Opinion
98-CV-0235E (F)
August 22, 2001
Pro Se, Kingston NY, for defendant.
Cheryl Smith Fisher, Esq., c/o Magavern, Magavern Grimm, Buffalo NY, for defendant.
MEMORANDUM and ORDER
Plaintiff filed a complaint with the New York State Division of Human Rights ("the DHR") November 19, 1993 alleging that defendant Kenmore had unlawfully discriminated, against him due to his race, color and national origin in violation of Article 15 of the New York State Human Rights Law ("HRL"). Plaintiff had also requested that the DHR accept his complaint on behalf of the Equal Employment Opportunity Commission ("the EEOC") as raising a charge under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. ("Title VII"). The DHR, on October 28, 1997, issued its Determination and Order After Investigation finding that there was no probable cause to believe that defendant had discriminated against plaintiff. The EEOC issued its Determination January 8, 1998 also finding that the evidence did not establish that defendant had discriminated against plaintiff.
Plaintiff commenced this Title VII action pro se April 7, 1998 naming Louis Vaccaro, his supervisor, as defendant and raising additional state law causes of action for discrimination, intentional infliction of emotional distress, defamation, negligence, invasion of privacy and breach of the covenants of good faith and fair dealing. Compl. ¶ 13 (j). In response to a motion to dismiss by Vaccaro, Judge Skretny of this Court — to whom this case had been originally assigned — on March 25, 1999 dismissed plaintiff's Complaint in its entirety on the bases that Vaccaro was not subject to liability under Title VII, that the statutory period of limitations had expired on plaintiff's claims for intentional infliction of emotional distress, defamation, negligence and invasion of privacy and that plaintiff had not pled any facts in support of his claim for breach of the covenant of good faith and fair dealing, but granted plaintiff leave to file an amended complaint naming Kenmore as defendant and setting forth factual allegations in support of his claim for breach of said covenant.
Vaccaro has been variously described as the President — Quinn Dec. 9, 1993 letter to the DHR —, Vice-President — Response to Allegations — and Operations Manager of Kenmore — Respondent Contact Information Form and Vaccaro October 13, 2000 Aff. ¶ 1.
Plaintiff filed an Amended Complaint August 6, 1999 naming Kenmore as defendant and claiming that Kenmore had discriminated against him on the basis of his race, color and national origin in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., on the following grounds — (1) failure to provide reasonable accommodations in the application process, (2) termination of employment, (3) failure to provide reasonable accommodations to allow him to perform the essential functions of his job, (4) harassment on the basis of unequal terms and conditions of employment and (5) retaliation for complaining about discrimination and/or harassment towards him. Am. Compl. ¶¶ 13(a), (c), (e), (g) and (h). Plaintiff also re-raised all of the state law causes of action from his original Complaint. Am. Compl. ¶ 13(j). Inasmuch as the latter had already been dismissed by Judge Skretny, plaintiff's claims for intentional infliction of emotional distress, defamation, negligence and invasion of privacy could not have been re-raised in his Amended Complaint and accordingly will be dismissed. Plaintiff's separately listed claim for "discrimination," will simply be treated as part of his Title VII claim. The facts pled by plaintiff in support of his claim for breach of the covenant of good faith and fair dealing largely mirror those set forth in his Title VII claim; he alleges that such facts constitute a breach of the covenant of good faith and fair dealing as well as unlawful discrimination in violation of Title VII. Am. Compl. ¶ 13(j)(1)-(11).
In his Amended Complaint, plaintiff alleged that he was employed by Kenmore Development. Am. Compl. ¶ 2. Defendant denied this in its Answer. Answer ¶ 2. In response to the complaint plaintiff filed with the DHR, Vaccaro filled out a "Respondent Contact Information" form on behalf of defendant. One of the questions on this form asked for the correct legal name of defendant, to which Vaccaro responded "Kenmore Development DBA" but failed to disclose who or what was doing business as Kenmore Development. In his May 18, 1998 Affidavit, Vaccaro states that Kenmore Development is an "unincorporated business owned by an individual that manages a number of apartment buildings." Vaccaro May 18, 1998 Aff. ¶ 1. It appears that Kenmore Development is owned by one Jack Hunt who is doing business as Kenmore Development. He is also the owner of Jack Hunt Coin Broker from whom — as will be noted at a later point — plaintiff was accused of diverting business.
Such being among the choices to be checked on the standard fill-in-the-blank discrimination complaint form provided by this Court for use by pro se litigants.
If plaintiff had intended such to be a claim for violation of the HRL, it would have to be dismissed because a plaintiff who files a HRL complaint with the DHR is thereafter barred from filing suit on the same basis. N.Y. Exec. Law § 297(9).
Plaintiff filed a motion for leave to file a second amended complaint to add a cause of action for "blacklisting" and a motion for summary judgment September 20, 2000; defendant filed a cross-motion for summary judgment October 13, 2000. This Court will first address the parties' competing motions for summary judgment. Plaintiff did not file the required Local Rule of Civil Procedure ("LRCvP") 66 Statement of Undisputed Facts in support of his motion for summary judgment; however defendant did file such in support of its cross-motion for summary judgment. In response to defendant's LRCvP 56 Statement, plaintiff did not file the required Statement of Disputed Facts but instead filed a "Response to Defendant's Offerings Received by Plaintiff on 10-17-00." Plaintiff's Response is sufficiently akin to a LRCvP 56 Statement of Disputed Facts and will be considered as such. Plaintiff's motion for summary judgment primarily addresses his claims that defendant discriminated against him on the basis of unequal terms and conditions of employment, retaliated against him for complaining about discrimination and breached the covenants of good faith and fair dealing. Although defendant states that it is seeking summary judgment dismissing plaintiff's complaint in its entirety, its motion for summary judgment is almost entirely devoted to plaintiff's allegation that he was terminated due to his race, color and national origin in violation of Title VII; plaintiff's remaining Title VII claims are barely addressed and plaintiff's claim for breach of the implied covenant of good faith and fair dealing is not even mentioned.
See pages 25 to 27, infra.
Such "offerings" constitute defendant's Cross-Motion for Summary Judgment with attached LRCvP 56 Statement, attorney's affidavit and exhibits and defendant's Memorandum of Law in Opposition to Plaintiff's Motion for Summary Judgment and in Support of Defendant's Motion for Summary Judgment.
Plaintiff's Memorandum of Law in Support of his Motion for Summary Judgment is only two pages; it simply states that he is a member of a protected class and lists the bases on which he feels he has suffered discrimination.
Inasmuch as defendant's motion for summary judgment does not address plaintiff's claim for breach of the covenant of good faith and fair dealing and plaintiff's Memorandum of Law in Support of his Motion for Summary Judgment does not address this claim, neither will the Court. See LRCvP 7.1(e).
Title VII makes it "an unlawful employment practice for an employer to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin * * *." 42 U.S.C. § 2000e-2 (a)(1). Rule 56(c) of the Federal Rules of Civil Procedure ("FRCvP") states that summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter law." The party seeking summary judgment must demonstrate to the court the "lack of a genuine, triable issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986). A fact that "is such that a reasonable jury could return a verdict for the nonmoving party" is genuine and a fact that "might affect the outcome of the suit under the governing law" is material. Anderson v. Liberty Lobby, 477 U.S. 242, 247-248 (1986). When ruling on a motion for summary judgment a court must view the facts in the "light most favorable to the opposing party" — Adickes v. H.S. Kress Co., 398 U.S. 144, 157 (1970) — although the opposing party may not rest upon conclusory statements in his pleadings but "must set forth specific facts showing that there is a genuine issue for trial." FRCvP 56(e). "[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment" and, if "the evidence is merely colorable * * * or is not significantly probative * * *, summary judgment may be granted." Anderson, at 247, 249-250. Summary judgment must be granted when a party "fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. In such a situation, there can be no 'genuine issue as to any material fact,' since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Celotex, at 322-323. When ruling on a motion for summary judgment in a Title VII discrimination case a court applies the three-part burden shifting analysis enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-804 (1973).
"First, the plaintiff has the burden of proving by the preponderance of the evidence a prima facie case of discrimination. Second, if the plaintiff succeeds in proving the prima facie case, the burden shifts to the defendant to articulate some legitimate, nondiscriminatory reason for [its actions]. Third, should the defendant carry this burden, the plaintiff must then have an opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reason, but were a pretext for discrimination." Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 252-253 (1981).
Internal citations and punctuation omitted.
When applying the McDonnell Douglas burden-shifting analysis in ruling on a motion for summary judgment in a Title VII case, the court must remain cognizant that employment discrimination
"is often accomplished by discreet manipulations and hidden under a veil of self-declared innocence. An employer who discriminates is unlikely to leave a smoking gun,' such as a notation in an employee's personnel file, attesting to a discriminatory intent. A victim of discrimination is therefore seldom able to prove his or her claim by direct evidence and is usually constrained to rely on the cumulative weight of circumstantial evidence. Consequently, in a Title VII action, where a defendant's intent and state of mind are placed in issue, summary judgment is ordinarily inappropriate. Rosen v. Thornburgh, 928 F.2d 528, 533 (2d Cir. 1991).
Internal citations and punctuation omitted.
With the above standards in mind, this Court has culled the following facts from the parties' submissions — including those relating to Vaccaro's earlier motion to dismiss — which are referred to extensively by plaintiff. Plaintiff's first Title VII claim alleges that defendant discriminated against him in the terms and conditions of his employment. Plaintiff, who is half Italian, half Japanese, worked at the Sheridan Manor apartment complex, one of several apartment complexes owned by defendant, from approximately October 1987 until he was terminated August 5, 1993. Defendant employed property managers at its various apartment complexes, the duties of whom are contained in the 'Property Management Checklistand [sic] Worksheet" ("Property Management Checklist"). Each of last two property managers employed at Sheridan Manor before plaintiff was hired — Pat and then Karen — was Caucasian and performed the full duties of a property manager including the showing of apartments to prospective tenants. Plaintiff states that he was hired to replace Karen as property manager at Sheridan Manor, but that he was only allowed to perform the janitorial aspects of the position and that two Caucasian employees from defendant's main office would show and rent the apartments to prospective tenants. Plaintiff states that he had filled out a written employment application wherein he listed his position as property manager and that his status as a property manager is reflected in both the Property Management Checklists which he was required to fill out daily as part of his duties and which were submitted to the main office and in an unemployment application wherein he listed the kind of work he did as property manager and which was verified by defendant before being submitted to the New York State Department of Labor. Plaintiff states that, throughout his employment, he repeatedly requested to be allowed to perform all of the duties of a property manager, including having initial contact with tenants by showing and renting apartments — which every other property manager had been and was allowed to do —, but that each time Vaccaro turned down his request stating that he did not "fit in." Plaintiff states that he was as qualified, if not more so, than the other property managers because he had some college education and that Vaccaro's refusal to let him show apartments to prospective tenants because he did not "fit in" was due to his ethnicity and was highly discriminatory. Plaintiff further alleges that he was paid less than the other property managers, was not listed in the "Kenmore Development Crew" section of the company's quarterly newsletter and did not receive the bonuses paid to all other employees of defendant. Plaintiff's evidence is sufficient to establish a prima facie case that defendant discriminated against him in the terms and conditions of his employment.
Although plaintiff has checked off five boxes for the basis for his Title VII claim in his Amended Complaint, — viz., (1) failure to provide reasonable accommodations in the application process, (2) termination of employment, (3) failure to provide reasonable accommodations to allow him to perform the essential functions of his job, (4) harassment on the basis of unequal terms and conditions of employment and (5) retaliation for complaining about discrimination or harassment towards him — Am. Compl. ¶¶ 13(a), (c), (e), (g) and (h) —, a review of the underlying factual allegations shows that such claim is actually limited to his allegations that defendant discriminated against him on the basis of unequal terms and conditions of employment and retaliated against him by terminating him. Plaintiff's allegations that defendant discriminated against him in failing to provide reasonable accommodations in the application process and to allow him to perform the essential functions of his job — Am. Compl. ¶¶ 13(a) 13(e) — relate solely to defendant's refusal to allow him to show apartments to prospective tenants. The factual basis thereof establishes that they are properly brought as part of plaintiff's claim that defendant discriminated against him on the basis of unequal terms and conditions of employment — Am. Compl. ¶ 13(g) — and accordingly they will be dismissed and instead considered in conjunction with and as part of plaintiff's claim for such discrimination — i.e., as his first Title VII claim. Plaintiff's claims that defendant retaliated against him for complaining about discrimination or harassment towards him — Am. Compl. ¶ 13(h) — and discriminated against him by terminating his employment — Am. Compl. ¶ 13(c) — will be consolidated and treated together as his second Title VII claim.
See footnote 2, supra.
The checklist had twelve entries, which purportedly delineate the duties of a property manager — viz., (1) phone office daily about 4:00 for appointments, (2) walk property weekly to check laundry rooms, parking and post lights and for abandoned cars, (3) apartment should be in presentable condition at all times for possible showings, (4) if apartment rental is made with contingency, make arrangements to show apt. as soon as possible (within 3 days), (5) if any specific items in apt. need repair or attention, let us know (appliances, windows cleaned, etc.), (6) check dumpster area daily (pickup), (7) keep middle laundry dusted, sweep, etc., (8) sweep locker areas bi-weekly, (9) check laundry and locker lights, (10) show apartments and open house, (11) police property and (12) general information. Property Management Checklists.
See infra.
Defendant responds by stating that, although no employment application was taken from plaintiff because he had been a tenant, he was hired as a janitor and not as a property manager and that his duties consisted of cleaning the common areas of the apartment complex and policing the grounds. Defendant states that it had discontinued the use of a property manager at the Sheridan Manor apartment complex because it had decided to handle rental applications out of its main office due to close physical proximity and that defendant was informed of such and told he was being hired to perform only janitorial duties. Defendant states that, although plaintiff asked for additional duties, it had no need for him to perform such, but that plaintiff nonetheless held himself out to the tenants as the property manager and had to be told not to so misrepresent himself. Vaccaro states that plaintiff was paid as a janitor, that he was not listed in the newsletter because "his duties were not related to tenant relations and my intention was not to have tenants bother him with any requests because that was not what he was asked to do" and that plaintiff never complained about not receiving any bonuses during his employment. Defendant has accordingly proffered a legitimate nondiscriminatory reason for its actions.
Vaccaro October 13, 2000 Aff. ¶ 2; Vaccaro May 18, 2000 Aff. ¶ 2; Response to Allegations ¶¶ 2-4, 6-8; Allegation Responses ¶¶ 1-2.
Allegation Responses ¶ 2.
Allegation Responses ¶¶ 2-3; Vaccaro Oct. 13, 2000 Aff. ¶ 5.
Allegation Responses ¶¶ 1-3.
Plaintiff counters that defendant's responses are only a pretext because defendant continued to employ Jackie Howard as property manager at Riverview Apartments and Mike Manzella's sister as property manager at Tudor Gardens each of which was located approximately as close to defendant's main office as was Sheridan Manor. Plaintiff further states that, even if he were only a janitor, he should have been listed in the newsletter because tenants would need to know whom to contact in case something needed to be cleaned up and that, in any event, "custodians" were listed in the newsletter. Plaintiff states that, although Jack Hunt authorized the payment of a bonus of at least $1,000 to all employees around July 1991, he was the only employee who did not receive such. Plaintiff has put forward sufficient evidence to establish that defendant's allegedly legitimate nondiscriminatory reason for its actions was a pretext. Therefore both plaintiff's and defendant's motions for summary judgment on plaintiff's first Title VII claim will be denied.
Defendant appears to have told the DHR that Jackie Howard was a janitor, but then appears to have responded to plaintiff's interrogatory number three which requested the job title of Jackie Howard by stating that she was a rental agent/property manager.
Plaintiff's second Title VII claim is that defendant retaliated against him for his complaining about discrimination by terminating and evicting him. The first dispute between plaintiff and defendant — other than in relation to plaintiff's position at Sheridan Manor — involved an incident at defendant's main office January 15, 1993 which incident was unconnected to plaintiff's employment but ultimately contributed to its termination. Kenmore Development's main office is housed in the same building as is Jack Hunt Coin Broker, albeit on a different floor. Plaintiff then was present at such location and conversed with a customer who was seeking to sell certain items to Jack Hunt Coin Broker. Douglas Trinder, the manager of Jack Hunt Coin Broker, called Vaccaro and complained about plaintiff's taking business away from him by trying to buy the items from the customer. Vaccaro then summoned plaintiff to his office and stated that he was very upset at plaintiff's behavior; Vaccaro states that he later apologized to plaintiff for having been so angry. Plaintiff states that he had only asked the customer what he had been offered for the items and that he did not attempt to buy them. Plaintiff states that, during this meeting in Vaccaro's office, Vaccaro was spitting in his face while yelling and screaming at him and waving his finger within six inches of plaintiff's face; plaintiff states that Vaccaro's conduct that day made him so afraid to be alone with Vaccaro that he thereafter refused to go to Vaccaro's office without a police escort.
In May of 1993 a dispute arose over plaintiff's storage of his motorcycle in a garage at Sheridan Manor and ultimately led to the termination of his employment. Plaintiff had been storing his motorcycle in a garage in which defendant had been storing equipment but in March of 1993 defendant had removed its equipment therefrom and had rented it to another employee, Dave Moss, for the storing of the latter's boat. Moss allowed plaintiff to keep his motorcycle in the garage. Plaintiff states that, in mid-May of 1993, he was working on his motorcycle in the parking lot of Sheridan Manor when he was informed by two tenants that they were moving out but had rented a garage through the end of the month and that he was welcome to store his motorcycle there for the remainder of the month. Plaintiff states that, when he requested defendant's permission to do so, defendant refused and rented it to another tenant. Defendant, however, states that plaintiff had taken possession of the garage when the tenants vacated without informing it and then became upset when it rented the garage to a new tenant and plaintiff could no longer use it. Accordingly, in June 1993 plaintiff rented space in Moss's garage for six months to store his motorcycle but, in July 1993, Vaccaro made plaintiff remove motorcycle and required Moss to return his money. this dispute led to a volley of letters between plaintiff and Vaccaro, one of which follows.
"We have removed our equip. from Garage T3 I have rented the space to Dave Moss for his boat. He has agreed to leave your motorcycle in the garage with his boat. That should help so since only you and Dave Moss have use of the garage. He is paying rent." Vaccaro March 29, 1993 Memorandum. "As per garage use, unless you are willing to pay I can't offer you anything more than the space you have available because other employees spay for space it would not be fair to them. * * *" Vaccaro May 18, 1998 Aff. Ex. A3 (Vaccaro April 16, 1993 Memorandum).
Vaccaro Oct. 13, 2000 Aff. Ex. A. (Vaccaro May 20, 1993 Memorandum).
Carchidi April 24, 1999 Aff. ¶ 7.
"When I allowed you to use the Garage 13 at Sheridan Manor I explained to you that Garage 13 was rented by David Moss I asked him to allow you to keep your bike in the garage. Even though I allowed you to use the garage by asking David Moss, he pays monthly for the use of the garage, so you use the garage at option, not Kenmore Development.
"Since you misunderstood that situation I will allow your deduction from this months [ sic] rent only.
"For all concerned I discussed the situation with David Moss and He would like you to remove your motorcycle from his garage by 7/31/93.
"As far as criminal trespass charge both Michael Manzella and David Moss feel you should pursue your accusations as soon as possible.
Plaintiff states that the issue of criminal charges had arisen when he had been informed that another employee had entered his apartment to shoot squirrels from his apartment window because they were having a squirrel problem and plaintiff said that such constituted trespassing; he states that he did not threaten to "press charges for past actions" but was mentioning such for "future considerations."
"I continue to try to work with you but there is always some problem I end up paying for trying to solve.
"At this point I question my logic in keeping you in the position at Sheridan Manor, but since you are not fully employed, I will wait for another time to reconsider my position with you, so it does not burden you.
"Any questions feel free to call or stop in see me." Vaccaro Oct. 13, 2000 Aff. Ex. B. (Vaccaro July 14, 1993 Letter). Plaintiff states that he spoke to Moss on the telephone July 14, 1993 and then in person July 16, 1993 regarding Vaccaro's letter. Plaintiff states that Moss told him that he had never had the referenced conversation with Vaccaro, that he had never requested that plaintiff remove his motorcycle from the garage and that he was returning plaintiff's rental payment at Vaccaro's request. Plaintiff thereafter wrote to Vaccaro stating that:
"On Friday 7-16-93 Dave Moss came to me at approx. 11:15 am to return the money I paid him for the garage use until 1-1-94. He stated that you claimed the only reason I paid him so far in advance was because I was scheming to lock in on the garage because we were on bad terms and you were in the process of throwing me out of the garage.
"I say only a tasteless sick minded person with absolutely poor judgement would come up with such garbage. If you are capable of recalling the only thing mentioned about me leaving the garage was by me stating that 'if Dave is going to be moving his boat in and out my bike could pose a problem and that I would talk to him in regards to any problem.' I did in fact talk to him and we agreed that since his boat was going no where [sic] without an engine my bike was not a problem.
"You can see in fact that up to 7-14-93 as varified [sic] by your document sent to me the garage use by me was between Dave and me. Then on 7-15-93 you have the poor taste to tell Dave he had no right in taking payment from me since you told him I could stay in there for free. I say go right ahead playing your games because agian [sic] according to your letter dated 7-14-93 [t]he garage use was 'at Dave[']s option and NOT Kenmore Development.'" Vaccaro Oct. 13, 2000 Aff. Ex. C. (Carchidi July 23, 1993 Letter).
Vaccaro then wrote the following series of letters to plaintiff — to none which plaintiff ever responded.
"I called on Sat. 7/24 you didn't return my call. I called today at 4:00 your machine was not on I called again at 4:44 PM your machine was on left a message to call me. As an employee on [sic] Kenmore Development I expect a return call from you. I see no reason you can't call Tuesday. Either this situation is solved or I will no longer have you as part of my staff." Vaccaro Oct. 13, 2000 Aff. Ex. D. (Vaccaro July 26, 1993 Memorandum).
"You have not complied with a reasonable request to call me. You make statements without knowing what 2 people discussed. You refer to your mgr. as a tasteless sick minded person with absolutely poor judgment etc. I am not willing to accept this situation as it stands. My last request to you is either you call me this situation is resolved or I will not allow you to continue as an employee of Kenmore." Vaccaro Oct. 13, 2000 Aff. Ex. E. (Vaccaro July 29, 1993 Memorandum).
"As of the above date you have not responded to my request for a phone call to my office to resolve this matter. As operations mgr. for Kenmore Development I find I am no longer able to tolerate your lack of respect for management unwillingness to call to try to solve your problem which you blame on me. As of 8/5/93 you are being terminated from your employment from Kenmore Development (Jack Hunt) for being unwilling to cooperate work with Management. Being month to month resident at 1418 Sheridan you are expected to vacate by 9/30/93." Vaccaro Oct. 13, 2000 Aff. Ex. F. (Vaccaro August 2, 1993 Memorandum).
Plaintiff does not dispute that he refused to speak to Vaccaro over the telephone or to speak with him in his office unless accompanied by a police escort.
Plaintiff's second Title VII claim is that defendant retaliated against him for his discrimination complaints by terminating and evicting him. Plaintiff's allegation that defendant retaliated against him for complaining about discrimination — apart from his requesting to be allowed to show apartments and to be listed in the newsletter — is based on his eviction from Sheridan Manor, where he had resided for eight years. Plaintiff has not presented any evidence whatsoever in support of his allegation that defendant retaliated against him for complaining about discrimination or harassment; plaintiff had already been terminated and notified that he was being evicted before he first complained of discrimination. Rather, plaintiff's claim of retaliation is welded to his claim of wrongful termination — i.e., defendant retaliated against him by terminating and evicting him due to his repeated requests to be allowed to show apartments to prospective tenants and to be listed in the company newsletter.
Plaintiff's contention that Vaccaro acknowledged that plaintiff had complained to him about discrimination actually does not support his retaliation claim because such claim was made after plaintiff had been terminated; there is no evidence that plaintiff, prior to termination, claimed he was being subjected to discrimination. Carchidi Affidavit filed September 20, 2000 ¶¶ 6-9.
To the extent that plaintiff may be claiming that defendant retaliated against him based on his requests to be allowed to show apartments and be listed in the newsletter and by interfering with his quest to secure garage space for his motorcycle, plaintiff has failed to present any evidence in support of such contention. Carchidi Affidavit filed September 20, 2000 ¶¶ 7-8.
Plaintiff alleges that he was wrongfully terminated and evicted in retaliation for his repeated requests to be allowed to show apartments to prospective tenants — which prerogative he alleges he had been denied due to ethnicity. Plaintiff has, however, failed to establish a prima facie case on this claim. He simply alleges that he was terminated and evicted due to his repeated requests to perform the full duties of a property manager and to be listed in the company newsletter; however he has failed to establish any connection between his ethnicity and his termination and eviction. All plaintiff did was request to be allowed to show apartments and to be listed in the newsletter; he does not allege that he stated to Vaccaro that he felt he was being denied either right due to his ethnicity. He has not presented any evidence that his termination or eviction was due to his requests to be allowed to show apartments and be listed in the newsletter. In contrast, defendant has submitted a legitimate nondiscriminatory reason for terminating plaintiff — i.e., plaintiff refused to communicate with his supervisor either in person — unless accompanied by a police escort — or over the telephone and, in addition, called his supervisor "a tasteless sick minded person with absolutely poor judgement." Rather than asserting that defendant's reason for terminating him was merely a pretext, plaintiff does not dispute that he refused to speak to Vaccaro over the telephone or to speak with him in his office unless accompanied by a police escort. Accordingly, plaintiff's motion for summary judgment on his second Title VII claim — i.e., that defendant retaliated against him for complaining about being discriminated against by terminating and evicting him — will be denied and defendant's motion for summary judgment on such claim will be granted.
Plaintiff has not presented evidence to show that defendant terminated or retaliated against him because he did not "fit in" because of his ethnicity.
Plaintiff was a month-to-month resident in his apartment and defendant was legally entitled to evict him.
Plaintiff has also moved for leave to file a second amended complaint wherein he simply proposes to add the word "blacklisting" to paragraph 13 (j) of his Amended Complaint. In support of his motion to file a second amended complaint to add a cause of action for blacklisting, plaintiff states that he
Plaintiff also proposes to correct two typographical errors in his Amended Complaint and states that, if he is allowed to file a second amended complaint, he will amend his response to defendant's interrogatories to request that an injunction be added to the list of damages he is seeking.
regularly listed his position of Property Manager with Kenmore Development on job applications as part of his work history/work references. The Plaintiff has been told by perspective [ sic] employers that he would be notified of their decision regardless of what they decide. The Plaintiff regularly has not received the notifications so promised. We know that any employer that feels an applicant lied on a job application will have very little respect for said applicant, and would not feel the need to have any further contact with said applicant. We do know that the Defendant has regularly and repeatedly informed the 'Court' that the Plaintiff was a Janitor, which is not true. We conclude that the Defendant would also make such a claim to an employer. Even though the Defendant has claimed in his response to Plaintiff's interrogatory # 8 that no employer has ever contacted him regarding the Plaintiff we conclude that as seen all throughout the proceedings the Defendant has attempted to mislead the "Court.'"
Plaintiff fails to name any other person or persons embraced by such pronoun.
Defendant opposes plaintiff's motion for leave to file a second amended complaint on the ground that such would be futile. Defendant states that plaintiff's proposed claim for blacklisting is properly a defamation claim and that such fails both because it is presumably brought outside of the statutory period of limitations and because the specific defamatory material is not set forth. The statutory period of limitations for defamation under New York law is one year. N Y C.P.L.R. 215(3). Furthermore, N.Y C.P.L.R. 3016 requires that the allegedly defamatory words be set forth with particularity in the complaint. Although leave to amend a complaint should normally be freely given, such leave should not be granted when the proposed amendment would be futile. Mroz v. City of Tonawanda, 999 F. Supp. 436, 466 (W.D.N.Y. 1998). Plaintiff's proposed second amended complaint would be such and his request will therefore be denied for the reasons that he does not set forth the allegedly defamatory material and that, because he does not even allege that such actually occurred, he cannot particularize the conduct as having occurred within the statutory period of limitations.
Accordingly, it is hereby ORDERED that plaintiff's motions for leave to file a second amended complaint and for summary judgment are denied, that defendant's motion for summary judgment is granted in part and denied in part, that plaintiff's Title VII claims for failure to provide reasonable accommodations in the application process, failure to provide reasonable accommodations necessary to perform the essential functions of his job, retaliation for complaining about discrimination or harassment towards him and termination of employment are dismissed, that plaintiff's claims for intentional infliction of emotional distress, defamation, negligence, invasion of privacy and "discrimination" are dismissed and that the parties shall appear to set a date for trial Friday, September 7, 2001 at 3:00 p.m. or as soon thereafter as the matter may be heard.