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Cooper v. Allied Barton Security Services

July 9, 2010

GARY COOPER, PLAINTIFF,
v.
ALLIED BARTON SECURITY SERVICES AND NEW YORK CITY DEPT. OF CITYWIDE ADMINISTRATIVE SERVICES, DEFENDANTS.



The opinion of the court was delivered by: Paul G. Gardephe, U.S.D.J.

MEMORANDUM OPINION AND ORDER

Plaintiff initiated this pro se action on December 9, 2008, by filing a complaint against his employer, Allied Barton Security Services ("Allied Barton"), and the New York City Department of Citywide Administrative Services ("DCAS"), a city agency that contracts with Allied Barton for security services. Plaintiff alleges that he was the victim of employment discrimination because of his race in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.*fn1 (Docket No. 2) Plaintiff amended his complaint on December 30, 2008 (Docket No. 3), and on August 24, 2009 the Court granted Plaintiff leave to file a Third Amended Complaint. (Docket No. 29)

Plaintiff alleges that he was terminated from his position as a security guard at One Center Street, a City property where he was assigned as a security guard, because of his race, and that Defendants' proffered reasons for his termination are a pretext for discrimination. (Third Am. Cmplt. ¶ II.A)

On October 9, 2009, DCAS filed a motion for summary judgment concerning Plaintiff's Third Amended Complaint. (Docket No. 33) On November 10, 2009, Allied Barton filed a separate motion for summary judgment, making substantially the same arguments for dismissal as DCAS. (Docket No. 38) Because Cooper has offered no evidence in support of his claim that he was discriminated against because of his race, Defendants' motions are GRANTED.

BACKGROUND

Plaintiff Gary Cooper began working at One Center Street as a security guard in September 2005. (DCAS Rule 56.1 Stat. ¶ 19)*fn2 At that time he worked for Tristar Security Services, the security company the City had contracted to provide security services at One Center Street. (Id. ¶¶ 19-20) On about December 1, 2006, Defendant Allied Barton entered into a contract with the City of New York and replaced Tristar in providing security services at One Center Street. (Id. ¶ 17) Pursuant to this contract, Allied Barton security guards provide services to multiple City buildings throughout New York City. (Id. ¶ 18) On about January 1, 2006, Plaintiff was hired by Allied Barton to continue in his post as a security guard at One Center Street. (Allied Barton Rule 56.1 Stat. ¶ 1) Plaintiff worked at One Center Street as a security guard throughout his employment with Allied Barton. (Allied Barton Rule 56.1 Stat. ¶ 2) As a security guard, Plaintiff was responsible for ensuring that no unauthorized persons entered the One Center Street building. (Id. ¶ 3)

At the outset of his employment with Allied Barton, Plaintiff was given a copy of Allied Barton's Security Officer Handbook, and signed a form acknowledging that he was responsible for knowing the rules contained within the handbook. (Id. ¶ 4; Linn Dec., Ex. D) The Handbook states that Allied Barton employees may not sleep on the job and may face termination if they do so. (Id. ¶ 5) The Handbook also explains that employees may report concerns about harassment and unfair discipline to Allied Barton Management. (Id. ¶ 6) During his employment with Allied Barton, Plaintiff received paychecks directly from Allied Barton (DCAS Rule 56.1 Stat. ¶ 24), and he was supervised by Allied Barton managers. (Id. ¶ 25)

In April 2008, Plaintiff was found asleep at his post at One Center Street. (Allied Barton Rule 56.1 Stat. ¶ 7) Plaintiff testified that he fell asleep or nodded off at his post between five and ten times. (Id. ¶ 8) Allied Barton supervisor Kelly Mechaley met with Plaintiff after hearing reports of Plaintiff sleeping at his post and informed him that if he fell asleep again at work his employment would be terminated. (Id. ¶ 9) By July 2008, DCAS employee and special officer Scott Aronsen had observed Plaintiff sleeping at his post on three separate occasions. He spoke with Plaintiff and his supervisor about each of these incidents, and in July 2008, he reported the last of the three sleeping incidents to Kelly Mechaley. (DCAS Rule 56.1 Stat. ¶ 26-27; Allied Barton Rule 56.1 Stat. ¶ 10) Ms. Mechaley subsequently spoke with Plaintiff, who at the time did not dispute the allegation that he had fallen asleep at his post. (Id. ¶ 12) Ms. Mechaley decided to terminate Plaintiff's employment and presented him with a termination form stating that the reason for this decision was that he fell asleep on the job. Plaintiff did not indicate any disagreement with this decision and signed the form. (Id.)

Plaintiff alleges that DCAS employee Aronsen once said that "Black people are a pain in the ass," and stated that he would have Plaintiff fired. (Pltf. Dep. at 70, 88; Third Am. Cmplt.) Plaintiff testified that this was the only racist statement he heard during his assignment at One Center Street. (Pltf. Dep. at 70, 88) Plaintiff further testified that Aronsen harassed him by complaining about Plaintiff's work performance, but conceded that Aronsen harassed multiple people of different races regarding their job functions. (Id. at 59, 107) Plaintiff testified that Aronsen had a different work schedule and that he only saw Aronsen a few minutes per day. (Id. at 27, 107)

Plaintiff also argues that he was treated unfairly by DCAS because his employment was terminated and no one cared about his feelings. Plaintiff further complains that he should have received a grievance letter in some form. (Id. at 98, 101) Plaintiff is not aware of any other Allied Barton employees who received a grievance letter prior to termination, however. (Id. at 99)

Finally, Plaintiff argues that the City denied him due process because he was not made aware of the contract between Allied International Union and Allied Barton. (Third Am. Cmplt. ¶ E) The City is not a party to this collective bargaining agreement, however. (DCAS Rule 56.1 Stat. ¶ 37; Linn. Decl., Ex. H)

DISCUSSION

I. LEGAL STANDARDS

Summary judgment is appropriate only when the "pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). Whether facts are material is a determination made by looking to substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Whether "[a] dispute about a genuine issue exists" depends on whether "the evidence is such that a reasonable jury could decide in the non-movant's favor." Beyer v. County of Nassau, 524 F.3d 160, 163 (2d Cir. 2008) (internal quotation marks omitted). Courts "resolve all ...


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