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.
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
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
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
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
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
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
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
Summary judgment may not be granted unless the submissions of the
parties taken together "show that there is no genuine
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 ...