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Charlemagne Dumay v. City of New York

October 14, 2011


The opinion of the court was delivered by: Naomi Reice Buchwald United States District Judge


Plaintiff Charlemagne Dumay ("Dumay"), formerly a computer technician for the New York City Parks Department ("Parks Department"), brings this action pursuant to 42 U.S.C. §§ 2000e to 2000e-17 ("Title VII"), 42 U.S.C. § 1981, the New York State Human Rights Law, N.Y. Exec. Law §§ 290-297 ("NYSHRL"), the New York City Human Rights Law, N.Y. City Admin. Code §§ 8-101 to 131 ("NYCHRL"), and New York State law. In his complaint, Dumay alleges, inter alia, that the City of New York, the Parks Department, Jose Maccera ("Maccera"), James Greenan, and Martin Brenner (collectively, "defendants") discriminated against him on the basis of race and national origin.

Before this Court is defendants' motion for summary judgment, in which defendants maintain that they had a legitimate, nondiscriminatory reason for their actions vis-a-vis Dumay, namely Dumay's improper use of the Parks Department's time reporting system.

For the reasons set forth below, we grant defendants' motion for summary judgment.


I. Factual Background

Dumay is a black male who was born in Haiti and immigrated

to the United States in 1996.*fn1 (Zinaman Decl. Ex. B at 8:1-12.) He was first employed by the Parks Department as an intern in 2000 and was hired to the full time position of Field Technician upon the completion of his internship. (R. 56.1 ¶¶ 5-6.) As a Field Technician, Dumay traveled to sites throughout New York City to tend to computer problems as they arose.*fn2 (R. 56.1 ¶ 6.)

All parties agree that through the majority of his tenure at the Parks Department, Dumay performed his job responsibilities admirably. (P. Opp. at 2.) Dumay did not have any major disputes with his supervisors prior to the allegations concerning the time reporting system, to be described infra, but he did make repeated inquiries with his immediate supervisor, defendant Maccera, concerning his salary and the potential for merit-based pay increases. (R. 56.1 ¶ 73.) These inquiries took place in the final two years of Dumay's employment, usually after Dumay received his period job evaluations. (R. 56.1 ¶¶ 73-74.)

In February 2008, the Parks Department adopted a time reporting system for employees known as "City Time." (R. 56.1 ¶ 15.) Under this system, employees record their time of arrival at, and departure from, work by means of a biometric hand scanning system. (R. 56.1 ¶ 15.) In addition, once per week employees must log into the City Time website and certify that the information recorded is accurate. (R. 56.1 ¶ 15.)

As the City Time system was set to be implemented, Dumay was informed that he was to scan only at a facility known as Arsenal West, which was the facility from which he was dispatched for work assignments. (R. 56.1 ¶¶ 9, 16.) This facility is located on West 61st Street in Manhattan. (Zinaman Decl. Ex. M at 1.) In the face of this guidance, Dumay asked Maccera whether he could be granted permission to scan at a Bronx facility known as Ranaqua, where Dumay had several work assignments. (R. 56.1 ¶ 19.) Maccera responded that Dumay could not scan at any facility on a permanent basis other than Arsenal West. (R. 56.1 ¶ 20.)

Apparently unwilling to accept this restriction, on March 11, 2008, Dumay emailed the Parks Department Help Desk seeking to be added to the list of persons authorized to scan at Ranaqua. (R. 56.1 ¶ 22.) The following day, Dumay repeated this request to Susan Lonergran, an employee in the office of the Chief of Administrative Services. (R. 56.1 ¶ 23.) Ms. Lonergran informed Dumay that she could not add him to the list because he was not assigned to the Ranaqua facility. (R. 56.1 ¶ 23., Zinaman Decl. Ex. D.) Nevertheless, Dumay's request was routed to the Payroll Department, and on March 12, 2008, Dumay was added to the scanning device at Ranaqua. (R. 56.1 ¶ 24.) Dumay proceeded to scan out of the Ranaqua facility seven times over the following four and a half months. (Zinaman Decl. Ex. N.)

While Dumay may have scanned only infrequently at Ranaqua, he made far greater use of a Queens facility known as Passarelle, located just twenty minutes from his home. (R. 56.1 ¶ 30.) Despite never receiving affirmative authorization to scan at Passarelle,*fn3 Dumay scanned in and out of the facility over one hundred and twenty times between March 2008 and July 2008. (R. 56.1 ¶ 27.) Defendants contend that by so doing, Dumay received credit for time worked when he was actually just commuting between his home and the Arsenal West facility. (R. 56.1 ¶¶ 32-33.)

On July 24, 2008, Maccera received a tip from another employee that Dumay had been engaging in these unauthorized time reporting practices. (R. 56.1 ¶ 35.) That day, Maccera held a meeting with Dumay and defendant Greenan, Maccera's supervisor, at which Dumay admitted to having scanned at the Ranaqua and Passarelle facilities. (R. 56.1 ¶¶ 43-44.) Maccera and Greenan referred the matter to the Parks' Advocate Department, which in turn referred the case to the New York City Department of Investigation ("DOI"). (R. 56.1 ¶¶ 41, 46.)

Maccera testifies that in late October 2008, a DOI official verbally informed him that DOI had found sufficient evidence to hold a formal interview with Dumay. (R. 56.1 ¶ 49.) Several days later, on October 29, 2008, Maccera and Greenan met with Dumay and notified him that he would be temporarily reassigned to the Help Desk and his administrative passwords would be temporarily revoked. (R. 56.1 ¶ 50.) At this same meeting, a conversation arose concerning an email Dumay had submitted to the City Commission on Human Rights ("CCHR") just a week earlier.*fn4 (Zinaman Decl. Ex. I.) In that October 22, 2008, email (and a subsequent email exchange between Dumay and a CCHR official), Dumay suggested that racial minorities in his office had been passed over for pay raises that were routinely granted to other employees.*fn5 (P. Ex. D. at 6-7)

Dumay claims that the reassignment to the Help Desk stemmed from his supervisors' extreme discontent with his having lodged this complaint with the CCHR. (Zinaman Decl. Ex. I.) Defendants counter that the reassignment was due solely to the ongoing DOI inquiry, and that this explanation was clearly conveyed to Dumay at the October 29 meeting. (R. 56.1 ¶¶ 54-55; Zinaman Decl. Ex. I)

On November 7, 2008, the DOI reported its findings to the Parks' Advocate Department, concluding that Dumay had indeed violated the time reporting rules. (R. 56.1 ¶¶ 61-64.) Dumay was subsequently served with disciplinary charges and brought before the Office of Administrative Trials and Hearings ("OATH"). (R. 56.1 ¶ 66.) Following an OATH hearing, an Administrative Law Judge found Dumay guilty of misconduct and recommended his termination.*fn6 (R. 56.1 ¶ 71.) Dumay was consequently terminated from his position effective May 15, 2009. (R. 56.1 ¶ 72.)

II. Procedural History

Dumay's allegations of discriminatory treatment only began after he learned that his time reporting abuses had been discovered. His earliest suggestion of discrimination was the previously referenced October 22, 2008, email submitted to the CCHR. In this email, Dumay indicated that he wanted to file a complaint against his supervisors and asked how to proceed with the process. (P. Ex. D. at 6-7.) There is no evidence, however, that the CCHR ever opened a formal investigation in connection with Dumay's email, or that the contents of the communication were ever relayed by the CCHR to officials at the Parks Department.

After Dumay was informed on November 2, 2008, that he had not been chosen for a Senior Technician position for which he had applied in July 2008, Dumay sent an email to the Commissioner of the Parks Department, again suggesting that racial discrimination was a factor in the Department's actions. (Zinaman Decl. Ex. Q.) Specifically, Dumay indicated that if he did not "hear anything back from parks," he would "file a complaint with the Human right commission, the public advocate of NY...[and] contact [his] elected officials and take it to the media because racism still exists at parks." (Zinaman Decl. Ex. Q.) The Parks Commissioner forwarded this email to the Parks Department's Equal Employment Opportunity ("EEO") office, which undertook an investigation and ultimately issued a report finding no evidence to substantiate Dumay's claim of discrimination. (R. 56.1 ¶¶ 95-97, Zinaman Decl. Ex. R.) Undeterred, on December 8, 2008, Dumay sent another email to the Parks Commissioner elaborating on his previous allegations. (R. 56.1 ¶ 100, Zinaman Decl. Ex. T.) The EEO undertook another investigation in response to this email, and on February 27, 2009, again issued a report finding no evidence of discrimination. (R. 56.1 ¶ 109, Zinaman Decl. Ex. U.)

The same day that the EEO issued this second report, Dumay filed a complaint with the New York State Division of Human Rights alleging employment discrimination on the basis of national origin and retaliation for having threatened to sue the Parks Department. (R. 56.1 ΒΆ 110, Zinaman Decl. Ex. W.) On July 12, 2010, the United States Equal Employment Opportunity ...

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