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holding that summary judgment dismissing an employee's race discrimination claim under Title VII was appropriate where employee offered conclusory statements without supporting the statements with evidence
Summary of this case from Perry v. State Insurance FundOpinion
03 Civ. 4780 (DF).
January 5, 2006
MEMORANDUM AND ORDER
INTRODUCTION
In this action, which is before me on consent pursuant to 28 U.S.C. § 636(c), plaintiff Kirk Pruitt ("Plaintiff") raises claims of employment discrimination under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. ("Title VII"), the Americans with Disabilities Act of 1990, 42 U.S.C. § 12117(a) ("ADA"), the New York State Human Rights Law, N.Y. State Exec. L. § 290 et seq. ("NYSHRL"), and the New York City Human Rights Law, N.Y.C. Admin. Code § 8-101 et seq. ("NYCHRL"), against Defendants Metcalf Eddy, Inc. and Metcalf Eddy of New York, Inc. (collectively, "Defendants"). Plaintiff alleges that he was discriminated against by Defendants on the basis of his race and religion, as well as on the basis of a "perceived" disability. Plaintiff further alleges that Defendants retaliated against him by terminating his employment after he complained about Defendants' alleged "racial and/or religious discrimination." Defendants have moved for summary judgment in their favor on all of Plaintiff's claims. For the reasons set forth below, Defendants' summary judgment motion is granted in its entirety.
Although Plaintiff does not specify which sections of the New York City Administrative Code he relies upon in support of his claims, the wording of his Complaint indicates that Section 8-101 et seq. of the Code, which govern civil rights, and, in particular, "unlawful discriminatory practices," is applicable here.
BACKGROUND
A. Facts
The following facts, when viewed in the light most favorable to Plaintiff, are relevant to Defendants' motion:
This Court's review of the record has been made more difficult by Plaintiff's failure to adhere to Local Rule 56.1. Although Defendants have properly submitted "a separate, short and concise statement of the material facts" as to which they contend that "there is no genuine issue to be tried," see Local Rule 56.1, Plaintiff, represented by counsel, has failed to comply with Rule 56.1 in several respects. First, Plaintiff's Rule 56.1 statement relies entirely upon Plaintiff's affidavit, which speaks in part to matters that are outside of Plaintiff's personal knowledge. Second, Rule 56.1 requires Plaintiff to include in his opposition a statement containing "a correspondingly numbered paragraph responding to each numbered paragraph in the statement of the moving party." See Local Rule 56.1. Although Plaintiff's Rule 56.1 statement contains some factual allegations regarding this case, it does not specifically controvert the numbered paragraphs in Defendants' Rule 56.1 statement, and, therefore, Defendants' factual statements may be deemed admitted, unless they are unsupported by the record. See Local Civil Rule 56.1(c); see also Holtz v. Rockefeller Co., Inc., 258 F.3d 62, 74 (2d Cir. 2001); Zerafa v. Montefiore Hosp. Hous. Co., No. 05 Civ. 2718 (WCC), 2005 U.S. Dist. LEXIS 32139, at *21 (S.D.N.Y. Dec. 7, 2005). Nonetheless, the Court has fully considered Plaintiff's factual assertions in determining whether there is a genuine material issue to be tried. See Zerafa, 2005 U.S. Dist. LEXIS 32139, at *21.
Plaintiff is an African-American male who began working for Defendants as a file clerk in August 2000. ( See Complaint, filed June 26, 2003 ("Compl.") (Dkt. 1) ¶ 6; see also Defendants' Statement of Material Facts for Which There is No Genuine Issue, filed Sept. 10, 2004 ("Defendants' 56.1 Stmt.") (Dkt. 18) ¶ 6 and SOF Ex. 3, RTA 1; Plaintiff's Rule 56.1 Statement, filed July 22, 2005 ("Plaintiff's 56.1 Stmt.") (Dkt. 29) ¶ 1.) Defendants, collectively, make up "an environmental professional service group providing engineering and consulting services primarily to Federal, State and municipal government." (Defendants' 56.1 Stmt. ¶ 3.) Defendants maintain an Equal Employment Opportunity Policy, an Affirmative Action Policy, a "Harassment Free Workplace Policy," and an internal complaint procedure; Plaintiff acknowledged receipt of each of these written policies and procedures. ( See id. ¶¶ 4-5; see also id. at Exs. 1, 4.)
Defendants use "SOF" to refer to some of the exhibits submitted in support of their motion. Although Defendants do not explain what "SOF" stands for, the Court assumes that the acronym stands for "statement of facts."
While employed by Defendants, Plaintiff's immediate supervisor was Linda Arvay ("Arvay"). ( See Defendants' 56.1 Stmt ¶ 8.) At Plaintiff's last performance review, which occurred on November 1, 2001, Arvay rated Plaintiff's performance as "good," although Arvay also indicated in the review that Plaintiff had "a difficult time accepting direction" and "constructive criticism," and that Plaintiff "attempts to use intimidation when he perceives a situation to be other than what it is." ( Id. ¶¶ 8, 11; see also id. at SOF Ex. 3, RTA 4.)
1. The Christmas Tree
In or about December 2001, Arvay asked Plaintiff to assemble and display holiday decorations, including a Christmas tree, in the office. ( See Plaintiff's 56.1 Stmt. ¶ 5; Defendants' 56.1 Stmt. ¶ 20; see also Defendants' Answer, filed Sept. 9, 2003 ("Ans.") (Dkt. 10), ¶ 16 (annexed to Defendants' 56.1 Stmt. as SOF Ex. 1).) Plaintiff, however, advised Arvay that putting up a Christmas tree was against his religious beliefs. ( See Defendants' 56.1 Stmt. ¶ 22; Plaintiff's 56.1 Stmt. ¶ 5.) Plaintiff's request that he not be required to decorate the tree was accommodated, and Plaintiff concedes that he did not then assemble or decorate the tree. ( See Defendants' 56.1 Stmt ¶ 23 and Ex. 7; Plaintiff's 56.1 Stmt. ¶ 5.)
Nevertheless, in early January 2002, Arvay asked Plaintiff to dismantle the same tree. (Defendants' 56.1 Stmt. ¶ 32 and Ex. 7; Plaintiff's 56.1 Stmt. ¶ 8.) According to Plaintiff, Arvay threatened disciplinary action if he did not dismantle the tree, and, as a result, Plaintiff performed the requested task. ( See Plaintiff's 56.1 Stmt. ¶ 8.) Defendants dispute this version of the facts, however, and maintain that Plaintiff's protests were accepted and that he was ultimately not required to, nor did he actually, take down the tree. ( See Defendants' 56.1 Stmt. ¶ 33.)
2. Plaintiff's Purported Threat Against Arvay
On January 18, 2002, Plaintiff arrived late to work as a result of a commuting delay, causing some tension between him and Arvay. ( See Defendants' 56.1 Stmt. ¶¶ 37-40 and Ex. 9; Plaintiff's 56.1 Stmt. ¶ 10.) Shortly thereafter, Plaintiff approached and discussed the matter with a manager at Defendants' New York office, Warren Kauff ("Kauff"), in the office kitchen. (Defendants' 56.1 Stmt. ¶ 41; Plaintiff's 56.1 Stmt. ¶ 10; see also Declaration of Warren Kauff, dated Aug. 24, 2004 ("Kauff Decl.") ¶¶ 6-8, attached as SOF Ex. 4 to Defendants' 56.1 Stmt.) Arvay then entered the kitchen and asked if there was a problem. ( See Defendants 56.1 Stmt. ¶ 42 and Ex. 9; see also Kauff Decl. ¶¶ 8-9.) According to Defendants, Plaintiff responded that "it was none of her business" and told Arvay that she "need[ed] to leave the room." ( See Defendants' 56.1 Stmt. ¶ 42 and Ex. 9; see also Kauff Decl. ¶ 10.) Plaintiff denies this and states that he asked Kauff to tell Arvay to "cease hostilities." ( See Plaintiff's 56.1 Stmt. ¶¶ 10, 12.)
It is undisputed that Arvay remained in the kitchen and continued to discuss matters relating to Plaintiff's late arrival that day. ( See Defendants' 56.1 Stmt. ¶ 43 and Ex. 9; Plaintiff's 56.1 Stmt. ¶ 12.) According to Plaintiff, Arvay's tone became "belligerent." (Plaintiff's 56.1 Stmt. ¶ 12.) "Fearing a physical confrontation" with Arvay, Plaintiff then told her that he was going to leave the office for her (Arvay's) "own safety." ( Id.; see also Defendants' 56.1 Stmt. ¶ 43 and Exs. 8 and 9; Kauff Decl. ¶ 11.) Plaintiff, in fact, left the office early, apparently soon after the incident. ( See, e.g., Kauff Decl. ¶ 14; Defendants' 56.1 Stmt. at Exs. 8 and 19.) Arvay, who had perceived Plaintiff's words as a threat, expressed her concern to Kauff, as well as to Jim Anderson ("Anderson"), who was in charge of Defendants' New York office. (Defendants' 56.1 Stmt. ¶¶ 44-46 and Ex. 9; see also Kauff Decl. ¶ 15; Declaration of Jim Anderson, dated Sept. 1, 2004 ("Anderson Decl.") ¶¶ 4-6, attached as SOF Ex. 5 to Defendants' 56.1 Stmt.)
3. Plaintiff's Internal Complaint and the Subsequent Investigation
On January 22, 2002, at 4:20 p.m., Plaintiff e-mailed a complaint to Human Resources Director Annette Montminy ("Montminy"), pursuant to Defendants' internal complaint process. ( See Defendants' 56.1 Stmt. ¶¶ 13, 50 and Ex. 10; Plaintiff's 56.1 Stmt. ¶ 14.) The email — entitled "Official Complaint!" — consisted primarily of complaints by Plaintiff regarding his workload and Arvay's management style, and noted that Arvay had "insulted [Plaintiff's] religious beliefs." ( See Defendants' 56.1 Stmt. at Ex. 10.) The e-mail contained no other references to any alleged religious discrimination, and no references at all to any race discrimination. ( See id.)
At about the same time (at 4:25 p.m. on January 22), Arvay also sent an e-mail to Montminy. In her e-mail, Arvay stated, "I returned your call of today regarding [Plaintiff] but do not want to hold you up from calling [Plaintiff] back. These are the circumstances." ( See Defendants' 56.1 Stmt. at Ex. 9.) Arvay then detailed her account of the incident that had occurred in the office kitchen on January 18, 2002. ( See id.) Arvay wrote, inter alia, that Plaintiff had told her that he was "going to leave the office and not come back until Monday" for Arvay's own "safety." ( See id.)
In response to these e-mails from Plaintiff and Arvay, Montminy began an internal investigation into Plaintiff's complaints, as well as into Plaintiff's alleged threat towards Arvay. ( See Defendants' 56.1 Stmt. ¶¶ 52-53 and Exs. 9 and 10; see also Declaration of Annette Montminy, dated Sept. 1, 2004 ("Montminy Decl.") ¶¶ 53-54, attached as SOF Ex. 1 to Defendants' 56.1 Stmt.) Montminy, who worked out of Defendants' Massachusetts office, conducted the investigation via telephone and e-mail, but also had face-to-face meetings in New York with Plaintiff and Arvay, and with Plaintiff alone, on January 29, 2002. (Defendants' 56.1 Stmt. ¶ 52 and Exs. 6 and 7; see also Montminy Decl. ¶ 53.)
Montminy took contemporaneous notes of these meetings. ( See Montminy Decl. ¶ 94; see also Defendants' 56.1 Stmt. at Exs. 6 and 7.) At the meeting that Montminy held with both Plaintiff and Arvay, the parties discussed Plaintiff's religious beliefs and his complaints about Arvary's lack of tolerance for those beliefs, reaching a resolution regarding Plaintiff's expressed desire not to decorate Christmas trees. ( See id. at Ex. 6 ("Can we agree that next year there will be no discussion about having [Plaintiff] involved in holiday decorating? Yes."); see also id. at Ex. 11.) During that same meeting, the parties also discussed the incident in the office kitchen, as well as the fact that Plaintiff had, at one time, carried a knife to work. ( See id. ¶¶ 55-57 and Exs. 6 and 7). In the course of that meeting, Plaintiff appears to have admitted that, during the kitchen incident, he told Arvay that he was leaving for her safety. ( See id. at Ex. 7.) Further, Montminy's notes indicate that, at the meeting, Plaintiff acknowledged that his statement to Arvay could have been construed as threatening, although he did not mean it to be. ( See id.) The notes also reflect that Montminy told Plaintiff that he would be required to "follow up" with a counselor from Defendants' Employee Assistance Program ("EAP") to deal with the emotional stress that Plaintiff admitted to experiencing. ( See id.) Specifically, the notes state that Montminy asked Plaintiff if he understood that she was "requiring [him] to speak with the counselor to keep this job," but that Plaintiff did not respond. ( See id.)
Plaintiff told Montminy that, in early December 2001, he had begun carrying a kitchen knife, which, upon his arrival at work, he gave to Kauff for safe-keeping during business hours. ( See Plaintiff's 56.1 Stmt. ¶ 2.) Plaintiff maintains that he began carrying the knife because he feared for his safety after being attacked by a dog. ( See id.; see also Defendants' 56.1 Stmt. at Ex. 7.) Plaintiff also informed Montminy that he had eventually stopped carrying the knife. (Defendants' 56.1 Stmt. ¶¶ 14-15; Plaintiff's 56.1 Stmt. ¶ 3.) Although no action was taken against Plaintiff at this time ( see Defendants' 56.1 Stmt. ¶ 18; see also Montminy Decl. ¶ 18), Montminy nonetheless asserts that she admonished Plaintiff for having brought a weapon to work, which was forbidden by company policy, and told him that he could be terminated if found in possession of a weapon ( see Defendants' 56.1 Stmt. ¶¶ 15-16 and Ex. 5; see also Montminy Decl. ¶¶ 15-16). Montminy further states that, in December 2001, she forwarded to Plaintiff a copy of Defendants' "Workplace Violence Policy." ( See Defendants' 56.1 Stmt. ¶ 17 and Ex. 5; see also Montminy Decl. ¶ 17.)
The evidence reflects that the EAP is a program that provides certain benefits to Defendants' employees, such as counseling. ( See Defendants' 56.1 Stmt. at Ex. 18.)
At the conclusion of the meeting, Plaintiff signed Montminy's notes. ( See Montminy Decl. ¶¶ 63-68; see also Defendants' 56.1 Stmt. at Ex. 7.) Plaintiff also wrote answers to questions that Montminy added to the end of her notes. In response to the question: "Do I have a good understanding for what has transpired, and what resolution you are looking for?" Plaintiff wrote, "Yes." (Defendants' 56.1 Stmt. ¶¶ 65-67 and Ex. 7.) Plaintiff does not contest that it is his signature on the last page of the notes, or that the answers to Montminy's questions were written by him. ( See Plaintiff's 56.1 Stmt. ¶ 19.) Plaintiff does state, however, that he was not given the opportunity to review the notes before signing them. ( See id.)
On January 30, 2002, the day after this meeting, Plaintiff sent an e-mail to Montminy, thanking her for her response to his complaint and otherwise following up on the meeting. ( See Defendant's 56.1 Stmt. ¶¶ 69-73 and Ex. 11.) Plaintiff's e-mail stated, in part: "We agreed that I should not have made a comment in the heat of a dispute with my supervisor Ms. Linda Arvay, (that may be construed as threatening) for which I have apologized to her and feel genuine repentance. We agreed too, that Linda must and will respect my religious beliefs, faith and so forth." ( See id. at Ex. 11.) Plaintiff also expressed his desire to "spare the company some time and money whereby whatever therapist/counselor or alike that you're recommending may very easily diagnos[e] me as having post WTC eyewitness stress and added work syn[d]rome/post traumatic pit-bull sneak attack phobia/post religious belief defamation anxiety and a host of other things we all have and/or do under certain conditions." ( See id.) The same day, Montminy responded by sending Plaintiff an e-mail, which stated, in part, that "[i]t is . . . important to keep in mind that our policies support a safe work environment for all employees, and this includes free from threats regardless of whether they are real or perceived." ( Id.) Finally, Montminy's e-mail stated: "I will also get a contact name for you — as we agreed that a third party would be helpful to this situation." ( Id.)
4. Plaintiff's Failure to Meet with a Counselor
On February 14, 2002, Defendants scheduled an appointment for Plaintiff to meet with an independent counselor provided by the EAP. ( See Defendants' 56.1 Stmt. ¶¶ 76-78 and Exs. 13, 18.) That afternoon, Montminy called Plaintiff and spoke to him about the appointment and about the kitchen incident with Arvay. ( See id. ¶¶ 79-81 and Ex. 14.) During this conversation, Montminy told Plaintiff that he would be required to keep the appointment, as a condition of his employment. ( See id. at Exs. 13 and 14.) In an e-mail that Montminy sent to Anderson later that day, however, Montminy stated that Plaintiff had indicated to her that he could not attend the scheduled appointment due to short notice. ( See id. at Ex. 13.)
One day later, on February 15, 2002, Plaintiff sent an e-mail to Montminy, Anderson and another individual, in which Plaintiff expressed a refusal to attend the counseling session, stating, inter alia, that he must "reserve [his] right to defer [Defendants'] try at mandating counseling." ( See Defendants' 56.1 Stmt. at Ex. 8.) Plaintiff's e-mail also indicated that he believed that Defendants' requirement that he attend counseling was a "ploy" that "smack[ed] of `corporate retaliation'" in response to his complaints about Arvay and was an "obvious attempt" to color him as an "angry black man." ( See id.) Plaintiff concluded his e-mail by stating, in part: "Now Here [ sic] This, CAREFUL! What was my trepidation has now become yours." ( Id.)
On February 21, 2002, Montminy sent Plaintiff an e-mail offering him a paid leave of absence to allow him time to "make the necessary arrangements for re-scheduling and attending the EAP session with [the counselor] Arthur Berger" ("Berger") and noting that "[w]aiting until the last minute will not be an acceptable reason for not having met the obligation to meet with him." ( See Defendants' 56.1 Stmt. at Ex. 17.) The e-mail further stated:
As was discussed in my telephone conversation with you yesterday morning, the Company is requiring your attendance and participation in a counseling sessions with the EAP representative, Mr. Berger. The meeting must take place not later than close of business Tuesday, February 26. If you have any difficulty scheduling the appointment, please call me and I will help. The Company is requiring that Mr. Berger be allowed to communicate three things to me as the designated company representative; a confirmation of your attendance, a recommended plan for your participation or non-participation in a plan of action, and an assessment for workplace safety. In order for Mr. Berger to provide this feedback to me, you would be required to sign . . . and return to my attention Consent to Release Information to Employer. I need to receive this form from you not later than Monday at noon on February 25.
( Id.) Montminy also told Plaintiff in the e-mail that, if he decided not to meet with Berger or did not provide her with the signed consent form, Defendants would "have no alternative but to terminate your employment." ( Id.) Lastly, Montminy noted in the e-mail that "[o]ur reason for providing you the paid leave is to allow you reasonable time to attend the meeting and therefore allow us to move forward on a more positive approach." ( Id.)
On February 22, 2002, Plaintiff sent Montminy an e-mail requesting that he be able to select a counselor of his choice, citing concerns of "partiality" on the part of Berger. ( See Defendants' 56.1 Stmt. at Ex. 18.) Montminy responded via e-mail the same day, explaining that Berger was selected independently by the EAP program, and that Defendants had not chosen Berger and had no prior relationship with him. ( See id.) Plaintiff sent another e-mail to Montminy later that day, stating that he would "await your disposition (in writing) to terminate my servitu[d]e because [of] . . . my complaint and the policy I'm not privy to that requires you to force me into biased counseling discriminately." ( See id.)
Despite Plaintiff's admitted receipt of the consent form on February 14, 2002 ( see Plaintiff's 56.1 Stmt. ¶ 22), he did not sign and return it to Defendants by February 25, 2002 ( see Defendants' 56.1 Stmt. ¶ 85). Further, Plaintiff did not meet with Berger by the February 26, 2002 deadline. ( See id.; see also Plaintiff's 56.1 Stmt. ¶ 24.) 5. Plaintiff's Termination
According to Plaintiff, he did not attend the meeting because he "was forced to consult with Mr. Berger, and then allow him to tell [Defendants] what was talked about." ( See Plaintiff's 56.1 Stmt. ¶ 24.) The consent form, however, reflects that Defendants sought Plaintiff's consent to the release of the following information only: confirmation that Plaintiff met with an EAP Counselor; participation or non-participation in a recommended plan of action; continuation or discontinuation of a recommended plan of action; and/or if Plaintiff "poses potential to disrupt workplace safety." ( See Defendants' 56.1 Stmt. at Ex. 24.)
On February 27, 2002, Plaintiff was terminated. ( See Defendants' 56.1 Stmt. ¶ 85.) A "termination meeting" was held and attended by Plaintiff, Anderson, Montminy and Defendants' General Counsel, Mike Kolloway ("Kolloway"). ( See id. at ¶ 88.) Montminy took contemporaneous notes of the meeting. ( See id. ¶ 94 and Ex. 19.) In the meeting, Kolloway explained that Plaintiff was being terminated because he did not attend the counseling session with Berger. ( See id. at Ex. 19). Plaintiff reacted by stating, "I made a complaint and I am terminated? Is this because I am black? Because I have religious beliefs?" ( Id.) Kolloway told Plaintiff that his termination had "nothing to do with these issues," and explained that his termination was grounded in "the issues of making threatening comments" and that "the safety of employees and the company's commitment to provide a safe work environment" was "the overriding interest." ( See id. ¶ 90 and Ex. 19.) In addition, referring to the kitchen incident on January 18, 2002, Kolloway asked Plaintiff, "If you had not left the office, what would have happened?" ( See id. at Ex. 19.) Plaintiff, who, earlier in the meeting, had denied ever making threats, nonetheless replied, "I don't know what I would have done. Can't say I would have done anything, and can't say I wouldn't have done anything. . . . I should be given praise and credit for warning [Arvay] of what may happen and for leaving." ( Id.)
On or about October 7, 2002, Plaintiff filed a charge of discrimination with the Equal Employment Opportunity Commission ("EEOC"), alleging that Defendants had discriminated against him on the basis of race, religion, and "perceived" mental disability, and also alleging retaliation. ( See Defendants' 56.1 Stmt. at Ex. 21.) In support of his charge of race discrimination, Plaintiff stated only that he was "an African-American male." ( See id.) As to the religious discrimination charge, Plaintiff stated that Arvay had forced him to take down the Christmas tree, "despite my religious belieifs [ sic]" and that he had complained to Montminy, who, according to Plaintiff, "did nothing." ( Id.) Further, Plaintiff stated that he had been forced to take "a psychological evaluation . . . which had no basis" and that he had refused. ( Id.) Finally, although Plaintiff did not offer any evidence or facts in support of his retaliation claim, Plaintiff accused Defendants of "discrimination and retaliating against me." ( Id.)
In March 2003, the EEOC dismissed Plaintiff's charge of discrimination, and issued a letter to Plaintiff explaining the reasons for its decision. ( See Defendants' 56.1 Stmt. at Exs. 22 and 23.) The EEOC's investigation concluded that Defendants made "numerous efforts" to accommodate Plaintiff's religious beliefs and had provided Plaintiff with opportunities to attend counseling and "anger management assessment through the EAP." ( See id. at Ex. 23.) The letter highlighted Montminy's notes, which Plaintiff had signed, of Plaintiff's meeting with Montminy on January 29, 2002, and Plaintiff's agreement in that meeting that he had engaged in behavior that "may have been construed as `threatening,'" as well as his admission that he had carried a weapon. ( See id. at Ex. 23.) The EEOC, noting that Montminy had required Plaintiff to speak with a counselor so that he could "salvage" his job "and not be subject to being discharged," concluded that Plaintiff's "failure to comply" left Defendants "with no choice but to terminate" Plaintiff. ( See id.) As a result, the EEOC found that Defendants' actions were nondiscriminatory. ( See id.) B. Procedural History
On June 26, 2003, Plaintiff filed the Complaint in this action, alleging that Defendants discriminated against him on the basis of his race, religion, and "perceived" disability, and that his termination was a result of retaliation for having complained about religious and/or race discrimination. ( See Dkt. 1.) Defendants' filed an Answer on September 9, 2003. ( See Dkt. 10.) Approximately one year later, in September 2004, Defendants filed the instant motion for summary judgment ( see Dkt. 17), supported by their Rule 56.1 Statement, the accompanying declarations of Montminy, Kauff and Anderson, as well as exhibits ( see Dkt. 18), and a Memorandum of Law To Support Motion for Summary Judgment, dated Sept. 1, 2004 ("Def. Mem.") (Dkt. 19). In response, Plaintiff filed a Rule 56.1 Statement ( see Dkt. 29), an accompanying affidavit ( see Plaintiff's Affidavit in Opposition to Defendants' Motion for Summary Judgment, dated Nov. 12, 2004 ("Pl. Aff.") (Dkt. 30), and an opposition brief ( see Plaintiff's Memorandum of Law in Opposition to Defendants' Motion Pursuant to Fed.R.Civ.P. 56(b) for Summary Judgment, dated Nov. 15, 2004 ("Pl. Opp. Mem.") (Dkt. 28).) On December 22, 2004, Defendants filed a Reply Memorandum of Law in Support of Summary Judgment ("Def. Reply Mem.") ( see Dkt. 26).
DISCUSSION
This Court may grant a motion for summary judgment under Federal Rule of Civil Procedure 56 when "there is no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Holt v. KMI-Continental, Inc., 95 F.3d 123, 128-29 (2d Cir. 1996). The moving party "always bears the initial responsibility of informing the district court of the basis for its motion . . . [and] demonstrat[ing] the absence of a genuine issue of material fact." Celotex, 477 U.S. at 323-24. When confronted with evidence of facts that would support judgment in the moving party's favor as a matter of law, the opposing party cannot rest on the allegations made in his pleadings, but must set forth specific facts, evidence of which would be admissible at trial, that show the Court whether "there are any genuine factual issues that properly can be resolved only by a finder of fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-51 (1986).
A motion for summary judgment may be supported or opposed with affidavits, to the extent that such affidavits contain information that would be admissible at trial. See, e.g., Kamen v. American Tel. Tel. Co., 791 F.2d 1006, 1011 (2d Cir. 1986) ("Rule 56(e) specifically requires that affidavits in summary judgment motions be based upon personal knowledge") (citing Automatic Radio Mfg. Co. v. Hazeltine Research, Inc., 339 U.S. 827, 831 (1950)); Willets v. Gen. Tel. Directory Co., 38 F.R.D. 406, 409 (S.D.N.Y. 1965) ("Affidavits should follow substantially the same form as though the affiant were giving testimony in court. Accordingly, no consideration may be given to hearsay statements.").
In considering a summary judgment motion, this Court must "view the evidence in the light most favorable to the party against whom summary judgment is sought and must draw all reasonable inferences in his favor." L.B. Foster Co. v. Am. Piles, Inc., 138 F.3d 81, 87 (2d Cir. 1998) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)); see also Anderson, 477 U.S. at 255. The Court, however, "cannot try issues of fact; it can only determine whether there are issues to be tried." American Mfrs. Mut. Ins. Co. v. Am. Broad. Paramount Theatres, Inc., 388 F.2d 272, 279 (2d Cir. 1967); accord Sutera v. Schering Corp., 73 F.3d 13, 15-16 (2d Cir. 1995).
A. Race Discrimination
Plaintiff alleges that Defendants discriminated against him on the basis of his race in violation of Title VII, the NYSHRL, and the NYCHRL. ( See Compl. ¶¶ 32-49.) Specifically, Plaintiff alleges that "Defendants wrongfully discriminated against [him] because of his race, Black" and that he was discharged by Defendants in violation of Title VII, the NYSHRL, and the NYCHRL. ( See, e.g., id. ¶¶ 33, 35.) Defendants, however, argue that there is "absolutely no evidence of race discrimination" and that summary judgment is therefore warranted. ( See Def. Mem. at 20-21.)
In order to survive summary judgment on his race discrimination claim under Title VII, which prohibits employers from discriminating against an employee "because of such individual's race, color, religion, sex or national origin" ( see 42 U.S.C. § 2000e-2(a)), Plaintiff must first establish a prima facie case of race discrimination. Although the burden that Plaintiff "carries to survive a summary judgment motion at the prima facie stage is a minimal one," Plaintiff must show that he (1) is a member of a protected class; (2) was performing his duties satisfactorily; (3) was discharged; and that (4) his discharge occurred under circumstances giving rise to an inference of discrimination on the basis of his membership in the protected class. Graham v. Long Island R.R., 230 F.3d 34, 38 (2d Cir. 2000). If Plaintiff meets each of these elements, the burden of production shifts to Defendants to articulate a legitimate, nondiscriminatory reason for Plaintiff's dismissal. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973); see also St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 506-07 (1993). If Defendants proffer such a reason, the burden shifts back to Plaintiff to prove that race discrimination was the real reason for his termination. See McDonnell, 411 U.S. at 804. At all times, however, Plaintiff "bears the ultimate burden of persuasion." St. Mary's Honor Ctr., 509 U.S. at 507.
Here, there is no dispute that Plaintiff is African-American, and as such, Plaintiff has established that he is a member of a protected class. See Nelson v. Ashcroft, No. 00 Civ. 9485 (AKH), 2003 U.S. Dist. LEXIS 14676, at *14 (S.D.N.Y. Aug. 22, 2003). There is also no dispute that Plaintiff was discharged. Accordingly, Plaintiff has clearly met his prima facie burden with respect to the first and third elements of establishing his race discrimination claim. Whether Plaintiff has satisfied the second element, by coming forward with some evidence sufficient to raise a genuine issue of material fact regarding his work performance, is less clear. Although Arvay rated Plaintiff's performance as "good" in his most recent review, Defendant argues that threatening a supervisor and "walking off the job" does not constitute satisfactory performance for purposes of Plaintiff's prima facie burden. ( See Def. Mem. at 20.) In any event, the Court need not decide this issue, because, as Defendants correctly argue, Plaintiff has failed to present this Court with even a scintilla of admissible evidence that his discharge occurred under circumstances giving rise to an inference of race discrimination. ( See Def. Mem. at 21; see also Def. Reply Mem. at 9-10).
At most, Plaintiff offers as evidence of his claim his own conclusory statements that Arvay "like[d] to bully her black subordinates" ( see Pl. Opp. Mem. at 9) and that two employees "left the employment of [Defendants] because of Ms. Arvay's treatment of them differently because they were black." (Plaintiff's Aff. ¶ 13.) Plaintiff, however, does not support these statements with any evidence. He has not submitted affidavits from these two employees, nor does his affidavit contain any information "to indicate a basis in personal knowledge for [his] conclusory statement[s]" as to why these employees ceased working for Defendants. See Kamen, 791 F.2d at 1011. Further, Plaintiff points to nothing in the documentary record that would indicate that he was fired because of his race. In the absence of such evidence, this Court may not consider the "conclusory and hearsay statements" contained in his affidavit. See id. Simply put, Plaintiff "has not demonstrated a genuine issue of material fact to create an inference that [he] was discriminated against on the basis of race." Lydeatte v. Bronx Overall Econ. Dev. Corp., No. 00 Civ. 5433(GBD), 2003 U.S. Dist. LEXIS 3644, at *8-9 (S.D.N.Y. Mar. 12, 2003). For this reason, summary judgment dismissing Plaintiff's race discrimination claim under Title VII is granted. See, e.g., Ponniah Das v. Our Lady of Mercy Med. Ctr., No. 00 Civ. 2574 (JSM), 2002 U.S. Dist. LEXIS 7771, at *21 (S.D.N.Y. Apr. 30, 2002) ("conclusory allegations of discrimination are not sufficient to defeat summary judgment").
In addition, because "the NYSHRL and NYCHRL contain provisions comparable to" Title VII, and because "New York courts require the same standard of proof for claims brought under the NYSHRL and the NYCHRL as for those brought under . . . Title VII," the Court need not engage in a separate analysis for Plaintiff's state law claims of race discrimination. Malatesta v. Credit Lyonnais, No. 03 Civ. 3690 (MBM), 2005 U.S. Dist. LEXIS 30334, at *10 (S.D.N.Y. Nov. 21, 2005); see also Cruz v. Coach Stores, Inc., 202 F.3d 560, 565 (2d Cir. 2000) ("Our consideration of claims brought under the state and city human rights laws parallels the analysis used in Title VII claims"); Prince v. Cablevision Sys. Corp., No. 04 Civ. 8151 (RWS), 2005 U.S. Dist. LEXIS 8147, at *12 (S.D.N.Y. May 6, 2005) ("Since claims under the NYSHRL [and NYCHRL] are analyzed identically to claims under . . . Title VII, the outcome of an employment discrimination claim made pursuant to the NYSHRL [or NYCHRL] is the same as it is under . . . Title VII and need not be addressed separately") (internal quotations omitted). Thus, because Plaintiff's race discrimination claim fails under Title VII, summary judgment in favor of Defendants is granted on Plaintiff's state law race discrimination claims as well. B. Religious Discrimination
Similarly, the analysis used in considering claims for religious discrimination and retaliation under Title VII — as well as disability discrimination claims under the ADA — is identical to the analysis used in considering such claims under the NYSHRL and the NYCHRL. See, e.g., Durant v. NYNEX, 101 F. Supp. 2d 227, 236 (S.D.N.Y. 2000) (religious discrimination); Thomas v. Bergdorf Goodman, Inc., No. 03 Civ. 3066 (SAS), 2004 U.S. Dist. LEXIS 25645, at *37-38 (S.D.N.Y. Dec. 22, 2004) (retaliation); Menes v. CUNY Univ., 92 F. Supp. 2d 294, 305-06 (S.D.N.Y. 2000) (ADA claim). Accordingly, because Plaintiff's state law claims do not require a separate analysis, the Court will only analyze the remainder of Plaintiff's claims under federal law.
Plaintiff also alleges that Defendants discriminated against him on the basis of his religion. ( See Compl. ¶¶ 50-67.) The focus of Plaintiff's religious discrimination claim is that, in conflict with his religious beliefs, Plaintiff was allegedly asked or required to assist in the decoration and/or the dismantling of the Christmas tree in Defendants' office. ( See Pl. Opp. Mem. at 3-4.) Most specifically, Plaintiff appears to argue that his religious beliefs were not accommodated because he was allegedly forced to take down the Christmas tree, and that, because Arvay purportedly told him that he had to take down the tree or face disciplinary action, he suffered an "adverse action" that constituted religious discrimination. ( See Pl. Opp. Mem. at 3-4.) Defendants, in turn, argue that Plaintiff lacked a bona fide religious belief; that, in any event, his religious preference for not decorating trees was accommodated; and that, above all, Plaintiff suffered no adverse employment action as a result of his religious preferences. ( See Def. Mem. at 11-14.)
As part of his religious discrimination claim, Plaintiff also appears to argue that the events surrounding the decoration and dismantling of the Christmas tree somehow "led" to his termination. ( See Pl. Opp. Mem. at 4.) This argument, however, is more appropriately raised in the context of Plaintiff's retaliation claim, and is therefore discussed in Section C below.
To succeed on his religious discrimination claim under Title VII, a plaintiff must usually show that he (1) has a bona fide religious belief that conflicts with an employment requirement; (2) informed Defendants of this belief; and (3) suffered an adverse employment action for failure to comply with an employment requirement that conflicted with this belief. See Rivera v. Choice Courier Sys., No. 01 Civ. 2096 (CBM), 2004 U.S. Dist. LEXIS 11758, at *14-15 (S.D.N.Y. June 25, 2004) (citing Philbrook v. Ansonia Bd. of Educ., 757 F.2d 476, 481 (2d Cir. 1985), aff'd 479 U.S. 60 (1986)). With regard to the third element, however, "an employee faced with an employer's refusal to accommodate is not required to violate employment rules and suffer the consequences before she is able to bring suit." Khan v. FRB, No. 02 Civ. 8893 (JCF), 2005 U.S. Dist. LEXIS 1543, at *18 (S.D.N.Y. Feb. 2, 2005). Moreover, "an instance of actual discipline is not necessary to establish an adverse employment action: the threat of a sanction is enough." Id. at *22.
As a result, Plaintiff's allegation that he in fact complied with Arvay's instruction to take down the Christmas tree does not preclude him from satisfying the third element of his prima facie burden.
If Plaintiff demonstrates these three elements, the burden then shifts to Defendants, who must either show that they engaged in a good faith effort to accommodate Plaintiff with regard to his religious belief, or that they could not reasonably accommodate Plaintiff without sustaining undue hardship. See Rivera, 2004 U.S. Dist. LEXIS 11758 at *15-18. If, however, the evidence demonstrates that Defendants offered Plaintiff a reasonable accommodation for his religious beliefs, "the statutory inquiry is at an end," and summary judgment in favor of Defendants is appropriate. See Elmenayer v. ABF Freight Sys., No. 98-CV-4061 (JG), 2001 U.S. Dist. LEXIS 15357, at *16-17 (E.D.N.Y. Sept. 20, 2001) (citing Ansonia Bd. of Educ. v. Philbrook, 479 U.S. 60, 68 (1986)).
Here, Plaintiff states that his religious beliefs prevented him from decorating Christmas trees. ( See Pl. Opp. Mem. at 3.) Defendants first contend that Plaintiff's opposition to decorating trees was merely a personal preference, and not a bona fide religious belief. ( See Def. Mem. at 11-13.) The Court, however, need not reach the question of whether Plaintiff's religious belief was bona fide — nor, for that matter, need the Court reach the remaining elements of Plaintiff's prima facie burden — because the evidence in the record establishes that Defendants offered Plaintiff a reasonable accommodation with respect to his beliefs. See, e.g., Sable v. Stickney, No. 91 Civ. 8038 (LAP), 1993 U.S. Dist. LEXIS 9416, at *21 (S.D.N.Y. July 13, 1993) (granting judgment in favor of defendant on a religious discrimination claim where the defendant made a reasonable accommodation for plaintiff's religious observance); Elmenayer, 2001 U.S. Dist. LEXIS 15357, at *16-17 (granting summary judgment to defendant where reasonable accommodation was offered to plaintiff in light of his religious beliefs).
In an attempt to undermine Plaintiff's religious discrimination claim, Defendants carefully refrain from referring to the tree as a "Christmas" tree in their motion, and insist that the "holiday" tree "was a nondenominational office decoration." (Def. Mem. at 11.) The Defendants' own exhibits, however, demonstrate that Defendants internally referred to the tree as a "Christmas Tree." ( See, e.g., Defendants' 56.1 Stmt. at Ex. 6.) In any event, a tree such as the one at issue here, even absent religious adornment and regardless of what it is called, "has religious connotations in addition to secular connotations." Skoros v. City of New York, No. CV-02-6439 (CPS), 2004 U.S. Dist. LEXIS 2234, at *33-34 (E.D.N.Y. Feb. 18, 2004).
First, it is undisputed that Plaintiff's original request not to decorate the Christmas tree because of his religious beliefs was accommodated by Arvay. ( See Defendants' 56.1 Stmt ¶ 23 and Ex. 7; Plaintiff's 56.1 Stmt. ¶ 5.) Second, although there appears to be a genuine dispute as to whether Plaintiff was subsequently forced to dismantle the tree, Plaintiff's reliance on this question of fact and on his argument that his beliefs were not accommodated because Arvay "made [him] take the Christmas tree down upon threat of . . . disciplinary treatment" ( see Pl. Opp. Mem. at 4; see also Plaintiff's 56.1 Stmt. ¶ 8) is misplaced. It was only after Arvay allegedly forced Plaintiff to take down the tree that, in accordance with Defendants' internal procedure, he complained to Human Resources about any purported religious discrimination, and the evidence shows that Montminy then promptly commenced an investigation. ( See Defendants 56.1 Stmt. ¶ 56 and Exs. 6, 10 and 11.) As part of this investigation, Montminy held a meeting within one week of receiving Plaintiff's formal complaint to discuss, inter alia, the conflict between Plaintiff's religious beliefs and holiday decorating. ( See id.) The evidence reflects that, at that meeting, Montminy, Arvay and Plaintiff resolved the issue by agreeing that Plaintiff would no longer be involved in holiday decorating. ( See id. at ¶ 56 and Ex. 6.) Further, there is no indication that Plaintiff found this particular resolution to be "an unsatisfactory compromise" with respect to his religious beliefs. See Sable, 1993 U.S. Dist. LEXIS 9416, at *21. In fact, Plaintiff's e-mail to Montminy of January 30, 2002, the day after their meeting, reflects that Plaintiff was satisfied with the agreement reached at the meeting and that Plaintiff's concerns in this regard were alleviated. ( See Defendants' 56.1 Stmt. at Ex. 11.)
Defendants' "Internal Complaint Procedure," which Plaintiff received in August 2000, states that employees were to "discuss [a] complaint with [their] immediate supervisor." Nonetheless, the policy also states that "[i]f the supervisor is the source of the discrimination/harassment, [the employee] should instead discuss the complaint with the supervisor's superior." ( See Defendants' 56.1 Stmt. at Exs. 1 and 4.) The record indicates that Plaintiff initially complained about Arvay's alleged disrespect towards his religious beliefs to her directly, and did so orally. ( See id. ¶¶ 21-22; 33; see also Plaintiff's 56.1 Stmt. ¶ 5.) Plaintiff, therefore, did not follow the internal complaint procedure until January 22, 2002, when he sent the e-mail entitled "Official Complaint!" to Montminy. ( See Defendants' 56.1 Stmt. at Ex. 10.)
In light of all of this, it is apparent that, in direct response to Plaintiff's internal complaint to Montminy, Defendants engaged in a good faith effort to accommodate Plaintiff's religious practices. Plaintiff has not seriously argued otherwise, suggesting only that "[n]o efforts were taken seriously to reprimand" Arvay, in that "[s]he was not required to speak to a counselor or attend any religious tolerance sessions." ( See Pl. Aff. ¶ 17.) This is beside the point. The critical issue for the Court on Plaintiff's claim is whether Defendants took steps to "eliminate the conflict between employment requirements and religious practices." Elmenayer, 2001 U.S. Dist. LEXIS 15357, at *16-17. Here, Plaintiff's comments as to whether Arvay was adequately reprimanded are insufficient to raise a genuine issue of material fact as to whether the accommodation offered by Defendants was offered in good faith, or, for that matter, whether it was reasonably designed to eliminate Plaintiff's conflict. On the record presented, the Court need not even determine whether the agreed accommodation was actually "reasonable." See id. at *14 ("Where an employer has made a good faith effort to accommodate an employee's religious practices, courts in this circuit have not looked further to make a determination as to what precisely constitutes reasonableness."). Nonetheless, as the crux of Plaintiff's claim appears to have been the conflict between his religious beliefs and the task of holiday decorating, there can be little question that Defendants' agreement to allow Plaintiff to refrain from performing the very task that he claimed conflicted with his religious beliefs was, in fact, a reasonable accommodation. Accordingly, Plaintiff's religious discrimination claim cannot survive summary judgment
For the same reasons, Defendants are entitled to summary judgment dismissing Plaintiff's state law religious discrimination claims. See Durant, 101 F. Supp. 2d at 236 (granting defendant's summary judgment motion and dismissing plaintiff's state law religious discrimination claims where federal religious discrimination claim also failed).
C. Retaliation
In support of his retaliation claim, Plaintiff alleges that Defendants violated federal law by "discharging him from his employment" as a result of Plaintiff's complaints "of racial and/or religious discrimination." ( See Compl. ¶¶ 68-85.) Defendants, however, argue that Plaintiff threatened his supervisor and had an "anger management problem," and that he cannot prevail on his retaliation claim because he was terminated for his refusal to participate in counseling to assist him in "acquir[ing] conflict resolution tools appropriate for a business environment." ( See Def. Mem. at 16-20.)
Although Plaintiff separately alleges that, "[d]uring the course of [P]laintiff's employment with [D]efendants, [D]efendants retaliated against [P]laintiff due to his complaints of racial and/or religious discrimination" (Compl. ¶ 77), Plaintiff does not point to any specific adverse action taken by Defendants during Plaintiff's employment to support his retaliation claim. Further, in opposing this motion, Plaintiff points only to Defendants' termination of his employment as the alleged retaliatory act. ( See Pl. Mem. at 4-8.)
Title VII provides that "it shall be an unlawful employment practice for an employer to discriminate against any of his employees . . . because [such employee] has opposed any practice made an unlawful practice by this subchapter. . . ." 42 U.S.C. § 2000e-3(a). Claims under this section, referred to as "retaliation" claims, are tested under a three-step burden shifting analysis. See Quinn v. Green Tree Credit Corp., 159 F.3d 759, 768 (2d Cir. 1998). Under this analysis, Plaintiff must first make out a prima facie case of retaliation by showing (1) "participation in a protected activity" known to Defendants; (2) "an employment action disadvantaging [Plaintiff]"; and (3) "a causal connection between the protected activity and the adverse employment action." Id. at 769 (internal citations omitted); see also Tomka v. Seiler Corp., 66 F.3d 1295, 1308 (2d Cir. 1995). Defendants then have the burden of "articulating a legitimate, non-retaliatory reason for the complained of action." Quinn, 159 F.3d at 768. If Defendants meet this burden, Plaintiff must then adduce evidence "sufficient to raise a fact issue as to whether [Defendants'] reason was merely a pretext" for the retaliatory act. Id. at 769.
Similar to Plaintiff's religious discrimination claim, the Court need not decide whether Plaintiff has established a prima facie case of retaliation, because Defendants have articulated a legitimate, non-retaliatory reason for Plaintiff's termination that is supported by the record. See, e.g., Cerwinski v. Ins. Servs. Office, No. 95 Civ. 1766 (JSM), 1996 U.S. Dist. LEXIS 14509, at *10 (S.D.N.Y. Oct. 3, 1996) (where defendant had a legitimate nondiscriminatory reason for firing plaintiff, district court did not engage in analysis of plaintiff's prima facie burden). Specifically, Defendants assert that Defendants terminated Plaintiff because he failed to attend a mandatory meeting with a counselor to deal with "anger management" issues that came to light after Plaintiff engaged in behavior perceived by Defendants as threatening. Defendants' assertion is well supported by the record, and Plaintiff has adduced no evidence to support any contrary theory as to why he was terminated.
It is undisputed that a confrontation occurred between Plaintiff and Arvay on January 18, 2002, in the office kitchen. ( See Defendants' 56.1 Stmt. ¶¶ 41-46; Plaintiff's 56.1 Stmt. ¶ 12.) It is also undisputed that Plaintiff told Arvay that he was going to leave the office for her own safety during that confrontation, and that Plaintiff left the office early that day. ( See e.g., Kauff Decl. ¶¶ 11, 14; Defendants' 56.1 Stmt. ¶ 43 and Exs. 8, 9 and 19.) Moreover, regardless of whether Plaintiff intended his words to be a threat, the record establishes that Defendants perceived Plaintiff's behavior as threatening ( see, e.g., Defendants' 56.1 Stmt. ¶¶ 44-46 and Exs. 6, 7; Kauff Decl. ¶¶ 12,15; Anderson Decl. ¶ 4), and that Plaintiff conceded in writing that his statement to Arvay "may [have been] construed as threatening." ( See Defendants' 56.1 Stmt. at Ex. 11.) Finally, the record makes it abundantly clear that Plaintiff's comments during the kitchen incident and the fact that Plaintiff had previously carried a knife to work were a source of concern for Defendants ( see, e.g., id. at Exs. 7 and 9), who informed Plaintiff that it was their duty to maintain a "safe work environment for all employees," including one that was "free from threats regardless of whether they are real or perceived." ( See Defendants' 56.1 Stmt. at Ex. 11.)
Plaintiff's admitted statements to Arvay during the kitchen incident, together with Defendants' knowledge that Plaintiff had previously carried a weapon, would have justified Plaintiff's immediate termination. Yet, to their credit, Defendants did not take such action right away. Rather, Defendants seem to have made significant efforts to avoid terminating Plaintiff. In light of their apparent concerns for workplace safety, Defendants first told Plaintiff that, if he wished to continue his employment, he would have to receive counseling. ( See, e.g., Defendants' 56.1 Stmt. at Exs. 11 and 13.) Defendants then took steps to try to ensure that Plaintiff actually received the counseling, so that the parties could "move forward on a more positive approach." ( Id. at Ex. 17.) Defendants' actions included sitting down and discussing the matter with Plaintiff, scheduling the first counseling session for him, offering to help him re-schedule the appointment when, according to Plaintiff, he could not attend because he had insufficient advance notice, and finally offering him a paid leave of absence to enable him to attend a re-scheduled counseling session. ( See id. at Exs. 6, 7 and 17.)
Defendants also point to other instances of Plaintiff's conduct that "were also of concern" to them, such as Plaintiff's February 15 e-mail, which Defendants viewed as "ominous" and a "veiled threat." ( See Def. Mem. at 8.) In light of certain statements made by Plaintiff in the e-mail, such as "CAREFUL!" and "What was my trepidation has now become yours" ( see Defendants' 56.1 Stmt. at Ex. 8), Defendants' "concern" does not appear unwarranted, especially when viewed in context with Plaintiff's behavior during the kitchen incident. Further, Plaintiff was warned more than two weeks before he sent this e-mail that "threatening behaviors and comments won't be tolerated and next time it could lead to a termination." ( See id. at Ex. 6.)
Despite all of Defendants' efforts, however, and despite the fact that it was made clear to Plaintiff that he would be terminated if he did not meet Defendants' deadline for attending the counseling session, Plaintiff refused to attend the session. ( See id. at Ex. 18.) As a result, the February 26 deadline for Plaintiff to participate in counseling passed. Defendants' undisputed concern for workplace safety, together with Plaintiff's failure to comply with a directive given by a superior, constitute legitimate, non-retaliatory grounds for Plaintiff's termination. See, e.g., Matima v. Celli, 228 F.3d 68, 79 (2d Cir. 2000) (insubordination is a legitimate reason for firing an employee); Rikhy v. Amc Computer Corp., No. 01 Civ. 7007 (WHP), 2003 U.S. Dist. LEXIS 4804, at *12 (S.D.N.Y. Mar. 28, 2003) ("Insubordination and threatening behavior both constitute legitimate nondiscriminatory reasons for discharge in this Circuit.").
The evidence indicates that Plaintiff refused to attend the session because he did not feel that the counselor would be impartial and because he believed that the counselor would turn around and disclose the substance of their confidential discussions to Defendants. ( See Defendants' 56.1 Stmt. at Ex. 18.) Even if Plaintiff's concerns in this regard were justified, this would not create a material question of fact as to the basis of Plaintiff's termination, as an employer "need only prove that the motives for its choices were non-discriminatory." McLean-Nur v. DOT, No. 98 Civ. 819 (NRB), 2000 U.S. Dist. LEXIS 3495, at *21 (S.D.N.Y. Mar. 21, 2000).
Moreover, Plaintiff has not met his burden of coming forth with evidence sufficient to raise a genuine issue of material fact as to whether his threatening behavior, or his failure to attend the counseling session, were merely "pretextual" reasons for his termination. Although Plaintiff claims that he was fired because of his complaints to Montminy about religious and race discrimination, he has not pointed to anything in the record that would support this assertion.
First, the record is devoid of any admissible evidence that would support Plaintiff's claim that Defendants terminated him because of his race, let alone engaged in any race discrimination against Plaintiff at all. ( See Def. Mem. at 20; see also Section B, supra.) Plaintiff did not even address the issue of race or discrimination based on race in his official complaint to Montminy. ( See Defendants' 56.1 Stmt. at Ex. 10.) In fact, the only reference to race discrimination on the record is Plaintiff's own accusation in his February 15 e-mail that Defendants were attempting to "color" him as an "angry black man" in order to "facilitate his dismissal," and his inquiry during the termination meeting as to whether he was being fired because he was black. ( See id. at Exs. 8 and 19.) As discussed in connection with Plaintiff's race discrimination claim, however, these assertions lack any evidentiary basis in the record, and thus do not raise a genuine issue of material fact with respect to whether Defendants' reasons for Plaintiff's termination were pretextual. See Allen v. St. Cabrini Nursing Home, Inc., 198 F. Supp. 2d 442, 448 (S.D.N.Y. 2002) ("Where, as in this case, the employer provides convincing evidence to explain its conduct, and plaintiff's argument consists of purely conclusory allegations of retaliation, the Court may conclude that no material issue of fact exists and grant summary judgment for the employer.").
Similarly, Plaintiff offers no evidence to support his bare statement that he was terminated for complaining about religious discrimination. ( See Pl. Mem. at 5.) As discussed above, Plaintiff's complaint of religious discrimination was investigated and resolved ( see, e.g., Defendants' 56.1 Stmt. at Ex. 6), and Plaintiff offers no explanation as to why, if that complaint was Defendants' true motivation for his discharge, Defendants agreed to resolve the matter and to accommodate his stated religious beliefs.
More significantly, Plaintiff admits that the facts underlying Defendants proffered explanation are true — namely, that he engaged in behavior that, at the very least, could have been construed as threatening ( see id. at Ex. 11); that he was required to go to counseling by Defendants ( see, e.g., id. at Ex. 8); that he understood he would be terminated if he did not comply with the requirement by Defendants' deadline ( see id. at Ex. 18); and that he refused to comply with the requirement ( see id.; see also Plaintiff's 56.1 Stmt. ¶ 24). In addition, Plaintiff does not dispute that Defendants did not immediately terminate him, but rather gave him several warnings and opportunities to comply with the mandated counseling before terminating him. ( See, e.g., Defendants' 56.1 Stmt. at Exs. 8 and 18.) Put simply, because these facts are undisputed and Plaintiff cannot therefore deny that he was insubordinate, he raises no genuine issue of material fact with respect to pretext. See Allen, 198 F. Supp. 2d at 451-52 ("Because plaintiff admits that the facts underlying St. Cabrini's proffered explanation are true, and that she was insubordinate, she raises no genuine issue of material fact as to pretext.").
Accordingly, Defendants are entitled to summary judgment on Plaintiff's retaliation claim. See, e.g., Kemp v. A J Produce Corp., 2005 U.S. App. LEXIS 26826, at *9-10 (2d Cir. Dec. 7, 2005) (affirming district court's grant of summary judgment to defendant on retaliation claim where plaintiff received several warnings and where plaintiff's supervisor had felt threatened by plaintiff's tone and close proximity during an incident prior to termination). In addition, because Plaintiff's retaliation claim fails under Title VII, summary judgment in favor of Defendants is likewise appropriate with respect to Plaintiff's state law retaliation claims. See, e.g., Carter v. N.Y. City Dep't of Corr., 7 Fed. Appx. 99, 102-03 (2d Cir. 2001); McCoy v. City of New York, 131 F. Supp. 2d 363, 375-76 (E.D.N.Y. 2001).
D. Discrimination Based on "Perceived Disability"
Finally, Plaintiff alleges that Defendants violated the ADA by discriminating against him on the basis of a "perceived disability," namely, "mental illness." ( See Compl. ¶¶ 86-106.) On this point, Defendants argue that, aside from there being "absolutely no evidence to indicate that [Plaintiff] was disabled or was perceived to be disabled," Plaintiff engaged in misconduct that "takes him outside the parameters of the ADA." ( See Def. Mem. at 15-16.)
The ADA prohibits covered employers from discriminating against "a qualified individual with a disability because of the disability of such individual in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment." 42 U.S.C. § 12112(a). Thus, to withstand summary judgment on his ADA claim, Plaintiff is required to present a prima facie case of discrimination by showing that: (1) Defendants are subject to the ADA; (2) Plaintiff suffers from a disability within the meaning of the ADA; (3) Plaintiff could perform the essential functions of his job with or without reasonable accommodation; and (4) Plaintiff was fired because of his disability. See Reeves v. Johnson Controls World Services, Inc., 140 F.3d 144, 149 (2d Cir. 1998). Under the ADA, the definition of "disability" covers an individual who is "regarded as having such an impairment" by his employer, whether or not the individual actually suffers from a disability. See 42 U.S.C. § 12012(2)(C); see also Capobianco v. City of New York, 422 F.3d 47, 56 (2d Cir. 2005).
If Plaintiff establishes each of the above elements, an inference of discrimination attaches, which Defendants must rebut by articulating "some legitimate, nondiscriminatory reason" for Plaintiff's discharge. See Valentine v. Standard Poor's, 50 F. Supp. 2d 262, 283 (S.D.N.Y. 1999). "At this stage, the employer need only articulate — but need not prove — the existence of a nondiscriminatory reason for its decision." Id. Assuming Defendants can articulate a nondiscriminatory reason, Plaintiff must then show that "the reason proffered by [Defendants] is a pretext for unlawful discrimination" and must raise "a genuine issue of material fact . . . as to whether [Defendants'] reason for discharging [him] is false and as to whether it is more likely that a discriminatory reason motivated [Defendants] to make the adverse employment decision." Id.
As discussed above, Defendants have articulated a legitimate, nondiscriminatory reason for Plaintiff's discharge, and thus the Court need not address whether Plaintiff has met his prima facie burden on his ADA claim. Moreover, the Court is hard pressed to see how Plaintiff, who does not address the ADA claim at all in his opposition papers, has raised any issue of material fact with respect to whether he was discharged in violation of the ADA. There is no indication in the record that Plaintiff even suffered a disability or "perceived" disability that would trigger the protection of the ADA.
In any event, Defendants are correct that, even if Plaintiff suffered from a disability covered by the ADA, he cannot invoke the statute's protections because he engaged in misconduct. See, e.g., Valentine, 50 F. Supp. 2d at 291 (the rights afforded to a plaintiff under the ADA are only a "shield against employer retaliation, not a sword with which one may threaten or curse" other employees.) Regardless of whether Plaintiff suffered from or was perceived to have a disability covered under the ADA, a review of the record reveals that Plaintiff's "own failure to recognize the boundaries of appropriate behavior in the workplace" led to his termination. See id. at 291. Accordingly, Defendants' motion for summary judgment must be granted on Plaintiff's ADA claim, as well as on his claims under the relevant sections of the NYSHRL and NYCHRL. See Sista v. CDC Ixis N. Am., Inc., No. 02 Civ. 3470 (GBD), 2005 U.S. Dist. LEXIS 2163, at *19-20 (S.D.N.Y. Feb. 15, 2005) (summary judgment granted to defendants where plaintiff could not establish that the reasons behind his termination were a pretext for discrimination based on a disability; verbally threatening boss "was simply conduct which an employer could legitimately determine was inappropriate and unacceptable in the workplace"); see also Menes, 92 F. Supp. 2d at 305-06 (dismissing state law claims under same analysis as ADA claim).