United States District Court, S.D. New York
LUIS F. PENA-BARRERO, Plaintiff,
THE CITY OF NEW YORK, KEITH KERMAN, STEVE WEIR, FRANK DAZZO, Defendants.
MEMORANDUM OPINION & ORDER
VALERIE CAPRONI, United States District Judge.
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. Defendants'
motion for summary judgment is GRANTED, and the case is
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
Plaintiff's Protected Characteristics and Employment with
is an Hispanic male of Colombian national origin. Pl. 56.1
Stmt. ¶ 3. 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.
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.
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.
Civil Service List and Section 55-a Status
Civil Service List
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.
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)).
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. 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. Pl. 56.1 Stmt. ¶¶ 35-36.
Section 55-a Status
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. Pl. 56.1 Stmt. ¶ 44.
Plaintiff's First Lawsuit
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.
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
Id. ¶ 17 (quoting Canfield Decl. Ex. F (Dkt.
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. Maduegbuna Decl. Exs. 17, 26
(Dkt. 67-26), 38.
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.
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).
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.
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
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 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).
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.” Id.
Plaintiff's Complaints of Hostility at the
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. 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,
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.
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.” Canfield Decl. Ex. B Tr. 176:13-177:6.
Plaintiff claims that he orally reported the comments to the
EEO Officer. 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.” Id.
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. Maduegbuna Decl. Ex. 4 Tr.
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,  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. 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.
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.
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.” Id. ¶ 99;
Canfield Decl. Ex. UU (Dkt. 62-20).
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. Id. ¶¶ 107-08. On
November 9, 2012, the last provisional Associate Staff
Analyst, Mirlene Delpeche, was terminated effective November
25, 2012. Id. ¶ 105.
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.
¶ 291. As of January 15, 2013, the City employed 138
provisional Associate Staff Analysts, but there is no
evidence that DCAS ...