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July 21, 2004.

BARRY JONES, Plaintiff,

The opinion of the court was delivered by: WILLIAM CONNER, Senior District Judge


Plaintiff Barry Jones brings this action for injunctive relief, compensatory damages and attorney's fees against defendants the Yonkers Public Schools ("Yonkers"), Dario DiBattista and Thomas Tarricone alleging violations of Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq., 42 U.S.C. § 1981 and 1983, and the New York Human Rights Law (the "NYHRL"), N.Y. EXEC. LAW § 290 et seq.*fn1 Plaintiff alleges that his employment was unlawfully terminated because of his race and in retaliation for engaging in protected activity. (Complt. ¶ 1.) Defendants now move pursuant to FED. R. CIV. P. 56 for summary judgment dismissing plaintiff's Complaint in its entirety. For the reasons set forth herein, we grant defendants' motion for summary judgment dismissing plaintiff's racial discrimination claims, but deny that motion as to plaintiff's retaliation claims.


  Viewed in the light most favorable to the non-moving plaintiff, the record reveals the following facts. Plaintiff is an African-American male who worked for Yonkers as a probationary full-time custodial worker at the Foxfire Elementary School ("Foxfire") from February 23, 2000 through May 16 of that year. (Complt. ¶¶ 14-15, 17; Answer ¶¶ 7, 9.) Defendant DiBattista is a white man, employed by defendant Yonkers, who held the position of Assistant Supervisor of Custodians and supervised plaintiff and defendant Tarricone. (Complt. ¶¶ 11, 20; Answer ¶¶ 5, 11.) Defendant Tarricone is a white man, also employed by Yonkers, who held the position of Custodian II and was plaintiff's immediate supervisor. (Complt. ¶¶ 12, 21; Answer ¶¶ 5, 11.)

  On the recommendation of James Grosso, then Yonkers's Assistant Superintendent for School Facilities and Operations, plaintiff applied for the custodial worker position in October 1999. (Defs. Rule 56.1 Stmt. ¶ 2; Pl. Resp. Rule 56.1 Stmt. ¶ 2.) Plaintiff was interviewed by DiBattista and Robert Altmayer, another custodial supervisor, both of whom recommended his hiring. (DiBattista Dep. at 20; Kelly Decl., Ex. 1.) Thereafter, plaintiff was hired as a probationary custodial worker and reported to work at Foxfire under the supervision of Tarricone on February 23, 2000. (Defs. Rule 56.1 Stmt. ¶ 3; Pl. Rule 56.1 Stmt. ¶ 3.) Plaintiff was assigned to replace Timothy Synan, a white man who was being transferred to a high school. (Kelly Decl., Ex. 5; Defs. Rule 56.1 Stmt. ¶ 4; Pl. Rule 56.1 Stmt. ¶ 4.) Tarricone did not train plaintiff, but assigned Synan to do so before he left for his new assignment.*fn2 (Jones Dep. at 24; Tarricone Dep. at 47.) Including plaintiff, there were four custodial workers assigned to Foxfire; two were white men, and plaintiff and Lawrence Farrell were African-American men. Plaintiff worked during the day, while Farrell worked the night shift. (Defs. Rule 56.1 Stmt. ¶ 5; Pl. Resp. Rule 56.1 Stmt. ¶ 5.) One of plaintiff's primary areas of responsibility was the cleaning of the school cafeteria. (Jones Dep. at 77.)

  It is undisputed that plaintiff's brief career at Foxfire has been marked by less than harmonious interpersonal relations with some of his supervisors and co-workers. Plaintiff incurred his first reprimand, documented in a March 3, 2000 memorandum by Tarricone, for having his brother inside the school building at 5:30 p.m. on March 2 in violation of the school rules.*fn3 (Tarricone Aff. ¶ 16; Defs. Rule 56.1 Stmt., Ex. F; Pl. Resp. Rule 56.1 Stmt. ¶ 6.) Plaintiff's relationship with Marcia Weaver, the cafeteria manager, was particularly acrimonious. Plaintiff complains that Weaver treated him unfairly because she would not give him the free meals and snacks that she gave to Tarricone and Bobby Hillman, another white custodial worker.*fn4 (Jones Dep. at 75-77.) On March 16, 2000, Weaver heard Jones describe her to another staff member as a "nasty bitch." (Weaver Aff. ¶ 11.) She in turn described him to other employees as, inter alia, "trash" and the "scum of the earth." (Baker Decl. ¶ 6.)

  Plaintiff's difficulties with the cafeteria staff continued when Weaver saw plaintiff use his floor push broom to sweep garbage and debris off the school cafeteria tables on April 3, 2000. (Weaver Aff. ¶ 6.) Although Weaver admonished him not to do that because it was unsanitary, she again witnessed him cleaning the tables with his broom approximately one or two weeks later; he stopped when she approached. (Id. ¶¶ 7-8.) Moreover, plaintiff frequently asked the cafeteria staff for free food and snacks and became belligerent and used profanities when these requests were denied, at one point telling Fields, the cafeteria cashier, to "shut the fuck up or I'll smack you in the face" after becoming angry because she charged him $0.30 for a bottle of water. (Fields Aff. ¶¶ 4-5.) These incidents were reported to Tarricone and to Mary Anne Sullivan, Yonkers's Food Services Supervisor, who made notes, and relayed this information via memorandum on May 12, 2000 to Paul Houle, Yonkers's Supervisor of School Facilities and Operations. (Tarricone Aff. ¶ 12; Sullivan Aff. ¶ 5; Defs. Rule 56.1 Stmt., Exs. A-B.)

  Plaintiff also did not get along with Tarricone, his supervisor. Tarricone states that plaintiff complained to him that other custodial workers were on a coffee break while he was working. (Tarricone Aff. ¶ 10.) When Tarricone informed plaintiff that his break was scheduled for a later hour, plaintiff yelled at him. (Id.) On what would be his last day at Foxfire, plaintiff yelled at Tarricone and called him a "cheap fuck" after Tarricone would not give him a can of soda that Tarricone had brought to work with him, although Tarricone explained to plaintiff that it was his last can. (Id. ¶ 11.) At this point, Tarricone wrote plaintiff up in a May 16 memorandum sent to plaintiff and DiBattista stating that "since [plaintiff] started on 2-23-00 their [sic] was a few times that he had lost his temper." (Id.; Defs. Rule 56.1 Stmt., Ex. E.) Plaintiff, however, denies losing his temper or raising his voice to Tarricone. (Jones Dep. at 75.)

  DiBattista, who had learned of the cafeteria staff's complaints about plaintiff, also had his own exchanges with him. (DiBattista Aff. ¶ 7.) On May 10, 2000, DiBattista reprimanded plaintiff orally and in writing for talking to a child whom he knew, and for telling the principal about a broken water fountain, rather than following the "chain of command" and reporting the problem to Tarricone.*fn5 (DiBattista Dep. at 44-45.) Plaintiff states that DiBattista told him: "I don't want you talking to these kids and I don't want you talking to nobody on the staff." (Jones Dep. at 65.) When plaintiff protested, DiBattista said: "You shut your mouth, you push your mop and if you don't like it you can go back to K-Mart or wherever you came from." (Id.) After plaintiff left the room, he heard DiBattista say to Tarricone: "I need you to write something. Don't worry, we'll get him out of here." (Id. at 66.) Several days later, plaintiff received the write-up from Tarricone following the soda incident.

  After consulting with the personnel office, on May 16, 2000, DiBattista came to Foxfire with the intention of transferring plaintiff to another school. (DiBattista Dep. at 72; DiBattista Aff. ¶¶ 8-9.) He met with plaintiff in the presence of Tarricone and requested from plaintiff his keys to the school. (Id. ¶ 9.) Plaintiff refused to give the keys to DiBattista, began to yell and scream, and called him a "white son of a bitch." (Id. ¶ 10.) Plaintiff then went to see the school's principal, who, he claims, sympathized with him,*fn6 and then to retrieve some things from his locker before leaving the school grounds. (Jones Dep. at 98, 103.) After gathering his belongings, plaintiff left the school grounds without returning the keys as requested and DiBattista called the police, who recovered them from plaintiff. (Id. at 104-06; DiBattista Aff. ¶¶ 10-11.) The police then gave plaintiff a ride to the administration building, where plaintiff met with Grosso and told him about the incident. DiBattista then appeared at Grosso's office, and Grosso sent plaintiff home, but promised an investigation. (Jones Dep. at 106, 108.) This was the last day plaintiff actually worked for Yonkers.*fn7 (Id. at 108-09.)

  Approximately one week later, plaintiff met with James Henderson, an African-American man who was then Yonkers's Executive Director of Personnel, and Dianne Franks, his assistant in charge of non-instructional staffing. (Id. at 111-15.) Henderson makes the termination decisions for Yonkers based on his review of the employee's supervisor's recommendation. (Franks Dep. at 53.) At this meeting, Henderson asked plaintiff whether he had: (1) used the "F' word to any cafeteria worker; (2) asked to borrow money from the cook; or (3) told a student to go back to class. (Jones Dep. at 111.) The plaintiff replied in the negative to all three questions. (Id. at 112-13.)

  Approximately one week after this first meeting, plaintiff was summoned to meet with Henderson and Dr. Herschel Williams, the Deputy Schools Superintendent. (Id. at 115-16.) Williams asked about plaintiff's termination papers, which Henderson explained did not exist. (Id. at 116.) Williams said plaintiff would be put back to work, and Henderson told him that he would be paid for his time, pay that plaintiff did subsequently receive. (Id. at 116-18.) Plaintiff then asked for a transfer to a school in South Yonkers where the head custodian was a black man so he would not have to work "around Tommy Tarricone and what I called bigots." (Id. at 117.) Henderson said that he would see what he could do for plaintiff. (Id.) Subsequently, Henderson sent a memorandum dated June 2, 2000 to appropriate district personnel directing that plaintiff's regular pay should be continued from May 19, 2000. (Kelly Decl., Ex. 19.)

  Later in June 2000, plaintiff went to pick up his paycheck and spoke with Franks, who asked him as he was leaving whether Yonkers should be concerned about DiBattista. (Jones Dep. at 219.) He replied by telling Franks:
When I go home tonight I'm either going to listen to some Miles Davis or some Joni Mitchell. . . . You people don't know me but you can tell that bigot that I said if he disrespects me ever again that way he did and in Tommy's office, I will get me a lawyer and I will sue him. And I will get Dr. Gourier, I will subpoena every teacher and anyone else I could. I do not want to be around these bigots. Now, you enjoy your day.
(Id.) Nothing else was said at that point by Franks. (Id. at 220.) Thereafter, on June 28, 2000, plaintiff received from Yonkers a letter initially drafted by Franks, but signed by the director of instructional staffing informing him that his employment was terminated effective July 6, 2000 for "poor job performance." (Complt. ¶ 45; Answer ¶ 27; Kelly Decl., Exs. 20, 22.) Plaintiff thereupon stopped working, but ...

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