United States District Court, S.D. New York
OPINION & ORDER
KATHERINE B. FORREST, District Judge.
Pro se plaintiff Jose Crespo ("Crespo") claims that defendant Harvard Cleaning Services ("HCS") unlawfully discriminated against him when it chose not to offer him a permanent employment position and then terminated him from the temporary employment position he held at the company. HCS has moved for summary judgment against Crespo as to all claims not previously dismissed by this Court. Because Crespo has failed to allege facts sufficient to create a triable issue, the Court GRANTS HCS's motions for summary judgment.
I. FACTUAL HISTORY
HCS is a New York corporation engaged in the cleaning and maintenance of commercial buildings. (SOF ¶ 1.) Crespo is a former employee of HCS, and is both black and Hispanic. (SOF ¶¶ 2, 33.) He is of Puerto Rican origin. (1st Crespo Aff. at 28.)
HCS hires "vacation replacement workers" to temporarily fill vacancies when its permanent building service employees take vacations or are absent for other reasons. (SOF ¶ 7.) HCS considers its vacation replacement workers to be temporary employees. (SOF ¶ 8.) On or about August 12, 2011, Crespo was first hired by HCS, and he was hired as a vacation replacement worker. (SOF ¶¶ 2, 6.) He worked in this position for approximately five months, and was then laid off. (SOF ¶ 9.)
On or about March 29, 2012, Crespo was again hired by HCS as a vacation replacement worker, and was assigned to work at the building located at 270 Park Avenue, New York, New York ("270 Park Avenue"), which is the corporate headquarters of JPMorgan Chase & Co. ("JPMorgan"). (SOF ¶¶ 10-11, 13.) At this time, Crespo informed HCS that he was interested in a permanent position. (1st Crespo Aff. at 8 & ex. 1 at 63.) James Brady ("Brady") was the Project Manager at 270 Park Avenue while Crespo worked there. (Affidavit of James Brady ¶ 1, ECF No. 35 ("Brady Aff.").) Crespo asserts that the two top managers at 270 Park Avenue were Brady and an individual named "Bill." (See 1st Crespo Aff. at 1, 39; 2d Crespo Aff. at 2.)
All individuals who regularly work at 270 Park Avenue must pass a federally mandated background check, and the Federal Deposit Insurance Corporation closely monitors this requirement for strict compliance. (SOF ¶¶ 14-15.) When an HCS employee undergoes such a background check, HCS is informed if the individual passes or fails, but is not given detailed results. (SOF ¶ 15.) Permanent employees always undergo the background check, but vacation replacement workers often do not. (SOF ¶¶ 16, 19.) While he was employed as a vacation replacement worker at 270 Park Avenue, Crespo did not undergo a background check. (SOF ¶ 16.)
The building service workers employed by HCS at 270 Park Avenue are represented for collective bargaining purposes by Service Employees International Union Local 32BJ (the "Union"), which has negotiated a collective bargaining agreement on their behalf. (SOF ¶ 12.) The collective bargaining agreement requires that temporary employees at a building receive first consideration for permanent employment positions that open up at the building. (SOF ¶ 17.) Sometime between October 2012 and February 2013, a permanent cleaner position at 270 Park Avenue became available. (SOF ¶ 18; 2d Crespo Aff. at 2.) Crespo expressed his interest, and was ultimately the successful bidder in the collectively bargained job-selection process. (SOF ¶ 19.)
HCS then submitted Crespo's name to JPMorgan for approval. (SOF ¶ 21.) The Pre-employment Screening Department of JPMorgan's Global Corporate Security & Investigations informed HCS that Crespo failed the required background check. (SOF ¶ 22.) It is unclear whether the results of the background check pertained to Crespo or another individual with a similar name. (See 1st Crespo Aff. at 2-7.) However, it is undisputed that Crespo was convicted of a drug possession offense in 1989, for which he served four years in prison. (1st Crespo Aff. at 28.) Regardless, JPMorgan demanded Crespo's removal from 270 Park Avenue based upon the results of his background check. (SOF ¶ 36.)
Under the collective bargaining agreement, a permanent employee who cannot work in one building will be transferred to another building based upon the employee's seniority within HCS. (SOF ¶ 26.) Temporary employees, however, do not have seniority rights. (SOF ¶ 27.) As Crespo had never been anything more than a temporary employee of HCS, he had no seniority rights, and as a result was not entitled to be transferred to another building serviced by HCS. (See SOF ¶¶ 28-29.)
HCS terminated Crespo's employment on or about March 18, 2013. (SOF ¶ 29.) The decision to terminate Crespo was made by HCS's Vice President of Operations, Murat Mela ("Mela"). (Brady Aff. ¶ 20.) Peter Ortiz, who was the Day Operations Manager at 270 Park Avenue at the time (SOF ¶ 40), gave Crespo the message that he was laid off, while Ortiz was on the phone with Brady (1st Crespo Aff. at 41-42).
Crespo alleges that while working at 270 Park Avenue, his supervisor and foreman regularly made derogatory remarks to him about his being Puerto Rican (see 1st Crespo Aff. at 33, 45 & ex. 1 at 10; 2d Crespo Aff. at 2), and that they harassed him, another worker who was Hispanic, and another worker who was black. (See 1st Crespo Aff. ex. 1 at 2-4.) Crespo alleges that he complained about these comments to Brady and Bill, who ignored the complaints. (1st Crespo Aff. at 56; 2d Crespo Aff. at 2.)
Crespo was the only Puerto Rican working at 270 Park Avenue at night; the other workers were mostly Guatemalan, Dominican, and Ecuadorian. (1st Crespo Aff. ex. 1 at 1, 11-12.) According to the most recent available survey, of HCS's total staff of 79 workers at 270 Park Avenue, 42 are Hispanic and 5 are black. (SOF ¶ 38.) HCS's day operations manager and the supervisor of the night cleaning staff at 270 Park Avenue during all times relevant to this complaint were both Hispanic. (SOF ¶ 40.) HCS has also involuntarily removed four non-Hispanic or white employees from 270 Park Avenue. (SOF ¶ 41.) The vacancy created by Crespo's departure was filled by a non-white Hispanic. (SOF ¶ 42.)
Crespo filed a grievance with the Union protesting his layoff (SOF ¶ 30; Crespo. Aff. ex. 2 at 1) as well as allegedly racist and discriminatory comments made by his supervisor and foreman, who were of Albanian ancestry, (1st Crespo Aff. at 45-46 & ex. 1 at 2). The Union declined to proceed with the grievance. (SOF ¶¶ 30-31.) Crespo also filed a charge against HCS with the New York State Division of Human Rights ("NYSDHR") alleging race and color discrimination. (SOF ¶ 33.) HCS filed an answer denying the allegations. (SOF ¶ 34.) Following an investigation, NYSDHR determined there was no probable cause to believe HCS had terminated Crespo for a discriminatory reason. (SOF ¶ 35.)
Crespo sent a handwritten "complaint" against HCS to the U.S. Equal Employment Opportunity Commission ("EEOC") alleging race discrimination, which was received by the EEOC on June 25, 2013. (1st Crespo Aff. ex. 1 at 28, ex. 2 at 2.) Crespo's EEOC "complaint" alleged that his supervisor and two foremen harassed him using racial slurs, and states that he was arrested 25 years prior to the background check. (1st Crespo Aff. ex. 2 at 2.)
II. PROCEDURAL HISTORY
Crespo filed this employment discrimination action on September 30, 2013. (ECF No. 2 ("Compl.").) The complaint alleges that HCS terminated him, failed to promote him, and failed to accommodate his disability on account of his race, gender/sex, national origin, age, and disability, in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"), as codified, 42 U.S.C. §§ 2000e et seq.; the Age Discrimination in Employment Act of 1967, as codified, 29 U.S.C. §§ 621-34; and the Americans with ...