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Salazar v. Ferrara Brothers Building Materials Corp.

United States District Court, E.D. New York

April 6, 2015

ALAN SALAZAR, Plaintiff,

Gregory P. Mouton, Jr., McKINLEY ONUA & ASSOCIATES Brooklyn, New York Attorneys for Plaintiff

Arthur J. Robb Daniel H. Rowoth CLIFTON BUDD & DeMARIA, LLP The Empire State Building New York, New York Attorneys for Defendants

JOHN GLEESON, District Judge.

In this action, plaintiff Alan Salazar asserts claims for employment discrimination on the basis of race, in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. ("Title VII"), the New York State Human Rights Law ("NYSHRL"), the New York City Human Rights Law ("NYCHRL"), and malicious prosecution. Defendants Ferrara Brothers Building Materials Corporation ("Ferrara Brothers"), Joseph Ferrara, and Leonardo Annunziata move for summary judgment. Salazar filed his complaint on May 23, 2013. Salazar Aff. Ex. 1 (Complaint). Defendants filed their motion for summary judgment on January 9, 2015. I heard oral argument on March 26, 2015.

For the reasons stated below, the motion for summary judgment is denied as to the Title VII claims against the Ferrara Brothers and granted as to the Title VII claims against the individual defendants. Defendants' motion is denied as to the NYSHRL claims against Ferrara Brothers and Joseph Ferrara, and granted with respect to the NYSHRL claim against Annunziata. Defendants' motion as to Salazar's NYCHRL claims is denied. Finally, defendants' motion as to Salazar's malicious prosecution claims is granted.


A. Factual Background

Unless otherwise noted, the following facts are not in dispute.

1. Salazar's Employment with Ferrara Brothers

Plaintiff Alan Salazar worked as a driver at Ferrara Brothers from October 2006 until March 12, 2012.[1] Def. Rule 56.1 Stmt. ¶ 3; Pl. Rule 56.1 Stmt. ¶ 3. Ferrara Brothers is one of New York City's largest concrete supply companies, and it employed over 100 workers during Salazar's employment. Def. Rule 56.1 Stmt. ¶¶ 1-2; Salazar Aff. ¶ 3. Defendant Joseph Ferrara is Vice President of Ferrara Brothers. Def. Ex. C (Joseph Ferrara Aff.) ¶ 1. Brian Ferrara is the Operations Manager. Def. Ex. D (Brian Ferrara Aff.) ¶ 1. Salazar was a member of a labor union, Teamsters Local 282 (the "Union"), which meant that the terms and conditions of his employment were covered by a collective bargaining agreement ("CBA") between the Union and Ferrara Brothers. Def. Rule 56.1 Stmt. ¶ 5. The CBA contains a grievance and arbitration procedure and has a non-discrimination policy. Id.

Salazar alleges that he reported complaints about discriminatory treatment to Annunziata, who would convey them to the Ferraras. Pl. Rule 56.1 Stmt. ¶ 6. Salazar says this was the "mechanism available to him" for complaints. Id. To report discriminatory conduct by Annunziata himself, Salazar complained to supervisor Janet Rivera. Id. Defendants say the Union never grieved a claim by Salazar, and Salazar never brought a complaint of discriminatory treatment or harassment to the Ferraras' attention. Def. Rule 56.1 Stmt. ¶ 6. Brian Ferrara testified there was no formalized procedure at Ferrara Brothers for making complaints about discrimination. Salazar Aff. Ex. N (Brian Ferrara Dep.) 25:20-23.

On January 11, 2008, Salazar received a written warning from Ferrara Brothers for failing to follow a customer's instructions. Def. Ex. J (written warning). Then, on August 3, 2009, Salazar was suspended for sleeping on company time. The Union did not grieve either disciplinary action, and Salazar wrote an apology about the sleeping incident. Def. Rule 56.1 Stmt. ¶¶ 7-8.

On May 31, 2011, Ferrara Brothers terminated Salazar's employment because he was absent without leave for two weeks. The Union grieved the termination, and Ferrara Brothers and the Union resolved the grievance by entering into a "Last Chance Agreement" with Salazar. Under the agreement, Salazar received only a suspension and agreed to refrain from filing claims or actions related to the termination. Def. Rule 56.1 Stmt. ¶ 9. The Last Chance Agreement said that any further misconduct or wrongdoing, meaning any violation of the company's policy or rules, would result in Salazar's immediate discharge without prior warning. Id. ¶ 10. Salazar was not able to go to work for two weeks because he was detained by United States immigration officials for an immigration matter that was subsequently resolved. Salazar's attorney wrote to Ferrara Brothers and explained that Salazar's absence was not within his control. Pl. Rule 56.1 Stmt. ¶ 9. Salazar says that after he was restored to employment, Joseph Ferrara was upset and told Salazar that he was going to "keep his eye" on Salazar. Salazar Aff. ¶ 11.

2. Salazar's Termination

On March 12, 2012, Ferrara Brothers terminated Salazar's employment. Def. Rule 56.1 Stmt. ¶ 11. Defendants say the termination was due to Salazar's violation of the Last Chance Agreement (id.), but Salazar asserts that the termination was the "culmination of the discriminatory scheme engaged in by Defendants." Pl. Rule 56.1 Stmt. ¶ 11. The parties agree that at some point, Joseph and Brian Ferrara learned that a piece of equipment was missing, which Salazar said was an air sensor. They agree the air sensor was owned by an outside party and was used to perform environmental testing. Def. Rule 56.1 Stmt. ¶ 12; Pl. Rule 56.1 Stmt. ¶ 12.

The defendants' version of events is that several employees tried to locate the missing equipment after Joseph and Brian Ferrara were told it was missing, and the next day the Ferraras learned that Salazar was seen by another employee (and captured on video) handling the equipment. Salazar denied any knowledge of the equipment even after being questioned twice by Annunziata and then again by dispatcher Hyorki Valderrama after he showed Salazar the video footage. Defendants say that at the end of the second day the equipment was missing, the Ferraras learned that Salazar pulled his truck up to the dispatch office and returned the equipment to Valderrama. Def. Rule 56.1 Stmt. ¶¶ 13-17. Valderrama, who is also Latino, said that Salazar's race or national origin played no role in the decision to fire him. Def. Ex. E (Valderrama Aff.) ¶ 9.

Salazar advances a different version of events. He agrees that at some point the Ferraras learned the air sensor was missing. Salazar says that on March 5, 2012, he found an item laying the Ferrara Brothers' yard right in front of where he parked his truck. He tried to return the item to the office but did not have time before he was called to go to his next assignment, so he put the equipment in the cab of his truck. The next day, he was questioned by Annunziata and shown video footage by Valderrama, but the defendants' description of the missing equipment varied, and they sometimes described the equipment as blue, sometimes yellow, and sometimes they referred to it as a box. Salazar says he was confused by the description of the item, but nevertheless he turned in the piece of equipment he found. See Pl. Rule 56.1 Stmt. ¶¶ 13-17; Salazar Aff. ¶¶ 16-18, 21. Salazar says that the other employees accused him of taking the air sensor, but he explained to them that he had found it and stored it in his truck until he could return it. Salazar Aff. ¶ 22.

Defendants concluded that Salazar violated the terms of the Last Chance Agreement because of the missing equipment and denying knowledge of its whereabouts. Joseph and Brian Ferrara agreed that terminating Salazar's employment was the appropriate result. Def. Rule 56.1 Stmt. ¶ 18. Salazar says that he was terminated as a result of the defendants' discriminatory conduct. Pl. Rule 56.1 Stmt. ¶ 18. Despite the fact that Salazar returned the missing equipment, the defendants made a criminal complaint against him for grand larceny and other charges. Salazar Aff. ¶ 25. Salazar was detained for 26 hours related to those charges. ...

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