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

United States District Court, S.D. New York


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 claims against the individual Defendants must be dismissed because Title VII does not permit individual liability.

  A. Summary Judgment

  Summary judgment may be granted only when there is no genuine issue of material fact remaining for trial and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); see also, e.g., Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-248 (1986); Corselli v. Couglin, 842 F.2d 23, 25 (2d Cir. 1988).

  Under Fed.R.Civ.P. 56(c), "[t]he judgment sought shall be rendered forthwith if the pleadings, depositions, answers to 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." The Supreme Court has interpreted this to mean that, "[T]he plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).

  As a general rule, "the court is to draw all factual inferences in favor of the party against whom summary judgment is sought, viewing the factual assertions . . . in the light most favorable to the party opposing the motion". Rodriguez v. City of New York, 72 F.3d 1051, 1061 (2d Cir. 1995); see also Consarc Corp. v. Marine Midland Bank, N.A., 996 F.2d 568, 572 (2d Cir. 1993). All ambiguities and all inferences drawn from the underlying facts must be resolved in favor of the party contesting the motion, and all uncertainty as to the existence of a genuine issue for trial must be resolved against the moving party. LaFond v. General Physics Servs. Corp., 50 F.3d 165, 171 (2d Cir. 1995). As is often stated, "[v]iewing the evidence produced in the light most favorable to the nonmovant, if a rational trier could not find for the nonmovant, then there is no genuine issue of material fact and entry of summary judgment is appropriate." Binder v. LILCO, 933 F.2d 187, 191 (2d Cir. 1991).

  Furthermore, "When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of the adverse party's pleading, but the adverse party's response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If the adverse party does not so respond, summary judgment, if appropriate, shall be entered against the adverse party." Fed.R.Civ.P. 56(e).

  B. Title VII

  Title VII of the Civil Rights Act of 1964 provides, in relevant part:

It shall be an unlawful employment practice for an employer — (1) . . . 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).

  A complainant in a Title VII action carries the initial burden of establishing a prima facie case of discrimination. Reeves v. Sanderson Plumbing Prods, Inc., 530 U.S. 133, 142 (2000); Graham v. Long Island R.R., 230 F.3d 34, 38 (2d Cir. 2000). The burden of establishing a prima facie case is de minimis. Chambers v. TRM Copy Centers Corp., 43 F.3d 29, 37 (2d Cir. 1994). To establish a prima facie case of employment discrimination, plaintiff must show: (1) membership in a protected class; (2) satisfactory job performance; (3) termination from employment or other adverse employment action; and (4) that the adverse action took place under circumstances giving rise to an inference of discrimination. See, e.g., Weinstock v. Columbia Univ., 224 F.3d 33, 42 (2d Cir. 2000); Cruz v. Coach Stores, Inc., 202 F.3d 560, 567 (2d Cir. 2000).

  If a plaintiff successfully demonstrates these elements, a presumption of unlawful discrimination is created. Chertkova v. Connecticut General Life Ins. Co., 92 F.3d 81, 87 (2d Cir. 1996) (citing Texas Dep't of Cmty Affairs v. Burdine, 450 U.S. 248, 254 (1981)). The burden then shifts to the defendant to articulate some "legitimate, nondiscriminatory reason" for the adverse employment action taken against the plaintiff. Burdine, 450 U.S. at 253; Chertkova, 92 F.3d at 87. If the defendant articulates a legitimate reason for the adverse action, the burden switches back to the plaintiff to show that the defendant's stated reason was merely a pretext for discrimination. Id. "The ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff." Burdine, 450 U.S. at 253.

  A plaintiff cannot defeat summary judgment by asserting mere conclusory allegations of discrimination. Meiri v. Dacon, 759 F.2d 989, 998 (2d Cir. 1985) (holding that "mere incantation of intent or state of mind [cannot] operate as a talisman to defeat an otherwise valid motion"). Furthermore, "where intent is genuinely in issue . . summary judgment remains available to reject discrimination claims in cases lacking genuine issues of material fact." Chambers, 43 F.3d 29 at 40 (citation omitted). Therefore, where the defendant has offered a legitimate nondiscriminatory reason for an adverse employment action, the plaintiff must present "sufficient evidence to find that the employer's asserted justification is false [and] to conclude that the employer unlawfully discriminated." Reeves, 530 U.S. 133, 148.

  Whether summary judgment is appropriate in a discrimination case depends upon "the strength of the plaintiff's prima facie case, the probative value of the proof that the employer's explanation is false, and any other evidence that supports the employer's case and that properly may be considered."*fn2 Id. at 148-49; see also Schnabel v. Abramson, 232 F.3d 83, 90 (2d Cir. 2000) (holding that "Reeves clearly mandates a case-by-case approach, with a court examining the entire record to determine whether the plaintiff could satisfy his `ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff.'" (quoting Reeves, 530 U.S. at 143)). However, where a plaintiff establishes a prima facie case and presents some evidence of pretext, summary judgment may still be appropriate where, for instance, the record conclusively reveals a nondiscriminatory reason for the employer's action, or where the plaintiff creates "only a weak issue of fact" on the issue of pretext and there exists "abundant and uncontroverted independent evidence that no discrimination [has] occurred." Schnabel, 232 F.3d at 90 (quoting Reeves, 530 U.S. at 148) (internal quotations omitted). The question on a summary judgment motion in a discrimination case is "whether the evidence, taken as a whole, supports a sufficient rational inference of discrimination. To get to the jury, it is not enough . . . to disbelieve the employer; the fact finder must [also] believe the plaintiff's explanation of intentional discrimination." Weinstock v. Columbia Univ., 224 F.3d 33, 42 (2d Cir. 2000) (quoting St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993)).

  C. Timeliness*fn3

  To commence a claim for unlawful discrimination under Title VII in New York State, a plaintiff must exhaust his or her administrative remedies by filing an administration charge with the Equal Employment Opportunity Commission ("EEOC") within 300 days of the alleged discriminatory act.*fn4 See 42 U.S.C. § 2000e-5(e) (1).*fn5 A court may only consider those claims of discrimination that are included in an EEOC charge of discrimination or are based on conduct that is "reasonably related" to what is alleged in the EEOC complaint and which occurs after the EEOC filing. Butts v. City of New York Dep't of Housing Preservation and Devel., 990 F.2d 1397, 1401 (2d Cir. 1993). Once a claimant has received a right to sue letter from the EEOC, suit must be filed in federal court within 90 days. 42 U.S.C. § 2000e-5(f)(1); Cornwell v. Robinson, 23 F.3d 694, 706 (2d Cir. 1994). "[T]he purpose of the notice provision, which is to encourage settlement of discrimination disputes through conciliation and voluntary compliance, would be defeated if a complainant could litigate a claim not previously presented to and investigated by the EEOC." Butts, 990 F.2d at 1401 (quoting Miller v. International Tel. & Tel., 755 F.2d 20, 26 (2d Cir.), cert. denied, 474 U.S. 851, 88 L. Ed. 2d 122, 106 S. Ct. 148 (1985).) It should be noted that the standard form for filing a discrimination complaint in federal court, provided to pro se plaintiffs, specifically states on page three that, "Only those grounds raised in the charge filed with the Equal Employment Opportunity Commission can be considered by the federal district court."

  On Plaintiff's original EEOC charge, he cites only national origin as the basis for discrimination and he cites only New York City Parks and Recreation as the employer that discriminated against him. He explains in the EEOC charge that he was terminated from his position as a City Park Worker seasonal employee and he states "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."

  In his Second Amended Complaint, however, filed on December 8, 1998, Plaintiff lists race, color, national origin and age. (Second Am. Compl. at 3.) In the section that pertains to the facts of Plaintiff's case, he describes his position changing "to a lower status from a full-time CPW position to a part-time CSA," which he characterizes as retaliation. (Second Am. Compl. at 4.)

  In a Title VII action in which a plaintiff has met the procedural requirements, he or she may raise a claim that could be construed as "reasonably related" to those previously made in the EEOC Charge, even if the claim was not addressed by the EEOC. See Cornwell, 23 F.3d at 706. For a claim of retaliation, the Second Circuit has said that as long as there is a close connection between the retaliatory act and the initial discriminatory conduct and the filing of the charge, such a claim may properly be considered, otherwise "requiring a plaintiff to file a second EEOC charge under these circumstances could have the perverse result of promoting employer retaliation in order to impose further costs on plaintiffs and delay the filing of civil actions relating to the underlying acts of discrimination." Butts, 990 F.2d at 1402.

  In this case, where Plaintiff appears to be arguing that his title change in 1997 from the higher-paying CPW position to the CSA III position was a retaliatory act, an event that occurred well before he was terminated, he provides no explanation for why this claim was not brought before the EEOC nor does he explain how his retaliation claim could be considered by the Court to be "reasonably related" to his claim of national origin discrimination on the EEOC Charge. Furthermore, Plaintiff has not indicated any retaliatory actions by the Defendants taken after he filed the Charge. In the event that Plaintiff is claiming that Defendants' retaliatory act was not rehiring him the following season in 1998, this claim has no merit. The Defendants determined in September of 1997, long before Plaintiff ever filed his EEOC charge, that he would not be rehired the following year because of his termination for misconduct, therefore the fact that Defendants abided by their decision not to rehire him cannot be deemed to be a retaliatory act.

  Because Plaintiff failed to raise these claims in his original EEOC charge and fails to show how they are reasonably related to the original claim, they will not be considered by the Court. Accordingly, the Court only will consider Plaintiff's discrimination claim based on national origin, which was brought against Defendant New York City Parks & Recreation Department in Plaintiff's charge of discrimination filed with the EEOC.

  E. Discrimination Claim

  Defendants argue that Plaintiff has not shown that his termination occurred in circumstances giving rise to an inference of discrimination, and that Plaintiff has not shown that his termination was a pretext for discrimination. (Defs.' Mem. Law at 1-2.) Defendants agree that Plaintiff has successfully pled two of the four elements necessary to establish a prima facie case of discrimination: because Plaintiff is of Dominican national origin, he is a member of a protected group; and he was subjected to the adverse employment action if being terminated from his job. However, Defendants argue that Plaintiff fails to satisfy the other two prongs because he was not performing his job satisfactorily at the time he was terminated, and because the termination did not occur under circumstances that give rise to an inference of discrimination.

  Defendants argue that because Plaintiff carried a beer onto parks property, was warned not to drink it, and then proceeded to drink it outside the park, he violated the Parks Department's Standards of Conduct, and was engaged in serious misconduct, which cannot be construed as satisfactory job performance at the time of his termination. Plaintiff claims he was a good employee, and "Prior to my dismissal, I was never subjected to any disciplinary actions, nor did I receive any complaints concerning the quality of my work." (Pl.'s EEOC Charge of Discrimination.)

  Plaintiff is correct that he appears to have been a very good employee who attained high evaluation marks and accolades by his supervisors. This would seem to prove the second prong necessary to establish a prima facie case, that of satisfactory job performance. However, Plaintiff admits that on the day he was fired, he purchased a bottle of Guinness, which he planned to drink in the locker room of the pool. (Am. Compl. at 4; Pl.'s Dep. at 46.) Plaintiff claims, somewhat incredibly, that Guinness is not alcoholic and he does not consider it "beer" (Pl.'s Aff. ¶¶ 20-21; Pl.'s Dep. at 50-51), however, this belief is countered by the statement in his Amended Complaint, which says, "I had in my possession a sealed and concealed bottle of alcoholic beverage." (Am. Compl. at 4.) Even if Plaintiff honestly did not know that Guinness was an alcoholic drink, he admits that he was warned by his supervisor that he could not drink the beer, and yet he proceeded to go outside and drink the Guinness on the sidewalk.*fn6 (Pl.'s Dep. at 51-52.) Therefore, he disobeyed a supervisor's warning, in addition to violating specific DPR standards. Such conduct easily could be construed as "unsatisfactory," thus he fails to meet this necessary prong.

  Even if Plaintiff were to meet that prong successfully, Defendants argue that Plaintiff is unable to establish the fourth prong, that of establishing an inference of discrimination based on race, color, or national origin. According to DPR Director of Personnel David Terhune, other DPR employees have been disciplined, including being terminated, for drinking on DPR premises or for drinking during work hours, thus showing that Plaintiff was not singled out. (Defs.' 56.1 Stmt. ¶ 24.) However, based on his exemplary work record, it does seem questionable that Plaintiff was fired for his conduct instead of merely reprimanded or warned. Furthermore, Plaintiff argues that his supervisors belittled him and made racist comments during the meeting in which they fired him, which would lead to a strong inference of discrimination. (Pl.'s Aff. ¶ 6; Pl.'s Dep. at 53.)

  Weighing the evidence in favor of the Plaintiff on this point, and thus construing the circumstances surrounding Plaintiff's termination as discriminatory, the burden shifts to the Defendants to provide a legitimate, nondiscriminatory reason for terminating Plaintiff. Defendants argue that their decision to terminate Plaintiff's employment was based on his misconduct at work, and that they are entitled to make employment decisions based on an individual's disciplinary record.

  While the circumstances surrounding his firing, if true, are without a doubt unprofessional, the fact remains that the reason Defendants cite for Plaintiff's termination — that he violated standards of conduct by consuming a "Guinness" during the course of the workday, and which Plaintiff does not deny — lacks any indication of discrimination. Firing an employee for misconduct is entirely permissible. See, e.g., Milani v. IBM, 322 F. Supp. 2d 434, 458-459 (S.D.N.Y., 2004) (holding that employer's proffered reason for firing employee, which was that employee violated employer's prohibition on dating subordinates, was a legitimate, non-discriminatory one) (citing Das v. Our Lady of Mercy Med. Ctr., No. 00 Civ. 2574, 2002 U.S. Dist. LEXIS 7771, 2002 WL 826877, at *11-*12 (S.D.N.Y. Apr. 30, 2002), aff'd 56 Fed. Appx. 12 (2d Cir. 2003)); see also Harris v. Franziska Racker Ctrs., Inc., 340 F. Supp. 2d 225, 237 (N.D.N.Y., 2004) (holding that Defendant employer's decision to terminate employee for violating company's confidentiality policy was legitimate and non-discriminatory). Although Plaintiff disputes the fact that he knew he was drinking beer on the day he was fired, he does not dispute the fact that he purchased a Guinness to have for lunch, was warned not to drink it, and that he drank it anyway. The evidence is more than sufficient to rebut the inference of discrimination raised by Plaintiff's prima facie case, and satisfies Defendants' burden to produce evidence that Plaintiff was terminated for a non-discriminatory reason. Accordingly, the decision to terminate Plaintiff, which was affirmed by an internal review process, was based on a legitimate, nondiscriminatory reason. Perhaps a warning, or an explanation that Guinness is, indeed, an alcoholic beverage that may not be consumed during the work day or brought on to work property, would have been a better way of handling the situation, but that is not for the Court to decide. See Scaria v. Rubin, 117 F.3d 652, 655 (2d Cir. 1997) (per curiam) ("`This Court does not sit as a super-personnel department that reexamines an entity's business decisions.'" (quoting Dale v. Chicago Tribune Co., 797 F.2d 458, 464 (7th Cir. 1986)).

  If Plaintiff had successfully established a prima facie case, and where as here, the Defendants have alleged a nondiscriminatory reason for firing the Plaintiff, the burden would shift back to the Plaintiff to demonstrate by a preponderance of the evidence why the reason stated by Defendants for his termination is merely a pretext for race, national origin, and color discrimination. To create a genuine issue of material fact at this stage requires a plaintiff to present sufficient evidence to show that the employer's asserted justification for the adverse action is false. See Burdine, 450 U.S. at 253; Chertkova, 92 F.3d at 87. Such evidence "may permit the trier of fact to conclude that the employer unlawfully discriminated." Reeves, 530 U.S. at 148. Plaintiff does not provide any evidence as to how Defendants actions could be construed as pretext, and, liberally reading the Plaintiff's submissions, as the Court must, it can find no evidence on his behalf. Accordingly, Plaintiff has failed to present sufficient evidence to support a finding that the decision to terminate his employment was motivated by discrimination.

  As Plaintiff fails to meet his burden, Defendants' Motion for Summary Judgment is granted in its entirety. Because the Court grants Defendants' motion, it does not reach the question of the individual liability of the named Defendants.

  III. CONCLUSION

  The Court has reviewed Defendants' Motion for Summary Judgment in this matter. Plaintiff has failed to establish a prima facie case of discrimination, and furthermore has not established that Defendants' proffered reason for Plaintiff's firing was a pretext, nor has he identified any genuine issues of material fact. Accordingly, Defendants' Motion for Summary Judgment is GRANTED. The Clerk of the Court is directed to close the case.

  SO ORDERED.

20050826

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