Wali v. One Source Co.

• Decision Date: 30 December 2009
• Docket Number: No. 07 Civ. 7550(DF).,07 Civ. 7550(DF).
• Citation: 678 F. Supp.2d 170
• Parties: Abdul Karim WALI, Plaintiff, v. ONE SOURCE COMPANY, Ms. Gi Corderzo and Mr. Terry Vidal, Defendants.
• Court: U.S. District Court — Southern District of New York

678 F.Supp.2d 170

Abdul Karim WALI, Plaintiff, v. ONE SOURCE COMPANY, Ms. Gi Corderzo and Mr. Terry Vidal, Defendants.

No. 07 Civ. 7550(DF).

United States District Court, S.D. New York.

December 30, 2009.

Abdul Karim Wali, Bronx, NY, pro se.

Harry Mark Weinberg, Law Offices of Harry Weinberg, New York, NY, for Defendants.

MEMORANDUM AND ORDER

DEBRA FREEMAN, United States Magistrate Judge:

In this case, which is before me on consent pursuant to 28 U.S.C. § 636(c), plaintiff Abdul Karim Wali ("Wali") claims that his former employer, defendant OneSource, Inc. ("OneSource"), and two of OneSource's human resources employees, Ms. Gi Corderzo ("Cordero") and Ms. Terry Vidal ("Vidal") (all, collectively, "Defendants")¹ violated his rights under Title VII of the Civil Rights Act of 1964 (the "Title VII" or the "Act"), 42 U.S.C. § 2000e et seq., by terminating his employment on the basis of his race, color and/or religion. (See generally Amended Complaint, dated Sept. 20, 2007 ("Am. Compl.") (Dkt. 4).)

Defendants have moved for summary judgment (Dkt. 37), seeking dismissal of all of Wali's claims. For the reasons discussed below, Defendants' summary judgment motion is granted.

BACKGROUND

A. Factual Background²

During the relevant time period, OneSource was "a building maintenance and janitorial contractor, performing work in, among other places, commercial office buildings in the New York metropolitan area." (See Def. Rule 56.1 Stmt., at ¶ 2 (citing Certification of Harry Weinberg, Esq. in Support of Defendants' Motion for Summary Judgment, dated Mar. 31, 2009 ("Weinberg Cert."), at ¶ 3).)

On or about June 16, 2004, Wali, an African-American, Muslim male, was hired by OneSource as a porter. (Id., at ¶ 3; see also Weinberg Cert., Ex. G (Deposition of Abdul Karim Wali Dep., conducted Nov. 14, 2008, and Mar. 4, 2009 ("Wali Dep.")), at p. 27, ll. 21-25; p. 28, l. 2; p. 38, l. 16-p. 39 l. 8.) According to Defendants, Wali was hired as a temporary vacation replacement for OneSource's regular employees during the vacation season in 2004. (Def. Rule 56.1 Stmt., at ¶ 3 (citing Weinberg Cert., Ex. B (Wali's Application for Employment, dated June 16, 2004); Ex. E (Wali's Acknowledgment of the Temporary Nature of Employment, dated June 16, 2004 ("Wali's Acknowledgment Form")); and Ex. G (Wali Dep.), at pp. 36-38).)

Defendants maintain that the terms and conditions of Wali's employment were governed by a collective bargaining agreement between the Realty Advisory Board on Labor Relations, Inc. ("RAB") and Local 32-32J, Service Employees International Union ("the Union"). (Id., at ¶ 4 (citing Weinberg Cert., at ¶ 5 and Ex. C (2002 Contractors Agreement between the Union and the RAB, effective Jan. 1 through Dec. 31, 2004) (the "CBA")).) Defendants assert that each year, in accordance with the CBA, OneSource hires temporary employees to fill in for permanent employees taking vacation during the period of April 1 and September 15. (Id., at ¶ 5 (citing Weinberg Cert., Ex. C (the CBA), at 79).) According to Defendants, when OneSource hires a temporary employee, the employee becomes a member of the Union and also signs an acknowledgment form confirming that he or she understands that the work he or she accepts from OneSource "is of a temporary nature and upon completion he or she will be terminated." (Id. (citing Weinberg Cert., Ex. D (Wali's Application for Union Membership and Payroll Deduction, dated June 16, 2004); Ex. E (Wali's Acknowledgment Form)).)

Defendants contend that Wali was aware that he was hired on a temporary basis and that he signed an acknowledgment form confirming his understanding of that fact. (Id., at ¶ 7 (citing Weinberg Cert., at ¶ 8 and Ex. G (Wali Dep.), at pp. 36-38)); see also Weinberg Cert., Ex. E (Wali's Acknowledgment Form).) OneSource terminated Wali's employment on or about November 5, 2004, and Wali received his last paycheck for the pay period ending November 9, 2004. (See id., at ¶¶ 3, 6 (citing Weinberg Cert., at ¶ 7 and Ex. F (Wali's Payroll History)).

While Wali does not dispute the dates of his employment (see Pl. Opp. Mem., at 4 ("my employment period ending November 5, 2004 .. could be accurate"), he does dispute his status as a temporary employee (id., at 7 ("no one wrote or said ... how long I was going to work" for OneSource)). At his deposition, Wali testified that he thought he was being hired permanently and not temporarily. (See Weinberg Cert., Ex. G (Wali Dep.), at p. 26, ll. 2-4.) Although he conceded that he signed a form acknowledging that he understood his job to be temporary (see id., at p. 36, l. 2-p. 38, l. 15), Wali testified that he only signed the form because Cordero (who worked in OneSource's Human Resources Department) told him that, unless he did, he would not be able to work (see Pl. Opp. Mem., at 4; Weinberg Cert., Ex. G (Wali Dep.), at p. 28, ll. 10-19). Wali also disputes his membership in the Union, as he claims that he never paid Union dues (Pl. Opp. Mem., at 4, 7), although the documentary record shows otherwise (Weinberg Cert., Ex. D (Wali's Application for Union Membership and Payroll Deduction)).

Wali also maintains that he was terminated not because of his supposed temporary status, but rather as a result of unlawful discrimination. In support of this claim, Wali argues that Defendants' discriminatory conduct is evidenced by the fact that others who were similarly situated to him, but of a different race, color and/or religion, were not similarly terminated. Specifically, Wali contends that he attended the same maintenance school as two men of purported Hispanic descent, Domingo Camacho ("Camacho") and DeJesus Carebello ("Carebello") (see Weinberg Cert., Ex. G (Wali Dep.), at p. 26, l. 12-p. 27, l. 7), that all three of them applied for employment with, and were hired by, OneSource, on or about June 16, 2004 (see id., at p. 25, ll. 15-20), but that Camacho and Carebello continued their employment for longer periods than Wali (see id., at p. 26, ll. 19-20 ("they OneSource kept the Hispanic workers and let me go"). Even though Wali admitted at his deposition that he had no documents or records to support his contention that either Camacho or Carebello continued to work for OneSource after the date of Wali's own termination (see Weinberg Cert., Ex. G (Wali Dep.), p. 56, ll. 14-15 ("The only thing I have is my visual."); see also id., at pp. 60-61), he contends that, on separate occasions, he met each of these men and that each told him that he had worked for OneSource beyond November 2004 (see id., at p. 54, l. 10-p.57, l. 7; pp. 58-60). In particular, Wali asserts that Carebello told him that he had worked for OneSource for a total of 14 months. (Id., at p. 60, ll. 21-25.)

On this question, OneSource points to the fact that its employment records show that Camacho was hired on or about June 24, 2004 (approximately a week after Wali was hired) and was terminated on or about November 9, 2004 (only four days after Wali was similarly terminated).³ (Def. Rule 56.1 Stmt., at ¶ 16 (citing Weinberg Cert., at ¶ 17, Ex. M (Camacho Employment Record)).)⁴ As to Carebello, Defendants state that, based on OneSource's records, no individual by that name was employed by OneSource during the period in question. (Def. 56.1 Stmt., at ¶ 15; (citing Weinberg Cert., at ¶ 16); see also Weinberg Cert., Ex. G (Wali Dep.), at p. 62, ll. 14-22; p. 77, l. 22-p. 79, l. 14.) In his opposition papers, Wali merely asserts that he "has two witnesses" who can testify to the fact that Carebello existed and was, in fact, employed by OneSource around the same time as he was. (See Pl. Affirm., at 1; Pl. Opp. Mem., at 5-6.)

B. Procedural History

1. Administrative Proceedings

Shortly after his termination, on January 19, 2005, Wali filed a complaint with the New York State Division of Human Rights ("NYSDHR"), alleging he had been terminated from his employment with OneSource because of his race and color, in violation of Article 15 of the New York State Human Rights Law and Title VII. (See Weinberg Cert., Ex. H (Verified Complaint, in Wali v. One Source Co., Case No. 10103636, Federal Charge No. 16GA501574, dated Jan. 19, 2005 ("NYSDHR Complaint")), at 1.) Wali's administrative complaint also authorized the NYSDHR to accept his complaint on behalf of the federal Equal Employment Opportunity Commission ("EEOC"). (Id., at 2.)

Upon completion of its investigation, the NYSDHR found: "There is no probable cause to believe the respondent has engaged in or is engaging in the unlawful discriminatory practice complained of." (See Weinberg Cert., Ex. I (NYSDHR Determination and Order After Investigation, Case No. 10103636, dated July 13, 2006), at 1.) The EEOC adopted the NYSDHR's findings, dismissed Wali's complaint, and issued a "right to sue" letter. (See Weinberg Cert., Ex. J (EEOC Dismissal and Notice of Rights, dated Sept. 22, 2006).)

2. The Instant Action

Wali commenced this action on December 18, 2006. (Dkt. 2.) After the Court dismissed his initial Complaint (Dkt. 3), Wali filed an Amended Complaint on September 20, 2007 (Dkt. 4), alleging that he was wrongfully terminated from his position because of his race and color in violation of Title VII (see Am. Compl., at ¶¶ 4, 7).⁵ In addition, Wali included a claim of religious discrimination (id., at ¶ 7), which was not raised in his prior administrative complaint (see NYSDHR Complaint).

Defendants filed an Answer (Dkt. 11), and, on March 31, 2009, a motion for summary judgment dismissing all of Wali's claims (see Notice of Motion, dated Mar. 31, 2009 (Dkt. 37)). Defendants argue in their motion that any state-law discrimination claims that Wali may be seeking to assert are not properly before this Court (see Memorandum of Law in Support of Defendants' Motion for Summary Judgment, dated Mar. 31, 2009 ("Def. Mem.") (Dkt. 39), at 10-11), and that Wali's federal claims must fail on the grounds that (a) he has not established a ...