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Valenzuela v. River Bay Corp.

August 24, 2007

PAULINO VALENZUELA, PLAINTIFF,
v.
RIVER BAY CORPORATION AND UNION, LOCAL 32BJ, DEFENDANTS.



The opinion of the court was delivered by: Denise Cote, District Judge

OPINION AND ORDER

Plaintiff Paulino Valenzuela ("Valenzuela") brings this pro se action pursuant to Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000(e) et seq., and the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12112 et seq., to recover damages for discriminatory termination of his employment and retaliation. Plaintiff claims that defendant Riverbay Corporation ("Riverbay") discriminated against him on the basis of his national origin and partial disability by terminating his employment as a porter at a Bronx residential building. Riverbay has filed a motion for summary judgment, arguing that Valenzuela's employment was terminated for violent and threatening behavior towards co-workers and supervisors. For the following reasons, Riverbay's motion for summary judgment is granted.

BACKGROUND

The following facts, drawn from the record the parties have presented on summary judgment, are undisputed or taken in the light most favorable to the plaintiff, unless otherwise indicated. Valenzuela is proceeding pro se, and therefore his submissions are construed liberally.*fn1

Riverbay, also known as Co-Op City, is a residential housing cooperative in the Bronx consisting of thirty-five high rise buildings and seven townhouse clusters. From 1994 to 2005, the plaintiff, a native of the Dominican Republic and self-identified "Hispanic" or person of "Spanish" descent, worked in the janitorial division of Riverbay's Building and Grounds Department ("Department"). For most of this period, Valenzuela worked as a porter assigned to one of the cooperative's buildings and was responsible for cleaning the lobby area on certain days and maintaining the basement laundry room on other days. From 1999 to 2005, the plaintiff served as a lobby attendant with some basement maintenance duties and worked Friday through Tuesday of each week. After his first disciplinary problem in 2000, Valenzuela was assigned to Building 26 of Riverbay Section 5. James Sutter ("Sutter") served as his immediate supervisor during weekend shifts for the entire period of his employment with Riverbay. His weekday supervisor was first David Mansary ("Mansary") from 1999 to 2002, and then Audley Bent ("Bent") from 2002 to 2005. Sutter, Mansary and Bent reported directly to Luis Salazar ("Salazar"), an Hispanic male and head of the janitorial division of the Department. Phil Zudrima ("Zudrima") also served as a supervisor to the plaintiff.*fn2 Donovan Plummer ("Plummer"), an African American, was the supervisor of the Department's other unit, the grounds division. From 1994 to 2000, the plaintiff had no disciplinary problems at Riverbay and in 1996, received a certificate of appreciation for exemplary service.

A. Maldonado Incident

In March 2000, plaintiff was suspended for two days for allegedly threatening an Hispanic co-worker, Jesus Maldonado ("Maldonado"), in Riverbay Building 13. Maldonado submitted a written report dated March 10, 2000, alleging that when he "asked [Valenzuela] to move to the back of the dumpster so [Valenzuela] could push for a while [sic]," the plaintiff hit him in the arm. After the two men pushed each other, Valenzuela purportedly told Maldonado to "walk with fear" and that he would not "pass the day without dying." Valenzuela denied these accusations. Plummer issued Valenzuela an Employee Disciplinary Action Report ("DAR") for "improper conduct" and "threatening [an]other employee" and suspended him from work on March 16 and 17.*fn3 The plaintiff appears to claim that Maldonado falsely reported that Valenzuela threatened him after Valenzuela reported that he, Maldonado, and another Riverbay employee improperly placed a crystal and aluminum frame in the doorway of the porter's room.

Plummer issued Valenzuela another DAR on March 23 for failing to call or appear at work on March 11 and 15. Valenzuela was suspended for two days. Valenzuela did not file grievances to contest the March 10 or March 23 DARs.

B. Termination and Reinstatement

On April 6, Maldonado filed a report with the Riverbay Department of Public Safety contending that on March 31, an unknown Hispanic male warned him that Valenzuela had offered him $1,200 to harm him in retaliation for his March 10 complaint. Maldonado also reported the incident to his shop steward from the Service Employees International Union, Local 32BJ ("Union"), and the local police. Valenzuela denied the allegation and claimed that Maldonado was lying.*fn4 Riverbay immediately fired the plaintiff for hiring a third party to inflict bodily harm on Maldonado. The Union filed a grievance and request for arbitration on Valenzuela's behalf. The arbitration proceeding was conducted in accordance with the terms of the collective bargaining agreement between the Union and Riverbay. Four of Valenzuela's co-workers testified against Valenzuela, describing incidents that occurred while they were working with him. Although Valenzuela admitted that he had incidents with other workers, he stated that "they worked well together afterwards."

The arbitrators' June 26, 2000 Opinion and Award reinstated Valenzuela without backpay on the grounds that Maldonado's "hearsay evidence" was "not credible" and did not meet the level of proof required to form the basis of a discharge. It also noted that investigation of the incident had failed to identify the "stranger" and that a witness who allegedly had heard the threat reported to the police that he had not heard anything. The arbitrators issued Valenzuela a "last and final warning" that any further conduct along the lines of the incidents described by his co-workers "may be of greater permanency or termination."

C. Zudrima Incident

Zudrima submitted a written report on May 8, 2001, alleging that he found Valenzuela drinking beer during work hours in the basement of a Riverbay building. Zudrima also contended that when he asked Valenzuela if he was drinking, the plaintiff followed him with a broom and made threatening remarks.

Witnesses corroborated that Valenzuela was drinking beer on duty, but did not indicate that they witnessed the alleged threat. Valenzuela has testified that Zudrima's written submission was false, that he did not threaten Zudrima and that he had not been drinking beer while on duty.*fn5 On May 23, Plummer issued Valenzuela a DAR for consuming alcohol while on duty, improper conduct, and threatening behavior. The plaintiff was immediately suspended for two weeks and given a final warning. Valenzuela did not file a grievance to contest the DAR.

D. Bent Incident

Several years later, on September 30, 2004, Plummer issued Valenzuela a DAR for improper conduct for allegedly using "foul language" "in a threatening way" with his supervisor, Bent, on September 23. After a two day suspension, Valenzuela returned to work.*fn6 He did not file a grievance or otherwise challenge the DAR.

E. Sutter Incident

Valenzuela requested a transfer from Building 26 to Building 17, which Salazar approved in February 2005. According to Riverbay policy, upon transfer, a porter is permitted to take his personal items and cleaning supplies from one locker in his former building to his newly assigned building. Lozada accompanied Valenzuela to move his personal items and cleaning supplies under Sutter's supervision on Saturday, February 19. Lozada waited for Valenzuela upstairs while the plaintiff entered the locker room.

The parties contest the precise statements and events that transpired while Valenzuela removed items from his lockers. Valenzuela asserts that he kept $1,665 in his locker and that no one at Riverbay knew of the money. He began removing items from a locker when Sutter entered the room. Sutter observed the plaintiff remove items from two lockers and a file cabinet,*fn7 and told the plaintiff in English that he could only take one locker's worth of cleaning supplies with him.*fn8 The plaintiff told Sutter he did not speak English or understand what he was saying. Sutter called Lozada on the radio and asked him to come downstairs to translate. After Lozada arrived, he translated Sutter's statement. Lozada testified that he told Valenzuela that he could only take one locker's worth of Riverbay cleaning supplies to his new building. Valenzuela testified, however, that Lozada stated, "Jimmy [Sutter] called me on the radio. . . . He told me to ...


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