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Julius C. Bailey v. Huntington Hebrew Congregation D/B/A Huntington Jewish Center

July 12, 2011


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


In this employment discrimination case, plaintiff pro se Julius Bailey ("Plaintiff") sued Defendant Huntington Hebrew Congregation ("Defendant" or the "Synagogue") for alleged violations of Title VII of the Civil Rights Act ("Title VII"). Pending before the Court is the Synagogue's motion for summary judgment. For the reasons that follow, that motion is GRANTED.


Plaintiff did not serve a Local Civil Rule 56.1 counter-statement or oppose Defendant's motion. The Court therefore takes as true the facts contained in Defendant's Local Rule 56.1 Statement that are supported by admissible evidence. See LOCAL CIV. R. 56.1(c); Baker v. Dorfman, 239 F.3d 415, 422 (2d Cir. 2000); Marshall v. Marshall, No. 08-CV-1420, 2010 WL 5477753, at *1 n.1 (E.D.N.Y. Dec. 7, 2010) (Report and Recommendation) adopted 2010 WL 5477152 (E.D.N.Y. Dec. 30, 2010).

Plaintiff, an African-American male, began working at the Synagogue as a custodian on March 29, 2007 and was eventually assigned a 40-hour work week on the 3 p.m. to 11 p.m. shift. (Def. 56.1 Stmt. ¶¶ 10, 18.) Among other things, Plaintiff was responsible for mopping, vacuuming, cleaning bathrooms and arranging classroom and meeting room chairs. (Id. ¶ 20.) In addition to these duties, Plaintiff was also required to help strip and wax the Synagogue's floors as part of a refurbishment project that was ongoing when Plaintiff was hired. (Id. ¶¶ 20-21.)

Soon after Plaintiff was hired, Plaintiff's supervisor, head custodian Alberto Caballaro, complained to the Synagogue's President, Cheryl Silberman, that Plaintiff spent inordinate amounts of time socializing with the congregants instead of working. (Id. ¶ 22.). Ms. Silberman personally observed Plaintiff socializing with congregants instead of working. (Id.) She also learned that Plaintiff would try to pass his assignments off on his colleagues, which in her view caused resentment among the custodial staff and undermined Mr. Caballaro's authority. (Def. 56.1 Stmt. ¶ 23; Silberman Aff. ¶ 14.) Most troubling to Defendant, though, was Plaintiff's accrual of excessive overtime and his habit of remaining in the building well past the time at which everyone else had left (including more than one instance where Plaintiff stayed until 3:00 a.m.). (Def. 56.1 Stmt. ¶¶ 25, 40, 45.) During Plaintiff's approximately nine-week tenure, he worked 127.75 hours of overtime, a number that far exceeded his colleagues' overtime billing. (Id. ¶¶ 26, 36.)

Silberman, Caballaro and Howard Novick, a Synagogue trustee, met with Plaintiff on May 18, 2007 to discuss Plaintiff's excessive overtime. (Id. ¶ 37.) Novick ordered Plaintiff to stop working overtime and to begin punching in and out at lunchtime so that the Synagogue could verify that Plaintiff was working when he was supposed to be. (Id. ¶ 39.) The Synagogue's only other African-American custodian did not have to punch out for lunch because Defendant was not concerned that this custodian was abusing overtime. (Id. ¶ 43.)

Plaintiff was fired on May 31, 2007. According to Defendant, Plaintiff could not complete his assignments in an efficient and timely manner, abused the overtime rules, and exhibited poor judgment by remaining in the Synagogue building until 3 a.m. (See Def. 56.1 Stmt. ¶¶ 45-46.)

On October 24, 2007, Plaintiff filed an Equal Employment Opportunity Commission ("EEOC") charge of discrimination, in which he alleged that his termination was the result of unlawful racial discrimination. (See Def. Ex. C.) Specifically, Plaintiff alleged that the Synagogue fired its only three black employees and replaced them with "Spanish guys." (Id.) Plaintiff also claimed that he was treated differently than his Hispanic colleagues in that he was required to punch in and out for lunch. (Id.)

At his deposition, Plaintiff admitted that neither Silberman nor Novick said anything racially derogatory toward him. (Def. 56.1 Stmt. ¶ 53.) And, Plaintiff testified that although Caballaro's habit of speaking to other custodians in Spanish was rude, Caballaro never said anything rude to him or racially derogatory to him or the other black custodians. (Id. ¶¶ 49, 51.) Plaintiff also admitted that during his tenure at the Synagogue he did not complain to anyone about racial discrimination. Instead, he first complained of discrimination after he was fired. (Id. ¶¶ 60-61.)


Plaintiff asserts three claims: that he was (1) unlawfully terminated; (2) unlawfully subjected to unequal terms and conditions of employment; and (3) retaliated against. Plaintiff's Complaint contains few factual allegations, but his July 29, 2009 "Supplemental Complaint" amplifies his position by, among other things, denying that his overtime was unauthorized, stating that two other black employees were fired for false or disingenuous reasons, and claiming that an unqualified Spanish employee kept his job despite several verbal warnings. See Docket Entry 9. These allegations are similar to those in the narrative statement portion of Plaintiff's EEOC Charge. See Docket Entry 33-3 at 3.

For the following reasons, Defendant is entitled to ...

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