The opinion of the court was delivered by: Sweet, D.J.
Defendant Covenant House/New York ("Covenant House"), incorrectly named herein Covenant House, has moved for summary judgment pursuant to Rule 56, Federal Rules of Civil Procedure, dismissing the complaint of plaintiff Elvis Moguel ("Moguel"), who is proceeding pro se. For the reasons set forth below, Covenant House's motion for summary judgment is granted, and this action is dismissed.
On July 16, 2002, Moguel filed a complaint with the New York State Division of Human Rights ("NYDHR") alleging that Covenant House, his former employer, had engaged in unlawful discriminatory practices with regard to gender and disability. On February 13, 2003, the NYDHR issued a no-probable-cause determination following a fact-finding investigation. On March 24, 2003, the Equal Employment Opportunity Commission ("EEOC") issued a Notice of Right to Sue.
Thereafter, Moguel commenced this action on April 29, 2003, against Covenant House, alleging gender-based discrimination in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"), as amended, 42 U.S.C. § 2000e et seq., and the New York State Human Rights Law (the"NYHRL"), N.Y. Exec. Law § 296, as well as disability-based discrimination in violation of the Americans with Disabilities Act of 1990 (the"ADA"), 42 U.S.C. § 12101 et seq., and the NYHRL, N.Y. Exec. Law § 292. Moguel's complaint also contains a retaliation claim pursuant to both Title VII and the ADA.
On August 1, 2003, Covenant House served its answer to the complaint. The parties thereafter conducted written discovery and Moguel was deposed on February 19, 2004. Covenant House then brought the instant motion for summary judgment on March 31, 2004, which was noticed for submission on May 5, 2004. Among its motion papers, Covenant House included a notice pursuant to Local Civil Rule 56.2 of the Local Civil Rules of the United States District Courts for the Southern and Eastern Districts of New York, notifying Moguel of the importance of submitting materials in response to Covenant House's motion. No opposition papers were filed by Moguel, and on May 4, 2004, Covenant House filed reply papers urging that its motion be granted.
By a letter to the Court dated June 28, 2004, Moguel requested a thirty-day extension of time in order to oppose Covenant House's motion, indicating that he had been attending to a family emergency out of the state and had only learned about Covenant House's motion upon returning to New York. Moguel indicated in his letter that he strongly opposed Covenant House's motion. Moguel's request was granted on June 29, 2004.
No opposition papers from Moguel having been received during the thirty-day extension of time, Covenant House's motion was deemed fully submitted upon expiration of the extension period.
The facts are set forth based upon Covenant House's Local Civil Rule 56.1 statement and supporting affirmation. In the absence of any opposition by Moguel to Covenant House's motion in the form of sworn affidavits or other papers, these facts are deemed admitted by Moguel and are taken as true for the purposes of this motion. See Vermont Teddy Bear Co. v. 1-800 BEARGRAM Co., 373 F.3d 241, 246 (2d Cir. 2004); LeSane v. Hall's Sec. Analyst, Inc., 239 F.3d 206, 211 (2d Cir. 2001). The facts set forth below do not constitute findings of fact by the Court.
Covenant House is a not-for-profit childcare agency that provides shelter and services to homeless and runaway children. In addition to food, shelter, clothing and crisis care, Covenant House provides a variety of services to homeless youth including health care, education, vocational programs, legal services, recreation, mother/child programs, transitional living programs, street outreach and aftercare.
Moguel worked in house maintenance/facilities at three of Covenant House's New York locations. He was hired on January 27, 1997, to work 40 hours per week as a porter in the Facilities Department. At times during his employment, Moguel was given increased duties due to reduced staff, but he was never required to work more than 40 hours per week.
Covenant House enforces its sick leave and medical leave of absence policies. The abuse of these policies by employees is not tolerated because it imposes a financial strain on Covenant House's ability to provide its services to the public.
At the beginning of employment, Covenant House provides each new employee with its Employee Handbook (the"Handbook") which describes Covenant House's time and attendance requirements. The Handbook also outlines the requirements employees must fulfill in order to take a leave of absence. Covenant House requires its employees to complete all requisite leave forms in order to take a leave of absence and/or short-term disability leave.
According to the Handbook, a medical leave of absence will commence after an absence of five consecutive sick days. In order to take an approved medical leave of absence, an employee must complete a disability form with a physician's statement, certifying the date disability will commence and the expected date the employee will return to normal duties.
The Handbook specifically requires employees to provide a doctor's note to substantiate an absence from work if the employee has, or is developing, an attendance problem.
Moguel was aware that the Handbook requires employees to complete leave of absence forms if an employee is out of work for five days or more. Upon being hired by Covenant House, Moguel received and reviewed the entire contents of the Handbook. He also received and reviewed numerous other items listed in an employee checklist provided by Covenant House.
During Moguel's employment, he exercised regularly, played in basketball tournaments, and worked out at the gym.
During his employment with Covenant House over a span of five and a half years, Moguel was absent at least 99 times. Moguel acknowledges that he was absent approximately 99 times during his employment with Covenant House. Specifically, he acknowledges that he was absent seven days in 1997, eleven days in 1998, and thirteen days in 1999, although he contends that many of these absences were excused.
He further acknowledges that he was absent eleven days between January 2000 and May 2000. He acknowledges that his evaluation for 2000 noted that he was absent ten days that year.
Moguel acknowledges that he was absent 24 days in 2001 and that he missed eight days of work in April 2002 due to an ankle sprain.
Covenant House gave Moguel warnings and suspensions for absenteeism in August 1998, November 1998, and October 1999. In May 2000, Moguel was given another warning because he was absent eleven times and late three times during a five-month period. On November 19, 2001, Moguel was given another warning because he had called in sick 25 times since the beginning of that year and he had been absent five more times.
Moguel disputed certain of the disciplinary sanctions against him for excessive lateness or absences and filed grievances or objections in opposition to the discipline. None of Moguel's grievances involved allegations of discrimination or sought to oppose a discriminatory practice by Covenant House. In response to Moguel's grievances and objections, Covenant House amended certain of the disciplinary sanctions issued.
Moguel testified at his deposition that some supervisors permitted him to use vacation days for sick days, while other supervisors did not permit this exchange. He also indicated his belief that if he brought a doctor's note, his absence was excused and not counted as an absence.
In April 2002, Judy Mills ("Mills") spoke to Moguel and requested that he complete disability forms because he had been absent for five or more consecutive days. Moguel did not complete the disability forms.
On June 2, 2002, Moguel injured his ankle when it was hit by a stray ball while he was playing basketball. On June 5, 2002, he went to a doctor regarding his ankle injury. That same day, Moguel provided Covenant House with a note from his doctor stating that he would be out of work until June 10, 2002. ...