The opinion of the court was delivered by: McMAHON, District Judge.
MEMORANDUM DECISION AND ORDER DENYING IN PART AND GRANTING IN PART DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
Plaintiff Ebrima Darboe sued defendant Staples, Inc. ("Staples") after he quit his job at Staples' Ramsey, New Jersey store subsequent to his demotion from the position of lead salesman. Darboe claims in his complaint that Staples' acts toward him violated Title VII of the Civil Rights Act of 1964; 42 U.S.C. § 1983 ("Section 1983"); 42 U.S.C. § 1981 ("Section 1981"); the Family Medical Leave Act ("FMLA"); and the New York State Civil Rights Law § 40. The complaint also sets forth the common law state claims of defamation and intentional infliction of emotional distress. Staples moves for summary judgment on all claims.
For the following reasons, Staples' motion is denied in part and granted in part.
The following facts are undisputed unless otherwise noted.
Plaintiff Ebrima Darboe is African American. [Staples 56.1 Statement ¶ 2]. Although Staples does not address the details of Darboe's ethnicity, Darboe explains that he immigrated to the United States approximately twenty years ago from Banjul, an island off the coast of West Africa, and became a permanent resident sixteen years ago. [Darboe 56.1 Statement ¶ 3]. He further alleges that he continues to speak with a noticeable West African accent. [Darboe Opposition 1].
On or about June 21, 1999, Staples hired Darboe to work as lead of the store's electronics department.*fn1 His formal title was "Lead Capital Goods (Electronics)." [Staples 56.1 Statement ¶ 6]. Darboe's responsibilities included selling "extended protection plans" ("EPPs"); ensuring timely and accurate price changes; and maintaining presentation standards, in-stock inventory levels, and "plan-o-gram integrity." [Staples 56.1 Statement ¶ 6]. Darboe alleges that while his responsibilities as lead included duties other than selling, the sale of EPPs was of primary importance.
Stan Mullins, who is also African American, was the manager of Staples' Ramsey, New Jersey store since January 1, 2000. [Staples 56.1 Statement ¶¶ 4-5; Mullins Aff. ¶ 2]. On May 26, 2000, Mullins presented Darboe with a written performance review. The review listed performance deficiencies, set forth performance goals, and stated that "[f]ailure to meet above requirements will result in disciplinary action up to and including demotion." [Staples 56.1 Statement ¶ 9; Darboe 56.1 Statement ¶ 12]. Darboe signed this document, but he alleges that he did so only because Mullins threatened to fire him if he did not. [Darboe 56.1 Statement ¶ 13]. He also claims that he did not take "the criticisms seriously because [he] knew that they were contradicted by the true evidence of his performance." Id.
At some point over the next couple of months, Mullins presented Darboe with another written performance review that stated: "Since there has been no improvement in your performance as the business machine lead, you are being demoted from your position, effective beginning the new quarter." [Staples 56.1 Statement ¶ 14].*fn2 Exactly when Mullins presented Darboe with this document is in dispute. Darboe alleges that Mullins first showed him the review in early August 2000. [Darboe 56.1 Statement ¶ 14]. Staples claims that Mullins gave Darboe the review on July 21, 2000. The performance review is signed by Darboe and dated July 21, 2000 [Mullins Aff., Ex. 3], but Darboe claims that the date on the document is not in his handwriting. [Darboe 56.1 Statement ¶ 12]. He admits that he did sign the document in early August, but only because he feared losing his job if he did not do so.
The precise date that Mullins first told Darboe of his demotion is relevant because sometime in late June Darboe asked sales manager Gene Parziale whether he could take time off so that he could have surgery. [Staples 56.1 Statement ¶ 23].*fn3 Darboe knew that Mullins had to approve any such request, so Darboe asked him for the time off to have his medical treatment and Mullins gave his approval. Id. at ¶ 26-27. Darboe remained out of work for six days from July 26 to July 31.*fn4 Id. at ¶ 31.
Upon Darboe's return from sick leave on August 1, Mullins invited Darboe into his office and closed the door. [Staples 56.1 Statement 33]. Mullins told Darboe of his demotion to Sales Associate, which became effective that day. Id. at ¶ 35. Staples alleges that Mullins called Darboe into his office to remind him of the demotion, which he had already informed Darboe of on July 21. Id. In contrast, Darboe claims that this was the first time that he learned of his demotion. [Darboe 56.1 Statement ¶ 14]. Darboe further alleges that he told Mullins that he was the top selling salesman, to which Mullins responded: "Now you're nothing," or "Now you're nobody." Id. at ¶ 30.
On or about February 3, 2001, Darboe entered the store and presented Mullins with a piece of paper that stated: "Because Staples violated the Family Medical Leave Act and failed to restore me to my position and salary rate I am forced to resign my position. All rights are reserved." [Staples 56.1 Statement ¶ 39; Colonna Decl., Ex. E]. Darboe demanded that Mullins sign the document. When Mullins refused to do so, Darboe resigned his employment. [Staples 56.1 Statement ¶¶ 39, 41, 42].
Darboe claims that, as a result of Staples' actions towards him, he has suffered physical and psychological damage, his marriage fell apart, he developed asthma, and he was depressed and humiliated. Id. at ¶ 20.
A party is entitled to summary judgment when there is no "genuine issue of material fact" and the undisputed facts warrant judgment for the moving party as a matter of law. Fed.R.Civ.P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). When considering a motion for summary judgment, "the 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 [its] favor." Matsushita Elec. Indus. Co. Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).
The moving party has the initial burden of demonstrating the absence of a disputed issue of material fact. Celotex v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Once the moving party has made such a showing, the nonmoving party must present "specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e). The party opposing summary judgment "may not rely on conclusory allegations or unsubstantiated speculation." Scotto v. Almenas, 143 F.3d 105, 114 (2d Cir. 1998). Moreover, not every disputed factual issue is material in light of the substantive law that governs the case. "Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude summary judgment." Anderson, 477 U.S. at 248, 106 S.Ct. 2505.
Summary judgment is "ordinarily inappropriate" in the context of a workplace discrimination case because the allegations usually require an exploration into an employer's true motivation and intent for making a particular employment decision. Patrick v. LeFevre, 745 F.2d 153, 159 (2d Cir. 1984). And "[e]mployers are rarely so cooperative as to include a notation in the personnel file that the [adverse employment action] is for a reason expressly forbidden by law." Bickerstaff, 196 F.3d at 448 (citation omitted).
Yet the "impression that summary judgment is unavailable to defendants in discrimination cases is unsupportable." McLee v. Chrysler Corp., 38 F.3d 67, 68 (2d Cir. 1994). Plaintiff is not absolved of the responsibility of producing sufficient evidence from which a reasonable juror could return a verdict in his favor. See Anderson, 477 U.S. at 249-50, 106 S.Ct. 2505, 91 L.Ed.2d 202; Lipton v. Nature Co., 71 F.3d 464, 469 (2d Cir. 1995) (finding that mere speculation or conjecture as to the true nature of the facts cannot overcome a motion for summary judgment); Meiri v. Dacon, 759 F.2d 989, 998 (2d Cir. 1985) ("To allow a party to defeat a motion for summary judgment by offering purely conclusory allegations of discrimination, absent any concrete particulars, would necessitate a trial in all [discrimination] cases."); Ricks v. Conde Nast Publications, Inc., 92 F. Supp.2d 338, 343-44 (S.D.N.Y. 2000) (same).
A. Unopposed Aspects of the Motion
Staples argues that (1) Darboe failed to obtain a right to sue letter from the Equal Employment Opportunity Commission and this Court therefore lacks jurisdiction over his Title VII claim; (2) Staples does not operate under color of local, state, or federal law, as Section 1983 requires; (3) Darboe failed to notify the New York Attorney General before commencing this action, as New York Civil Rights Law § 40 requires; and (4) Darboe cannot present a prima facie case of defamation because the allegedly defamatory comment was not published to any third party.
With regard to the first three of these arguments, Darboe concedes that he has "no good faith opposition to summary judgment." [Darboe Opposition to Motion for Summary Judgment 7, 8, 16]. As for Staples' argument with regard to defamation, Darboe admits that he "is not aware that [the alleged] defamatory remarks were published or caused to be published to any third party." Id. at 16. I ...