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August 12, 2004.


The opinion of the court was delivered by: LORETTA PRESKA, District Judge


On May 18, 2001, Plaintiff John Joseph Perez ("Plaintiff" or "Perez"), pro se, filed a Second Amended Complaint (the "Complaint") under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. ("Title VII"), against defendants International Brotherhood of Teamsters, AFL-CIO Joint Council 16 ("Joint Council 16"), and Local 237 I.B.T. Executive Board ("Local 237" or "Defendant"), alleging he was discriminated against during the period of 1995 and 1998 because he is of Puerto Rican descent, in violation of Title VII of the Civil Rights Act of 1964. (Compl. pp. 5, 7; Attachment 1.)*fn1 By Order dated September 11, 2002, defendant International Brotherhood of Teamsters' motion to dismiss the Complaint was granted. Following the close of discovery, Local 237 now moves for summary judgment dismissing all claims in the Complaint. Because Plaintiff has not proffered any evidence from which a jury could find that Local 237's actions were a pretext for discrimination, the motion for summary judgment is granted.


  The facts pertinent to the instant motions are as follows and, except where noted, are undisputed. In approximately 1976, Perez began working as a business agent for Local 237 under then-President Barry Feinstein. (See deposition transcript of John Perez dated June 4, 2003 and July 16, 2003 ("JP Tr.") at 16; Affirmation of John Joseph Perez, sworn to February 5, 2004 ("Perez Affirm.") at p. 1.) Perez took a leave of absence from his employment by the City of New York to do so. (JP Tr. at 73-75; Declaration of Carroll E. Haynes, sworn to December 19, 2003 ("Haynes Decl.") ¶ 14.) Local 237 serves as the collective bargaining representative for approximately 23,000 members who are employed in various classifications by the City of New York and its agencies and on Long Island (Haynes Decl. ¶ 5.) Internally, Local 237 employs approximately 23 full-time business agents who assist the Union in representing the interests of bargaining unit members divided into three Divisions: the Housing Division, the City Wide Division, and the Long Island Division. (Haynes Decl. ¶¶ 5-6.) As a business agent of Local 237, Perez's principal responsibility was to attend members' disciplinary hearings and attempt to prevent members from being disciplined or to reverse disciplinary actions that had been taken. (JP Tr. at 39-41.)

  In 1993, Feinstein resigned and Carroll ("Carl") Haynes became President of Local 237. (See Haynes Decl. ¶ 2.) Pursuant to Section 7(a) of the Local 237 By-Laws, the President has "the power to appoint, suspend, or discharge all . . . appointive Business Agents . . . subject to the approval of the Executive Board." (Haynes Decl., Ex. 1.) Haynes, in contrast to the prior President's emphasis on "a hostile, aggressive, confrontational approach toward City management and supervision . . . adopted a different approach" in which confrontation is to be used "judiciously and sparingly." (Haynes Decl. ¶¶ 10-11.)

  In approximately 1990, Nicholas Mancuso was hired by Local 237 to serve as Chief Negotiator and in approximately 1994, was appointed as Director of the City Wide Division. (See Haynes Decl. ¶ 8.) Mancuso chaired weekly City Wide Division staff meetings, lasting approximately one or two hours, which Perez and all other business agents within the Division attended.

  Failure to Receive Promotion to Newly-Created Position in November 1994

  In November 1994, Gregory Floyd was appointed to the newly-created position of "Assistant to the Director" in the City Wide Division. (Haynes Decl. ¶ 9.) Perez contends that although he was better qualified for the position he was not even considered on the basis of national origin and that there was no notice of the creation of the position. (JP Tr. at 128-31.) When asked the basis for his claim, Perez responded only that the evidence of discrimination was "that Gregory Floyd was the person that they created that job for." (JP Tr. at 129.) Additionally, Perez raised no complaints at the time and shortly thereafter received a promotion. (JP Tr. at 130-31, 135-36.)

  Perez is Promoted from Business Agent in December 1994

  In December 1994, shortly after the appointment of Floyd, Perez was promoted from business agent to Assistant Director of the Law Enforcement Division of the City Wide Division. (Haynes Decl. ¶ 9; JP Tr. at 135-36, 138, 141-42.)

  Perez is Demoted back to Business Agent in May 1997

  Haynes states that "[i]n late 1996 [he] began to receive reports that Perez was increasingly refusing to cooperate with his superiors, Director of City Wide Nicholas Mancuso and Assistant to the Director Gregory Floyd. . . . Perez similarly refused to conform to the Union's approach towards City management and supervisors. He instead treated management in an overly confrontational way that I did not believe best served the membership's interests." (Haynes Decl. ¶¶ 12-13.) Plaintiff in response disputes this characterization and submits unsworn letters from various agency representatives, not identified by Perez as persons likely to have evidence in support of his claim, praising his performance. (Perez Affirm., Exs. 5P, 6P, 7P and 8P.)

  Nevertheless, nearly two years after his promotion, Perez did begin to receive a series of written warnings. In November 1996, Perez's superior issued a memorandum stating that Perez did not notify him of a meeting Perez had scheduled with a group of members at union headquarters and instructed Perez that he do so in the future. (See Declaration of Joseph Vitale, sworn to December 19, 2003 ("Vitale Decl."), Ex. 8.) Also in November 1996, Perez was issued a counseling memorandum criticizing his handling of grievances involving two members who were facing discipline and calling his actions "unacceptable." (Vitale Decl., Ex. 9.) In February and March 1997, Perez was warned for both having made an inappropriate comment to a member and then for submitting a deceitful memo in response. (Vitale Decl., Ex. 10.) In March 1997, Perez was admonished for failing to keep his superiors informed of an event and calling his actions "a failure to carry out [his] duties and responsibilities." (Vitale Decl., Ex. 11.)

  In May 1997, Perez was demoted back to business agent by Haynes. (Haynes Decl. ¶ 14; JP Tr. at 141-42.) Perez states that the reasons he was given for the demotion were "[p]oor work performance and because [he] wore shorts one day many, many years ago and then there was a dress code." (JP Tr. at 142.) However, Perez denies that he engaged in any conduct warranting a demotion. (Id.) As a result of this demotion, Haynes claims Perez was obligated under the Local 840 collective bargaining agreement to become a member of Local 840 and despite this obligation and explicit instructions from his supervisors, Perez refused to do so. (Haynes Decl. ¶ 14.) Perez claims that he was never informed by anyone that he was to join Local 840 until December 1997. (Perez Affirm. at p. 3.)

  The Aborted January 1998 Termination

  By memo dated December 23, 1997, Perez was informed that he would be transferred to Local 840 as of January 5, 1998 and it was requested that he fill out an application card for Local 840. (Perez Affirm., Ex. 9P.) By letter dated January 7, 1998, Perez wrote to the Ethical Practices Committee of the International Brotherhood of Teamsters ("EPC") charging that the attempt to transfer him to Local 840 was improper. (Perez Affirm., Ex. 12P.) On January 12, 1998, Haynes told Perez that he would be fired if he did not join Local 840 by noon that day. (Vitale Decl., Ex. 5 ¶ 7 (Affidavit by Perez in support of his unfair labor charge); Haynes Decl. ¶ 21; JP Tr. at 285.) Perez did not join. (Vitale Decl., Ex. 5 ¶ 7.) Nonetheless, Perez returned to work the next day and received a termination letter from Mancuso. (Vitale Decl., Ex. 5 ¶ 8.) However, on January 14, Perez again met with Haynes, who rescinded his termination. (Vitale Decl., Ex. 5 ¶ 9; Haynes Decl. ¶ 22.) Haynes contends that he agreed to allow Perez to continue because Perez assured him he would joint Local 840. (Haynes Decl. ¶ 22.) Perez denies that he ever agreed to join Local 840. (Perez Affirm. at p. 3-4.) On January 15, Perez sent another letter to the EPC challenging the conduct of Local 237 regarding the rescinded termination and claiming that he had a right to continue his membership in Local 237. (Perez Affirm., Ex 13P (Complaint letter); Vitale Decl., Ex. 5 ¶ 9.) In that letter, Perez claims Secretary Treasurer Melanio Cuebas met with him on January 13 and confirmed that this entire matter had resulted mainly because Haynes was convinced that Perez was going to run against him in the next election. Perez also claims that during the January 14 meeting with Haynes, they discussed Haynes' belief that Perez was going to run against him. (Perez Affirm., Ex. 13P at p. 2.) Haynes admits that in early 1998 he was informed that Perez would either run for office against him or support those candidates that did and viewed these aspirations as "further evidence of his unwillingness to advance the Executive Board's agenda and his unwillingness to perform his business agent duties in the respectful and cooperative manner that [he] demanded." (Haynes Decl. ¶ 23.)

  Perez is Terminated in February 1998

  According to Haynes, in late January 1998, it came to his attention that Perez had filed the January 15 charge. (Haynes Decl. ¶ 26.) On February 23, Haynes called Perez into his office and fired him. (Vitale Decl., Ex. 5 ¶ 10; Haynes Decl. ¶ 24.) According to Perez, Haynes said "I thought we had an understanding and then you brought charges three days later, so therefore I'm terminating you." (Vitale Decl., Ex. 5 at second ¶ 10; JP Tr. at 294; Vitale Decl., Ex. 15 at 101 (Perez testimony before Joint Council 16) ("he said that I had — that he thought he had some kind of agreement . . . `In any event, you brought charges against with the Joint Council . . . three days later you brought the charges and because you brought the charges I'm terminating you.").) Also dated February 23, a termination letter was signed by Haynes, which did not cite any reasons for the termination. (Perez Affirm., Ex. 10P (letter).) Perez's termination was unanimously approved by the full Executive Board. (Haynes Decl. ¶ 25.)

  Perez Files Charges at the NLRB, Joint Council 16, and the EEOC

  On February 26, 1998, Perez filed a charge with Joint Council 16 against Local 237 for allegedly firing him in violation of his due process rights under the Local 237 By-Laws and IBT Constitution. (Vitale Decl., Ex. 14 (letter stating charge).) At the hearing before Joint Council 16, Perez testified that he was being "punished because [he] did a good job and because [he] may exercise [his] right to run. And this is basically the major reason why [he is] not wanted in Local 237 Teamsters." (Vitale Decl., Ex. 15 at 130-31 (transcript of proceedings); JP Tr. at 309.)

  On March 12, 1998, Perez filed an unfair labor practice charge with Region 2 of the National Labor Relations Board. In this charge, Perez alleged Local 237 fired him because of his refusal to join Local 840 and because he had filed an internal complaint with the EPC challenging Local 237's attempts to get him to join Local 840. (Vitale Decl., Ex. 4 (charge form).) In support of this charge, Perez submitted an affidavit in which he swore that he had discussed with various business agents his desire to run for office at Local 237 and that he was being forced to join Local 840 because of this desire. (Vitale Decl., Ex. 5 ¶ 8, 11.)

  On March 30, 1998, Perez filed a charge with the New York office of the Equal Employment Opportunity Commission. (Vitale Decl., Ex. 17 (Form).) The charge expressly states that the earliest violation occurred June 3, 1997, even though Perez also contends that "[s]ince the fall of 1995 [he] became progressively cognizant that [he] was being discriminated against." (Compare id. date listed on form and id. attached narrative.) On January 25, 2000, the EEOC issued a notice that it was closing its file on Perez's charge because ...

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