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Nevada Espinoza v. New York City Department of Transporation

United States District Court, S.D. New York

March 30, 2018


          Nevada Espinoza Brooklyn, New York Pro se Plaintiff

          Amanda Blair Heather Marie Martone Jennifer Lilly Koduru New York City Law Department New York, New York Counsel for Defendants

          OPINION & ORDER

          VERNON S. BRODERICK, United States District Judge.

         Plaintiff Nevada Espinoza, proceeding pro se, brings this action pursuant to Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e et seq., the New York State Human Rights Law (“NYSHRL”), N.Y. Exec. Law §§ 290-97, and the New York City Human Rights Law (“NYCHRL”), N.Y.C. Admin. Code §§ 8-101 to 131, [1] against the New York City Department of Transportation (“DOT”) and the City of New York (“City, ” and collectively with the DOT, “Defendants”), claiming that Defendants discriminated against him based on his race, color, religion, and national origin.

         Before me is Defendants' motion for summary judgment. For the reasons stated below, Defendants' motion for summary judgment is GRANTED as to Plaintiff's federal and NYSHRL claims, which are dismissed with prejudice. Because I dismiss the federal claims before me, and because Plaintiff's NYCHRL claims are governed under a lower threshold of proof than their federal counterparts, I decline to exercise supplemental jurisdiction. Therefore, Defendants' motion for summary judgment is DENIED as to Plaintiff's NYCHRL claims, and Plaintiff's NYCHRL claims are dismissed without prejudice.

         I. Background[2]

         Plaintiff is a Rastafarian, African-American male from Trinidad and Tobago. (Espinoza Decl. ¶ 2.)[3] He attended, and obtained a degree in Automotive Technology from, the Bronx Community College. (Id. ¶ 3.) He has also received accreditations from Pennsylvania State University, San Juan Senior Comprehensive School in Metal Work and Technical Drawing, and the American Society of Engineers. (Id.)

         A. Plaintiffs Appointment as Provisional Supervisor of Mechanics and Mechanical Equipment

         Plaintiff was hired by the DOT in February 2006.[4] (Defs.' 56.1 ¶¶ 10-11; Pl.'s Resp. 56.1 ¶¶ 10-11.) On October 20, 2008, Plaintiff was permanently given the title of Auto Mechanic based on his qualifications in an “open competitive civil service list.” (Defs.' 56.1 ¶ 11; Pl.'s Resp. 56.1 ¶ 11.) Plaintiff's day-to-day responsibilities included “researching technical information for the creation of specification used in the procurement of capital vehicles and equipment, ensuring that the latest technology complies [with] all current safety standards, rules, and regulations, and inspecting and approving all vehicles to ensure compliance with specification requirements.” (Espinoza Decl. ¶ 11.)

         In January 2011, Plaintiff was provisionally appointed as the Supervisor of Mechanics and Mechanical Equipment (“SOMME”) by John Paterno (“Paterno”), an Executive Director of the DOT's Fleet Services Division. (Defs.' 56.1 ¶ 12; Pl.'s Resp. 56.1 ¶ 12; Espinoza Decl. ¶¶ 54-55.) In this role, Plaintiff performed duties such as “insur[ing] that an adequate supply of proper parts is maintained in all stockrooms, ” “initiat[ing] purchase of parts and equipment, ” “contact[ing] vendors to ensure that parts, materials and equipment are made to specifications and will be delivered on time, ” and “developing], recommend[ing], and implementing] productivity and cost saving measures.” (Doc. 75-2, at 25.)

         During the time that he was a provisional SOMME, Plaintiff was supervised primarily by Paterno. (Espinoza Dep. 28:20-23.)[5] In his deposition, Plaintiff stated that Paterno “always trie[d] to speak [to him] with a Jamaican accent.” (Id. at 36:19-37:1; see also Espinoza Decl. ¶ 67 (“Paterno would often use a Jamaican accent . . . . He seemed to think I was Jamaican.”).) He also stated that Paterno made “comments about ^ ganja” and about “smoking weed.” (Espinoza Dep. 36:2-13.) Further, Plaintiff's reviews, which were consistently “outstanding” between 2007 and 2010, changed to “good” the year in which Plaintiff believes Paterno took over management of his unit. (See SAC 6; see also Doc. 75-6, at 51-54; Doc. 75-7, at 1-6 (exhibiting copies of Plaintiff s evaluations).)[6]

         B. DOTs Appointment of a Permanent Supervisor of Mechanics and Mechanical Equipment

         In approximately August 2011, the DOT distributed a “notice of examination” notifying DOT employees of the possibility of promotion to a permanent SOMME position. (Espinoza Decl. ¶ 63; see also Doc. 75-9, at 5.) The notice stated that the application period was between January 4 and January 24, 2012, that candidates should submit an application online if they believed they were eligible, and that they would be required to sit for a multiple-choice test on April 28, 2012. (Doc. 75-9, at 5.) The notice further stated that in order to qualify to take the examination, the candidate must “hold[] a permanent (not provisional) competitive appointment or appear[] on a Preferred List . . . for the title of Auto Machinist, Auto Mechanic, Auto Mechanic (Diesel), Electrician (Automobile), or Machinist.” (Id. at 6.) Lastly, candidates were notified that “[i]f [they] pass[ed] the multiple-choice test and [were] marked eligible, [their] name w[ould] be placed in final score order on an eligible list and [they would] be given a list number, ” and that they would be “considered for promotion when [their] name [was] reached on the eligible list.” (Id. at 7.)

         Plaintiff took the exam on April 28, 2012. (Espinoza Decl. ¶ 69.) Thereafter, as stated on the notice, the New York City Department of Citywide Administrative Services (“NYCDCAS”) created a list of eligible applicants based on the candidates' scores (“Promotion List”). (Defs.' 56.1 ¶ 13; Espinoza Decl. ¶ 71.) This list was published on February 27, 2013. (Defs.' 56.1 ¶ 13; Espinoza Decl. ¶ 71.) Out of the fifty-eight total DOT employees who passed the exam and were placed on the list, Plaintiff was ranked number fifty-one. (Defs.' 56.1 ¶¶ 14, 17; Espinoza Decl. ¶¶ 73-74; see also Doc. 69-8, at 15.)

         The DOT interviewed fourteen candidates from the Promotion List in order of test score.[7](Defs.' 56.1 ¶ 15; Pl.'s Resp. 56.1 ¶ 15.) Ultimately, the list of candidates considered for interviews (the “Interview List”) included fifteen candidates who were ranked based on test score and were otherwise qualified for the position (i.e., having a qualifying position and a Class A Commercial Driver's License), (see Doc. 69-10, at 6-11), and only reached the candidate who was ranked number eighteen on the Promotion List-at number fifty-one, Plaintiff was not included.[8] According to a copy of the Interview List with a disposition date of June 4, 2013, out of the fourteen candidates who were interviewed, nine were permanently appointed, and the candidate numbered sixteen on the Promotion List was the last candidate that the DOT reached for permanent appointment.[9] (See Doc. 75-7, at 17; Doc. 69-10, at 6.)

         Once the promotion decisions were made, Plaintiff was returned to his permanent Auto Mechanic civil service title. (See Defs.' 56.1 ¶ 19; Espinoza Decl. ¶ 87; Doc. 69-10, at 12.) Jean Frankowski, the Director of Personnel at the DOT, sent Plaintiff a letter on May 22, 2013 informing him that he would lose his provisional SOMME title on June 8, 2013 and return to his Auto Mechanic title as of June 9, 2013. (See Espinoza Decl. ¶ 87; Doc. 69-11, at 2.) The letter stated: “This is to inform you that due to the promulgation of the civil service list for Supervisor of Mechanics (Mechanical Equipment), a title you now hold provisionally, it will become necessary to terminate your provisional services effective June 8, 2013.” (Doc. 69-11, at 2.) This was, according to Plaintiff, the first time he had learned that he would lose his provisional SOMME title. (Espinoza Decl. ¶ 87.) Out of the seven candidates who were provisional SOMMEs, three, including Plaintiff, were returned to their permanent underlying titles, and the other four were hired as permanent SOMMEs based on their scores on the list. (Id. ¶ 88; see also Doc. 69-10, at 12.)

         C. Plaintiffs Notice of Discrimination

         On February 21, 2014, Plaintiff filed a notice of charge of discrimination with the Equal Employment Opportunity Commission (“EEOC” and “EEOC Charge”). (Defs.' 56.1 ¶ 4; Pl.'s Resp. 56.1 ¶ 4; see also Doc. 69-1.) In the EEOC Charge, Plaintiff alleged that he was discriminated against based on his race and national origin because his salary was reduced and his title was changed to Auto Mechanic, while a co-worker who was not African-American maintained his provisional title. (Doc. 69-1, at 2-4, 6.) The co-worker who Plaintiff referenced was employed by the Department of Sanitation (“DOS”) and did not take the civil service examination. (Id. at 6.) On December 9, 2014, the EEOC issued a determination that it was “unable to conclude that the information obtained establishes violation of the statutes, ” and along with that determination it issued a notice of the right to file a lawsuit in federal or state court within ninety days of receipt. (Defs.' 56.1 ¶ 6; Pl.'s Resp. 56.1 ¶ 6; see also Doc. 69-2, at 2.)

         IL Procedural History

         Plaintiff commenced this action on February 13, 2015. (Doc. 2.) He moved to proceed in forma pauperis, so that he could proceed without prepayment of fees, on the same day. (Doc. 1.) Plaintiffs application to proceed in forma pauperis was granted on February 17, 2015. (Doc. 3.) On February 23, 2015, the case was assigned to me. (Dkt. Entry Feb. 23, 2015.)

         After granting Defendants' request for extension of time to respond to the Complaint, (Doc. 9), on July 13, 2015, I granted Defendants' request for a pre-motion conference regarding their anticipated motion to dismiss, (Doc. 11). Plaintiff submitted a response to Defendants' pre-motion letter on July 28, 2015, (Doc. 12), and I held the pre-motion conference on August 14, 2015, (see Dkt. Entry Aug. 14, 2015). Shortly thereafter, I granted Defendants leave to file a motion to dismiss the Complaint. (Doc. 16.) Defendants filed their motion to dismiss, memorandum of law, and declaration in support of the motion on October 23, 2015. (Docs. 17-19.)

         On November 23, 2015, Plaintiff filed the First Amended Complaint (“FAC”), which was amended for the purpose of including additional defendants. (Doc. 20.) On December 2, 2015, Defendants requested an extension of time to respond, which I granted. (Doc. 23.) Defendants then filed their answer to the FAC on January 20, 2016. (Doc. 25.)

         Based on the FAC, on February 18, 2016, I ordered service on an additional three defendants-Michael Krafinski, John Paterno, and Basil Ciraolo (collectively, the “Individual Defendants”). (Doc. 27.) The Individual Defendants were served on April 7, 2016. (See Docs. 30-32.) Thereafter, on June 1, 2016, the Individual Defendants filed their answer to the FAC. (Doc. 34.)

         On August 11, 2015, the Individual Defendants together with the Defendants as defined in the instant Opinion and Order filed a pre-motion letter requesting a conference with respect to their anticipated motion for judgment on the pleadings, (Doc. 39), to which Plaintiff replied on August 18, 2016, (Doc. 41). I granted the request for a pre-motion conference and held the conference on October 24, 2016. (See Dkt. Entry Oct. 24, 2016.) Pursuant to the conference, I issued an order (1) extending discovery, (2) directing parties to submit an amended case management plan reflecting revised discovery deadlines, and (3) directing the parties to confer and submit a joint letter indicating whether Plaintiff would amend the complaint for a second time. (Doc. 44.) Defendants submitted a proposed amended case management plan on October 27, 2016, (Doc. 45), and a status report on November 14, 2016 informing me that the parties had reached an agreement and that a stipulation was forthcoming, (Doc. 49). On November 23, 2016, the parties filed a stipulation stating that Plaintiff would agree to the dismissal of claims, with prejudice, against the Individual Defendants, and that Plaintiff would file a second amended complaint. (Doc. 52.)

         Plaintiff filed the SAC on November 23, 2016, (Doc. 53), and at Defendants' request I held another pre-motion conference on April 13, 2017, (see Dkt. Entry Apr. 13, 2017). Pursuant to that conference, and as discussed on the record, I issued an order directing Defendants to file their motion for summary judgment by May 25, 2017, and setting briefing deadlines for the opposition and reply. (Doc. 64.) After one extension of time, (Doc. 66), on July 13, 2017, Defendants filed their motion for summary judgment, along with a memorandum of law and supporting papers, (Docs. 67-70). Plaintiff filed his opposition on October 20, 2017, (Doc. 75), and Defendants filed their reply on November 9, 2017, (Doc. 78).

         III. Le ...

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