Pena-Barrero v. City of N.Y.

• Decision Date: 30 March 2017
• Docket Number: 14-CV-9550 (VEC)
• Parties: LUIS F. PENA-BARRERO, Plaintiff, v. THE CITY OF NEW YORK, KEITH KERMAN, STEVE WEIR, FRANK DAZZO, Defendants.
• Court: U.S. District Court — Southern District of New York

LUIS F. PENA-BARRERO, Plaintiff, v. THE CITY OF NEW YORK, KEITH KERMAN,STEVE WEIR, FRANK DAZZO, Defendants.

14-CV-9550 (VEC)

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

March 30, 2017

MEMORANDUM OPINION & ORDER

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.

BACKGROUND

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 adisability. 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 servicepositions 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 askedto 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...