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PEREZ v. INTERNATIONAL BROTHERHOOD OF TEAMSTERS

United States District Court, S.D. New York


August 12, 2004.

JOHN JOSEPH PEREZ, Plaintiff,
v.
INTERNATIONAL BROTHERHOOD OF TEAMSTERS, AFL-CIO, JOINT COUNCIL 16, I.B.T., A.F.L.-CIO., AND CITY EMPLOYEES UNION LOCAL 237, I.B.T., AFL-CIO, Defendants.

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

OPINION

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.

BACKGROUND

  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 the EEOC was unable to conclude that the information obtained established violations of the statutes and issued a "right to sue" notice.

  Plaintiff's Instant Claims for Discrimination

  In the Complaint, Perez alleges Local 237, in violation of Title VII, denied him a promotion in November 1994, subjected him to harassment and unequal terms and conditions of employment since 1995, demoted him in May 1997, terminated his employment in February 1998, all on the basis of his race and national origin. Perez also claims Local 237 retaliated against him for having filed an internal union challenge. (Compl. pp. 4, 7; Attachment 1.)

  Perez testified that Local 237's conduct (through Haynes and by extension Perez's superiors who supported Haynes) was motivated by Haynes' belief that Perez's membership in Local 237 coupled with his refusal to join Local 840 made Perez eligible to run for office in Local 237, that Perez had aspirations to run for some position on an opposing slate in the upcoming election, that the demographics of Local 237's membership showed an increasing number of Hispanics,*fn2 and thus that Perez was a potentially successful political rival. (JP Tr. at 29-31, 69, 76, 100.) Therefore, Perez contends, under the above theory, that he was demoted on the basis of his national origin because the demotion was an attempt to have him join Local 840 and that he was similarly terminated on the basis of his national origin for his refusal to join Local 840. (JP Tr. at 145-46.)*fn3 Perez also testifies that he was not fired simply because he is Hispanic, but "because [he] was Hispanic, [he] ha[s] a Hispanic surname, because [he] was a member of Local 237 and because [Haynes] believed because of [his] name and because [he's] Hispanic and because [he] was a member, all of that combined was why [Haynes] was discriminating against [him]." (JP Tr. at 94-95.)

  Retaliation Claim

  Perez alleges that he was terminated in retaliation for having filed the January 15, 1998 internal union challenge to the aborted January 1998 termination. (Attachment 1 at p. 2.) In the charge, Perez alleges that he was terminated because he refused to join Local 840 and that he was reinstated two days later after he and Haynes had discussed whether Perez intended to run against him in the upcoming election. (Vitale Decl., Ex. 13.) Perez alleges in that charge that by these actions, Local 237 had violated the IBT Constitution and Local 237 By-Laws by "denying [him his] fundamental rights in [his] local union." (Vitale Decl., Ex. 13.)

  I. Summary Judgment Standard

  Under Rule 56, summary judgment shall be rendered if the pleadings, depositions, answers, interrogatories, and admissions on file, together with the affidavits, if any, 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. See Fed.R.Civ. Proc. 56(c); Anderson v. Liberty Lobby, 477 U.S. 242, 250 (1986). An issue of fact is genuine when "a reasonable jury could return a verdict for the nonmoving party," and facts are material to the outcome of the litigation if application of the relevant substantive law requires their determination. Anderson, 477 U.S. at 248.

  The moving party has the initial burden of "informing the district court of the basis for its motion" and identifying the matter that "it believes demonstrate[s] the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).

  The substantive law determines the facts which are material to the outcome of a particular litigation. See Anderson, 477 U.S. at 250; Heyman v. Commerce & Indus. Ins. Co., 524 F.2d 1317, 1320 (2d Cir. 1975). In determining whether summary judgment is appropriate, a court must resolve all ambiguities, and draw all reasonable inferences against the moving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587-88 (1986) (citing United States v. Diebold, Inc., 369 U.S. 654, 655 (1962)).

  If the moving party meets its burden, the burden then shifts to the non-moving party to come forward with "specific facts showing that there is a genuine issue for trial." Fed.R. Civ. Proc. 56(e). The non-moving party must "do more than simply show there is some metaphysical doubt as to the material facts." Matsushita, 475 U.S. at 586. Only when it is apparent, however, that no rational finder of fact "could find in favor of the non-moving party because the evidence to support its case is so slight" should summary judgment be granted. Gallo v. Prudential Residential Servs. Ltd. Partnership, 22 F.3d 1219, 1223 (2d Cir. 1994).

  Because plaintiff is proceeding pro se, I must consider the pleadings under a more lenient standard than that accorded to "formal pleadings drafted by lawyers." Haines v. Kerner, 404 U.S. 519, 520 (1972); accord Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994) ("[W]e read [the pro se party's] supporting papers liberally, and will interpret them to raise the strongest arguments that they suggest."); Graham v. Lewinski, 848 F.2d 342, 344 (2d Cir. 1988) (referring to the "special solicitude" afforded pro se litigants when confronted with motions for summary judgment); Hanlin v. Mitchelson, 794 F.2d 834, 838-39 (2d Cir. 1986) (citing Haines to support the principle that pro se pleadings are given a liberal construction).

  Nevertheless, proceeding pro se does not otherwise relieve plaintiff from the usual requirements of summary judgment. See Lee v. Coughlin, 902 F. Supp. 424, 429 (S.D.N.Y. 1995) (holding that a "pro se party's `bald assertion,' completely unsupported by evidence, is not sufficient to overcome a motion for summary judgment" (citing Carey v. Crescenzi, 923 F.2d 18, 21 (2d Cir. 1991))); Kadosh v. TRW Inc., No. 91 Civ. 5080, 1994 WL 681763, at *5 (S.D.N.Y. Dec. 5, 1994) ("The work product of pro se litigants should be generously and liberally construed, but [the pro se's] failure to allege either specific facts or particular laws that have been violated, renders his attempt to oppose defendant's motion ineffectual.").

  II. Title VII

  Title VII provides, in pertinent part:

It shall be an unlawful employment practice for an employer —
(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin . . .
42 U.S.C. § 2000e-2(a).

  In McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), the Supreme Court set forth a burden shifting framework under which Title VII cases are analyzed. Id. at 802-05. As the Supreme Court declared in Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248 (1981), under the McDonnell Douglas framework the ultimate burden of persuasion "remains at all times with the plaintiff." Id. at 253. However, the allocation of burdens of production and order of presentation of proof shifts as follows:

First, the plaintiff has the burden of proving by the preponderance of the evidence a prima facie case of discrimination. Second, if the plaintiff succeeds in proving the prima facie case, the burden shifts to the defendant "to articulate some legitimate, nondiscriminatory reason for the employee's rejection." Third, should the defendant carry this burden, the plaintiff must then have an opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination.
Burdine, 450 U.S. at 252-53 (quoting McDonnell Douglas, 411 U.S. at 802-04 (internal citations omitted)).

  The initial burden of establishing a prima facie case of discrimination under Title VII is "de minimis." See Kerzer v. Kingly Mfg., 156 F.3d 396, 401 (2d Cir. 1998); see also Minus v. West, 99 Civ. 7229, 2003 U.S. Dist. LEXIS 9277, at *8 (E.D.N.Y. May 30, 2003). Once the plaintiff has established a prima facie case, the burden shifts to the defendants to offer a non-discriminatory justification for their actions. As the Court of Appeals has noted, "[a]ny legitimate, non-discriminatory reason will rebut the presumption triggered by the prima facie case." Fisher v. Vassar Coll., 114 F.3d 1332, 1335-36 (2d Cir. 1997) (en banc), abrogated on other grounds, Reeves v. Sanderson Plumbing Prods., 530 U.S. 133 (2000); see also Bailey v. Colgate-Palmolive Co., 99 Civ. 3228, 2003 U.S. Dist. LEXIS 8175, at *43-44 (S.D.N.Y. May 14, 2003). At that point, the presumption of discrimination disappears, and plaintiff must prove "that the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination." Roge v. NYP Holdings, Inc., 257 F.3d 164, 168 (2d Cir. 2001) (quoting Reeves, 530 U.S. at 143 (quoting Burdine, 450 U.S. at 253)). "To defeat summary judgment within the McDonnell Douglas framework, moreover, `the plaintiff is not required to show that the employer's proffered reasons were false or played no role in the employment decision, but only that they were not the only reasons and that the prohibited factor was at least one of the "motivating" factors.'" Holtz v. Rockefeller & Co., 258 F.3d 62, 78-79 (2d Cir. 2001) (quoting Cronin v. Aetna Life Ins. Co., 46 F.3d 196, 203 (2d Cir. 1995)).

  As with claims of discrimination, claims of retaliation under Title VII are scrutinized under the same burden-shifting analysis, with plaintiff retaining the ultimate burden of persuasion. See, e.g., Jenkins v. Board of Educ., 2003 U.S. App. LEXIS 8063, at *6 (2d Cir. Apr. 28, 2003). III. Analysis

  A. Failure to Promote

  Perez claims he was not considered for the newly-created position of Assistant to the Director, to which Gregory Floyd was appointed in November 1994. However, Plaintiff did not raise the issue of his non-promotion in his EEOC charge.*fn4 (See Vitale Decl., Ex. 17.) Therefore, Perez is barred from pursuing this claim here. See Germany v. N.Y.S. D.O.C.S., 03 Civ. 148, 2003 U.S. Dist. LEXIS 16640, at *11-12 (S.D.N.Y. Sept. 22, 2003) (dismissing claims in complaint not raised in EEOC charge). Additionally, even his EEOC charge, filed March 30, 1998, is well beyond the 180-day or 300-day statute of limitations for raising this particular claim, see 42 U.S.C. § 2000e-5(e); Van Zant v. KLM Royal Dutch Airlines, 80 F.3d 708, 712 (2d Cir. 1996), and Plaintiff does not present a basis for taking refuge in the continuing violation doctrine, see Amtrak v. Morgan, 536 U.S. 101, 114 (2002) ("failure to promote . . . [is a] discrete act [] and constitute[s] "a separate actionable `unlawful employment practice.'").

  Accordingly, Plaintiff's failure to promote claim is dismissed. B. Demotion

  Perez was demoted by Haynes in May 1997. Although the March 30, 1998 EEOC Charge filed by Perez mentions the demotion in the attached description of particulars, the form also explicitly lists June 3, 1997 as the date of the earliest alleged violation.*fn5 Therefore, the May 1997 demotion also falls outside the period of time during with alleged violations were claimed to have occurred. Plaintiff does not present a basis or explicitly argue that the continuing violation doctrine exempts him from this statutory deadline but claims generally that the demotion was part of the effort to discriminate against him by forcing him to join Local 840 and thus was connected to his eventual termination. Nevertheless, the Supreme Court has held that "termination, failure to promote, denial of transfer, or refusal to hire" are all discrete acts and constitute "a separate actionable `unlawful employment practice.'" Morgan, 536 U.S. at 114. Thus, under Morgan, despite Plaintiff's allegation that the demotion as a discriminatory act was related to his termination, it appears that the demotion nonetheless constituted a discrete act untimely filed, and therefore, is no longer actionable. See id. at 113 ("discrete discriminatory acts are not actionable if time barred, even when they are related to acts alleged in timely filed charges").*fn6 In any event, even if Plaintiff's demotion claim were timely filed, it fails for the same reasons as the termination claim, discussed infra.

  Accordingly, Plaintiff's demotion claim is dismissed.

  C. Plaintiff's Termination

  Plaintiff was terminated on February 23, 1998. The facts leading up to his termination, including his demotion in May 1997 and the aborted January 1998 termination, are described supra.

  To establish a prima facie case of discrimination on this claims, Plaintiff must demonstrate that "(1) he is a member of a protected class; (2) he was qualified for the position; (3) he suffered an adverse employment action; and (4) the adverse employment action took place under circumstances that give rise to an inference of unlawful discrimination." Dorrilus v. St. Rose's Home, 234 F. Supp. 2d 326, 332 (S.D.N.Y. 2002) (citing Stern v. Trustees of Columbia Univ., 131 F.3d 305, 311-12 (2d Cir. 1997).

  Assuming, for the purposes of this motion alone, that Plaintiff has established a prima facie case, the burden then shifts to Local 237 to put forth a non-discriminatory reason for plaintiff's termination.

  The Declaration of President Hayes lays out the events leading up to Plaintiff's demotion and states that the demotion was "a result of Perez's poor work performance" based on reports he had received about Perez's conduct. (Hayes Decl. ¶¶ 10-14.) As a result of this demotion, Haynes contends that Perez was obligated to become a member of Local 840. (Haynes Decl. ¶ 14.) Despite receiving notice in at least December 1997 that he was obligated to join Local 840, Perez did not do so. (See Perez Affirm. at p. 3.) 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. 285.) Perez did not join. (Vitale Decl. Ex. 5 ¶ 7.) 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 join Local 840. (Haynes Decl. ¶ 22.) On February 23, 1998, Haynes terminated Perez "in the belief that Perez was not performing his job responsibilities in an acceptable manner." (Haynes Decl. ¶ 24.) Perez had still not joined Local 840 at that time. Local 237's plausible and non-discriminatory explanation shifts the burden back to Plaintiff to demonstrate that defendants' proffered explanation is merely pretext. See Roge, 257 F.3d at 168.

  Perez, in response, paints a different story of his work performance, conduct with superiors, and circumstances surrounding his termination. With respect to his work performance, Plaintiff submits in opposition unsworn letters from various agency representatives praising his performance, (Perez Affirm., Exs. 5P, 6P, 7P and 8P), and states in his affirmation that his work performance was exemplary, (Perez Affirm. at p. 2-3.) As an initial matter, the statements from City officials are unsworn, vague as to the period of time they concern, and are from individuals whom Perez failed to identify as persons likely to have evidence he may use to support his claim. Thus, they can be afforded no weight. Fed.R. Civ. P. 56(e); Chaiken v. VV Pub. Corp., 119 F.3d 1018, 1033 (2d Cir. 1997) (refusing to allow plaintiff to rely on unsworn letters to defeat summary judgment). Additionally, despite Perez's conclusory self-assessment that he was never disrespectful during staff meetings or otherwise to superiors (Perez Affirm. at p. 2-3), there is no reasonable dispute that during staff meetings, Perez and his superior, Mancuso, publicly disagreed.*fn7 Alcedes Soto, Plaintiff's own identified witness, considered Plaintiff's conduct toward Mancuso at these meetings to sometimes "be inappropriately disrespectful." (Soto Decl. ¶ 21.) Mr. Paredes, another of Plaintiff's own identified witnesses, testified that "[i]t was almost a joke, what's [Plaintiff] going to — how's [Plaintiff] going to get into it with Mr. Mancuso today." (RP Tr. at 52.) Plaintiff's conclusory contention about his performance and behavior, in light of all of the evidence and viewed most favorably to Plaintiff, is insufficient alone to carry Plaintiff's burden of production on the issue of pretext with regard to defendants' decision to terminate. See Williams v. Bank Leumi Trust Co., 96 Civ. 6695, 2000 U.S. Dist. LEXIS 4102, at *15-16 (S.D.N.Y. Mar. 31, 2000) ("the non-movant cannot avoid summary judgment through conclusory allegations or denials, but instead must bring forward some affirmative indication that his version of relevant events is not fanciful" (internal citations omitted)).

  However, Plaintiff presents a more compelling argument that there exists a triable issue of fact with respect to pretext in his claim that he was demoted, and then terminated, because Haynes saw Plaintiff as a political threat. As described, infra, Perez testified that Haynes believed that Perez had aspirations to run for some position on an opposing slate in the upcoming election, that the demographics of Local 237's membership showed an increasing number of Hispanics, who were more likely to vote for a Hispanic candidate for president than a non-Hispanic candidate for president, and thus Perez was a potentially successful political rival should he remain eligible to run as a member of Local 237. (JP Tr. at 29-31, 69, 76, 100.) Therefore, Perez argues, the demotion was an attempt to have him join Local 840 and thereby be ineligible as a candidate opposing Haynes. (JP Tr. at 145-46.)

  Haynes denies that he felt politically threatened by Perez but states that he "viewed Perez's political aspirations as other 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 [Haynes] demanded." (Haynes Decl. ¶ 23.) Haynes also clearly believed that under the Local 840 collective bargaining agreement, Perez would be obligated to join Local 840 if demoted. (See Haynes Decl. ¶ 14 ("As a result of this demotion, Perez (who was not "released" from the City, but was on a leave of absence) was obligated under the Local 840 collective bargaining agreement to become a member of Local 840.").) However, although the demotion occurred in May 1997, Perez claims that he was not instructed to join Local 237 until December 1997. (Perez Affirm. p. 3 ("In May of 1997 I was . . . never informed by anyone including my superiors at the time that I was to join Local 840 not until sometime in December of 1997.").) Crediting Perez's version, as I must on this motion, creates a temporal lag that in fact weakens Perez's claim that Local 237's motivation for the demotion was to force him to join Local 840.

  As to the aborted January 1998 termination, Perez denies that he ever agreed to join Local 840. (Perez Affirm. p. 3-4.) According to Perez, 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.) Further, Haynes admits that in late January 1998, when it came to his attention that Perez had filed the January 15 charge with the EPC against him, challenging whether he was obligated to join Local 840, Haynes "considered Perez's continued pursuit of this charge . . . to be further evidence of his unwillingness to perform his job in the way [he] expected him to." (Haynes Decl. ¶¶ 26-27.)

  Also, according to Perez, on February 23, when Haynes called Perez into his office and fired him, 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. 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. . . . And then he said to me, `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.'").)

  In bringing forward this evidence, Perez makes some showing that he was not terminated for "not performing his job responsibilities in an acceptable manner," but for either his refusal to join Local 840 or because he was viewed as a political threat. However, Plaintiff's burden is to demonstrate that the employer's explanation for his termination was a pretext for discrimination, not just a pretext for some other, non-actionable, reason. "The ultimate question is whether the employer intentionally discrimination, and proof that `the employer's proffered reason is unpersuasive, or even obviously contrived, does not necessarily establish that the plaintiff's proferred reason . . . is correct.' `[I]t is not enough . . . to disbelieve the employer; the factfinder must believe the plaintiff's explanation of intentional discrimination.'" Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 146-47 (2000) (quoting St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519, 524 (1993)). In such a situation, the Court of Appeals has instructed in light of Reeves that "the way to tell whether a plaintiff's case is sufficient . . . is to analyze the particular evidence to determine whether it reasonably supports an inference of the facts plaintiff must prove — particularly discrimination." James v. New York Racing Assn., 233 F.3d 149, 157 (2d Cir. 2000).

  Under this standard, Perez's attempts to tie discrimination based on his national origin to the evidence he presents showing that he was termination for his refusal to join Local 840 or because he was viewed as a political threat are insufficient.

  First, Perez's theory as to why he was terminated — the combination of his being Hispanic, the Union demographics, and his eligibility for Local 237 office — is unsupported by evidence with respect to the Hispanic component. Perez's attempts to claim harassing or differential treatment on the basis of being Hispanic are either contradicted by the evidence, without explanation as to the connection, or tenuous and remote in time.*fn8 Those contentions are as follows.

  As to disparate treatment, Perez contends that he was harassed and mistreated at the weekly staff meetings. (Attachment 1 at p. 4 ("I would be harassed at Staff Meetings by my superiors").) During the meetings, chaired by Mancuso, business agents gave reports on their activities and Mancuso instructed the business agents on how to handle certain matters. (See Deposition Transcript of Richard Paredes dated June 5, 2003 ("RP Tr.") at 48-51.) According to Mr. Paredes, another business agent present at these meetings whom Plaintiff had identified in the Complaint as a possible witness at trial, Plaintiff "would try to interject when Mr. Mancuso was saying or speaking on a topic and . . . would try to correct him or give him his opinion of what — how it's been happening in the past or what have you on the topic, and Mr. Mancuso didn't like that and then they would go back and forth and debate the issue." (RP Tr. at 53; see also RP Tr. at 52 ("[i]t was almost a joke, what's [Plaintiff] going to — how's [Plaintiff] going to get into it with Mr. Mancuso today").) Mancuso gave Perez what he considered a "real hard time," "questioning" and "challenging" him about the grievances he had handled. (See JP Tr. at 149-162; see also RP Tr. at 53 ("There would be times where Mr. Perez was reporting on grievances that he would be handling and Mr. Mancuso would attack the way he did it or the language he used and things like that. It was a weekly thing."); Perez Affirm. p. 2 ("I was challenged and mistreated during these weekly meetings")); Declaration of Nicholas Mancuso, sworn to April 17, 2003 ("Mancuso Decl.") ¶ 19 ("During weekly staff meetings certain comments were occasionally made which I considered snide or uncalled for.").) Alcedes Soto, another business agent whom Plaintiff has identified as having information helpful to his case, considered Plaintiff's conduct to "sometimes . . . be inappropriately disrespectful." (Declaration of Alcedes Soto, sworn to April 17, 2003 ("Soto Decl.") ¶ 21.) Plaintiff, in his affirmation opposing the summary judgment motion, states in contrast that "[d]uring these weekly meetings I was always cooperative, would not disrespect or antagonize Nick Mancuso, Gregory Floyd or Sonny Illery."*fn9 (Perez Affirm. p. 2.) Plaintiff adds that "[d]uring this period, [he] never received any communications verbally or otherwise memos such as counseling's and/or warnings related to these weekly meetings and [his] conduct at these meetings." (Id.) As to this treatment being related to his National Origin, Perez admits that he has no direct evidence that Mancuso questioned him because he was Puerto Rican (JP Tr. at 160) but contends that Mancuso only vigorously questioned Hispanic agents, specifically himself, Paredes, and sometimes Soto but never black or white business agents, (JP Tr. at 151-52). However, Perez concedes that the business agents who were not questioned, unlike him, had not challenged any of Mancuso's directives and had simply given reports that "everything is okay." (JP Tr. at 152-54.) Additionally, Soto, according to Mr. Paredes, did not interject as much as Paredes or Perez did. (RP Tr. at 62-63.) Also according to Mr. Paredes, Peter Gutierrez, another Hispanic business agent, sat quietly during the staff meetings and was not subjected to "hostile" questioning when he attended meetings. (RP Tr. at 62.) Thus, Plaintiff not only behaved differently from those agents who were not questioned but a Hispanic agent who, in contrast, sat quietly, was not questioned in that manner either.

  Perez also complains that Mancuso and/or Mr. Illery "interrogated" him about the way that he represented employees on at least two occasions for long periods of time, falsely accusing him of scheduling members who were white to have hearings before members who were black, and holding too many hearings at a time. (See JP Tr. at 38-54.)*fn10 However, Perez makes no direct attempt to tie this interrogation to his national origin.

  Plaintiff additionally complains that he was discriminated against when Mancuso denied his request to attend the IBT Convention in the mid-1990's. (See Attachment 1 at p. 3; JP Tr. at 122-128.) Perez believes the denial was based in part on Perez's race because less senior black business agents were permitted to attend. (See JP Tr. at 122-23.) However, Perez concedes that seniority is only one factor in deciding who attends and that black, white and Hispanic business agents were able to attend the convention. (See JP Tr. at 127-28.)

  Perez also alleges that he was forced, on ten occasions or fewer, to return to Local 237's offices to answer phones on days he was not scheduled to do so when there were other people there available to answer phones. (JP Tr. at 167-70, 208-09.) Perez acknowledges, however, that there may have been times when his superior, Floyd, had to provide similar coverage. (JP Tr. at 169.) Perez makes no direct connection between the conduct and his national origin other than to allege "it was a continuation of discrimination." (JP Tr. at 170.)

  Perez also alleges that he was not allowed to meet with Local 237's attorneys unless someone else was present. (JP Tr. at 186-88.) Perez contends that "everyone else was allowed to go in and speak to [them]," but "[doesn't] know" if any of the Hispanic business agents were permitted to do so. (JP. Tr. at 187-88.) Perez also contends that he was "told" a black business agent had done so while Perez was not to do so. (JP Tr. at 188.) Perez makes no direct connection between the conduct and his national origin other than to repeat that he was told he was not permitted to do so and that he "couldn't understand what the reason for that was." (JP Tr. at 188.)

  Perez claims he requested to attend night school in the late 1980s was denied but that Floyd was given permission to do so at some point after starting work at Local 237 in 1994. (JP Tr. at 198-99.) Perez is uncertain whether he even ever renewed his request to Mancuso in 1995, (JP Tr. at 199), nor does he in any way connect this denial to his national origin.

  Lastly, Perez testifies that he was invited to union functions at the last minute but black agents got to attend. (JP Tr. at 202-03.) Perez also testifies that he was excluded from "labor management" meetings attended by both people above him and black agents below him in the hierarchy. (JP Tr. at 209-11.) Neither of these conclusory allegations demonstrates, however, that this exclusion was due to his national origin.

  Plaintiff's allegations of disparate treatment are thus unsupported by the evidence as subjecting Perez to differential treatment either because the evidence supports the opposite conclusion or because there is no evidence presented as to how the conduct relates to his national origin. "[A] jury cannot infer discrimination from thin air. Plaintiff[] ha[s] done little more than cite to [his] mistreatment and ask the court to conclude that it must have been related to [his] [national origin]. This is not sufficient." Lizardo v. Denny's Inc., 270 F.3d 94, 104 (2d Cir. 2001).

  As to harassing comments, Perez alleges that he was told by Floyd he was "full of shit," a comment for which Floyd later apologized at the direction of Mancuso. (JP Tr. at 170-72.) Perez does not recall the context of the comment or when it was made. (JP Tr. at 171-72.)*fn11 Perez also alleges that he was told by Floyd to "leave alone" a controversy regarding the appointment of a female Puerto Rican grievance representative. (JP Tr. at 172-74.) Perez makes no direct connection between this comment and his national origin. Perez also alleges that he was told by Mr. Illery that "his goose was cooked," a comment Perez interpreted to mean that he was finding a way to terminate him. (JP Tr. at 192.) Perez again makes no direct connection between this comment and his national origin. Nor do any of these comments, on their face, relate to Perez's national origin.

  Perez also relies on four comments, all hearsay, which he claims indicate prejudice against Hispanics. First, Perez alleges that in 1995 Ella Warner told him that Eunice Rodriguez told her that Haynes had said that he "was going to get rid of the three Puerto Ricans and named them" as Perez, Parades and Soto. (JP Tr. at 82-88; Attachment 1 at p. 2; Affirmation of Ella Warner,*fn12 sworn to January 28, 2004 ("Warner Affirm.").) Haynes denies making this comment (Haynes Decl. ¶ 30) and "convened a meeting with all staff to dispel the rumor that [he] had made such a comment," (Haynes Decl. ¶ 30; see also JP Tr. at 85-86.) Rodriguez denies that Haynes ever made such a statement and denies that she told Warner or anyone else that he did. (See Declaration of Eunice Rodriguez, sworn to April 11, 2003 ("Rodriguez Decl.") ¶¶ 22-24.) Local 237 had more than three Puerto Rican employees at the time. (JP Tr. at 115.) Paredes was in fact terminated in 1997. (JP Tr. at 89; Haynes Decl. ¶ 15.) Soto was never terminated and was recently promoted. (JP Tr. at 89.) During that same time period, Haynes also terminated Ella Warner (May 1997) and Laverne Chappelle (June 1998), both of whom are black, and hired Martin Rodriguez (May 1997) and Walter Fernandez (June 1998), both of whom are Hispanic. (Haynes Decl. ¶ 15-16, 20.) Additionally, in February 1998, Haynes appointed Peter Gutierrez, also Hispanic, to fill the vacancy in the Assistant Director position created by Perez's demotion. (Haynes Decl. ¶ 19.) See Umansky v. Masterpiece Int'l Ltd., 96 Civ. 2367, 1998 U.S. Dist. 11775, at *8 (S.D.N.Y. July 31, 1998) ("fact that plaintiff was replaced by another [member of same class] weighs heavily against an inference that [plaintiff] was discriminated against.")

  Perez also alleges a second, separate comment, in the early 1990s, whereby a secretary, who name he cannot recall, told him that someone, whose name he cannot recall, told her that Haynes had said he wanted to fire "those Puerto Ricans" and that Perez "better be careful." (JP Tr. at 103-06, 117.) The third alleged comment is that in 1993 or 1994, Donald Arnold, a black business agent, told Ella Warner, another black business agent, to "stay with her own kind." (JP Tr. at 108-110.) Lastly, Perez alleges that sometime "way before" 1995, Pauline Dyer, a former officer who retired in 1996, would "every so often" make comments to the effect "you Puerto Ricans are all the same," but Perez never complained of these comments. (JP Tr. at 110-113.)

  Besides the obvious hearsay issues raised, all of these comments were allegedly made prior to 1995, at least three years prior to Perez's termination. Moreover, the identification of four comments in over 20 years of service, far removed from the time of Plaintiff's termination, are at most "stray utterance[s] that [are] insufficient to give rise to an inference of discrimination." Hatter v. Fulton, 92 Civ. 6065, 1997 U.S. Dist. LEXIS 10429, at *15 (S.D.N.Y. July 21, 1997); see also O'Connor v. Viacom Inc., 93 Civ. 2399, 1996 U.S. Dist. LEXIS 5289, at *14-15 (S.D.N.Y. April 23, 1996) (finding three isolated remarks insufficient to establish pretext and noting that many courts have held that "stray remarks in the workplace, by themselves, and without a demonstrated nexus to the complained of personnel actions will not defeat an employer's motion for summary judgment") (citations omitted).

  None of these allegations, standing alone or in sum, is sufficient to support an inference of discrimination. Perez is left only with is his conclusory assertion that his national origin is part of the reason why he was viewed by Perez as a political rival. However, "[a] plaintiff may not defeat summary judgment `through reliance on unsupported assertions' or `conclusory statements.' Fitzpatrick v. New York Cornell Hospital, 00 Civ. 8594, 2002 U.S. Dist. LEXIS 25166, at *26 (S.D.N.Y. Dec. 13, 2002) (citations omitted). Even if Local 237 had terminated Perez because of his refusal to join Local 840, Perez fails present any evidence that he was being forced to join Local 840 on the basis of being Puerto Rican. Perez admits that non-Puerto-Rican agents were forced to join Local 840 as well. (Vitale Decl., Ex. 5 ¶ 11 (acknowledging that Arthur Sage was also forced to join Local 840); JP Tr. at 69-70 (acknowledging that Sage was not Puerto Rican).) Further, even if Local 237 had terminated Perez for politically motivated reasons, such reasons would not violate Title VII.*fn13 Accordingly, Plaintiff has failed to present evidence "sufficient to permit a rational finder of fact to infer that [Local 237's] employment decision was more likely than not based in whole or part on discrimination" and therefore his termination claim is dismissed. Terry v. Ashcroft, 336 F.3d 128, 138 (2d Cir. 2003) (internal quotation marks and citations omitted).

  C. Retaliation Claim

  In order to establish a prima facie case of retaliation, "a plaintiff must demonstrate `participation in protected activity known to the defendant, an employment action disadvantaging the person engaged in the protected activity, and a causal connection between the protected activity and the adverse employment action.'" Cruz v. Coach Stores, Inc., 202 F.3d 560, 566 (2d Cir. 2000) (quoting Johnson v. Palma, 931 F.2d 203, 207 (2d Cir. 1991)). "The term `protected activity' refers to action taken to protest or oppose statutorily prohibited discrimination." Id. (citing 42 U.S.C. § 2000e-3). Here, Perez alleges that he was retaliated against because he filed an internal union challenge to the aborted January 1998 termination. However, filing an internal union challenge based on violations of national and local union constitutions is not a "protected activity" within the meaning of the Title VII statute. Therefore, as a matter of law, such a complaint cannot form the basis of a Title VII retaliation claim. See Butterfield v. New York State, 96 Civ. 5144, 1998 U.S. Dist. LEXIS 18676, at * 46 (S.D.N.Y. July 15, 1998) (dismissing Title VII retaliation claim where conduct originally complained of did not fall within Title VII). Accordingly, Plaintiff's retaliation claim is dismissed. CONCLUSION

  For the foregoing reasons, Local 237's motion (docket no. 41) for summary judgment dismissing Plaintiff's Second Amended Complaint in its entirety is granted.

  SO ORDERED.


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