The opinion of the court was delivered by: LOWE
MARY JOHNSON LOWE, U.S.D.J.
Plaintiff Ronnie Smith ("Plaintiff"), proceeding pro se, commenced this race discrimination action against his current employer, defendant Gracie Square Hospital ("GSH"), pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. ("Title VII"), and the Civil Rights Act of 1866, 42 U.S.C. § 1981 ("Section 1981"). Before the Court is the motion of GSH, pursuant to Federal Rule of Civil Procedure 56 ("Rule 56"), for summary judgment dismissing the complaint.
For the reasons stated below, GSH's motion is granted.
GSH is a not-for-profit hospital. See GSH's 56.1 Statement P 3 ("GSH Statement"). Plaintiff, a black male, began working for GSH in 1986 as a part-time cook. See Pl.'s Dep. Tr. at 13 ("Tr."). In 1988, GSH elevated Plaintiff to the full-time position of relief cook's helper in the dietary department. See id. at 25-26. Dietary department employees are represented for collective bargaining purposes by labor union Local 1199. See GSH Statement P 5. The dietary department is supervised by ARAMARK Healthcare Support employees, including defendants Sam Planas, Melody Hotley, and Donna King. See Affidavit of Michael T. McGrath, dated May 10, 1996, at P 2 ("McGrath Aff.").
At all times relevant to this action, Barbara Thompson was the Human Resources Director at GSH. See McGrath Aff. P 2; Affidavit of Ronnie Smith, dated May 25, 1991, at P 2.
GSH's dietary department has three cook positions, graded first, second, and third, in descending order of duties and compensation. See GSH Statement P 6. Relief cook's helpers, like Plaintiff, assist dietary personnel when the kitchen is fully staffed. See id. P 4. Relief cook's helpers also serve as temporary substitutes for cooks who are absent due to illness, injury, or vacation. See id. In accordance with the collective bargaining agreement, in the absence of one of the three cooks, the most senior employee present substitutes for the vacant position. See id. PP 7-9; Affidavit of Peter Kennedy, dated May 13, 1996, at P 10 ("Kennedy Aff.").
For example, with the absence of the first cook, the second cook moves to the first cook's position, the third cook to the second cook's position, and the most senior relief cook's helper to the third cook's position. See id. P 7. Thus, an employee who reports to work after a vacancy has been filled is not eligible to substitute for that position, even though the employee may be more senior than the substitute. See Kennedy Aff. P 11; GSH Statement P 11. GSH submits that it adheres to this policy in order to insure continuity and consistency in job performance. See GSH Statement P 11.
In early 1989, Plaintiff worked in the GSH cafeteria on the weekends as a cook. See id. P 15(B). Budgetary restraints, however, forced GSH to eliminate weekend cafeteria service as of June 3, 1989. See id. P 15(C). The cafeteria closing reduced the number of shifts Plaintiff worked as a cook, thereby increasing his number of shifts as a relief cook's helper. See id. P 15(D). GSH contends that Plaintiff "took personal exception" to the closing of the cafeteria and complained that he needed training for the relief cook's helper position. See Kennedy Aff. P 14(F). GSH arranged for such training. See GSH Statement P 15(F). Plaintiff, however, called in sick for many of the scheduled training sessions, ultimately receiving a final written warning dated August 7, 1989 as discipline for his behavior. See Kennedy Aff. P 14(H); GSH Statement P 15(H). Plaintiff also received another written warning on that date for not completing a job task on time. See Kennedy Aff. P 14(G); GSH Statement P 15(G). Plaintiff filed a grievance concerning this discipline. GSH Statement P 15(I).
In October 1989, Plaintiff's co-workers, Freddie Jackson, Willie Barnhill, and Hillary Davenport (all of whom are black), requested a meeting with Barbara Thompson to complain about Plaintiff's performance. See id. P 13. In view of Plaintiff's continued disciplinary problems, GSH considered more severe discipline such as an extended suspension or discharge. Id. P 14(M); GSH Statement P 15(M). But, before GSH took any action, Plaintiff obtained a 10-month medical leave of absence. See GSH Statement P 15(M). Plaintiff remains, to date, an employee of GSH. Id. P 16.
In 1990, Plaintiff commenced this race discrimination action, alleging that GSH: (1) failed to "promote" him to higher paying positions, (2) harassed him with false disciplinary charges and threats of termination in the hopes of forcing his dismissal, and (3) violated his rights under Section 1981. Second Am. Compl. PP 1, 9-10. With regard to the discriminatory promotion claim, Plaintiff testified at his deposition that he "wasn't promoted up into a higher . . . cook position [especially the second cook position] when it was available, as far as people being out on vacation, people being out on jury duty . . . . [and] was treated differently on the schedule . . . . compared to people [with] less seniority than me." See Tr. at 36, 78-79, 84. Plaintiff has identified five black men (Malcolm Campbell, Freddie Jackson, Kevin Benson, Leon Wilson, and Hillary Davenport) and two hispanic men (Jorge Ferrara and David Rodriguez) as the less-senior employees whom GSH temporarily elevated to higher-paying cook's positions instead of him. See Affidavit of Ronnie Smith, dated July 11, 1997, at P 7 ("Pl.'s Opp'n Aff."); Tr. at 37-38, 45, 80, 196-97, 252. At his deposition, Plaintiff identified October 22, 1989 as an example of his exclusion from high-paying cook's positions. See Tr. at 102-03. Plaintiff explained that, when he arrived to work at 10:00 a.m., GSH had already substituted Jorge Ferrara to a higher cook's position at 8:00 a.m. See id.
As to GSH's alleged harassment, Plaintiff testified that his supervisors "constantly threatened [him] with termination and [false] write-ups about job incompletions" due to his race. Tr. at 38-39. According to Plaintiff, supervisors Sam Planas and Barbara Thompson "conspired" to terminate him, "ignored [his] complaints," and "treated [him] with no respect." Tr. at 125. Plaintiff further testified that GSH supervisors overlooked the misdeeds of "others [who] were doing worse than what [he] was [doing]." Tr. at 272. Plaintiff attests that he "can offer medical proof and other material facts to substantiate his injuries and  employment violation[s]," Pl.'s Opp'n Aff. P 12, but fails to present such evidence to the Court. When asked about the September 5, 1989 suspension for excessive sick days, Plaintiff acknowledged that he called in sick on those days. See Tr. at 241. Plaintiff also admitted that he never heard his supervisors make any racial comments. See Tr. at 75.
GSH denies that its scheduling decisions and disciplinary actions were based on racial considerations, and argues instead that it had legitimate, nondiscriminatory reasons for its actions. GSH argues that, under its nondiscriminatory substitution procedures, employees with less seniority than Plaintiff only moved to cook positions ahead of him when a vacancy arose before he arrived to work. See Def.'s Mem. at 8. GSH submits that it disciplined Plaintiff because of his delinquency on the job, not because of his race. See id.
GSH moves for summary judgment on Plaintiff's discriminatory promotion and harassment claims on two grounds: (1) that Plaintiff has failed to present a prima facie case, and (2) that Plaintiff has not sufficiently challenged GSH's nondiscriminatory reasons for its actions. See Def.'s Mem. at ...