United States District Court, N.D. New York
Ramon Santana, Pro Se, Ithaca, NY, for the Plaintiff.
SUBHASH VISWANATHAN, ESQ., Bond, Schoeneck Law Firm, One Lincoln Center, Syracuse, NY.
KRIN M. FLAHERTY, ESQ., Office of the City Attorney, Ithaca, NY, for the Defendants.
MEMORANDUM-DECISION AND ORDER
GARY L. SHARPE, Chief Distirct Judge.
Plaintiff pro se Ramon Santana commenced this action against defendants City of Ithaca, New York and Ithaca Building Commissioner Phyllis Radke, alleging violations of Title VII,  42 U.S.C. §§ 1981 and 1983, and the New York State Human Rights Law (NYSHRL). (2d Am. Compl., Dkt. No. 22.) Pending is defendants' motion for summary judgment. (Dkt. No. 49.) For the reasons that follow, the motion is granted.
In July 2001, Santana, a Hispanic male, began his employment with the City. (Defs.' Statement of Material Facts (SMF) ¶ 1, Dkt. No. 49, Attach. 4.) In April 2004, Santana applied for a permit clerk position in the City's Building Department; along with his application, he submitted a completed questionnaire, on which he voluntarily identified himself as Hispanic. ( Id. ¶¶ 2, 3, 4; Dkt. No. 49, Attach. 1 at 20.) Radke interviewed Santana and the other applicants, and ultimately made the decision to hire Santana on a provisional basis. (Defs.' SMF ¶ 5.) At the end of Santana's probationary period, Radke recommended that Santana be retained as a permanent permit clerk, evaluated his performance as "outstanding, " and gave him a perfect evaluation score. ( Id. ¶ 6; Dkt. No. 49, Attach. 1 at 24-25.)
1. Promotion to Housing Inspector
In July 2006, Santana applied for a promotion to the position of housing inspector. (Defs.' SMF ¶ 7.) Housing inspectors are responsible for inspecting rental properties within their assigned territory, identifying housing code violations, conducting re-inspections to determine whether violations have been remedied, and issuing certificates of compliance to property owners. ( Id. ¶ 10; Dkt. No. 49, Attach. 1 at 27-28.) Again, Radke interviewed Santana for the position, made the decision to hire him, and eventually appointed him as a permanent housing inspector. (Defs.' SMF ¶¶ 8, 9.)
Santana, along with two other housing inspectors, William Holtkamp and Gary Checksfield, was responsible for the more than 11, 000 rental units in the City, which includes single and two-family dwelling units, multiple dwelling units, fraternity and sorority houses, and dormitories. ( Id. ¶¶ 12, 14.) For inspection purposes, the City is divided into three territories-west, east, and Cornell University-and each territory contains approximately the same number of rental units. ( Id. ¶ 15.) The east and west territories are composed of roughly the same number of single, two-family, and multiple dwelling units, while the Cornell territory contains many fraternity and sorority houses and dormitories. ( Id. ¶ 16.) Santana was assigned to the west territory. ( Id. ¶ 17.)
2. Performance Issues Throughout 2009 and 2010
Beginning in 2009, Santana's job performance began to deteriorate. First, in January 2009, in violation of the City's Vehicle Usage Policy, Santana drove his City vehicle to his home during working hours to check on his children, but then fell asleep, and remained at home for approximately three hours. ( Id. ¶¶ 20-22; Dkt. No. 49, Attach. 3 at 16-18.) Radke informed Santana that this conduct was unacceptable and sent the wrong message to City residents. (Defs.' SMF ¶ 23.) Also in early 2009, Gino Leonardi, Santana's direct supervisor, learned that Santana was not promptly notifying property owners of code violations or timely responding to inquiries from property owners, resulting in delays in generating certificates of compliance. ( Id. ¶ 24.) Leonardi also noticed that Santana often had stacks of property files in his office and was disorganized. ( Id. ¶ 25.) Leonardi spoke with Santana about these issues, and both Leonardi and Radke had a counseling session with him, specifically to discuss his unsatisfactory job performance and their expectations for improvement; the conversation was summarized in a counseling letter from Radke to Santana. ( Id. ¶¶ 26-27; Dkt. No. 49, Attach. 1 at 39-40.) Soon thereafter, Radke wrote another counseling memo to Santana regarding his failure to comply with policy regarding obtaining approval before taking compensatory time. (Defs.' SMF ¶ 28; Dkt. No. 49, Attach. 1 at 42-43.)
Throughout the rest of 2009, Radke and Leonardi had two more counseling sessions with Santana regarding his poor performance and lack of improvement; specifically, he was not completing his work in a timely manner, was not inspecting a sufficient number of units, and was making an inordinate number of errors. (Defs.' SMF ¶¶ 30, 32.) Indeed, many of these meetings and discussions were prompted by letters written by property owners voicing dissatisfaction and frustration with Santana's delays; one property owner explained that Santana's delay in issuing a certificate of compliance was causing him to "los[e] money" "[w]ith each day." ( Id. ¶ 29; Dkt. No. 49, Attach. 1 at 46.) Santana was also underperforming compared to his colleagues: as of June 30, 2009, Santana had inspected only 340 units, while Holtkamp and Checksfield had inspected 1, 183 and 691 units, respectively. (Defs.' SMF ¶ 35; Dkt. No. 49, Attach. 1 ¶ 21.) Santana's subpar performance throughout 2009-which included canceling inspections, failing to show up for other inspections or issue certificates of compliance in a timely fashion, leaving work for several hours without any explanation, and making multiple errors in his inspection reports-resulted in a formal letter of reprimand issued in December 2009. (Defs.' SMF ¶¶ 31, 37-42, 46; Dkt. No. 49, Attach. 1 at 48-54.)
Beginning at the end of 2009, and continuing into 2010, Leonardi began meeting with Santana on a weekly basis to review the status of Santana's housing inspections and to confirm that he was properly entering information into his Groupwise calender and Filemaker program. (Defs.' SMF ¶ 45.) During these meetings, Leonardi discovered that Santana's inspection reports were riddled with errors, which delayed the issuance of certificates of compliance. ( Id. ¶ 46.) In February and March 2010, Radke and Leonardi again met with Santana, along with his union representative, to discuss Santana's continued performance deficiencies, articulate and explain their expectations, and devise a plan for improvement. ( Id. ¶ 48; Dkt. No. 49, Attach. 1 at 58-64.) After failing to show improvement, Radke issued a notice of discipline to Santana on June 14, 2010, and fined him the equivalent of four days of pay. (Defs.' SMF ¶¶ 51-52; Dkt. No. 49, Attach. 1 at 66-69.) The notice of discipline explained that, despite the established goal that eighty percent of Santana's inspection reports contain no errors or omissions, Santana's success rate was only between twenty-two and forty-three percent. (Dkt. No. 49, Attach. 1 at 67.)
Following the June 2010 notice of discipline, Radke and Leonardi began to notice that an unusually high percentage of units that Santana inspected were identified as having no violations, and they suspected that Santana was conducting less thorough inspections so that he could expedite the process, and avoid the additional time and paperwork associated with citing violations and re-inspecting properties. (Defs.' SMF ¶¶ 56-58.) Leonardi then began accompanying Santana on housing inspections, and noticed that Santana often missed visible code violations, or cited violations that were not actually violations. ( Id . ¶¶ 59-62.) These errors, along with Santana's non-responsiveness, resulted in complaints from property owners. ( Id. ¶¶ 63-64.) One such complaint was from a property owner who was attempting to sell her deceased mother's home; the property owner explained that Santana failed to return telephone calls, mailed information to the wrong address, provided inaccurate information, lied to her, and was unprofessional in his ...