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Pena-Barrero v. City of New York

United States District Court, S.D. New York

March 30, 2017



          VALERIE CAPRONI, United States District Judge.

         Plaintiff Luis Pena-Barrero, a former provisional employee of the New York City Department of Citywide Administrative Services (“DCAS”), brings this suit against his former employers, the City of New York, Keith Kerman, Steve Weir, and Frank Dazzo (collectively, “Defendants”). Plaintiff alleges that Defendants discriminated against him-and ultimately terminated him-on the basis of his race, national origin, and disability and retaliated against him for complaining about discrimination and for exercising his rights under the Family Medical Leave Act.[1] Defendants' motion for summary judgment is GRANTED, and the case is DISMISSED.


         Plaintiff was a difficult employee who was hypersensitive to criticism, who had significant attendance issues, who wasted time and resources, and who never took the necessary civil service test for his position; he also is an Hispanic of Colombian heritage who has a disability. This case presents the question-in broad brush-why he was terminated from his job. As explained more fully below, Plaintiff has failed to adduce evidence that creates a genuine dispute of material fact regarding whether discrimination or retaliation played a role in his termination and whether he was subjected to a hostile work environment.

         A. Plaintiff's Protected Characteristics and Employment with the City

         Plaintiff is an Hispanic male of Colombian national origin. Pl. 56.1 Stmt. ¶ 3.[2] In 1997, he was diagnosed with Bipolar Affective Disorder, and he began taking medication that generated side effects that interfered with daily living. Id. ¶ 9. Plaintiff has on occasion been hospitalized on account of his Bipolar Affective Disorder. Defs. 56.1 Stmt. Response ¶ 114.

         Plaintiff began his employment with the City of New York on March 29, 1994, and held a variety of positions. Pl. 56.1 Stmt. ¶¶ 6-8, 10-12. From 2001 to 2011, Plaintiff worked in the Information Technology Management Information Systems Office, id. ¶ 13, which was subsequently merged with Citywide Fleet Services (“Fleet”) at DCAS, id. ¶ 45.

         After the merger, Plaintiff was an Associate Staff Analyst in Fleet, responsible for data entry related to DCAS's fleet of vehicles. Id. ¶¶ 48-51. Plaintiff reported to Defendant Steve Weir, Deputy Chief of Fleet, and Defendant Frank Dazzo, Deputy Director of Operations at Fleet. Id. ¶ 46. At all relevant times, Defendant Keith Kerman was the Chief of Fleet and Deputy Commissioner at DCAS. Id. ¶ 47.

         B. Civil Service List and Section 55-a Status

         1. Civil Service List

         Plaintiff was a “pure provisional” Associate Staff Analyst at DCAS, which means he did not have a permanent civil service title. Pl. 56.1 Stmt. ¶¶ 19, 21. Following the New York Court of Appeals decision in City of Long Beach v. Civil Service Employees Association, Inc., 8 N.Y.3d 465 (2007), New York amended Civil Service Law Section 65 (“CSL § 65) to require the City to hire from a list of civil service candidates-generated by a merit examination-if such a list exists for a given position. Id. ¶ 23; see also N.Y. Civ. Serv. Law § 65(5). Put differently, following the change in law, the City can only fill a position with a provisional appointment if there is no civil service list for that position. In addition, CSL § 65 limits the duration of all provisional appointments, mandates that a civil service exam be given for competitive positions held by provisional employees, and requires that all provisional appointments be terminated within four months following the establishment of a civil service list for a given position. N.Y. Civ. Serv. Law § 65(2)-(4). The changes to the law had the effect of prohibiting the permanent hire of a provisional employee in a given position.

         As required by the New York State Civil Service Commission, DCAS prepared a plan to come into compliance with New York law regarding provisional appointments. Pl. 56.1 Stmt. ¶¶ 23-24. Pursuant to the plan (and the legal requirements), no provisional employee could be hired if there was a civil service list for the position, and all provisional employees were to be terminated once a civil service list had been generated and certified. Defs. 56.1 Stmt. ¶ 25 (citing Canfield Decl. Ex. G Tr. 56:16-57:10, 58:20-59:16 (Dkt. 62-7)).[3]

         In late 2009, DCAS issued a Notice of Examination for the Associate Staff Analyst position, and the test was scheduled for February 19 or 20, 2010. Pl. 56.1 Stmt. ¶¶ 27, 29. Applicants could request an alternate test date to accommodate a disability or religious observance. Id. ¶ 28. Plaintiff met the education and experience requirements and was otherwise qualified to take the Associate Staff Analyst exam, but he neither applied for nor took the exam nor sought an accommodation to take the exam on some other date.[4] Id. ¶¶ 30-31. Plaintiff concedes that he learned in 2010 that his employment was at risk if he did not take the required civil service exam. Maduegbuna Decl. Ex. 3 Tr. 86:19-87:1. On March 28, 2012, the civil service list for the Associate Staff Analyst position was established, and it was certified on April 2, 2012; Plaintiff knew the list was certified before he went on medical leave during the summer of 2012.[5] Pl. 56.1 Stmt. ¶¶ 35-36.

         2. Section 55-a Status

         Section 55-a of the New York Civil Service Law provides an exception to the normal rule regarding provisional employees. Section 55-a allows the City to employ individuals who have been certified as mentally or physically disabled on a non-competitive basis in civil service positions so long as they are otherwise qualified to perform the duties of the position. Pl. 56.1 Stmt. ¶ 37. Thus, a qualified person with a disability may be appointed through the Section 55-a program without taking the civil service examination that would otherwise be required. Id. ¶ 39. The Civil Service Law provides that employees should direct inquiries regarding Section 55-a certification to the Personnel Officer or Section 55-a Coordinator at any City agency or to the Citywide Section 55-a Coordinator. Id. ¶ 42. Throughout his employment, Plaintiff discussed his interest in the Section 55-a program with a number of supervisors and City employees. Id. ¶ 43; Defs. 56.1 Stmt. Response ¶¶ 233-36, 238, 242, 244-45. On September 8, 2011 and March 16, 2012, Plaintiff sent letters and medical documentation to the Citywide EEO Coordinator in support of his formal request to be certified for the position of Associate Staff Analyst under Section 55-a.[6] Pl. 56.1 Stmt. ¶ 44.

         C. Plaintiff's First Lawsuit

         On January 25, 2010, Plaintiff filed a federal lawsuit against the City and certain individual defendants, alleging employment discrimination and a hostile work environment on the basis of race, national origin, and disability and retaliation. Id. ¶ 14. Plaintiff alleged that the Defendants: (1) failed to reassign him to positions for which he was suited and well-qualified; (2) failed to provide him with a reasonable accommodation for his disability and failed to engage in the interactive process; (3) incessantly harassed and excessively criticized him; and (4) retaliated against him. Id. ¶ 15.

         On May 3, 2012, the parties executed a settlement agreement that included a waiver and release (collectively, the “Settlement Agreement”). Id. ¶ 17. Defendants paid Plaintiff $600, 000 in consideration for dismissing with prejudice

any and all claims, liabilities and/or causes of action which plaintiff has or may have against any of the Released Parties based on any act, omission, event or occurrence occurring from the beginning of the world up through and including the date hereof, including, without limitation, any and all claims which were or could have been alleged by plaintiff in this action.

Id. ¶ 17 (quoting Canfield Decl. Ex. F (Dkt. 62-6)).

         D. Plaintiff's Attendance

         By fall 2011, Plaintiff had been granted a reasonable accommodation in the form of a flexible start time, although he was required to be at work by 11:00 a.m. Maduegbuna Decl. Exs. 17 (Dkt. 67-17), 18 (Dkt. 67-18), 38 (Dkt. 67-38); Canfield Decl. Ex. AA (Dkt. 62-17). Plaintiff had trouble getting to work in the mornings because he would still feel the effect of his evening medications.[7] Maduegbuna Decl. Exs. 17, 26 (Dkt. 67-26), 38.

         Notwithstanding the accommodation, while his prior lawsuit was ongoing and after it had been settled, Plaintiff was frequently absent from or late to work. In the one year period from June 2011 through June 2012, Plaintiff was absent for a total of 512 hours (or roughly three months of work days). Pl. 56.1 Stmt. ¶ 61. On March 12, 2012, Kerman put Plaintiff on written notice that in the previous six months, he had fifty-six instances of lateness and unscheduled leave without pay. Id. ¶ 59; Defs. 56.1 Stmt. Response ¶ 164.

         The lateness and unexcused absences were an obvious cause for concern for Plaintiff's supervisors. In March 2012, Kerman's executive assistant expressed discomfort in being asked to approve Plaintiff's timesheets and leave requests because she was uncertain about the validity of his requests based on purported transit delays. Maduegbuna Decl. Ex. 20, at 3 (Dk. 67-20). In that same email chain, Weir explained his concern to Kerman:

If we charge him with an AWOL, he is going to go to EEO and say we are not allowing him to deal with emergencies. Then if he is able to document that he had a bona-fide emergency and we denied him the opportunity to address it, he is going to press a lawsuit. We need to be clear what our strategy is.

Id. at 1. Kerman responded, “We need to start by documenting the issue and asking him to take steps to improve it.” Id. Over the following months, Plaintiff continued to be tardy and absent on a regular basis, which was documented. Maduegbuna Decl. Exs. 4 Tr. 283:12-285:8 (Dkt. 67-4), 25 (Dkt. 67-25), 26 (Dkt. 67-26), 32 (Dkt. 67-32); 36 (Dkt. 67-36).

         From June 8, 2012 through October 1, 2012, Plaintiff was absent on approved medical leave. Pl. 56.1 Stmt. ¶ 88. Weir issued an AWOL memorandum for Plaintiff covering the dates July 19, 20, and 23, 2012, Defs. 56.1 Stmt. Response ¶ 225, and as of September 24, 2012, Plaintiff had not submitted required FMLA paperwork for leave approval, Canfield Decl. Ex. JJ (Dkt. 62-19). Human resources nevertheless retroactively approved his absence from June 8 through August 30, 2012, as FMLA leave. Id. Plaintiff returned to work in early October. Pl. 56.1 Stmt. ¶ 90.

         When Plaintiff returned to work, he was unable to log into his computer and various programs. Defs. 56.1 Stmt. Response ¶¶ 278-79. Although he points to this situation as evidence of discrimination by his bosses, in his deposition he acknowledged that logins can automatically expire after a certain period of time. Maduegbuna Decl. Ex. 3 Tr. 184:17-22, 232:15-233:3, 257:21-258:19; see also Id. Ex. 59 (Dkt. 67-59) (stating in an email while he attempted to regain login access, “Is it possible that my profile expired (or was deleted, maybe changed) due to non-use?”).

         E. Plaintiff's Photocopying

         In addition to concerns about Plaintiff's attendance, there were concerns that Plaintiff was wasting time and City resources on personal and unnecessary photocopying. For example, on May 16, 2012, Kerman observed Plaintiff making a large number of photocopies after Plaintiff's shift had ended. Defs. 56.1 Stmt. ¶ 64. When Weir asked Plaintiff to explain what he was doing, Plaintiff said that he was making copies of the work he had done in order to document his work[8] and that he had done so for the eighteen years he had worked for the City. Canfield Decl. Ex. CC; id. Ex. B Tr. 212:1-8, 230:19-231:16 (Dkt. 62-2). The conversation between Weir and Plaintiff, which took place in Weir's office, did not go well. When Plaintiff asked for training on a particular function, Weir, who was working on a tight deadline, asked Plaintiff to talk to Dazzo instead, and when Plaintiff persisted, Weir raised his voice and told Plaintiff to leave his office or he would call security to remove him. Canfield Decl. Ex. CC; Maduegbuna Decl. Ex. 5 Tr. 169:14-170:20 (Dkt. 67-5).

         Several other incidents of suspected wasteful activity came to Plaintiff's supervisors' attention. On May 29, 2012, during the workday, Kerman observed Plaintiff collecting from the photocopier “ten or more copies of self-help books and other private (non-work related) prints from the internet.” Maduegbuna Decl. Ex. 36, at 1. The Director of Fleet noticed “unit by unit printouts on the printer” after he had asked Plaintiff “to help with marking units to be deleted” in the computer system. Id. at 2. The Director thought the printing was unnecessary inasmuch as the relevant computer system “has audit functionality.”[9] Id.

         F. Plaintiff's Complaints of Hostility at the Workplace

         After Plaintiff's prior lawsuit settled, his supervisors continued to address his attendance issues and his wasteful use of city resources. Plaintiff viewed those actions as harassment and hostility. Plaintiff complained via email to the highest levels in the office, including to Kerman's Chief of Staff, the General Counsel of DCAS, and the DCAS Commissioner's Chief of Staff. Canfield Decl. Ex. CC at 2, 3; id. Ex. DD (Dkt. 62-18). The General Counsel informed Plaintiff that his email had been forwarded to the DCAS EEO Officer and Deputy General Counsel for Operations. Canfield Decl. Ex. EE (Dkt. 62-18). The same day that Plaintiff emailed his concerns to the General Counsel, he reiterated many of his complaints directly to the EEO Officer by separate email. Canfield Decl. Ex. FF (Dkt. 62-19). A few days later, the EEO officer responded, inter alia, that Plaintiff's concerns about his coworkers and supervisors would be brought to the attention of Kerman, Kerman's Chief of Staff, and human resources.[10] Id. Among other things, Plaintiff complained in these emails to the senior members of his office that: “the hostility of this work is increasing, ” Canfield Decl. Ex. CC at 2; limited access to Weir impairs his “efficiency and hurts [his] morale, id. at 3; he was “accused of not doing a thorough job, ” Canfield Decl. Ex. DD, at 1; he did “99% data entry, ” id.; and he was subject to “a carousel of retaliatory behavior designed to make [him] quit or end up in the hospital once again, ” id.

         On May 31, 2012, in response to a May 30 email from Weir stating that Plaintiff needed to exercise initiative to handle an assignment, Plaintiff took offense and responded with a litany of grievances. Maduegbuna Decl. Ex. 37 (Dkt. 67-37). Weir forwarded Plaintiff's email to Kerman, stating “FYI. I asked him to take some initiative and solve problems concurrent with his civil service title, and I get this. We have to end this.” Id. at 1. Kerman responded, “Please do not email him at all until we speak on this topic.” Id.

         Plaintiff asserts that various Defendants made discriminatory or hostile statements. For example, Plaintiff testified that he heard Weir say-at some unspecified time and place-“that he doesn't like spics, ” “that he doesn't like people of Hispanic origin, ” and “that Colombians, all they do is bring drugs to the United States.”[11] Canfield Decl. Ex. B Tr. 176:13-177:6. Plaintiff claims that he orally reported the comments to the EEO Officer.[12] Id. Tr. 177:7-13. Plaintiff also testified that-at some unspecified time and place-Dazzo said to him: “you don't come here on time and we have no reason to accommodate you because you don't come here on time.” Id. Tr. 234:2-13. In May or June 2012, according to Plaintiff, Weir told Plaintiff that “he did not believe that [plaintiff] was as sick as [plaintiff] pretended to be and . . . [that] he thought [plaintiff] was trying to skate.”[13] Id. Tr. 235:2-236:4.

         Plaintiff believes that Defendants were looking to terminate his employment for discriminatory reasons. In addition to Weir's statement to Kerman that “[w]e have to end this, ” Maduegbuna Decl. Ex. 37, Plaintiff asserts that Weir and Dazzo, at some point between May and October 2012, said that Plaintiff “wouldn't be there for long” and that they “just have to deal with him for a little while, ” Canfield Decl. Ex. B Tr. 210:15-211:17. Additionally, according to Plaintiff, Weir told him that Kerman had told Weir that Kerman wanted Plaintiff “out of the unit” and that Plaintiff “was a worthless piece of-equipment.” Maduegbuna Decl. Ex. 3 Tr. 242:7-243:2. According to the Assistant Commissioner of Human Resources, at some point between May and October 2012, she “possibly” received a request from Fleet to terminate Plaintiff due to his tardiness and absences. Maduegbuna Decl. Ex. 10 Tr. 41:23-42:8 (Dkt. 67-10). Kerman does not recall or believe that he requested to terminate Plaintiff during that time period.[14] Maduegbuna Decl. Ex. 4 Tr. 144:24-145:24.

         Plaintiff also testified that others accused him of not doing his work, and the evidence shows that at times he raised similar complaints to various supervisors while employed at Fleet. Canfield Decl. Exs. FF, II (Dkt. 62-19); Maduegbuna Decl. Ex. 3 Tr. 238:12:-239:15. Plaintiff was never written up or reprimanded formally for failing to perform his duties. Canfield Decl. Ex. B Tr. 211:18-25. In his deposition, Plaintiff complained that he was denied training necessary to enable him to succeed at his job, [15] Maduegbuna Decl. Ex. 3 Tr. 246:11-248:24, 252:10-255:2, but Plaintiff admits that he was offered training in Excel, Pl. 56.1 Stmt. ¶¶ 54-58. Although he was not always able to complete the training he was offered, whether due to illness or a class cancellation for an insufficient number of participants, there is no evidence that he was denied needed training.[16] Id. ¶¶ 54-58; Canfield Decl. Exs. S (Dkt. 62-15), T (Dkt. 62-15), U (Dkt. 62-15), W (Dkt. 62-16), X (Dkt. 62-16). In fact, as late as May 23, 2012, the evidence shows that the EEO Officer directed Plaintiff to resources for computer training, but Plaintiff rejected the suggestion because he did not think the available training would be useful to him. Canfield Decl. Ex. GG.

         G. Plaintiff's Termination

         While Plaintiff was out of work on medical leave, in the summer and fall of 2012, DCAS took the steps required to replace its provisional Associate Staff Analysts. On September 13, 2012, human resources for DCAS notified Fleet that: “[p]rovisional employees serving in the title of Associate Staff Analyst have to be replaced by a probable permanent from the list in this title;” they “ha[d] submitted a request to hire one (1) Associate Staff Analyst who will replace Luis Pena Barrero;” and a list call would be scheduled “to interview candidates for the position being vacated by Mr. Pena Barrero.” Canfield Decl. Ex. PP (Dkt. 62-20). (A list call is a hiring pool-candidates from the eligible civil service list are called in list order for an interview for a probable permanent appointment title. Pl. 56.1 Stmt. ¶ 98.) That same day, human resources sent a virtually identical email regarding Joann George and Marvin Schneider, two other provisional Assistant Staff Analysts. Canfield Decl. Ex. QQ (Dkt. 62-20). On September 18, 2012, human resources notified hiring managers that the list call for the Associate Staff Analyst title would take place on October 3, 2012. Pl. 56.1 Stmt. ¶ 97.

         At around the same time, the New York City Office of Management and Budget (“OMB”) required all City agencies to reduce spending. Specifically, on September 14, 2012, OMB directed all City agencies to reduce spending in fiscal years 2013 and 2014 due to budget gaps-also known as the program to eliminate the gap or “PEG.” Pl. 56.1 Stmt. ¶ 95. Fleet's portion of DCAS' budget reducing effort was $260, 726 for fiscal year 2013 and $397, 906 for fiscal year 2014. Id. ¶ 96. On September 24, 2012, Kerman notified the DCAS Deputy Commissioner for Fiscal and Business Management that he would achieve his PEG goals via two internal attritions in fiscal year 2013-“one mechanic inspector and one analyst (Luis)”-and one internal attrition in fiscal year 2014-“loss of an ASA due to retirement.”[17] Id. ¶ 99; Canfield Decl. Ex. UU (Dkt. 62-20).

         On September 26, 2012, two days after Kerman submitted his PEG proposal, Fleet notified human resources that it would not hire from the call list to fill the Associate Staff Analyst title to be vacated by Plaintiff. Canfield Decl. Ex. VV (Dkt. 62-21). Fleet gave up that position to satisfy its PEG goals. Canfield Decl. Ex. WW (Dkt. 62-21). Plaintiff's employment was terminated on October 5, 2012, without advance notice that October 5 specifically would be his last day. Canfield Decl. Ex. YY (Dkt. 62-21). None of the three provisional DCAS Associate Staff Analysts who had been listed for replacement in Fleet's September 13 emails continued as a provisional Associate Staff Analyst for DCAS. On October 18, 2012, provisional Associate Staff Analyst Joann George submitted her retirement papers, effective November 1, 2012. Pl. 56.1 Stmt. ¶ 106. On November 5, 2012, provisional Associate Staff Analyst Marvin Schneider, who was employed part time by DCAS as Clock Master and who had been appointed as the Official New York City Clock Master by Mayor Dinkins in 1992, had his title changed to Clock Repairer.[18] Id. ¶¶ 107-08. On November 9, 2012, the last provisional Associate Staff Analyst, Mirlene Delpeche, was terminated effective November 25, 2012. Id. ¶ 105.

         Sometime in 2012 or 2013, Kerman hired three new provisional Administrative Staff Analysts for Fleet. Defs. 56.1 Stmt. Response ¶ 290. These employees were not selected from a civil service list because there was no such list for the Administrative Staff Analyst title at the time. Id. ΒΆ 291. As of January 15, 2013, the City employed 138 provisional Associate Staff Analysts, but there is no evidence that DCAS ...

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