The opinion of the court was delivered by: Wall, Magistrate Judge
Before the court is the defendants' motion for summary judgment in a case on consent to the undersigned for all purposes. DE . For the reasons set forth in this Memorandum and Order, the motion is granted in part and denied in part. All claims except the failure to accommodate claim pursuant to the New York Human Rights Law are dismissed, and, as to that remaining state law claim, this court declines to exercise supplemental jurisdiction.
This action commenced on December 15, 2005, with the filing of a Complaint that alleges discriminatory employment practices pursuant to Title VII, the Americans with Disabilities Act, and the New York Human Rights Law. An Amended Complaint was filed on April 16, 2007; on June 4, 2007, the parties filed a Consent to my jurisdiction, and the current motion was filed as fully briefed on March 14, 2008.
The plaintiff, Joseph Agostinello, was employed by the defendant school district as a custodian starting on June 28, 1993. DE , Def's. Rule 56.1 Stmt.,*fn1 ¶1. At a picnic in the late summer of that year, Agostinello was involved in a "physical altercation" with a co-worker. Vic LaMattina, a head custodian for the District, told the plaintiff that "We don't do stuff like that around here." Id., ¶¶3-5. The plaintiff asserts that Mr. LaMattina was "referring to the fact that Hispanic people fight." DE , Pl's Rule 56.1 Stmt., ¶5.
The defendant asserts that, soon thereafter, the plaintiff "had another altercation" with a co-worker, Freddy Varga. DE ,¶6. The plaintiff does not deny the altercation, but alleges that Mr. Varga threatened and hit Mr. Agostinello and that Agostinello was injured. DE, ¶6. The parties' versions of the Varga incident differ in other ways as well. The defendant's version of the Varga incident leads to its allegation that various District officials were aware that Agostinello engaged in inappropriate conduct and pranks and had a reputation for not telling the truth. Agostinello denies that conclusion and its supporting factual assertions. The parties also disagree as to whether Varga was fired or resigned, but he left the employ of the District after the incident.
In 1995, Agostinello requested a transfer to the District's Maintenance Department. DE, ¶18. He worked in that department for some time as a painter, and the defendant claims that the head of that department, Bob Devlin, believed that Agostinello had threatened to shoot him, a perceived threat he reported to Brodus Brown, a head of the Buildings and Grounds Department. DE , ¶¶18-21. The plaintiff reports that he never threatened Devlin. DE , ¶21. After approximately two months, Devlin told Agostinello that he should transfer back to the custodial staff because his work was not up to par, and the plaintiff did so. DE, ¶¶22-23.
In 1996, Agostinello requested a transfer out of Great Neck North High School because of a further incident with Freddy Varga, who no longer worked for the District. Id., ¶¶24-27.
Agostinello objects to the District's use of the word "altercation" in reference to the 1996 Varga incident, saying that there was no altercation, but a threat and attempted assault by Varga against Agostinello. Agostinello says that he requested the transfer because he feared Varga. DE , ¶¶25-27. The District granted Agostinello's request and reassigned him to the Lakeville Elementary School, where, the defendant alleges, several of Agostinello's co-workers perceived him as a troublemaker and called him "Crazy Joe." DE , ¶¶28-30. Agostinello says that when he was transferred to Lakeville, two employees told him that they heard he had been transferred because he was a troublemaker. DE , ¶29. The name "Crazy Joe," he asserts, originally referred to a man named Joe Poscadero, but did eventually apply to Agostinello, along with the name "Puerto Rican Moses." DE, ¶30.
Agostinello remained at Lakeville from 1996 to 2003, during which time he received annual performance evaluations, with "fair," "satisfactory," and "good" ratings in various categories. In May 1999, the District reports that Agostinello was the subject of an interdepartmental memo from Richie Meyer "detailing his poor attitude at work." DE , ¶38, Ex. J. Agostinello denies this, although a copy of the memo has been produced by the defendant as an exhibit. DE, ¶38. A second memo from Meyer two days later set forth "a department official's belief that plaintiff would be a poor choice for an open daytime assistant head position at the North High School, as plaintiff would not likely interact well with the teachers or office staff." DE , ¶40, Ex. K. The plaintiff, in response, states that Richie Meyer never told him that Meyer thought he had did not interact well with others. DE , ¶40. Various disagreements about Agostinello's evaluations over the ensuing years arose, and the plaintiff refused to sign his evaluations for a few years. DE & , ¶41.
In May 2002, Agostinello applied for a promotion to the civil service position of Assistant Head Custodian, and was interviewed by a panel from the Buildings and Grounds Department. DE , ¶¶51-54. According to the defendant, the majority of the panel members believed that Agostinello "acted arrogantly and cocky during his May 2002 interview, as well as in his interactions with the department's secretary before the interview," and believed that Agostinello could not be responsible for enforcing District rules in a supervisory capacity because he had not followed them in the past. DE, ¶¶55-56. The plaintiff states that he cannot comment on the "beliefs" of the panel, but that the only rules he arguably did not follow were the requirements about signing performance evaluations. DE, ¶55-56. Only two of the panel members voted for Agostinello's appointment and his application was denied in favor of applicant Frank Truglio. DE, ¶¶57-61.
In August 2002, Agostinello applied for another Assistant Head Custodian position, and he was interviewed by a panel, along with five other applicants. DE, ¶¶62-63. The District claims that members of the panel felt that not enough time had passed since his interview in May 2002 to determine if he had changed, and Brodus Brown again felt that Agostinello acted arrogant and cocky at his interview. DE, ¶¶65-66. Plaintiff denies that he was arrogant or cocky. DE, ¶66. Only one panel member voted in favor of Agostinello's application, and it was denied. The panel chose Kevin Cartwright, who had started work with the District in 1986, seven years before the plaintiff was first hired, but Cartwright was not ultimately hired for the Assistant Head Custodian position because the Nassau County Civil Service Commission ("NCCSC") rules required the District to first try to hire one of the top three scorers on the civil service list, and Cartwright was not one of them. The District ultimately decided not to hire anyone in September 2002. DE , ¶¶ 67-73. Agostinello states that he was number one on the list and that he was not hired for discriminatory reasons. DE , ¶¶71-72.
In January 2003, the NCCSC issued a new civil service list for the Assistant Head Custodian position, and Agostinello's name did not appear on it. DE , ¶74-75. The defendant states, and the plaintiff agrees, that Agostinello thought that the District could have extended the prior list, on which his name did appear, but failed to do so. Id., ¶76. Agostinello's former attorney wrote to the NCCSC to ask why the prior list had not been extended, and Thomas A. Williams, NCCSC's Executive Director, responded that the NCCSC, and not the school district, has the sole discretion to extend or expire a civil service list. Pursuant to that discretion, the NCCSC decided to expire the earlier list. Id., ¶77-81. Agostinello takes the position that the list was expired because the District requested it. DE , ¶78-79. The District says that it ultimately hired two candidates from the January 2003 list. DE , ¶82. The plaintiff says that the District hired more than two people from the list. DE , ¶82.
The plaintiff's Title VII claims are based on national origin or race, with Agostinello identifying himself as Puerto Rican. See Amended Complaint, DE, ¶15. He was born in Pennsylvania to Puerto Rican parents and adopted at the age of 15 by an Italian family. DE, ¶¶83-84. The defendant states that Agostinello agrees that his surname sounds Italian, "rather than Puerto Rican or Hispanic." Id., ¶85. Agostinello does not agree that he ever testified to that. DE, ¶85. The actual testimony was as follows: "Q: Do you think Agostinello sounds like an Italian name? / Agostinello Answer: Yes." Ex. E, 85:2-22. In or about 1994, Agostinello told then District Head Custodian Frank Rom that he was Puerto Rican. The District claims that Agostinello testified that Rom "seemed surprised." DE, ¶86. Agostinello agrees that he told Rom, but not that Rom seemed surprised. DE, ¶86.
When Agostinello started work with the District in 1993, there were other Hispanic employees. DE, ¶88. The plaintiff agrees, saying that the other Hispanic employees were "a couple of cleaners." DE, ¶88. The District states that Agostinello has no evidence that he was not promoted because of his race or national origin, relying on Agostinello's deposition testimony. DE, ¶90, Ex. E at p. 131. Agostinello disputes that assertion, stating that the "cited portions do not support the factual assertions." DE, ¶90. Agostinello's testimony was that he was never told that the members of the interviewing panels did not vote for him because he was Puerto Rican or Hispanic or had a back problem. Ex. E, 131:5-18.
In his deposition testimony, Brodus Brown denied that race or national origin played a role in employment decisions about Agostinello, and stated that he had never heard any District employees talk about Agostinello's race or national origin. DE, ¶¶91-92, Ex. G at p. 34. Agostinello states that he can neither admit nor deny these factual assertions. DE, ¶¶91-92.
In early January 2003, an employee named Andy Ward resigned as the nighttime Assistant Head Custodian at Lakeville, and Sergio Buscaglia, Head Custodian at Lakeville, asked Agostinello to temporarily assume some of Ward's duties. DE, ¶¶93-94. The District states that these were the duties of a "Lead Custodian," a position that has the additional responsibilities of acting as a liaison with community groups and ensuring that the building is locked at night. DE, ¶¶95-96. The plaintiff says that there is no such position as "Lead Custodian," and that the job and duties were those of Assistant Head Custodian. DE, ¶¶95-96. This disagreement underlies one of the plaintiff's claims. The District states that a Lead Custodian does not have any supervisory responsibilities, while an Assistant Head Custodian does, and claims that the plaintiff has acknowledged that Sergio Buscaglia specifically instructed him that his new responsibilities did not include supervising other custodians. DE, ¶99, Ex. F at 88; Ex. G at 176. Agostinello says that he was told only that he "should not give orders." DE, ¶99, Ex. E at 188, 200. After he had been performing his new job duties for twenty days, Agostinello wrote to Brodus Brown and asked that he be paid the salary of an Assistant Head Custodian. The District told the plaintiff that it had not assigned him the duties of an Assistant Head Custodian and would not pay him the Assistant Head Custodian salary, but would pay Agostinello the salary of a Lead Custodian for the time he performed Lead Custodian duties. DE , ¶¶97-101.
The plaintiff asserts that his duties were those of an Assistant Head Custodian, and that there was a nighttime custodian, Troy, who required supervision, which Agostinello provided. If a nighttime custodian needed direction, the District maintains, Agostinello should have called the Head Custodian or followed up the next day. As noted, according to the plaintiff, Buscaglia only told him not to give orders, and that there was no protocol regarding how a nighttime custodian should seek direction. DE , ¶¶97-101.
Agostinello submitted a formal grievance regarding his claim for Assistant Head Custodian pay. A Step II grievance hearing was held on March 27, 2003, and Agostinello's grievance was denied. The District says the denial was based on Agostinello's having admitted that he was specifically instructed that he was not responsible for the supervision of other custodians. Agostinello maintains that he did not admit that. DE  & , ¶¶102-104. At his deposition, Agostinello testified as follows: Q: "Did Sergio instruct you not to supervise or instruct your co-workers?" Agostinello Answer: "He said not to give orders." Ex. E at 188.
And, in his written Grievance Step One, he wrote: "Mr. Sergio Buscaglia informed me that... I now had the responsibilities of securing the building and taking care of any activities... He told me to not give any orders to the night men and/or cleaners in the building, that he would take care of it." Ex. Z.
Agostinello rejected the offer of Lead Custodian pay. He contends that a co-worker, Peter Perillo, previously assumed Lead Custodian responsibilities and was paid at the Assistant Head Custodian rate. The District states that it had previously heard Perillo's grievance and awarded him Assistant Head Custodian pay because he had not been told not to perform supervisory duties, and he did perform those duties. Agostinello did not pursue a Step III grievance, stating that the union failed to take the proper steps. DE & , ¶¶105-109.
The plaintiff also makes claims under the Americans With Disabilities Act. See Am. Compl., DE. Agostinello claims that he suffers from Grade 1 Spondylolisthesis L5-S1 and a herniated disc with nerve root compression, and that his back problems began in 1995. He received a back brace from the District, and it helped him to perform his work. In 1997 or 1998 (the parties disagree), Agostinello hurt his back and Mr. Challis gave him some work duties that were easier to perform. DE & , ¶¶110-114. At some point, Agostinello's brace went missing, and he asserts that Buscaglia gave it to Troy, the part-time employee. He further asserts that he was injured because he had to move furniture without the brace. DE & , ¶¶ 116. The District claims that there were hand trucks and a dolly available for the plaintiff's use, but he chose not to use them, but the plaintiff denies that they were available and that he was ordered by Challis to move the furniture. According to the District, it ordered him a new brace; according to Agostinello, the District did not. DE & , ¶117 -118. At his deposition, Agostinello agreed that both a dolly and hand trucks were in the building, but that he did not have access to them. Ex. E, PP. 110-13.
Agostinello claims that, in March 2003, he verbally requested a smaller working section, and his supervisor, Sergio Buscaglia, requested a doctor's note. Agostinello submitted a chiropractor's note dated March 10, 2003, indicating that he could not lift such items as 55 gallon garbage pails or 5 gallon mops, or move heavy items up and down stairs. DE  & , ¶¶119-21. The District claims that it had previously granted the plaintiff an accommodation when he claimed he could not carry garbage bags down the stairs. DE  & , ¶122. The plaintiff disagrees, but testified that he was allowed to throw garbage bags out the window rather than carry them down the stairs. Ex. E, p. 96. The District states that although Agostinello never provided a doctor's note, he was allowed to throw garbage bags out the second story window after he double bagged them and made them lighter than usual. DE  & , ¶¶123-124. The District construes the March 10, 2003 note from the chiropractor as the plaintiff's first document evincing any limitations in the workplace. The plaintiff says his letter requesting a back support was the first such document. DE  & , ¶126.
The parties disagree on whether Mr. Buscaglia was willing to work with the plaintiff to accommodate his back problems. The District states that custodial assignments are generally made in July of each year, and that reassignments are seldom granted in the last quarter of the school year, because it is extremely busy. DE & , ¶¶127-130. In June 2003, Agostinello went out on Worker's Compensation Leave, and in December 2004, the District asked the plaintiff to let the Personnel Department know by December 22, 2004 whether he planned to return to work, having been out for more than a year. DE & , ¶¶131-132. When he did not respond, the District Superintendent wrote to him, by letter dated January 3, 2005, informing Agostinello that the Superintendent would recommend plaintiff's termination as of February 2, 2005. DE & , ¶133, Ex. EE. A letter from the plaintiff's doctor dated December 13, 2004*fn2 stated that Agostinello could return to work in a sedentary, light duty position. DE & , ¶134, Ex. FF. The letter also noted that the plaintiff was "Partially disabled, unable to repeatedly bend, lift and carry. Needs to be able to change positions throughout the day." Ex. FF.
The District claims, and the plaintiff disputes, that no light duty custodial positions have ever existed in the department. DE & , ¶135. The plaintiff asked to be reassigned to the North Middle School, which had characteristics that would make it easier to do his job. The District offered to reassign him there, an offer that the plaintiff accepted. He returned to work for the District in May 2005. The District states that Agostinello was "fully cleared" by a doctor to return to work. The plaintiff says he was not. DE & , ¶¶ 136-140. He agreed at his deposition that he had gotten his doctor's "clearance" before he returned to work. Ex. E, p. 230.
At the North Middle School, plaintiff was supervised by Vic LaMattina, Alan Ratner, and Neil Williams. The District says that it granted all of Agostinello's accommodation requests, but the plaintiff disagrees, saying, for example, that he did not get a floor sink. DE & , ¶¶141-142. According to the District, Agostinello was able to perform all of his tasks with the help of painkillers for three months, with less reliance on them afterwards. Agostinello, however, states that he had difficulty performing all tasks, including the removal of scuff marks.
He had typically removed them by "kicking" them out. DE & , ¶¶ 143-145. Agostinello claims that Ratner harassed him. DE & , ¶146. The District claims that it had trouble finding assignments suitable for the plaintiff to perform. For example, during the summer of 2005, the entire custodial staff was assigned to paint, a typical summer assignment. Agostinello said that he could not paint, so his supervisor assigned him to clean the stairway railings. Agostinello says that the assignment was the result of his telling the supervisor he could not do work on his hands and knees. Whatever the reason, the District says that Agostinello complained that he could not complete the stairway job, but Agostinello says he did complete it. According to the District, he also stated that he could not complete the assigned task of cleaning the emergency door bases. Agostinello disputes that, but points to no evidence in support of his position. DE & , ¶¶147-153.
Vic LaMattina couldn't find any other jobs for the plaintiff to do, and called Ed Groshans about the problem. LaMattina finally told Agostinello to "high dust" the stairs, and had his co-workers complete Agostinello's assignment. The plaintiff complained that he was being given jobs that he shouldn't be doing. Once, when plaintiff's assignment involved moving bleachers, his supervisors allowed him to stop and do something that he felt was easier on his back. During the period of time when the plaintiff was complaining that he was unable to do many of the tasks assigned to him, he was observed riding a motorcycle to and from work. DE & , ¶¶154-158. The District asserts that, on September 1, 2005, when he arrived at work, Agostinello shouted at his supervisor, believing that his shift had been changed. Agostinello disputes that claim. The supervisors denied changing the shift, but the plaintiff says that Ratner told him a change was possible, depending on Vic LaMattina. Ratner never spoke with Agostinello about LaMattina's ultimate decision, and plaintiff says that Ratner apologized to him for that. DE & , ¶¶159-162.
In December 2005, a teacher asked Agostinello to clean her classroom board, and the District says that he claimed he could not do so with the supplies that the custodial department had provided, so he left a note for the teacher, telling her to order him additional supplies. He says that he told the teacher the supplies were inadequate and she said she would get him the proper supplies, so he was asking her to do so. DE & , ¶¶163-164, Ex. KK. In January 2006, when the Principal looked for the plaintiff to ask about a bookcase that needed to be moved, he found him in a locked classroom, reading the newspaper. Agostinello says he was on a break at the time. Agostinello told the principal that he could not move the bookcase, and now says it was "violative of policy and law to dispose of the bookcase" as the teacher had requested. The District states that the principal thought that Agostinello's manner of responding was ...