Opinion
00 Civ. 3706 (WK)
December 11, 2001
Manuel Calle, Bronx, New York, Plaintiff — Pro Se.
Felice B. Ekelman, Esq., Jackson Lewis Schnitzler Krupman, New York, New York, For Defendant.
MEMORANDUM ORDER
Plaintiff Manuel Calle ("plaintiff"), pro se, brings this employment discrimination action alleging claims pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. ("Title VII") and the Age Discrimination Act, 29 U.S.C. § 621-635 (the "ADEA"). Currently before us is defendant OneSource Facility Services, Inc.'s ("defendant" or "OneSource") motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure.
Defendant is incorrectly named as "ISS Cleaning Services Group."
BACKGROUND
This case arises out of plaintiff's employment with OneSource, which began on November 8, 1986. Plaintiff worked as a Gardener at the Peter Cooper Village and Stuyvesant Town Complexes, which are owned by Metropolitan Life Insurance Company, where he provided janitorial and cleaning services. In 1997, plaintiff was assigned to work in defendant's Tile Shop as a Helper, and in January 1999 he was promoted to Tile Mechanic.On June 19, 1998, Charles Totoro ("Totoro"), Project Manager at the Peter Cooper Village and Stuyvesant Town complexes, distributed a memorandum to all personnel entitled "Theft Policy." The Theft Policy states, in pertinent part:
The Theft of any and all materials, equipment, and services belonging to Met Life and ISS will result in immediate termination and prosecution. This policy will adhere to all ISS employees of the Peter Cooper/Stuyvesant Town Complex's.
(Affidavit of Stephen Bakaj Exhibit A). The Theft Policy was also posted in all section offices, above all employee time clocks, and in all work areas. (Id. at ¶ 4).
On April 28, 1999 plaintiff's employment was terminated after he had denied and then admitted removing tiles from defendants property and putting them in a car he had borrowed. It is undisputed that plaintiff took the tiles without permission.
In a memorandum to plaintiff from Totoro dated April 29, 1999 entitled "Termination Notice" it states that the reasons for plaintiff's termination was "Theft of Materials" and "Lying to your Supervisor." (Affidavit of Fred Surface Exhibit B).
At some point soon thereafter, plaintiff filed a grievance with Local Union 1456 challenging his termination. In response, Totoro issued a memorandum to John Barnett, the Union Business Agent, stating that plaintiff's employment would not be reinstated because he "was caught stealing materials from the owner of this property" and "[h]e lied about taking the materials then admitted to taking them." (Affidavit of Fred Surace Exhibit C).
In July 1999 plaintiff filed a Charge of Discrimination with the Equal Employment Opportunity Commission (the "EEOC"). In his charge, plaintiff checked only the box asserting a claim of national original discrimination under Title VII. He did not check the box asserting a claim under the ADEA. (Affidavit of Felice Ekelman Exhibit A).
On May 17, 2000, plaintiff filed the instant action by completing a pro se form complaint. In his complaint plaintiff checked boxes corresponding to claims based on both Title VII and the ADEA.
DISCUSSION
While we read the submissions filed by pro se litigants liberally to interpret them to raise the strongest possible arguments, McPherson v. Coombe (2d Cir. 1999) 174 F.3d 276, 280, submissions including only conclusory and vague allegations will not be sufficient to defeat a defendant's motion for summary judgment. Castro v. N.Y.C. Dept. of Sanitation (2d Cir. 2001) 2001 WL 792659. In addition, a pro se litigant must have adequate notice of the nature and consequences of a motion for summary judgment. Vital v. Interfaith Medical Center (2d Cir. 1999) 168 F.3d 615, 620-21. Explicit notice from the opposing party satisfies this requirement. Id. at 621; see S.D.N.Y. Local Civil Rule 56.2.
I. The Title VII Claim
Plaintiff, who the court believes is Hispanic, alleges in his discrimination claim that he was wrongfully terminated and suffered unequal terms and conditions of employment. In order to state a discrimination claim under Title VII, plaintiff must allege that: (1) he is a member of a protected class; (2) he was qualified for the position; (3) he suffered an adverse employment action; and (4) a person not in the protected class untimely filled his position. Reeves v. Sanderson Plumbing Products, Inc. (2000) 530 U.S. 133, 142-45; McDonnel Douglas Corp. v. Green (1973) 411 U.S. 792. Once plaintiff makes out this prima facie case, the burden then shifts to defendant to articulate a legitimate, non-discriminatory reason for the discharge. Reeves, 530 U.S. at 142-43. If defendant meets this burden, then plaintiff must present evidence sufficient to allow a rational finder of fact to infer that the defendant intentionally discriminated and that the legitimate reason offered by defendant was a pretext for discrimination. Id.
In the pro se form complaint plaintiff indicates that his race is "Spanish."
Even if plaintiff had made a prima facie case for discrimination, which he arguably has not, he has offered no evidence to allow a rational finder of fact to infer that defendant intentionally discriminated against him and that its proffered reason for his termination, that he violated defendant's theft policy and then lied to his supervisor about it, is a pretext for discrimination. Furthermore, plaintiff has offered no evidence supporting his claim that he suffered unequal terms and conditions of employment.
II. The ADEA Claim
Title VII claims brought to federal court must first be raised in an EEOC charge in order to be considered exhausted. The Second Circuit has held that "[a] district court only has jurisdiction to hear Title VII claims that either are included in an EEOC charge or are based on conduct which is `reasonably related' to that alleged in the EEOC charge." Butts v. City of New York Dep't of Hous. Pres. Dev. (2d Cir. 1993) 990 F.2d 1397, 1401 (citations omitted); Miller v. International Telephone and Telegraph Corp. (2d Cir. 1985) 755 F.2d 20).
Plaintiff did not check the box indicating that he was asserting a claim pursuant to the ADEA in his July 2000 EEOC Charge, nor has he alleged any fact relating to an age discrimination claim. Since his age discrimination claim was never presented to the EEOC, plaintiff has not fulfilled the exhaustion requirement for his ADEA claim.
CONCLUSION
For the foregoing reasons we grant defendant's motion for summary judgment and dismiss plaintiff's complaint in its entirety, with prejudice.
SO ORDERED.