Judge


On July 24, 2002, Joseph Marrero ("Marrero") filed this action in state court alleging employment discrimination based on his national origin in violation of state and federal law. The action was removed to federal court. Following the close of discovery, defendants have moved for summary judgment. For the following reasons, the motion is granted. Background

The following facts are undisputed unless otherwise noted. In 1995, Marrero was employed as a custodial assistant at Public School 103 ("PS 103") in the Bronx. Marrero was a member of the Page 2 Service Employees International Union, Local 74, which is a duly incorporated union in the City of New York representing public school custodians. The collective bargaining agreement that governed his employment described Marrero as an employee of the Custodian Engineer of PS 103. The Custodian Engineer is an employee of the New York City Board of Education.

  In 1997, Marrero was arrested on a weapons charge. When his supervisor learned of the arrest, Marrero's employment was terminated. In 1999, Marrero was acquitted of the criminal charges. Marrero asked to be, and was rehired at PS 103 in March 1999.

  As of the time Marrero was rehired, the custodial staff at PS 103 consisted of five employees, as it had when he had last worked there. Marrero's addition brought the number of employees to six. Marrero worked part time until approximately June 1999. Thereafter, he returned to full time employment.

  A December 17, 1999 document reflects that Marrero's supervisor gave him a second warning for "consistant lateness" [sic]. A March 7, 2000 "Employee Warning Notice" ("Notice") records warnings against Marrero for violation of rules, lateness and absence. The Notice also informs Marrero that his employment is terminated as of March 20. Marrero grieved the termination and, by agreement of the parties, received a two-day suspension in lieu of termination.

  At some point in 2000, John Sullivan ("Sullivan") became Marrero's supervisor. Marrero was late to work at least two Page 3 times after Sullivan became his supervisor. A June 20, 2000 memorandum to Marrero informs him that he was fired, effective July 6. The memorandum describes a history of lateness and warnings. Marrero received the memorandum on June 21, and filed a grievance.

  On July 5, Marrero and Sullivan executed an agreement that Marrero would withdraw his grievance, would accept a five day suspension without pay, and would keep his job. On September 28, 2000, after being late at least two more times and failing to appear to work, Marrero was fired again. Sullivan's memorandum gave as the reason Marrero's frequent absences from work.

  Through his union, Marrero grieved the termination of his employment. At a hearing held on March 16, 2001, Marrero admitted that he had abandoned his job and had failed to be in communication with his employer prior to the firing.

  On July 24, 2002, Marrero filed this action in state court. On August 1, 2002, Marrero served the defendants with a complaint that included federal claims. The defendants removed the action to federal court on August 16. On November 15, the defendants' motion for a more definite statement was denied on the condition that the plaintiff file an amended complaint by November 27. Plaintiff filed an amended complaint on December 10.*fn1 In the Page 4 amended complaint, Marrero contends that, due to the defendants' discrimination, he was: 1) denied two years' worth of back pay for the period between his firing in 1997 and his reinstatement in 1999; 2) employed only six hours per day between March and June 1999; and 3) fired on September 28, 2000. Following discovery, the defendants moved for summary judgment.

  The amended complaint is brought against the City of New York ("City"), the Board of Education ("Board"), and Sullivan. The first claim alleges that all three defendants violated New York Executive Law Section 296(1) (a) ("Section 296") by creating a hosfile work environment because of Marrero's national origin.*fn2 The second claim alleges that the three defendants engaged in a pattern of harassment that led to Marrero's firing in violation of Title 42, United States Code, Section 1983 ("Section 1983"), based on Marrero's national origin. The Section 1983 claim identifies the Due Process and Equal Protection Clauses as the sources of the plaintiff's constitutional rights. In his opposition to the motion for summary judgment, the plaintiff indicates that he has withdrawn any claim based on a violation of his rights under the Due Process Clause.


  Summary judgment may not be granted unless the submissions of the parties taken together "show that there is no genuine Page 5 issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Rule 56(c), Fed.R.Civ.P. The moving party bears the burden of demonstrating the absence of a material factual question, and in making this determination the court must view all facts in the light most favorable to the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). When the moving party has asserted facts showing that the non-movant's claims cannot be sustained, the opposing party must "set forth specific facts showing that there is a genuine issue for trial," and cannot rest on the "mere allegations or denials" of the movant's pleadings. Rule 56(e), Fed.R. Civ. P.; accord Burt Rigid Box, Inc. v. Travelers Property Cas. Corp., 302 F.3d 83, 91 (2d Cir. 2002).

 Marrero's Claims Against the City of New York

  Defendants move to dismiss the City as a defendant. The Board of Education is "for all purposes, the government or public employer of all persons appointed or assigned by the city board or the community districts>." N.Y. Educ. Law. § 2590-g(2) (McKinney 2003). As a result of Education Law § 2590-g(2), the Board and the City are considered "separate and distinct entities." Campbell v. City of New York, 611 N.Y.S.2d 248, 249 (2d Dep't 1994) (citation omitted). See also Gonzalez v. Esparza, 02 Civ. 4175 (SWK), 2003 WL 21834970, at *2 (S.D.N.Y. Aug. 6, 2003); Raasdale v. Board of Education, 282 N.Y. 323, 325 Page 6 (N.Y. 1940) (per curiam). The City, therefore, is not liable for torts committed by the Board. Linder v. City of New York, 263 F. Supp.2d 585, 591 (E.D.N.Y. 2003) (citing Titusville Iron Co. v. City of N.Y., 207 N.Y. 203, 100 N.E. 806 (1912)).

  The defendants are correct that the City is not a proper party to this action. Accordingly, Marrero's claims against the City are dismissed. Marrero's claims will be analyzed as they apply to the Board and Sullivan.

 Section 296(a)(1) Claim

  Marrero alleges that the Board and Sullivan violated Section 296 by creating a hosfile work environment because of Marrero's national origin. Claims under Section 296 against a school board, a school district or its employees are governed by the notice provisions set forth in Education Law § 3813(1). See, e.g., Taylor v. Hammondsport Cent. School Dist., 700 N.Y.S.2d 353, 354 (4th Dep't 1999); Campbell, 611 N.Y.S.2d at 249; Roger v. Thomann, 592 N.Y.S.2d 887, 888 (3d Dep't 1993).

  New York Education Law § 3813(1) provides that, prior to the filing of a lawsuit against a school board, a school district or its employee, a plaintiff must first serve a notice of claim on defending parties within 90 days of the accrual of the claim. N.Y. Educ. Law § 3813(1) (McKinney Supp. 1994). "Where a plaintiff seeks private relief, damages, or reinstatement for employment discrimination in violation of [Section 296], the filing of a timely notice of claim is a condition precedent to Page 7 suit." Sangermano v. Board of Co-op. Educational Services of Nassau County, 290 A.D.2d 498, 498 (2d Dep't 2002) (emphasis supplied). Failure to file a notice of claim against a governmental subdivision for acts arising out of the state civil rights laws is "fatal" unless the plaintiff is vindicating a public interest. Mills v. County of Monroe, 59 N.Y.2d 307, 308 (N.Y. 1983).

  It is undisputed that Marrero did not file a notice of claim. It is also undisputed that Marrero seeks monetary damages for the alleged violation of his civil rights, and does not seek to vindicate a public interest. Therefore, Marrero's Section 296 action against the Board and Sullivan is governed by the notice provisions of Education Law § 3813(1). His Section 296 claim is thus barred by his failure to file a timely notice of claim with the Board. See Doyle v. Board of Educ. of Deer Park Union Free School Dist., 646 N.Y.S.2d 842 (2d Dep't 1996).

 Marrero's Section 1983 Claim

  Marrero's complaint could be read to plead two adverse employment actions that fall within the statute of limitations period: Sullivan's harassment of him and the final termination of his employment.*fn3 Marrero alleges that the Board violated Page 8 Section 1983 by "encouraging, [and] tolerating" Sullivan's pattern of harassment against him based on the fact that he is Puerto Rican. Marrero locates the source of the Section 1983 violation in the Equal Protection Clause.

  In order to state a claim under Section 1983, Marrero must allege that he was injured by either a state actor or a private party acting under color of state law. Section 1983 provides:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State . . ., subjects, or causes to be subjected, any citizen of the United States . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law. . . .
42 U.S.C. § 1983 (2000). Ciambriello v. County of Nassau, 292 F.3d 307, 323 (2d Cir. 2002).

  Respondeat superior is not available for municipal liability under Section 1983. Nicholson v. Scoppetta, 344 F.3d 154, 165 (2d Cir. 2003). Thus, a municipality or its subdivisions "may not be held liable under § 1983 simply for the isolated unconstitutional acts of its employees." Sorlucco. v. New York Page 9 City Police Dep't, 971 F.2d 864, 870 (2d Cir. 1992) (citing Monnell v. Department of Social Servs., 436 U.S. 658, 694 (1978)). Municipalities and their entities may be held liable under Section 1983 only when the deprivation of rights is caused pursuant to a "policy statement, ordinance, regulation, or decision officially adopted and promulgated by that body's officers." Anthony v. City of New York, 339 F.3d 129, 139 (2d Cir. 2003) (quoting Monell, 436 U.S. at 690). A policy may be official for Section 1983 purposes even though it is not officially recognized when it is so well-settled as to constitute custom. Id.

  Actions by an employee with "final policymaking authority," however, may give rise to municipal liability. See Pembaur v. City of Cincinnati, 475 U.S. 469, 483-84 (1986); Dangler v. New York City Off Track Betting Corp., 193 F.3d 130, 143 (2d Cir. 1999). Final policy-making authority exists when the individual's decisions, "at the time they are made, for practical or legal reasons constitute the [municipal entity's] final decisions." Rookard v. Health & Hosps. Corp., 710 F.2d 41, 45 (2d Cir. 1983). As a matter of New York law, only Board members themselves have final policy-making authority over Board decisions. See Terminate Control Corp. v. Horowitz, 28 F.3d 1335, 1349 (2d Cir. 1994) ("New York Education Law § 2590-g explicitly vests all final policymaking authority with the Board"); Dangler, 193 F.3d at 143 (existence of final policymaking authority for Section 1983 purposes is determined by Page 10 state law). Thus, a plaintiff alleging a Section 1983 claim against the Board must point to evidence supporting an inference that the Board has adopted or promulgated a discriminatory policy or practice, or that a member of the Board has engaged in the prohibited conduct.

  Marrero does not present any evidence that the Board or any member of the Board pursued an official policy of discrimination against employees of Hispanic origin, nor that such discrimination was so widespread as to constitute a de facto official policy. Marrero presents no evidence to indicate that the Board itself was involved in any of the decisions regarding his employment or his firing in September 2000, nor does Marrero identify any Board member who was made aware of the circumstances surrounding the termination of his employment. At Marrero's deposition, he was asked several times why he attributed his eventual firing in September 2000 to his race or national origin. Marrero never blamed any official or unofficial policy of the Board. The only reason given by Marrero for believing that he was a victim of discrimination was that there were no other "Spanish" workers on the six-person custodial staff at his school, and that "these things don't happen to anyone else but minority groups." Conclusory assertions of discrimination are not sufficient to sustain a claim of discrimination against the Board under Section 1983.

  Marrero also does not point to sufficient evidence to hold Sullivan liable in his individual capacity for either the Page 11 harassment in 2000, after Sullivan became his supervisor, or for his firing on September 28, 2000. In his deposition, Marrero contended that Sullivan threatened his employment, would stop conversing with others when Marrero arrived on the scene, and would communicate with Marrero mainly by relaying instructions through the foreman. Marrero stated that he felt that Sullivan's methods of dealing with his lateness — threatening to and eventually firing him in September 2000, and stating that he would "do everything in his power to make sure that [Marrero wasn't] working there" — would not have been done or said if it were not for Marrero's race. According to Marrero, Sullivan "had it in for me."*fn4

  Marrero does not point to sufficient evidence to infer that Sullivan engaged in a campaign of harassment against him because of his national origin. The harassment alleged by Marrero includes written warnings given by Sullivan for Marrero's tardiness and "minor criticisms" related to Marrero's lateness and absences. Marrero does not present any evidence that Sullivan's alleged harassment occurred because of Marrero's Puerto Rican origin. The only evidence cited in support of Marrero's discrimination claim is the fact that Marrero was the only non-Caucasian on the school's custodial staff. Given the small size of the staff, this fact standing alone is insufficient Page 12 to find discriminatory animus.

  Marrero also does not present sufficient evidence to support an inference that he was fired on September 28, 2000 because of his race or national origin. In his deposition, Marrero admitted that not only was he late on several occasions despite Sullivan's repeated warnings, but that he eventually missed several days of work without explanation. Marrero could not identify any member of the custodial staff or other Board employee who was similarly late or absent on a consistent basis and who was treated differently by Sullivan. Absent sufficient evidence that Sullivan's actions were motivated by illegitimate considerations, Marrero's Section 1983 claim against Sullivan in his individual capacity fails.


  For the reasons stated above, the defendants' motion for summary judgment is granted. The Clerk of Court shall close the case.


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