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CARELA v. N.Y.C. PARKS & RECREATION DEPT.

August 26, 2005.

JULIO C. CARELA, Plaintiff,
v.
N.Y.C. PARKS & RECREATION DEPT., ERIKA BROWN, ANGELO COLON, BRIAN LEE, MIKE MIRRA, MOKO HIRAYAMA, JIM CAFARO, Defendants.



The opinion of the court was delivered by: DEBORAH BATTS, District Judge

MEMORANDUM & OPINION

Julio C. Carela ("Plaintiff") brings this action for damages and equitable relief, pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000(e) et seq. ("Title VII"). Plaintiff alleges that the New York City Parks & Recreation Department and Erika Brown, Angelo Colon, Brian Lee, Mike Mirra, Moko Hirayam, and Jim Cafaro (collectively, "Defendants"), discriminated against him on the basis of his race, color, age, and national origin by failing to hire him, terminating his employment, failing to promote him, providing unequal terms and conditions of employment, and by retaliating against him. Defendants move, pursuant to Fed.R.Civ.P. 56, for Summary Judgment. For the reasons stated below, Defendants' Motion for Summary Judgment is GRANTED. I. BACKGROUND

Plaintiff Carela, a black Dominican, was hired in June of 1988 for the position of City Seasonal Aid ("CSA") for the New York City Department of Parks and Recreation ("DPR") as a seasonal employee. (Defs.' 56.1 Stmt. ¶ 1.)*fn1 Plaintiff worked for the DPR seasonally as a CSA from the end of June until September or October each year from 1988 to 1994. (Defs.' 56.1 Stmt. ¶¶ 2-3.) Pursuant to a contract between District Council 37 and DPR, which covers CSAs, DPR offers employment for the following season, based on seniority and availability, to CSAs who satisfactorily complete the prior season. (Defs.' 56.1 Stmt. ¶ 7.)

  In August of 1994, Plaintiff's position changed to a seasonal City Park Worker ("CPW"), a higher salaried position that involves driving a DPR vehicle and somewhat more sophisticated maintenance work. (Defs.' 56.1 Stmt. ¶ 4.) Seasonal CPWs are not covered by the same contract as seasonal CSAs and do not have a right to re-employment season to season, even upon satisfactory completion of the prior season. (Defs.' 56.1 Stmt. ¶ 8.) In 1997, due to funding, DPR eliminated 106 CPW positions and increased the number of CSA positions by 33. (Defs.' 56.1 Stmt. ¶ 6.) Plaintiff's position as a CPW was one of those eliminated. (Defs.' 56.1 Stmt. ¶ 6.) In 1997, DPR hired Plaintiff, as well as some other people who were CPWs the prior season, as CSA IIIs, the highest level CSA. (Defs.' 56.1 Stmt. ¶ 9.) Plaintiff began working on June 24, 1997 at the Thomas Jefferson Park and Pool in Manhattan as a CSA III. (Defs.' 56.1 Stmt. ¶ 11.)

  Plaintiff's seasonal evaluations, some of which are attached to his Amended Complaint and some to his Second Amended Complaint, indicate that he performed above average, and always received "4s" and "5s" out of a scale of 1-5 for quality of work; attendance; job knowledge; and attitude. (Am. Compl. and Second Am. Compl. attachments.)

  On August 30, 1997 at 2 p.m., Plaintiff went to a local grocery store while on his lunch hour and purchased a bottle of Guinness. (Defs.' 56.1 Stmt. ¶ 11.) He brought the bottle of beer back to the park, intending to drink it in the locker room of the pool. (Defs.' 56.1 Stmt. ¶ 12.) At approximately 2:55 p.m., Defendant Mike Mirra ("Mirra"), the pool coordinator, told Plaintiff that he was not allowed to drink beer on the premises. (Defs.' 56.1 Stmt. ¶ 14.) According to Plaintiff, on that day, someone whom he did not recognize, "told me I wasn't supposed to have [the Guinness] while I was there." (Pl.'s Dep. at 15.) Plaintiff denied the bottle of Guinness was beer. (Defs.' 56.1 Stmt. ¶ 14.) Plaintiff's supervisor, Defendant Angelo Colon, witnessed the conversation between Mirra and Plaintiff and he heard Plaintiff tell Mirra that it was his lunch hour and he could drink whatever he wanted. (Defs.' 56.1 Stmt. ¶ 14.) Plaintiff proceeded to go outside of the building and drink the beer on the sidewalk. (Defs.' 56.1 Stmt. ¶ 15; Pl.'s Dep. at 51-52.) According to Plaintiff, he was "accused of consuming an alcoholic beverage while on duty and I was subsequently discharged. I had in my possession a sealed and concealed bottle of alcoholic beverage — I was not drinking." (Am. Compl. at 4.) Later that day, Colon met with Plaintiff in his office to discuss the incident with him. (Defs.' 56.1 Stmt. ¶ 17.) Plaintiff signed a statement regarding his consumption of alcohol in violation of departmental rules and regulations. (Defs.' 56.1 Stmt. ¶ 17; Defs.' 56.1 Stmt. Exhbt D.) According to a seasonal termination form, Plaintiff was terminated effective August 31, 1997 for "drinking an alcoholic beverage on parks property." (Defs.' 56.1 Stmt. ¶ 18; Defs.' 56.1 Stmt. Exhbt F.)

  There is some dispute as to the tone of this meeting and whether Plaintiff truly understood the statement that he signed. According to an affidavit filed by Plaintiff on September 14, 1999, at this meeting, his supervisors called him derogatory names and cursed at him. (Pl.'s Aff. ¶ 6.) Furthermore, Plaintiff claims to not be able to read without reading glasses, and therefore, could not read the form he was asked to sign at the termination meeting with his supervisor. (Pl.'s Aff. ¶¶ 13-14.) Further, he states that Defendant Colon misled him into signing the statement by telling him it was an evaluation form. (Pl.'s Aff. ¶ 23.) Plaintiff also argues that he "sincerely believed" that the Guinness was a non-alcoholic herb drink. (Pl.'s Aff. ¶ 20.)

  DPR's Standards of Conduct, which allegedly is distributed to all employees upon employment with the DPR, prohibits employees from bringing alcohol onto DPR premises or being under the influence of alcohol while on duty. (Defs.' 56.1 Stmt. ¶ 16.) Specifically, Rule VI(1)(B) of the Standards of Conduct, entitled "Alcoholic Beverages, Controlled Substances, Illegal Drugs," states that, "Employees are prohibited from: Bringing or allowing alcohol, controlled substances and/or illegal drugs onto City or Department premises, property or vehicles, or possessing the same thereon." Section (C) of the Standards of Conduct states, "Employees are prohibited from: Using or being under the influence of alcoholic beverages, controlled substances or illegal drugs while on duty." (Defs.' 56.1 Stmt. Exhbt E.) According to DPR Director of Personnel David Terhune, other DPR employees have been disciplined, including termination, for drinking on DPR premises or for drinking during work hours. (Defs.' 56.1 Stmt. ¶ 24.)

  According to a DPR Seasonal Evaluation dated August 23, 1997, Defendants had recommended that Plaintiff be rehired for the 1998 season. (Defs.' 56.1 Stmt. ¶ 23.) Plaintiff was terminated on or about August 30, 1997. Thereafter, Plaintiff was notified by letter dated September 19, 1997 that due to an unsatisfactory rating during the 1997 season, he was no longer eligible for rehire with the DPR. (Defs.' 56.1 Stmt. ¶ 22.)

  Pursuant to the contract between District Council 37 and DPR, CSAs who are terminated may request a review by the Commissioner of DPR or his designee. (Defs.' 56.1 Stmt. ¶ 19.) By letter dated September 2, 1997, Plaintiff, through his union, requested a seasonal review hearing regarding his termination. (Defs.' 56.1 Stmt. ¶ 19.) A hearing was held before the Commissioner's designee on October 17, 1997. (Defs.' 56.1 Stmt. ¶ 20.) In a decision dated December 10, 1997, the review officer, Defendant Moko Hirayama, and Joseph P. Bernstein, director of labor relations, determined that the decision to terminate Plaintiff should stand. (Defs.' 56.1 Stmt. ¶ 21; Defs.' 56.1 Stmt. Exhbt I.)

  Plaintiff timely filed a Charge of Discrimination with the Equal Employment Opportunities Commission (EEOC) on February 3, 1998. Plaintiff named the New York City Parks and Recreation Department as the entity that discriminated against him, stating, "I believe that I was discriminated against because of my national origin (Dominican), in violation of Title VII of the Civil Rights Act of 1964, as amended." The EEOC found there was insufficient evidence to support Plaintiff's charge that he was unjustly terminated from his position because of his national origin. (Defs.' 56.1 Stmt. Exhbt L.) It issued a Right to Sue Letter on February 3, 1998. (Complaint at 5; Defs.' 56.1 Stmt. Exhbt L.)

  Plaintiff originally filed his Complaint in the instant suit on April 17, 1998, against the New York City Parks & Recreation Department, alleging employment discrimination in the form of termination of his employment on the basis of race, national origin, and color. He states that the facts of his case are as follows:
In June, 1988 I was hired for the position of City Parks Worker (CPW) seasonal employer. Prior to my dismissal on 8/29/97, I was never subjected to any disciplinary action, nor did I receive any complaint concerning the quality of my work. On August 29, 1997, I was accused of consuming an alcoholic beverage while on duty and I was subsequently discharged. I had in my possession a sealed and concealed bottle of alcoholic beverage — I was not drinking. I believe that I was discriminated against because of my national and ethnic origin (black Dominican).
(Complaint at 4.)
  Plaintiff later filed an Amended Complaint on May 13, 1998, which was identical to the original Complaint, except for the addition of Erika Brown as a Defendant and the annexation of certain documents. Finally, Plaintiff filed a Second Amended Complaint on December 8, 1998, adding the other named Defendants, and alleging discriminatory conduct in the form of failure to hire, termination of employment, failure to promote, unequal terms and conditions of employment, and retaliation, based on race, color, national origin, and age. (Second Am. Compl. at 3.) In his Second Amended Complaint, he describes the facts of his case as follows:
My work title was taken away from me unfairly. My position was changed to a lower status from a full-time CPW position, to a part-time CSA. My health benefits, my retirement, and my pension benefits have all been affected due to the New York City? Parks Dept[`s] decision to do this. I have been discriminated against and I have been the victim of retaliation by employees of the NYC Parks Dept., just because I was claiming my rights as a city employee of the Parks Dept. (Second Am. Compl. at 4.) Defendants move, pursuant to Fed.R.Civ.P. 56, for summary judgment on all claims.
II. DISCUSSION

  Defendants allege that Plaintiff failed to raise his claims of age, race, and color discrimination and retaliation in his Charge of Discrimination filed with the Equal Employment Opportunities Commission (EEOC), which is a condition precedent to filing a Title VII or ADEA action. Defendants also argue that Plaintiff has not pled a prima facie case of discrimination under Title VII. And finally, Defendants argue that Plaintiff's ...


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