Opinion
20-CV-480 (MKB)
09-15-2023
VLADYMIR MILIEN, Plaintiff, v. CITY OF NEW YORK - DEPARTMENT OF EDUCATION and NYC SCHOOL SUPPORT SERVICES, INC., Defendants.
MEMORANDUM & ORDER
Margo K. Brodie, United States District Judge
Plaintiff Vladymir Milien commenced the above-captioned action on January 28, 2020, against Defendants City of New York - Department of Education (“DOE”) and NYC School Support Services, Inc. (“NYCSSS”), alleging that (1) NYCSSS (a) discriminated and retaliated against him on the basis of race in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (“Title VII”) and (b) denied him rights in violation of the Family and Medical Leave Act, 29 U.S.C. § 2601 et seq. (“FMLA”); and (2) Defendants collectively (a) discriminated and retaliated against him on the basis of race in violation of the New York City Human Rights Law, N.Y.C. Admin. Code § 8-101 et seq. (“NYCHRL”); (b) failed to pay him premium overtime wages in violation of the Fair Labor Standards Act, 29 U.S.C. § 207 (“FLSA”), and the New York Labor Law § 190 et seq. (“NYLL”); and (c) failed to pay him wage supplements in violation of the NYLL. (Compl., Docket Entry No. 1.)
Defendants move for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure on all of Plaintiff's claims and Plaintiff cross-moves for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure on his FLSA overtime claim and also seeks a determination that DOE, along with NYCSSS, was a joint employer of Plaintiff as a matter of law. For the reasons set forth below, the Court denies Plaintiff's cross-motion for summary judgment, grants Defendants' motion for summary judgment with respect to Plaintiff's FLSA, NYLL, and FMLA claims, and denies Defendants' motion with respect to Plaintiff's Title VII and NYCHRL discrimination and retaliation claims.
I. Background
The following facts are undisputed unless otherwise noted.
a. The parties
Plaintiff is an African American man, (Defs.' 56.1 ¶ 11), and a member of the Local 32BJ Service Employees International Union, (id. ¶ 31). Plaintiff worked as a cleaner for the DOE from January 7, 2011, until June of 2016. (Id. ¶ 11.) In 2016, Plaintiff stopped working for DOE and began working as a cleaner for NYCSSS, (id. ¶ 15), and was subsequently promoted to the title of handyperson on June 8, 2018, (id. ¶ 17). NYCSSS paid Plaintiff on an hourly basis, (Pl.'s 56.1 Resp. ¶ 184), and Plaintiff concurrently held the titles of handyperson and cleaner while working for NYCSSS, (id. ¶ 185). Plaintiff's handyperson duties involved “keeping tools in check, minor fixtures, changing light bulbs, and assisting cleaners.” (Defs.' 56.1 ¶ 18.)
The DOE is NYCSSS's sole client. (Pl.'s 56.1 Resp. ¶ 179.) Defendants contend that “NYCSSS is a contractor retained by DOE,” (Defs.' 56.1 ¶ 5), but Plaintiff argues that NYCSSS and DOE operate as joint employers, (Pl.'s 56.1 Resp. ¶ 5). DOE retained NYCSSS in June of 2016, (Defs.' 56.1 ¶ 6), to “provide[] manpower serving maintenance of DOE schools, including [c]leaners, [h]andypersons, and [f]iremen,” (id. ¶ 7). NYCSSS also “provides payroll services and human resource functions.” (Pl.'s 56.1 ¶ 178.) Handypersons employed by NYCSSS report to custodian engineers, (Defs.' 56.1 ¶ 8), who are employed by DOE, (id. ¶ 9). “Custodian Engineers do not have the authority to terminate the employment of [h]andypersons.” (Id. ¶ 10.) NYCSSS custodial employees' salaries and rates of pay are determined by their union agreement with NYCSSS. (Id. ¶ 30.)
b. Plaintiff's employment history
Plaintiff began his tenure with DOE at ¶ 208, (Defs.' 56.1 ¶ 12), before working at X-338, (id. ¶ 14), a school in the Bronx, (Dep. Tr. of Vladymir Milian (“Pl.'s Dep.”) 22:10-13, annexed to Decl. of Nicholas Schaefer as Ex. D, Docket Entry No. 32-4). In 2016, Plaintiff continued to work as a cleaner at X-338 after ending his employment with DOE and beginning his employment with NYCSSS. (Defs.' 56.1 ¶ 15.) In December of 2017, Plaintiff began working at K-198 as a cleaner. (Id. ¶ 16.) On June 8, 2018, Plaintiff began working at Q-266 as a handyperson. (Id. ¶ 17.) On July 11, 2018, Plaintiff began working as the sole handyman at Q-129, where “his initial schedule was 9:00 [AM] ¶ 5:00 [PM].” (Id. ¶¶ 19, 22, 23.) Between July of 2018 and January of 2020, Plaintiff's fellow NYCSSS employees stationed at Q-129 included fireperson Sahin Keles and cleaners Andrzej Mlodozeniec and Peter D'Amico. (Id. ¶¶ 32-33.)
Michael Lettieri, who testified that he is Italian-Irish, (Dep. of Michael Lettieri (“Lettieri Dep.”) 27:5-6, annexed to Decl. of Nicholas Schaefer (“Schaeffer Decl.”) as Ex. F, Docket Entry No. 32-6), was the custodian engineer assigned by DOE to Q-129 during Plaintiff's tenure at the school, (Defs.' 56.1 ¶ 24). Custodian engineers are employed by the DOE. (Brennan Dep. 22:21-23:2.) Plaintiff testified that during his first day of employment at Q-129, Lettieri asked Plaintiff “you're Vladymir?” as if “he was expecting a Russian,” (Pl.'s Dep. 95:20-22), and was upset because his prior handyman, who is a white male, (Pl.'s 56.1 Resp. ¶ 195), had been replaced by Plaintiff, (id. ¶ 192). Lettieri testified that he did not recall making this comment, (id. ¶ 191), and Defendants argue that the comment “is controverted by evidence in this case,” (Defs.' 56.1 Resp. ¶ 190). Defendants also object to Plaintiff's statement concerning the race of the former handyman, arguing that it “is unsupported by admissible evidence and is immaterial.” (Defs.' 56.1 Resp. ¶ 195.) In addition, Defendants argue that Plaintiff's characterization of Lettieri as upset about Plaintiff replacing the former handyman is “unsupported by admissible evidence, . . . consists of inadmissible hearsay and [i]s entirely self-serving.” (Id. ¶ 192.)
“Lettieri was responsible . . . for the work of the custodial and maintenance staff at Q-129 as far as cleanliness, machinery, outside areas, staff, payroll, ordering supplies, and performing repairs.” (Defs.' 56.1 ¶ 26.) “Lettieri had the authority to schedule the shifts for the employees working under his supervision,” (id. ¶ 27), but “did not have the authority to hire or terminate employees,” (id. ¶ 28). Lettieri testified at his deposition that he had the authority to direct custodial employees on how they performed their work and when they did their work. (Defs.' 56.1 Resp. ¶¶ 171-72.) Defendants dispute Lettieri's authority over NYCSSS employees' use of vacation time, but Lettieri testified that he has the authority to approve employees' vacation time requests, (Lettieri Dep. 97:25-98:3), and since July of 2017 has used an online system to submit the hours worked for each employee under his supervision, (Lettieri Dep. 19:18-20:16); Plaintiff argues that Lettieri has the authority to approve vacation time, (Pl.'s 56.1 Resp. ¶ 29 (“Lettieri had the authority to approve vacation time for custodial employees and submitted payroll information for custodial employees to ADP for payroll.”)). Lettieri also testified that he did not have the authority or ability to change the amount of vacation time accrued by NYCSSS employees. (Lettieri Dep. 105:19-23.)
“On August 30, 2018, Plaintiff's hours were changed” from 9:00 AM to 5:00 PM or 9:00 AM to 4:30 PM to “1:00 [PM] ¶ 9:30 [PM].” (Defs.' 56.1 ¶ 39.) The parties dispute the reason for Plaintiff's schedule change. Defendants contend that “Plaintiff's schedule was changed to provide adequate coverage for Q-129 during a construction project when constructors were in the building.” (Id. ¶ 40.) Plaintiff argues that his schedule change was due to Lettieri's discrimination against him based on race. (Pl.'s 56.1 Resp. ¶ 40.) Plaintiff testified that he filed a grievance regarding the change in hours, after which a meeting was held in Stephen Brennan's office with Joe Alisio on September 13, 2018, where Plaintiff “presented everything,” including “how [Lettieri] was expecting a Russian, . . . was upset about his guy being bumped,” and was “causing a hostile work environment.” (Pl.'s Dep. 102:8-20.)
“On October 31, 2018, [P]laintiff signed a Stipulation of Settlement dated October 29, 2018 memorializing an agreement between himself, 32BJ, and NYCSSS to resolve pending grievance(s).” (Defs.' 56.1 ¶ 42.). The October 29, 2018 stipulation stated that Plaintiff:
hereby waives and releases any claims he may have against the Employer [NYCSSS], up to the date of this Stipulation of Settlement. Such release and waiver includes any and all claims whether at law or in equity, under city, state, or federal law, any regulation or policy, in any court, administrative agency, or any other forum, which Grievant may currently have, which he had in the past, or may have in the future in connection with his employment with the Employer up to the date of this Stipulation of Settlement.... If any agency or court assumes jurisdiction of any such complaint or charge on behalf of Grievant, Grievant will request the agency or court to withdraw from the matter and have such matter dismissed, with prejudice.(Oct. 2018 Stip. of Settlement ¶ 1, annexed to Schaeffer Decl. as Ex. M., Docket Entry No. 32 13.) The stipulation also stated that Plaintiff accepted the agreement “as full and final settlement of any and all claims arising out of any weekend days he did not work at ¶ 2018 for park clean up.” (Id. ¶ 2.)
c. Plaintiff's disciplinary record
Lettieri testified that authority to discipline employees he supervised was “under [his] discretion.” (Lettieri Dep. 18:13-19.) Brennan testified that, as custodian engineer, Lettieri did not have authority to fire, (Brennan Dep. 27:23-28:3), or suspend handypersons, (Brennan Dep. 29:11-16), but could recommend their termination using a Disciplinary Action Form (“DAF”) which is sent to NYCSSS for review, (Brennan Dep. 28:4-22). Plaintiff argues that Lettieri “issued numerous unwarranted and false disciplinary action forms.” (Pl.'s 56.1 Resp. ¶ 44, 217.) Defendants argue that Plaintiff's claim “is controverted by Lettieri's testimony as well as multiple third-party witness statements and documentary evidence.” (Defs.' 56.1 Resp. ¶ 217.)
“On three occasions . . . Lettieri requested [Plaintiff's] termination.” (Pl.'s 56.1 Resp. ¶ 219.) Lettieri testified that Plaintiff “couldn't, wouldn't, didn't complete the job,” leading Lettieri to believe that Plaintiff did not “know how to do it possibly” because “most of the time it wasn't completed or done very poorly.” (Lettieri Dep. 90:17-21). Lettieri also testified that Plaintiff “became a real problem in the school,” was “very hard to talk to, very rude most of the time,” (Lettieri Dep. 88:3-8), and during separate confrontations with Plaintiff, Plaintiff was “loud and abusive,” (Lettieri Dep. 86:21), and “loud” and “aggressive,” (Lettieri Dep. 87:18-19). Plaintiff “denies that he was angry, loud, or insubordinate to Mr. Lettieri.” (Pl.'s 56.1 Resp. ¶¶ 45, 56, 61, 64, 69, 70, 71, 72.) Plaintiff testified about terse interactions between himself and Lettieri, including that Lettieri (1) told him in 2019 that he was “not a real handyman” and that he was going to get Plaintiff demoted, (Pl.'s Dep. 144:10-23; Pl.'s 56.1 Resp. ¶ 229); (2) told him approximately five times that he should quit, (Pl.'s Dep. 149:1-12); and (3) told him that he “needed to find a new school to work at” “[e]very time” they saw each other, (Pl.'s Dep. 112:11-21). Defendants dispute each claim and argue that they are controverted by the evidence in this case. (Defs.' 56.1 Resp. ¶¶ 229-31.)
Lettieri submitted a DAF claiming that Plaintiff did not report to work on April 29, 2019, and did not contact Lettieri in advance of his absence. (DAF 1, annexed to Schaeffer Decl. as Ex. N, Docket Entry No. 32-14.) Plaintiff testified that Lettieri lied about Plaintiff not contacting him, and further testified that during a grievance he produced cellphone records disproving Lettieri's claim, resulting in the reversal of the writeup. (Pl.'s Dep. 123:2-10.) Plaintiff claims that he “timely texted Mr. Lettieri to let him know he would not be able to make it to work and the discipline related to this DAF was overturned.” (Pl.'s 56.1 Resp. ¶ 47.) Defendants “deny that the suspension was ‘overturned,'” and contend that “[t]he suspension was rescinded pursuant to a Stipulation of Settlement without concession of liability or wrongdoing on the part of any signatories.” (Defs.' 56.1 Resp. ¶ 216.)
On May 1, 2019, Lettieri issued Plaintiff a verbal reprimand and provided Plaintiff with a document explaining the correct procedure for reporting an absence. (Defs.' 56.1 ¶ 48.) On August 30, 2019, Lettieri memorialized in his logbook entry a conversation in which he spoke to Plaintiff about Plaintiff's alleged failure to finish assigned work, noting that other custodial staff “picked up his work unfairly.” (Id. ¶ 49.) Lettieri also submitted a DAF claiming that on October 7, 8, 10, 15, and 16 of 2019, Plaintiff refused to clean areas of the school as instructed.(DAF 3-4.) In a written unsworn statement dated October 17, 2019, Keles claimed to have observed Lettieri ordering Plaintiff to clean the specified areas. (Defs.' 56.1 ¶ 53; Keles Statement, annexed to Schaeffer Decl. as Ex. Q, Docket Entry No. 32-17.)
In a DAF dated October 30, 2019, Lettieri reported that on October 23, 24, 25, and 28 of 2019, Plaintiff did not perform repair work in an efficient and professional manner. (DAF 5.) Lettieri also reported that on October 30, 2019, Plaintiff “yelled in a very aggressive, inappropriate and disrespectful manor” in front of custodial and kitchen staff members. (Id. at 6.) In written unsworn statements, Keles and Mlodozeniec claimed to have witnessed Plaintiff's outburst towards Lettieri. (Defs.' 56.1 ¶¶ 62-63; Statement of Sahin Keles (“Keles Statement”), annexed to Schaeffer Decl. as Ex. S, Docket Entry No. 32-19; Statement of Andrzej Mlodozeniec, annexed to Schaeffer Decl. as Ex. T, Docket Entry No. 32-20.) Lettieri recommended that NYCSSS terminate Plaintiff's employment, (Defs.' 56.1 ¶ 67), and stated that Plaintiff was not capable of performing the repair work required of the handyperson role, (id. ¶ 68).
In a DAF dated December 2, 2019, Lettieri reported that Plaintiff did not attempt to repair a leak and was argumentative when given the repair assignment. (DAF 9.) In a DAF dated December 19, 2019, Lettieri reported that after receiving an assignment on December 18, 2019, Plaintiff did not attempt to start the assignment. (DAF 10.) In a DAF dated January 7, 2020, Lettieri reported that on December 24, 26, and 31 of 2019 and on January 2, 2020,Plaintiff took time off during the school's seasonal cleaning period. (DAF 13-14.)