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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 ...

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