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Albert L. anderson v. City of New Rochelle

September 4, 2012

ALBERT L. ANDERSON, PLAINTIFF,
v.
CITY OF NEW ROCHELLE, CITY OF NEW ROCHELLE DEPARTMENT OF PARKS AND RECREATION, CITY OF NEW ROCHELLE DEPARTMENT OF PUBLIC WORKS, DEFENDANTS.



The opinion of the court was delivered by: Ramos, D.J.:

OPINION AND ORDER

Pro Se Plaintiff, Albert L. Anderson, commenced this action against the City of New Rochelle (the "City"), City of New Rochelle Department of Parks and Recreation (the "Parks Department") and City of New Rochelle Department of Public Works (collectively, "Defendants") on June 25, 2010, alleging discrimination on the basis of race and age in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e-2000e-17, the Age Discrimination in Employment Act ("ADEA"), 42 U.S.C. § 621, et seq., and New York State Human Rights Law, N.Y. Exec. Law §§ 290-297. Compl., Doc. 2, at 1. The discriminatory conduct alleged by Plaintiff is Defendants' failure to hire him for a full-time laborer position with the City in July 2007.*fn1 Id. at 2-3. Plaintiff is an African American man and was approximately sixty-six years old at the time of the alleged discriminatory conduct. Defs.' 56.1 Stmt. ¶ 9.*fn2

Before the Court is Defendants' Motion for Summary Judgment seeking dismissal of Plaintiff's complaint in its entirety pursuant to Fed. R. Civ. P. 56. Doc. 14. For the reasons set forth below, Defendants' Motion is GRANTED.

I.Background

The following facts are undisputed except where otherwise noted.

A.Anderson's Employment as a Seasonal Laborer

The Parks Department hires approximately eleven part-time employees to work as seasonal laborers from April through December of each year. Defs.' 56.1 Stmt. ¶¶ 14-15. The City requires individuals to pass a laborer's examination, which includes the identification of tools and similar questions, in order to work as a seasonal laborer. Id. ¶ 18. Plaintiff took the examination for a seasonal laborer position with the City in July 2006 and applied for employment in August 2006. Id. ¶ 19. Plaintiff started working as a seasonal laborer in September 2006. Id. ¶ 20.

Plaintiff's first assignment was to work at Davenport Park, under the supervision of James Williams, who was also employed as a seasonal laborer. Id. ¶ 21. Williams is African American and was approximately sixty years old in 2007. Id. ¶ 22. In September or October 2006, Williams complained to his supervisors, Anthony Tardibuono, Supervisor of Maintenance for the Parks Department, and Brian O'Rourke, the foreman for the Parks Department, that Plaintiff refused to complete certain assignments, stopped work early at the end of each day, talked to people in the park instead of working, and disregarded Williams' directions. Id. ¶¶ 12-13, 23; Marcoline Decl. Ex. Q, ¶ 3. *fn3 O'Rourke is white and was approximately thirty-seven years old in 2007. Ex. J, at 126. Tardibuono is also white, and was at least in his mid-fifties in 2007.*fn4 Pl.'s Response Mem. Law Opp. Defs.' Mot. Summ. Judg. ("Pl.'s Mem.") 3, Doc. 25; Ex. Q, ¶ 1.

At Williams' request, Plaintiff was reassigned to the leaf pickup crew in November 2006, where he worked under the supervision of Robert Maravilla.*fn5 Defs.' 56.1 Stmt. ¶ 24; Ex. Q, ¶ 3.Maravilla is Hispanic and was approximately thirty years old in 2007. Defs.' 56.1 Stmt. ¶ 25. Maravilla also complained to Tardibuono and O'Rourke about problems with Plaintiff's performance. *fn6 Ex. H, at 101-02. As a result, O'Rourke transferred Plaintiff to a vacuum crew under the supervision of Timothy Fucile. Ex. J, at 133. Fucile is white and was approximately thirty-three years old in 2007. Defs.' 56.1 Stmt. ¶ 29. Fucile complained to Tardibuono and O'Rourke about problems with Plaintiff's work performance and attitude, and asked to have him transferred to another crew. Id. ¶ 31. O'Rourke also personally observed Plaintiff's work on the vacuum crew and saw him leaning on a rake and working much slower than the other members of the crew. Id. ¶ 32. As a result, Plaintiff was reassigned to the garbage crew for the remainder of the 2006 season. Id. ¶ 33. In accordance with the City's normal practices, the seasonal laborers, including Plaintiff, were laid off in December 2006. Id. ¶¶ 17, 35.

Plaintiff was hired as a seasonal laborer again in April 2007. Id. ¶ 36. Mario Rizzo, the individual who was ultimately offered the full-time position, was also hired as a seasonal laborer in the spring of 2007. Ex. K, at 159; see also Ex. O. Rizzo is white and was in his late 20s or early 30s in 2007.*fn7 Defs.' Mem. Law Supp. Mot. Summ. Judg. ("Defs.' Mem.") 5, Doc 15.

During the 2007 season, Tardibuono received similar complaints about Plaintiff's job performance and attitude from Plaintiff's supervisors. Defs.' 56.1 Stmt. ¶ 37; Ex. K, at 160. Tardibuono did not receive any complaints about Rizzo's work or behavior. Ex. K, at 160. O'Rourke testified that he received positive feedback about Rizzo's work performance and that, based on his personal observations of Rizzo's work, Rizzo "looked like he had done the work before, he had experience and . . . he seemed to be a good guy with a good attitude." Ex. J, at 140-41. Maravilla, who supervised Rizzo from the beginning of the 2007 season, testified that Rizzo was "efficient" and that he "[w]hen you told him what to do, he would go ahead and do it." Ex. H, at 104. Maravilla provided O'Rourke and Tardibuono with positive feedback about Rizzo's work; he told them that Rizzo "did his job, always did it as was he was told, [and] so on and so forth." Id. at 105. Tardibuono also observed Rizzo's work in the spring of 2007 and found that Rizzo "seemed to know what he was doing, [and] that he 'knew landscaping.'" Defs.' 56.1 Stmt. ¶ 49.

B.Selection for the Permanent Laborer Position

At the beginning of the 2007 season, Tardibuono made an announcement about a new full-time laborer position with the Parks Department. Id. ¶ 38. The announcement was made in the lunchroom of the Parks Department headquarters on the first payday when all of the employees appeared to receive their checks. Ex. J, at 138, Ex. K, at 158; Ex. H, at 105. Plaintiff claims that he did not learn of the position until after Rizzo had been hired. Pl.'s Mem. 2-3.*fn8

The permanent "laborer" position is a labor class position under Civil Service Law § 43. Defs.' 56.1 Stmt. ¶ 39. There is no competitive examination for the position, and the City was free to hire anyone on the laborer's list who met the minimum qualifications for the position. Id. The laborer's list consists of people who have taken and passed the City's most recent laborer's test. Id. ¶ 40. The City also required that the position be filled by someone with a drivers' license. Id. A commercial drivers' license ("CDL") was not a requirement for the position, id. ¶ 41; however, it was considered a "plus." Ex. J, at 140; Ex. K, at 157. The list of candidates who met the minimum requirements for the job in 2007 was comprised of three individuals: Plaintiff, Joe Tadillo and Mario Rizzo.*fn9 Defs.' 56.1 Stmt. ¶ 42.

While Tardibuono and O'Rourke were involved in the selection process for the full-time laborer position, id. ¶ 43, William Zimmerman, Commissioner of the Parks Department, had final decision-making authority for hiring full-time employees. Ex. L, at 174. Zimmerman is white and was approximately fifty-four years old in 2007. Id. at 173-74. In order to make a hiring recommendation to Zimmerman, O'Rourke and Tardibuono observed the candidates' work, reviewed their civil service applications and considered factors such as CDLs, attendance, work performance, attitude and prior landscaping experience. Ex. J, at 142; Ex. K, at 160-61. There was no formal application or interview process for the full-time job. Ex. K, at 159-60.

During a meeting with Zimmerman in or around June of 2007, Tardibuono and O'Rourke informed the Commissioner about the three individuals who were eligible for the position and recommended that Rizzo be hired. Defs.' 56.1 Stmt. ¶ 49; Ex. J, at 143-44. Their recommendation was based on Rizzo's good work performance and attitude, his near perfect attendance record, his four years of professional landscaping experience and his expressed interest in the position. Defs.' 56.1 Stmt. ¶ 49; Ex. J, at 144; Ex. K, at 167; Ex. Q, ¶ 9. At the meeting, Zimmerman requested documentation regarding each of the eligible individuals to "verify [the] recommendation." Ex. L, at 177; Ex. K, at 166. Tardibuono subsequently provided Zimmerman with the candidates' labor test applications, attendance records and paperwork with information about verified licenses and prior experience. Ex. L, at 178. After reviewing the requested paperwork and meeting with Tardibuono for a second time, Zimmerman "concurred with [Tardibuono's] recommendation to hire Mr. Rizzo." Id.; Ex. K, at 166-67. Rizzo was offered the position in early July 2007. Ex. K, at 167.

Plaintiff continued to work for the Parks Department for two or three weeks after Defendants offered the full-time laborer position to Rizzo. Id. at 167. At the end of July, O'Rourke reassigned Plaintiff to work at City Park. Defs.' 56.1 Stmt. ¶ 56; Ex. K, at 168; Ex. Q, ¶ 7. Plaintiff did not report to work at City Park the following week. Ex. Q, ¶ 8. The City held the job open for Plaintiff until August 10, 2007; however, he never returned to work for the Parks Department. Id.; Defs.' 56.1 Stmt. ¶¶ 57-58. It is undisputed that Plaintiff quit his job with the City. Defs.' 56.1 Stmt. ¶ 58. Plaintiff claims that he quit when he learned that he was passed over for the full-time laborer position. Pl.'s 56.1 Stmt. ¶¶ 57-58.

C.Allegations of Discrimination

Plaintiff did not identify the individuals who he believes are responsible for the alleged discrimination anywhere in his Complaint, and Plaintiff never made any complaints of discrimination during his employment with the City. Defs.' 56.1 Stmt. ΒΆ 59. In opposing the instant motion, Plaintiff has not alleged that any of his co-workers or supervisors made any discriminatory comments or engaged in any discriminatory conduct that he believes were related to his age or race. The only person specifically mentioned in Plaintiff's opposition papers is Tardibuono. Plaintiff's sole allegation against Tardibuono-which is not based on personal knowledge or otherwise supported by any the evidence in the record-is that he has never hired any African Americans as full-time ...


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