Opinion
No. 00-CV-6138 (ILG)
February 22, 2002
MEMORANDUM AND ORDER
On April 3, 2001, Thomas J. Cawley ("Cawley") filed an amended complaint, alleging race-based discrimination and retaliatory discharge claims in violation of 42 U.S.C. § 1981 and New York state and city human rights laws against his former employer, 89th Avenue Realty Corp. ("89th Avenue"), Georgia C. Leandrou ("Leandrou"), Yolanda Rivera ("Rivera"), and Thomas Logan ("Logan"). Cawley also raised a common law claim for breach of contract. Defendants now move for summary judgment, and have filed a Statement of Undisputed Facts pursuant to Local Rule 56.1 in support of their collective motion. Plaintiff has failed to file any opposition to the motion for summary judgment, despite having been served with the movants' papers on January 4, 2002. At a conference held on November 30, 2001, Magistrate Judge Azrack set the briefing schedule for the motion which provided that opposition papers were to be filed by January 25, 2002. Plaintiffs counsel did not object to this briefing schedule at the time it was set, and only sought an extension of time to file opposition papers a week after his papers were due. In seeking this extension, plaintiffs counsel did not provide any explanation for why he had failed to comply with the briefing schedule and, accordingly, this Court denied the request. (See Order dated 2/6/02, endorsed on Letter Motion.)
Having failed to file any opposition to the present motion and, specifically, a Local Rule 56.1 Counter Statement, the Court must assume that plaintiff admits the material facts as stated in defendant's Local Rule 56.1 Statement. See Local Rule 56.1(c) ("All material facts set forth in the statement . . . will be deemed to be admitted unless controverted by the statement required to be served by the opposing party.") Defendant's Local Rule 56.1 Statement states the following, in pertinent part: Cawley is a white male and the former superintendent of the property located at 148-25 89th Avenue in Queens, New York. (See Defs.' Local Rule 56.1 Statement ¶ 1.) Cawley was hired by Leandro, a white female and the managing agent for 89th Avenue, on December 1, 1999, and was terminated by her on September 7, 2000. (Id. ¶¶ 2, 3, 7-9.) Thomas Logan is not an employee of 89th Avenue, and was only involved in Cawley's termination by virtue of the fact that he delivered the discharge letter to Cawley. (Id. ¶¶ 10-12.) At all relevant times, 89th Avenue never employed an individual named Yolanda Rivera, but employed a woman named Yolanda Cuadrado who was Leandrou's assistant. (Id. ¶¶ 13-14.)
During the first three months of Cawley's employ with 89th Avenue, his probationary period, Cawley demonstrated poor job performance in several areas, including harassing tenants and being unresponsive to the needs of tenants and the building. These complaints were documented in a tenant petition containing seventy-five signatures which was filed with the New York City Commission on Human Rights. (Id. ¶¶ 27-29.) In connection with the petition, the tenants also threatened a rent strike based on their dissatisfaction with Cawley. (Id. ¶ 31.) Cawley also had been reprimanded during his probationary period for overcharging 89th Avenue for "in-well" repairs (duties beyond the normal scope of the superintendent position), the prices of which he failed to negotiate as required before commencing the work. (Id. ¶¶ 19, 32-33.) Following Cawley's three month probationary period, Leandrou had decided to terminate Cawley due to his performance deficiencies, including his treatment of tenants and his failure to abide by 89th Avenue policies, and advised Calwey of this by letter dated March 1, 2000. (Id. ¶ 34.)
Upon Cawley's request for time to leave the position, Cawley was permitted to remain on the premises and continue to perform certain superintendent duties for approximately three months thereafter. (Id. ¶¶ 36-37.) Cawley continued to perform "in-well" repairs without negotiating the amount he would be paid for such services. An audit of these repairs revealed that Cawley had not performed all of the work for which he was paid. (Id. ¶ 45.) In addition, Cawley, as superintendent, assumed the sole responsibility for purchasing supplies for the building, which 89th Avenue later discovered he had apparently been over-purchasing. (Id. ¶¶ 22, 42.)
On September 6, 2000, Leandrou determined that Cawley must be immediately relieved of all his duties and should vacate the building. (Id. ¶¶ 46-47.) That day, Leandrou drafted a second letter of termination and scheduled a locksmith to come to the building the next day to change the locks. (Id. ¶¶ 48, 50, 52.) Logan delivered the discharge letter to Cawley on the morning of September 7th. (Id. ¶ 51.)
Over the course of Cawley's tenure as superintendent, he wrote two letters to Leandrou addressing concerns regarding the terms and conditions of his employment, and one letter on the day he was terminated, September 7th. (Id. ¶¶ 53-54.) Neither of Cawley's letters dated August 12 and 14, 2000, contained any complaint of discrimination or race-based treatment. (Id. ¶ 57, 60.) Cawley's only complaint of discriminatory treatment was contained in his September 7, 2000 letter to Leandrou, which she did not receive until several days letter. (Id. ¶¶ 61, 65.)
In order to establish a prima facie case of discriminatory discharge in violation of 42 U.S.C. § 1981, a plaintiff must show (1) that he belongs to a protected class; (2) that he was performing his duties satisfactorily; (3) that he was discharged; and (4) that his discharge occurred in circumstances giving rise to an inference of discrimination on the basis of his membership in that class. See, e.g., McLee v. Chrystler Corp., 109 F.3d 130, 134 (2d Cir. 1997); Quarantino v. Tiffany Co., 71 F.3d 58, 64 (2d Cir. 1995); Chambers v. TRM Copy Center Corp., 43 F.3d 29, 37 (2d Cir. 1994). The undisputed facts in this case demonstrate that Cawley had not been performing his duties satisfactorily prior to his discharge, nor is there evidence in the record from which it could rationally be inferred that discrimination played a part in the decision to terminate Cawley. See McLee, 109 F.3d at 137. Moreover, Cawley cannot show that his discharge was retaliatory because the decision to terminate him already had been made before he ever complained of discrimination. See Taitt v. Chemical Bank, 849 F.2d 775, 777 (2d Cir. 1988) (citing DeCintio v. Westchester County Med. Ctr, 821 F.2d 111, 114 (2d Cir. 1987)) (To make out a prima facie case of retaliation under Section 1981, plaintiff must show a causal connection between the protected activity and the adverse employment action.); see also, e.g.,Murungi v. United States Dep't of Veterans Affairs, 136 F. Supp.2d 154, 165 (W.D.N.Y. 2001) (finding no causal connection established when termination letter was dated twenty days before plaintiffs first complaint of discrimination); Bennett v. Watson Wyatt Co., 136 F. Supp.2d 236, 249 (S.D.N.Y. 2001) (holding that denial of raise which preceded filing of EEOC charge could not be retaliatory action). Accordingly, based on the undisputed material facts in this case, the Court finds that summary judgment is appropriate as to Cawley's federal claims. See Fed.R.Civ.P. 56(e); see also Amaker v. Foley, 274 F.3d 677, 681 (2d Cir. 2001) (holding summary judgment may only be granted if appropriate, not simply because motion is unopposed).
Having found that plaintiffs federal claims should be dismissed, this Court declines to exercise supplemental jurisdiction over plaintiffs remaining state and city law claims pursuant to 28 U.S.C. § 1367(c).See United Mine Workers v. Gibbs, 383 U.S. 715, 726 (1966); Federman v. Empire Fire and Marine Ins. Co., 597 F.2d 798, 809-11 (2d Cir. 1979).
CONCLUSION
For the foregoing reasons, defendants' motion for summary judgment is granted.