The opinion of the court was delivered by: Sifton, Senior Judge.
MEMORANDUM OPINION AND ORDER
Plaintiff Henry C. Fleary brings this action against Defendants State of New York Mortgage Agency ("SONYMA") and New York State Housing Finance Agency ("NYSHFA") (together "The Agency") alleging violations of (1) Title VII of the Civil Rights Act of 1964; (2) Section 296 of the Human Rights Law of the State of New York; (3) 42 U.S.C. § 1981 and (4) Title VIII of the New York City Administrative Code. Plaintiff seeks compensatory, punitive and special damages for injury caused by the Agency's allegedly intentional discriminatory conduct, in (1) paying him less than similarly situated white employees; (2) demoting him; (3) creating a hostile work environment; and (4) constructively discharging him. Presently before the Court is the Agency's motion for summary judgment pursuant to Federal Rule of Civil Procedure 56. For the reasons that follow, the motion is granted.
The following facts are drawn from the parties' Local Rule 56.1 statements, affidavits, depositions, and exhibits submitted in connection with this motion. They are undisputed except where noted.
Plaintiff Henry C. Fleary, a 45-year old African-American male, began working for SONYMA*fn1 as a Mortgage Accountant in March 1988 at an annual salary of $24,283. In 1990, Fleary was promoted to Mortgage Accounting Representative and received a $1,500 increase in annual salary. In April 1993, Fleary was promoted to First Mortgage Accountant. In June 1997, Fleary was promoted to Mortgage Accounting Supervisor,*fn2 and received a $1,600 increase in his annual salary. He remained, however, within Salary Band VI to which he had been assigned at the time of the integration of the two entities in 1994.*fn3
At the time of his promotion, Fleary states that he made a formal request to the Deputy Chief Financial Officer, Joanne Hounsell, to raise his Salary Band from VI to VII, and that his request was denied. Fleary did not complain to any administrative agency or court regarding his salary level after this denial, nor did he request that his Union contest it. (Def.'s Rule 56.1 Statement, ¶ 28-29; Pl.'s Ex. C, Admis. 114.) Fleary's salary was within the range established by the Agency for his salary band and not in violation of the Collective Bargaining Agreement.*fn4 Of the 10 employees in the SONYMA Accounting Department, only Fleary's supervisor, Assistant Vice President and Assistant Comptroller, Henry Hauk, who is white, and Nora Rubio, an employee of Asian descent whom Fleary supervised but who had been with the Agency since 1981 and had seven years seniority over Fleary, had higher salaries than Fleary. (Def.'s Ex. Y at 1; Def.'s Rep. Ex. E at 1, 16.)
Fleary's salary was, however, lower than all but one of the employees in the NYSHFA General Ledger Department, to which he was transferred in 2002 under circumstances discussed below. Among those who earned more than Fleary in the NYSHFA General Ledger Department were Joel Danzig, a white Senior Accountant also in Salary Band VI, who had been employed with the Agency since 1965, Dominic Martello, a white Salary Band VI Assistant Accountant, who had one year less seniority than Fleary, and Steven Solomon, a white Senior Accountant in Salary Band VII who had been with the Agency since 1980. (Def.'s Ex. F; Y; Def.'s Rep. Ex. E; Dalley Decl. ¶ 40.)
June Vogt, a white Senior Loan Officer in Salary Band VII, who was hired by SONYMA in 1988 and worked in the Agency's Single Family Department since 1993, also earned more than Fleary. (Def.'s Ex. F at 3-5; Dalley Decl. ¶ 44.)
Fleary's performance was consistently rated "satisfactory" or above on annual performance appraisals from 1989 until 2001. (Pl.'s Ex. 11.)
On February 16, 2001, Nora Rubio was insubordinate and aggressive when Fleary confronted her about a missed deadline. (Def.'s Ex. S at 14-15.) In August 2001, Rubio again refused to follow Fleary's directions, and became abusive to Fleary and to a Deputy Chief Financial Officer who intervened. Following an internal investigation and disciplinary hearings on November 16, 2001 and October 17, 2002, Rubio's conduct was deemed insubordinate and abusive, and she was suspended without pay for three weeks, commencing on February 27, 2003. (Def.'s Ex. S at 20-21, 26; T.)*fn5 Fleary does not allege, and the Agency's disciplinary report against Rubio did not find, that Rubio's conduct was motivated by racial animus against Fleary. (Def.'s Ex. P; Q; S.)
In February 2002, Inga Barrington, an African-American employee whom Fleary supervised, made a formal accusation of sexual harassment against him.*fn6 Barrington was immediately removed from Fleary's supervision. In July 2002, an internal investigation concluded that Barrington's allegations had no merit and were lodged "recklessly." Because the Agency "[could not] conclude with absolute certainty that Mr. Fleary, over a 14 year period at the agency, never asked Ms. Barrington out on a date or made an off-color comment," it chose not to terminate Barrington's employment. (Def.'s Ex. N at 4.) The report recommended that Barrington be removed from Fleary's supervision permanently, and Barrington was suspended without pay for five days. Fleary states that in August 2002, his supervisor, Henry Hauk, informed Fleary that "[Fleary] should prepare . . . to take a hit from management because of the embarrassment the investigation caused higher-ups." (Def.'s Ex. AA, Fleary Dep. 54, lines 8-11.)
At a September 17, 2002 meeting, the Agency's Chief Financial Officer announced a reorganization of the SONYMA and NYSHFA accounting departments.*fn7 Shortly after the meeting, Fleary met with Thomas Hamm, the Comptroller, who informed Fleary that he was being transferred from SONYMA's accounting department to NYSHFA's general ledger department, that his position was being changed to that of Senior Accountant, and that his salary was being increased by $2,000 per year.*fn8 Fleary told Hamm that "[he was] shocked that [he] was being stripped of [his] supervisory duties." (Def.'s Rep. Ex. I, Fleary Dep. 52.)
Fleary characterizes the job transfer as a demotion since it eliminated his supervisory responsibilities. The Agency maintains that the job change was a promotion, affording him greater opportunity for advancement, increased responsibility, and greater earning potential.
Fleary reported to work the day after the reorganization was announced. The next day, Thursday, September 19, he took sick leave, and went to see his psychiatrist at the HIP Brooklyn Mental Health Service clinic, Dr. Leatrice Simpson. (Id. at 248.) In a letter dated September 19, 2002, Dr. Simpson stated that Fleary had been undergoing treatment for depression since April 29, 2002, and could not return to work at that time. (Pl.'s Ex. 3 at 1.) Fleary nevertheless returned to work on Friday, September 20. However, on Sunday, September 22, 2002, he went to his office, cleared out his desk, took certain personal items home, printed out some emails pertaining to the sexual harassment investigation, and deleted those files from his computer. (Def.'s Rule 56.1 Statement, ¶¶ 129-132; Def.'s Rep. Ex. I, Fleary Dep. 248.) Based on a subsequent diagnosis by Dr. Simpson that stated that Fleary was suffering from Major Depressive Disorder and could not return to work, Fleary remained on paid sick leave for the remainder of the year. (Pl.'s Ex. 3.)*fn9
On January 6, 2003, Fleary filed a Charge of Discrimination with the Equal Employment Opportunity Commission (EEOC), claiming that the Agency's officers, including Joanne Hounsel, Deputy Chief Financial Officer, Thomas Hamm, Comptroller of SONYMA and NYSHFA, and Henry Hauk, Assistant Vice-President of the SONYMA Accounting Department, (1) allowed a pattern of harassment, resulting in a hostile work environment, to remain and persist from March 1, 2000 to September 20, 2002 that interfered with Fleary's ability to perform his job; (2) discriminated against Fleary because of his race from June 1997 to the date of filing his charge by paying Fleary substantially less than similarly situated white employees; and (3) discriminated against Fleary by demoting him rather than supporting his efforts to deal with difficult employees. (Pl.'s Ex. 1.)
On January 15, 2003, Dalley advised Fleary that his accrued leave would be exhausted on January 23, 2003,*fn10 and that he might be eligible to receive half-pay pursuant to the Agency's Collective Bargaining Agreement ("CBA"),*fn11 but that additional information was required regarding his illness and his plans to return to work. (Def.'s Ex. Z at 13-14.) Dalley also informed Fleary that the Agency had retained a psychiatrist to meet with him to evaluate his condition and his medical records and to discuss his condition with his health care providers.
The psychiatrist appointed by the Agency, Dr. Steven Erle, met with Fleary on February 5, 6 and 7, 2003, and reviewed Fleary's psychiatric records from the HIP Brooklyn Mental Health Service Clinic. In a report dated March 7, 2003, Dr. Erle concluded that Fleary was suffering from Adjustment Disorder with Mixed Disturbance of Emotions and Conduct, and that his symptoms did not appear to satisfy the diagnostic criteria for a Major Depressive Episode. He concluded that Fleary was "capable of returning to work on a regular and consistent basis," and that his return would be facilitated by continuing psychiatric and psychotherapeutic support and contact. (Id. at 22.)
On March 14, 2003, Dr. Janet Taylor, another psychiatrist at HIP Brooklyn Mental Health Service, stated on a claim form to the U.S. Department of Labor under the Family Medical Leave Act that Fleary was suffering from Major Depressive Disorder, was incapacitated under the FMLA's definition, was unable to work, and was being treated with psychotherapy and anti-depressants. (Pl.'s Ex. 3 at 8-9.)
On March 17, 2003, Dalley denied Fleary's request for additional sick leave at half pay on the basis of Dr. Erle's report, informed Fleary that the Agency intended to restore him to his Senior Accountant position effective March 21, and told him that he was to report to Comptroller Hamm's office on that day. Fleary did not report to work, nor did he attempt to contact the Agency to explain his absence. On March 25, Dalley wrote to Fleary regarding his continued absence, and informed him that he had ten days to provide an explanation for his unauthorized absence, or the Agency would terminate his employment pursuant to provisions of the CBA.*fn12 (Def.'s Ex. Z at 25.) Fleary did not respond to this letter, and on April 9, Dalley informed Fleary that pursuant to the CBA, he was deemed to have resigned his employment with the Agency due to his unauthorized absences. (Id. at 27.)
In a letter forwarded by Fleary's counsel to the Agency dated April 14, 2003 and entitled "Forensic Response to the Psychiatric Evaluation of Mr. Henry C. Fleary conducted by Dr. Steven R. Erle and dated March 7, 2003," Dr. Albert Crum criticized the findings of Dr. Erle's report, the Agency's treatment of Fleary's condition, and the denial of Fleary's request for sick leave with half pay. (Pl.'s Ex. 2.) In an email dated April 16, 2003, Fleary stated that he was "shocked at the Agency's decision to wrongfully terminate [his] employment," and asked the Agency to reconsider. (Def.'s Ex. Z at 29.) In an April 21 letter to Fleary, Dalley restated the Agency's policy regarding unauthorized absences, detailed Fleary's failure to comply with the Agency's demands, and stated that Fleary's employment was "deemed terminated by resignation." (Id. at 3.)*fn13
On January 16, 2004, the EEOC issued its determination that it "[was] unable to conclude that the information obtained establishes a violation of the statutes." (Def.'s Ex. G.) In its Dismissal and Notice of Rights, the EEOC informed Fleary of his right to ...