The opinion of the court was delivered by: Trager, J.
Plaintiff Steve J. Khan (or "Khan" or "plaintiff") brings this action against HIP Centralized Laboratory Services, Inc. ("CLS" or "defendant"), pursuant to the Age Discrimination in Employment Act, 29 U.S.C. § 623(a), et seq. ("ADEA") and Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. ("Title VII"). Plaintiff alleges that he suffered several adverse discriminatory actions based on his age, including three departmental transfers, a suspension and a hostile work environment. Plaintiff also alleges that he was subjected to a hostile work environment and disparate treatment in retaliation for making an internal complaint and a complaint to a state agency.
Defendant moves for summary judgment pursuant to Fed. R. Civ. P. 56(c). In its brief, defendant addresses plaintiff's first and second causes of action: the disparate treatment discrimination claim under the ADEA and the retaliation claim under Title VII and the ADEA. Defendant failed to brief, or in any way mention, plaintiff's harassment claims. Accordingly, only the disparate treatment causes of action are considered on this motion for summary judgment.
Employment history CLS, a not-for-profit medical testing laboratory (Def. 56.1 ¶ 1), hired plaintiff as a laboratory technician in November 1970 (Greenberg Aff. Ex. F) and he is still employed by CLS today. Except for a brief leave, plaintiff worked as a laboratory technician until 1997 when he demoted to a laboratory aide in the Accessioning Department. (Greenberg Aff. Ex. R.)
Plaintiff alleges three separate transfers and a suspension as discriminatory action. The adverse actions allegedly began in 1995 when he was transferred from the Chemistry Department, where he had worked for approximately nineteen years, to the Client Services Department. Approximately eight months later, he was suspended from work for allegedly failing to perform job duties. Approximately two weeks after this suspension, plaintiff filed a complaint of discrimination with the New York City Commission on Human Rights (or "NYCCHR"). Eight days after plaintiff filed this complaint, he was transferred from Client Services into the Microbiology Department. Plaintiff spent approximately ten months in the Microbiology Department as a laboratory technician before being demoted to laboratory aide in the Accessioning Department where he remains today. (Greenberg Aff. Ex. R, Def's 56.1 & 8.)
The First Transfer Plaintiff was transferred from the Chemistry Department to the CLS Client Services Department on August 14, 1995, shortly after taking a five-day bereavement leave. (Greenberg Aff. Ex. N.) Prior to this transfer, plaintiff had learned his brother had died and he requested the five-day leave from his supervisor, Susan Tan. His union contract guaranteed this leave in the event of the death of an immediate family member. (Khan Aff. & 2; Greenberg Aff. Ex. O Art. XII & A.) Plaintiff alleges that after Ms. Tan spoke with Michael Paleos, the Chief Operating Officer, regarding plaintiff's bereavement time, she told plaintiff "that Mr. Paleos had stated that he did not need older workers around, especially those with three or more weeks of annual leave." (Khan Aff. & 3.) Khan took the leave and, upon returning, was transferred to the Client Services Department. (Khan Aff. & 5.)
Plaintiff also asserts that, near the time of his transfer to client services, Cherrie Eng, the personnel manager, told him that Mr. Paleos did not want any person entitled to three weeks or more of vacation. (Khan Aff. & 6.) Under the union contract any union member with between two and five years of service received three weeks paid vacation, and anyone with five years or more received four weeks. (Greenberg Aff. Ex. O Art. VII & A.)
As further evidence for his claim, plaintiff alleges that around the time of this transfer, CLS was terminating or laying off other older technicians. (Khan Aff. & 7.) In his complaint, plaintiff points to several employees, some older than him, who were either terminated or laid off around this time. (Second Am. Compl. && 22-25). However, in his deposition, plaintiff clarified that the older technicians were not replaced by younger technicians, but by technologists, a term explained below. (Greenberg Aff. Ex. E.)
Defendant's Reasons for the First Transfer According to CLS, plaintiff's transfer into Client Services was due to a change in the regulations governing CLS's operations. Both parties agree that from the 1970s until June 30, 1994, plaintiff was certified as a laboratory technician by the New York City Department of Health (or "NYCDOH"). (Greenberg Aff. Ex. H.) On July 1, 1994, the Clinical Evaluation Program (or "CLEP") of the New York State Department of Health replaced the NYCDOH as the regulatory authority for clinical laboratories, such as CLS. (Glasberg Aff. & 5.)
Under the old NYCDOH regulations, CLS laboratory technicians were permitted to perform laboratory testing independently. (Glasberg Aff. &5.) The new NYSDOH regulations no longer included the laboratory technician position as a classification. The new NYSDOH requirements mandated that only laboratory technologists could perform testing that required the exercise of independent judgment. (10 NYCRR § 58-1.5(a), at Glasberg Aff., Ex. A.) The position of laboratory technologist required more education than the previous technician position and plaintiff did not posses the requisite educational background. As a result, plaintiff was not qualified for the technologist position. Plaintiff has argued that he should have been "grandfathered" into his old position, citing other, unrelated statutes which allowed the substitution for a number of years of experience for educational requirements.
CLS took nearly a year to implement these new regulations. First, on August 7, 1994, CLS released new Job Qualifications/Descriptions for "individuals working in the test related areas at CLS" but failed to include a new description for laboratory technician. (Greenberg Aff. Ex. I.) Then, on June 12, 1995, CLS corrected this oversight by releasing a memo on the job qualifications of laboratory technicians. It stated that the "medical laboratory technician performs laboratory tests under the observation of a medical technologist or the supervision of a laboratory supervisor or laboratory director in accordance with the new requirements of the NYSDOH regulations." (Greenberg Aff. Ex. M.) CLS states that because technicians required supervision by technologists, it decided to phase out the technician position and only hire technologists who were qualified under the regulations to exercise independent judgment.
Implementing this plan, CLS transferred plaintiff to Client Services on August 14, 1995. Although his hourly pay rate and benefits were not affected, he did loose a $2000 bonus per year for longevity as a technician. As shown on the transfer form recorded by CLS at the time, plaintiff's transfer was intended to be temporary pending a determination of plaintiff's seniority date. (Greenberg Aff. Ex. N; Greenberg Aff. & 18.)
Defendant states that this new policy of replacing technicians with technologists was enforced throughout the entire company. Plaintiff points to no evidence that any technicians were allowed to remain in their former position.
Plaintiff's Suspension and Complaint to NYCCHR Several months after the transfer from the Chemistry Department into Client Services, plaintiff was suspended for allegedly failing to complete two job duties. On March 4, 1996, while working in the new position, plaintiff allegedly failed to call in a positive throat culture, which was a requirement of his job. (Greenberg Aff. Ex. Y.) Plaintiff disputes that this occurred, but admits that he failed to complete the second duty, calling in a "panic value."*fn1 Although in his affidavit plaintiff claims that he called in the panic value, in his deposition he admitted that on Saturday, March 23, 1996, he failed to pick up panic logs and call them into centers which should have been notified of them. (Greenberg Aff. Ex. Y., Ex. E 225-26.)
Plaintiff also asserts that, sometime after he failed to call in the panic value, but before he was suspended for his actions, he had a conversation with Mr. Paleos. (Khan Aff. & 20.) Plaintiff told Mr. Paleos that he knew Mr. Paleos was getting rid of older workers and that plaintiff was going to take action. (Khan Aff. & 20.)
During a meeting on or around April 8, 1996, Janet Gherradi, the Client Services supervisor, informed plaintiff that he was suspended for five days.*fn2 (Greenberg Aff. Ex. Y.) Ms. Gherradi, summarized this meeting in a memo, dated April 10, 1996, from Janet Gherradi to Cherrie Eng. (Ofodile Aff. Ex. 5.) According to this memo, Khan was overheard commenting that "it was the consensus that CLS is trying to eliminate the employees with long tenure" and that Khan believed the suspension was in retaliation for Khan saying he was going to grieve the complaints against him. (Ofodile Aff. Ex. 5.)
Plaintiff filed his first complaint with the NYCCHR on April 24, 1996, alleging violations of Title VII of the Civil Rights Act of 1964 on the basis of color, race, gender, national origin and retaliation for complaining of discrimination. (Greenberg Aff. Ex. B.) Plaintiff amended his NYCCHR complaint to include allegations of age discrimination in November 1997, approximately one and a half years later. (Greenberg Aff. Ex. D.) It is unclear when CLS received its notice of the complaint. (Ofodile Aff. Ex. 7.)
The Second Transfer On April 30, 1996, six days after plaintiff filed his complaint with NYCCHR, plaintiff was notified that he would be transferred from Client Services to Microbiology, and on May 2, 1996, he was actually transferred. CLS maintains that the position in Client Services was always intended to be temporary pending the determination of plaintiff's seniority date. (Greenberg Aff. Ex. N; Greenberg Aff. & 18.) According to CLS, plaintiff was transferred into Microbiology when this seniority date determination was made. Plaintiff did not challenge the seniority date ultimately assigned to him, but does challenge that the end of determination process was the reason for his transfer. As noted above, the transfer occurred days after CLS received plaintiff's complaint of discrimination.
When plaintiff was transferred into the Microbiology department, he replaced Luis Martinez, a part-time employee who had less seniority than plaintiff. (Greenberg Aff. & 19.) Despite the fact that the union contract provided that plaintiff replace the person with the least seniority, there were two other employees in the Microbiology department who had less seniority than Mr. Martinez: Mei Li (a full-time employee) and I. Garrido (a part-time employee). (Greenberg Aff. Ex. P.) It should be noted that Ms. Li was older than ...