Pace v. Paris Maintenance Co.
| Decision Date | 12 July 2000 |
| Docket Number | No. 98 Civ. 1470 RWS.,98 Civ. 1470 RWS. |
| Citation | 107 F.Supp.2d 251 |
| Parties | Emilio PACE, Plaintiff, v. PARIS MAINTENANCE COMPANY, Pembrook Management Company, Corporate Property Investors, and Joseph Galea, Defendants. |
| Court | U.S. District Court — Southern District of New York |
Thomas S. Rosenthal, New York City, for plaintiff.
Milman & Heidecker, Lake Success, NY, for defendant Paris Maintenance Co., by Perry S. Heidecker, of counsel.
Kelley Drye & Warren, New York City, for defendants Pembrook Management Company, Corporate Property Investors and Joseph Galea, by Kenneth Kirschner, Stephen P. Goulet, of counsel.
Defendants Corporate Property Investors ("CPI"), Pembrook Management Company ("Pembrook"), Joseph Galea ("Galea"), and Paris Maintenance Company ("Paris") (collectively, "Defendants") have moved, pursuant to Rule 56, Fed. R.Civ.P., for summary judgment to dismiss the complaint of Emilio Pace ("Pace"). For the reasons set forth below, the motion will be granted.
Pace is a former employee of Paris and of Pembrook. He resides in Brooklyn, New York.
Paris, Pembrook, and CPI are New York corporations with their principal places of business in Manhattan.
Galea is or was a Pembrook employee.
Pace filed his complaint on February 27, 1998 against Defendants, alleging unlawful employment discrimination and retaliation in violation of the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. (the "ADA"), New York Executive Law § 296, the Human Rights Law (the "NYHRL"), and the City of New York Administrative Code Title 8 (the "NYCHRL"). On November 6, 1998, Pace filed a supplemental complaint setting forth events which allegedly occurred subsequent to the filing of the original complaint. Discovery proceeded, and on December 23, 1999, Defendants filed the instant motion for summary judgment. Papers were received through April 21, 2000, at which point the Court heard oral argument and the motion was deemed fully briefed.
The following facts are drawn from the parties' Rule 56.1 Statements and other submissions and, as required, are construed in the light most favorable to Pace, the non-movant. They do not constitute findings of fact by the Court.
The central facts of this case concern the circumstances under which Pace was removed from his occupation as a handyman at a commercial building located at 305 East 47th Street (the "Building") and subsequently shuffled around between several buildings where he worked as a handyman or janitor until he was injured in June 1998 and became disabled.
Pace was born in 1952. He has a General Equivalency Diploma and attended high school for a year. He worked at a gas station briefly, then was unemployed for a year. He delivered groceries for two years. For five or six years during his twenties, Pace was unemployed, during which time he had a substance and alcohol abuse problem; he suffered blackouts, drank excessively, and got high. The chief problem, however, was alcohol abuse. Eventually, he promised his mother that he would refrain from drinking. He subsequently participated in a Church of Scientology drug and alcohol purification program. While he did not obtain medical treatment for his alcohol abuse, his efforts were nevertheless successful: he has not had a drink in the past fifteen or twenty years.
Pace had several other jobs before he began working at the Building. He worked as a security guard and as a carpenter's apprentice, and became a member of Local 32B/32J (the "Union").
Pace began working at the Building in August 1983. He was thirty years old at the time. His initial job at the Building was as a porter. He was promoted to handyman after two or three years. He remained a member of the Union.
Maintenance and janitorial services at commercial buildings in New York City are often provided by companies which contract with the owners or managers of such buildings to provide such services. Union members who work at a particular building, although employed by the maintenance services company, are entitled to remain at the building when a different maintenance services company takes over the contract. If a Union member is removed from a building, he or she may lodge a complaint with the Union, which can then bring a grievance procedure to reinstate the member to his or her job at the building. Salaries and benefits for members of the Union depend on seniority within the Union, but preference for vacation and holiday time off depends on seniority within a particular building, thus providing an incentive for working in a single building for a long period of time.
Pembrook managed the Building, and CPI either owned the Building at 47th Street or maintained offices there and was an alter ego/affiliate of Pembrook. Apparently, Pembrook also originally directly provided maintenance and janitorial services for the Building, and thus was Pace's direct employer for two years. 767 Fifth Avenue Management then took over the maintenance and janitorial services for the Building, and Pace became an employee of 767 Fifth Avenue Management for six or seven months. He was then employed by American Building Management for 12 or 13 years. After ABM, Pritchard took over maintenance and janitorial services at the Building for about eight months. Paris took over in 1996, pursuant to a contract between Paris and Pembrook. Pace never received a paycheck from CPI.
Paris was Pace's employer during the time period relevant to this litigation and paid the salary of, provided benefits for, and scheduled vacations for Pace from the summer of 1996 until June 1998. Paris also was responsible during this period for speaking to Pace about his daily activities, for handling his complaints and problems, and for disciplining him. Paris ultimately removed Pace from the Building at the request of CPI/Pembrook.
Prior to 1997, Pace habitually ate his breakfast on the job, cooked lunches, and took naps. Paris had no difficulty with Pace or with his ability to perform his job, nor is there any evidence to suggest that any prior employer ever had a problem with Pace. However, in February 1997, Galea was hired by Pembrook as the new Building Engineer. Galea, although an employee of Pembrook, thereby became Pace's immediate supervisor. Considerable friction arose between Galea and Pace. Galea told Pace he could no longer cook or take naps, sit down, or take tea breaks while working. Galea was also aggressive and regularly followed Pace around to make sure he was doing his job.
Galea was equally aggressive towards other employees who worked at the Building who did not have any history of substance abuse. For example, Nick Rizzo ("Rizzo") was in constant fear of Galea due to Galea's aggressive treatment of Rizzo. Like Pace, Rizzo was given tasks he did not have the expertise to perform and complete, and was chastised for taking breaks. In addition, night porters, the head of security, and Paris management was given a hard time by Galea. Pace complained to Paris management regarding Galea, as did other Paris employees. Paris told Pace to keep a diary of the incidents with Galea.
Ellen Weglarz ("Weglarz"), Paris's former office manager, described Galea as abusive, assaultive, vile and combative. Weglarz is not an alcoholic and was never accused of being an alcoholic by Galea.
In one incident (the "I-EEE Incident"), Pace responded to a call by a Building tenant, I-EEE, whose representative, Catherine Kemelmacher ("Kemelmacher"), had complained about the air temperature in her office. Pace had to ask Kemelmacher a couple of times for the name of the employee in I-EEE's office who was experiencing the temperature problem. Galea was standing behind Pace when the conversation took place. As Pace left to take care of the problem, Galea asked Kemelmacher, "Don't you know why Emilio forgets?" Kemelmacher asked why, and Galea responded that Pace Surprised, Kemelmacher responded "What?" Galea replied, "Oh sure, he's drunk even now." Galea then made a hand gesture as though he were tossing back a drink. Kemelmacher thought Galea was making a joke and the comments precipitated laughter among those who overheard them.
The tension between Pace and Galea did not dissipate, and on April 25, 1997, Pace filed a complaint with the Union, alleging that Galea was harassing him. On April 28, 1997, he filed a complaint with the City Commission on Human Rights ("CCHR"), alleging disability discrimination against Defendants on the basis of the I-EEE Incident. Defendants were aware soon thereafter that Pace had filed these complaints.
Galea was the only person at Pembrook or CPI who allegedly discriminated against Pace.
On May 20, 1997, Pace and Rizzo were working on removing a water pump from the bottom of the freight elevator in the Building. Pace believed this job was not part of his duties. Pace and Rizzo unhooked the pump, took it to the workshop, and put the elevator back in service. Pace was then assigned to go to the roof and attend to a fire extinguisher on the seventh floor. Pace recommended to Galea that the leaves in the elevator shaft be vacuumed with a Wetvac. Galea said it wasn't necessary because of the type of pump they had. Later that day, however, Galea asked Pace why he hadn't vacuumed up the leaves. Pace did not pass by the freight elevator at the end of the day on May 20, 1997.
The next day, May 21, 1997, Roger Finley ("Finley"), a security guard, asked Pace when he arrived at work who had used the freight elevator the previous night. Finley stated that the security log indicated that the freight elevator was left open and Anibel Munoz, the night supervisor, almost fell in. After the conversation, Pace went downstairs to put on his uniform. He then went back to the lobby where Galea, Finley, and a contractor from Lab Plumbing were...
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