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Dellaporte v. City Univ. of New York

United States District Court, S.D. New York

February 21, 2014

CIRO DELLAPORTE, Plaintiff,
v.
THE CITY UNIVERSITY OF NEW YORK, et al., Defendants

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[Copyrighted Material Omitted]

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For Ciro Dellaporte, Plaintiff: Marjorie Mesidor, LEAD ATTORNEY, Phillips & Phillips Attorneys At Law, PLLC, New York, NY; Jessenia Maldonado, Phillips & Phillips, New York, NY.

For The City University of New York, Medgar Evers College, Oswald E. Fraser, individually, Cory Wright, individually, Defendants: Alissa Schecter Wright, LEAD ATTORNEY, Attorney General of the State of New York, New York, NY; Mark Eliott Klein, LEAD ATTORNEY, Office of New York State Attorney General, New York, NY.

OPINION AND ORDER

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KATHERINE POLK FAILLA, United States District Judge.

On September 18, 2012, Plaintiff Ciro Dellaporte (" Dellaporte" or Plaintiff" ) initiated this action against his former employer, Medgar Evers College (" the College" ) at the City University of New York (" CUNY" ),[1] as well as against his former supervisor, Cory Wright (" Wright" ), and the Director of the Office of Human Resources at the College, Oswald Fraser (" Fraser" ) (collectively, " Defendants" ). Plaintiff asserts claims of discrimination and retaliation under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq . (" Title VII" ), and the New York City Human Rights Law, N.Y. City Admin. Code § § 8-101 to 8-131 (the " NYCHRL" ). Presently before the Court is Defendants' motion for summary judgment. For the

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reasons discussed in the remainder of this Opinion, that motion is granted.

BACKGROUND[2]

A. Plaintiff's Employment

Plaintiff identifies himself as a white, Italian-American male. (Def. 56.1 ¶ 1). Plaintiff was initially hired by the College as a " Stationary Engineer (Provisional)" in the Buildings and Grounds Department (the " B& G Department" ), and worked there from October 6, 2009, until August 25, 2011.[3] ( Id.). Defendant Cory Wright, an African-American male, is the Chief Administrative Superintendent at the B& G Department. ( Id. at ¶ 2). Wright interviewed Plaintiff and, after Plaintiff was hired, became Plaintiff's direct supervisor for the first nine months of Plaintiff's employment. ( Id. at ¶ ¶ 2, 9). Defendant Oswald Fraser, also an African-American male, was the College's Director of the Office of Human Resources at the time Plaintiff was hired; in that capacity, Fraser reviewed Plaintiff's application and approved the decision to hire him. ( Id. at ¶ 3).

The College's internal policies provided that any full-time external employment required prior approval of the Personnel Officer of the College. (See Ex. 24). At the time Plaintiff was hired by the College, he was also working full-time at Long Island College Hospital (" LICH" ), and on a per diem basis at both Staten Island University Hospital and Richmond Medical Center. (Def. 56.1 ¶ 6). At some point after October 2009, Plaintiff was terminated from his position at Staten Island University Hospital on account of his " lack of availability." ( Id. at ¶ 21).[4] Thereafter, Plaintiff left LICH and began working full-time at the New York City Office of the Chief Medical Examiner (" OCME" ). ( Id. at ¶ 6). Plaintiff has presented no evidence that he sought prior approval from the College for his external positions, and thus appears to have worked at those positions in violation of the College's policy. ( Id.).

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Currently, the B& G Department employs nine stationary engineers, three of whom are white; one steamfitter, who is African-American; one high pressure plant tender, who is white; and one oiler, who is white. (Def. 56.1 ¶ 41). The three white stationary engineers were hired after Plaintiff was terminated. ( Id.).

B. The Alleged Discriminatory Conduct

Plaintiff claims three separate instances of discrimination. First, Plaintiff alleges that Defendants denied him the opportunity to work overtime hours, in favor of allocating those hours to Plaintiffs' African-American co-workers. (Pl. Opp. 2). Second, Plaintiff alleges that Defendants discriminated against him by refusing to consider Plaintiff for a promotion that was ultimately awarded to an African-American male. ( Id.). Third, Plaintiff claims discrimination because the College terminated Plaintiff for lacking the requisite License, when other of his African-American co-workers' Licenses had lapsed at various times without resulting in their termination. ( Id. at 2-3). The facts submitted in connection with each of these instances will be reviewed in turn.

1. The Failure to Allocate Overtime Hours

At the time Plaintiff was hired, there were three other stationary engineers employed at the College: Chris Millevoi, who is a white male, and Derek Oxford and William Fulcher, who are both African-American males. (Def. 56.1 ¶ 7).

For the first nine months of Plaintiff's employment, Defendant Wright, an African-American male, was his direct supervisor and was responsible for overseeing the allocation of overtime and holiday work. (Def. 56.1 ¶ ¶ 9-10). Plaintiff testified that he and Wright " always had a good rapport" (Dellaporte Tr. 221-22), but nonetheless complains in this litigation that Wright discriminated against him based on Plaintiff's race. In July 2010, Christopher Aarons, a white male, was appointed Senior Stationary Engineer, and became Plaintiff's direct supervisor. (Def. 56.1 ¶ 10). As such, Aarons assumed responsibility for overseeing the allocation of overtime and holiday work. ( Id.). In February 2011, Aarons resigned, and Davidson Phillips, an African-American male, became Plaintiff's direct supervisor. ( Id. at ¶ 11).

Plaintiff does not take issue with the amount of overtime and holiday hours he earned under either Aarons' or Phillips' supervision. (Pl. 56.1 Response ¶ 14; Def. 56.1 ¶ 14). Instead, Plaintiff challenges only the overtime and holiday hours he earned under Wright's supervision, and even then only for a portion of that period of supervision, from approximately January to June 2010. (Pl. Opp. 3). Such a claim is curious when considered in context: for instance, in 2010, Plaintiff earned 56.5 overtime and holiday hours. (Def. 56.1 ¶ 12). Of that figure, 24 hours were earned during the first six months of the year, while Wright was Plaintiff's supervisor, and the remaining 32.5 hours were earned while Aarons was Plaintiff's supervisor. ( Id.).

In addition, Plaintiff's three co-workers each earned overtime hours in 2010, with the most hours being allocated to Plaintiff's white co-worker, Chris Millevoi. Millevoi earned 161.5 overtime and holiday hours in 2010. (Def. 56.1 ¶ 16). Derek Oxford, who is African-American, earned 119.5 overtime and holiday hours in 2010; 24 were earned under Wright's supervision, and the remaining 95.5 hours under Aarons' supervision. ( Id. at ¶ 15). Oxford worked overtime on at least four holidays in 2010, one of which occurred under Wright's supervision, and three of which

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occurred under Aarons' supervision. (Pl. 56.1 ¶ 7). During the precise days in 2010 that Oxford earned 119.5 hours of overtime, Plaintiff worked 96 hours at his other full-time job at OCME. (Def. 56.1 ¶ 19). Plaintiff also worked eight- or sixteen-hour shifts at OCME on nine separate days in 2010 when Oxford earned overtime at the College; all of those dates fell within the period of Aarons' supervision. ( Id. at ¶ 18).

William Fulcher, who is African-American, worked overtime on at least twelve holidays in 2010, five of which occurred under Wright's supervision, and seven of which occurred under Aarons' supervision. (Pl. 56.1 ¶ 6). Plaintiff worked eight- or sixteen-hour shifts at OCME on thirteen separate days in 2010 when Fulcher earned overtime at the College; all of those dates fell within the period of Aarons' supervision. (Def. 56.1 ¶ 17). On multiple occasions, Fulcher or Oxford earned overtime covering for Plaintiff when the latter was absent from work. ( Id. at ¶ 20).

Plaintiff alleges that in 2010, presumably while Wright was his supervisor and oversaw the distribution of overtime hours, Plaintiff " continually" asked Wright for the opportunity to work more holiday or overtime hours, but Wright refused. (Pl. 56.1 ¶ ¶ 3-5, 8). Defendants deny these assertions. (Def. 56.1 Response ¶ ¶ 3-5, 8). Plaintiff further alleges that he complained to his union representative about the allocation of overtime hours on at least two occasions, but received no response. (Pl. 56.1 ¶ 9). Plaintiff does not recall whether he raised the issue of race, or any discriminatory treatment, in these conversations. (Dellaporte Tr. 223-22).

2. The Failure to Consider Plaintiff for a Promotion

As noted, after Aarons resigned from his position as Senior Stationary Engineer in February 2011, the College appointed Davidson Phillips, an African-American male, as interim Senior Stationary Engineer, and convened a search committee to fill the vacant position. (Def. 56.1 ¶ ¶ 24-25). The search committee consisted of three individuals, including Wright and an individual who was a " white, Italian male." ( Id. at ¶ 26).

Plaintiff alleges that upon learning of the vacant position, he called someone at the College, whose name he does not recall, to notify them of his intention to apply for the position. (Pl. 56.1 ¶ 13; Dellaporte Tr. 67-68). That person allegedly told Plaintiff that he did not need to submit an application because his application was already in his file. (Pl. 56.1 ¶ 14). Accordingly, Plaintiff did not submit an application. ( Id.).

The committee considered and interviewed a number of candidates. Because Plaintiff did not submit an application for the position of Senior Stationary Engineer at that time, he was not interviewed or considered for that position. (Def. 56.1 ¶ ¶ 27, 28; Pl. 56.1 ¶ 16). Phillips was appointed to the position of Senior Stationary Engineer in May 2011. (Def. 56.1 ¶ 28).

Plaintiff alleges that he had more experience, and was more qualified than Phillips at that time. (Pl. 56.1 ¶ 17). Defendants deny this assertion. (Def. 56.1 Response ¶ 17). Plaintiff also alleges that he complained to management regarding Defendants' failure to consider him for a promotion, a point which Defendants also dispute. (Pl. 56.1 ¶ 37; Def. 56.1 Response ¶ 37). Plaintiff has not alleged, however, that he complained about any racially disparate or discriminatory treatment during these conversations.

3. Plaintiff's Termination

In May 2010, Lisa Edwards became the Assistant Vice ...


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