The opinion of the court was delivered by: Howard G. Munson Senior United States District Judge
MEMORANDUM - DECISION AND ORDER
In his Second Amended Complaint,*fn1 Plaintiff, Manmohan S. Jawa, seeks damages under fourteen causes of action pursuant to the Fourteenth Amendment to the United States Constitution, 42 U.S.C. §§ 1981, 1983 (equal protection, First Amendment retaliation and due process), 1985(3), 12112, 2112, Titles I and II of the Americans with Disabilities Act of 1990, 42 U.S.C. §§ 2000e-5(f)(1) and (3), ("ADA"), the Age Discrimination in Employment Act, 29 U.S.C. § 626 ("ADEA"), Title I of the Civil Rights Act of 1991, Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e-2 and 2000e-3, 42 U.S.C. § 1981a, and the common law tort of defamation against Rome Developmental Disabilities Services/Central New York Developmental Services Office, branch of New York State Office of Mental Retardation and Developmental Disabilities ("Rome DDSO" and/or "OMRDD"), Thomas Maul, Philip Catchpole, Arthur Holmberg, George Schlotterer, Toni Verkruysse, Mary Hall-Katz, and Anthony LaBate (collectively "Defendants") alleging a host of civil rights discriminatory and retaliatory civil rights violations based upon plaintiff's age, sex, race, and religion. Plaintiff sets forth two additional claims pertaining to the Public Employees Federation ("PEF") contract: one involving Article 13 relating to workers' compensation union benefits, and the other involving Article 20 relating to the maintenance of his employment file. Dkt. No. 151, Trial Tr. at 497. Plaintiff's case came before the court at a bench trial held on October 19 and October 22, 2004, November 15 and November 17, 2004, and January 10 and January 11, 2005. At the close of Plaintiff's direct case, Plaintiff renewed his motion in limine and oral motion regarding his position that the workers' compensation decision matter which the Court denied. Dkt. No. 152, Trial Tr. at 561. At the close of Plaintiff's direct case, Defendants moved pursuant to Rule 52(c) of the Federal Rules of Civil Procedure that the court enter judgment as a matter of law against Plaintiff. The court reserved on Defendants' motion and adjourned the trial pending its determination of that motion. This Memorandum - Decision and Order sets forth the court's findings of fact and conclusions of law pursuant to Rule 52(c).
I. Defendants' Rule 52(c) Motion
Rule 52(c) provides, in pertinent part:
If during a trial without a jury a party has been fully heard on an issue and the court finds against the party on that issue, the court may enter judgment as a matter of law against that party with respect to a claim or defense that cannot under the controlling law be maintained or defeated without a favorable finding on that issue, or the court may decline to render any judgment until the close of all the evidence.
FED.R.CIV.P. 52(c). A Rule 52(c) motion made by a defendant may be granted "where the plaintiff has failed to make out a prima facie case or where the plaintiff has made out a prima facie case but the court determines that a preponderance of the evidence goes against the plaintiff's claim." Stokes v. Perry, 1997 WL 782131, at * (S.D.N.Y. Dec. 19, 1997) (citing Wright & Miller, Federal Practice and Procedure, § 2573.1; see FED.R.CIV.P. 52(c) Advisory Committee's note; Burger v. New York Institute of Technology, 94 F.2d 830, 835 (2d Cir. 1996). Unlike Rule 50, which governs judgment as a matter of law in jury trials, under Rule 52(c), the court does not consider the evidence in the light most favorable to the non-moving party, nor is the court to "draw any special inferences in the non-movant's favor." In re Regency Holdings, 216 B.R. 371, 374 (Bankr. S.D.N.Y. 1998) (collecting cases). Rather, "the court acts as both judge and jury," id., and "is to weigh the evidence, resolve any conflicts in it, and decide for itself where the preponderance lies." Desiderio v. Celebrity Cruise Lines, Inc., 1999 WL 440775, at *19 (S.D.N.Y. June 28, 1999); see Stokes v. Perry, 1997 WL 782131, at *9 (S.D.N.Y. Dec. 19, 1997). A judgment pursuant to Rule 52(c) "operates as a decision on the merits in favor of the moving party." See Regency, 216 B.R. at 375 (Bankr. S.D.N.Y. 1988). Rule 52 directs trial courts to specify the findings of fact that support their conclusions of law. Soc'y for Good Will to Retarded Children, Inc. v. Cuomo, 902 F.2d 1085, 1088 (2d Cir. 1990); Inverness Corp. v. Whitehall Labs., 819 F.2d 48, 50 (2d Cir. 1987) (specific findings of fact are necessary to afford the reviewing court a "clear understanding of the ground or basis of decision") (citation omitted).
II. Findings of Fact/Plaintiff's Theory of the Case
Plaintiff is a Dravidian male who is a practicing Sikh and currently lives in Hope Mills, North Carolina. See Dkt. No. 141, Trial Tr.at 3, 38. Plaintiff was born in Patalia, India on January 8, 1929. Plaintiff earned Bachelor and Master of Arts Degrees from the University of Punjab, India in the mid-1950s and earned his Ph.D. in psychology from the University of Oregon in 1968. Plaintiff's professional career included experience as a teacher, principal, and superintendent of schools, in India, East Africa, England and Canada. See Dkt. No. 141, Trial Tr. at 5. Plaintiff was also employed as the chief research psychologist at the Children's Hospital in Buffalo, New York. Id. at 6. Plaintiff is not currently employed.
Plaintiff applied for a psychologist position with the Rome Developmental Disabilities Services Office ("Rome DDSO"). Dr. Joseph Szempruch, the chief psychologist at Rome DDSO, contacted Plaintiff and arranged an interview. Dr. Szempruch, Mary Hall-Katz and Andy Verkruysse interviewed Plaintiff, and they discussed, inter alia, job duties/performance evaluations and job security/State PEF contract. Id. at 7-14. Rome DDSO hired Plaintiff effective August 31, 1989, as a Grade-23 Psychologist II. Defendants assert that Rome DDSO hired Plaintiff as a "provisional" employee because there was no eligibility list for the Psychologist II position despite the great need for qualified individuals to fill such positions. Given his provisional designation, Plaintiff could only obtain status as a permanent employee by passing the Civil Service test. Dkt. No. 127, Defs.' Mem. of Law at 1. Plaintiff, however, asserts that Rome DDSO never told him that his employment was probationary or provisional until after his termination. Dkt. No. 141, Trial Tr. at 21-22. Rome DDSO assigned Plaintiff to work in its Eastern Oneida County unit headed by treatment team leader Hall-Katz. The Psychologist-II position required Plaintiff to act as a clinical psychologist and provide psychological, functional and behavioral evaluations of Rome DDSO "consumers" with developmental disabilities. Other duties included, inter alia, the design, preparation, training and monitoring of Behavior Management Plans for the consumers included in his caseload. Dkt. No. 127, Defs.' Mem. of Law at 1-2.
At the beginning of his employment, Plaintiff felt that he was well-received by other Rome DDSO employees, but his perception changed about three months into his employment. Plaintiff claims that Hall-Katz made unwelcome social invitations, asking him to accompany her to the theater and bars. Dkt. No. 141, Trial Tr. at 28-29. Plaintiff declined all such offers. Id. at 31. At trial, Plaintiff described overtly sexual conversations between several female employees, including Hall-Katz, at the Rome DDSO's Utica office. Plaintiff testified that he was not comfortable with either the social invitations or with being privy to such conversations because, in adherence with the tenets of his religion, he does not drink, smoke or commit adultery. Id. at 29-30. Plaintiff testified that after he declined invitations to go the bars, Hall-Katz and the direct care staff began to insult him and berate him for others' failures. Plaintiff inferred that his race and religion caused Hall-Katz and the direct care staff to pick on him and treat him rudely. Dkt. No. 141, Trial Tr. at 31-34. Plaintiff testified that Hall-Katz directed coarse language at him: "fuck you this, fuck, fuck." Id. at 37. Approximately four months into his employment and concerned with his job security and his co-workers' conduct, Plaintiff met with Dr. Szempruch to discuss such matters and to request a transfer. Dkt. No. 141, Trial Tr. at 31-32, 37. Plaintiff told Dr. Szempruch that Hall-Katz was interested in sex and drinking and that she had not written the performance evaluation program. A performance evaluation program is mandated by the State of New York and, as the name implies, evaluates an individual's performance as to the quality of his or her work in terms of the position's tasks and objectives. Dkt. No. 141, Trial Tr. at 41-42. Dr. Szempurch said he would transfer Plaintiff to the Rome DDSO's Lowville office. Id. at 37. According to Plaintiff, when Hall-Katz discovered Plaintiff's impending transfer, she became enraged. Hall-Katz gave Plaintiff a notice of deficiency because he had not completed certain behavior modification plans. Id. at 37-38, 40.
According to Plaintiff, Hall-Katz required him to prepare monitoring notes, a task she did not require of psychologists of her own race. On Plaintiff's last day at the Rome DDSO's Utica office, Plaintiff went to see Hall-Katz in her office where he noted that he had cleared eight month's backlog and asked if he could leave. Plaintiff asserts that Hall-Katz's answer was "fuck you, gray-bearded Indian. Your transfer cannot save you. I'll be after you." Id. at 37-38. Plaintiff verbally reported the incident to Dr. Szempruch and wrote a letter to Mr. Catchpole describing the same. Id. at 50. Plaintiff testified that this was the only comment made by Hall-Katz to him in which she referenced his race or ethnic origin derogatorily. Dkt. No. 138, Trial Tr. at 143-144. When Plaintiff left Rome DDSO Utica unit for the Lowville unit, he expected no further problems. Plaintiff belatedly received an "unsatisfactory" written performance evaluation from Hall-Katz. See Dkt. No. 141, Trial Tr. at 54; Pl.'s Ex. 20. Plaintiff alleges that the March 12, 1990 evaluation was an immediate consequence and retaliation for declining Hall-Katz' inappropriate sexual harassment and was based upon the personal feelings that Defendants had about Plaintiff due to his race, national origin, and age. Plaintiff believes Hall-Katz' intent was to have him wrongfully terminated. Dkt. No. 126, Pl.'s Trial, Brief at 2-3.
When Plaintiff began his duties at Lowville in March of 1990, he asked his supervisor, treatment team leader Robert Lecher, to write the performance evaluation program including a job description and performance requirements, but he did not receive one. For the first week to ten days of his employment, Plaintiff believed that he was well-received. After this brief reprieve, however, Plaintiff testified that Lecher began to treat him differently, which he attributes to Hall-Katz having contacted Lecher. Plaintiff testified that after Hall-Katz's alleged contact with Lecher, his non-verbal behavior changed such that Plaintiff perceived that he was being snubbed and unfairly reprimanded. Dkt. No. 141, Trial Tr. at 53-66. Plaintiff contends that Robert Lecher discriminated against Plaintiff by requiring him to complete six months of back logged work without compensation for overtime hours. Plaintiff claims that Defendants Hall-Katz, Schlotterer, and Catchpole conspired against him. Dkt. No. 126, Pl.'s Trial, Brief at 3.
In or about 1991, Plaintiff sat for a civil service exam related to his employment, and in the application for said exam, requested an accommodation for his physical disability: Plaintiff sustained an injury to his arm and experienced difficulty in handwriting. Plaintiff alleges that without notice, either the OMRDD or its agents communicated with the Civil Service examiners and caused them to wrongfully deny Plaintiff's request for an accommodation for his alleged disability, and further denied Plaintiff any opportunity to be heard or to present evidence on the matter. As a result of Defendants' and co-employees' alleged wrongful acts, Plaintiff was unable to successfully complete the exam, and received a much lower grade thereon than he was capable of achieving, adding further discrimination to the relationship between the parties. Dkt. No. 126, Pl.'s Trial, Brief at 6-7. Plaintiff sat for the Psychologist II civil service examination. The court finds that Plaintiff noted on his application that he had difficulty writing, see Pl.'s Ex. 63, and that he never inquired further as to an accomodation nor was he ever contacted by anyone regarding an accommodation for disability. Plaintiff testified that everyone with whom he worked knew of his disability; nevertheless, Plaintiff did not receive any accommodation. Dkt. No. 138, Trial Tr. at 36- 42.
Plaintiff testified that someone uttered the phrase "turbaned monkey" in reference to him. Although Plaintiff suspects that either Dr. Schlotterer or Arthur Holmberg made the remark, he was unable to specifically identify who made the remark. Dkt. No. 138, Trial Tr. at 145-147. Plaintiff also contends that Holmberg, Scholotterer, and Toni Verkruysse, singled him out and subjected Plaintiff to continual emotional and psychological harassment. Dkt. No. 126, Pl.'s Trial Brief at 3.
Plaintiff testified that the "gray bearded Indian" and "turbaned monkey" comments were the only two derogatory statements made in reference to his race or ethnic origin during his entire employment at Rome DDSO. Dkt. No. 139, Trial Tr. at 4. Plaintiff testified that he interpreted Hall-Katz's invitations to social settings as sexual overtures. Plaintiff testified that he overheard women discussing their sexual relations and that Hall-Katz found her husband at a bar. Based upon these observations, Plaintiff testified that he was convinced that Hall-Katz desired a sexual relationship with him. Id. at 5-7. Plaintiff testified that Hall-Katz, Toni Verkruysse, Holmberg, Lecher, Szempruch, Labate, Schlotterer, and Catchpole, all conspired against him. Dkt. No. 139, Trial Tr. at 28-31, 37. Toni Verkruysse urged Plaintiff to contact Johnny Davis, the affirmative action officer of RDDSO to register his complaints that he was terrorized, oppressed and traumatized. Id. at 42.
Plaintiff's counsel also argued that defendants targeted Plaintiff due to his cultural heritage and cited Defendant's Exhibit 10, a memo from Lisa O'Bryan to LaBate in which she opined that Plaintiff "utilized his cultural heritage to manipulate others and avoid responsibility." Defs.' Ex. 10. The court finds this statement rather unremarkable. At trial, Plaintiff was unable to articulate any proof or evidence, beyond mere speculation, of a conspiracy against him. See Dkt. No. 142, at 76-77.
Following the chain of command, Plaintiff met with Catchpole, the Director of Rome DDSO, to discuss his filing of a complaint with the Division of Human Rights regarding Hall-Katz. Catchpole told Plaintiff that he did not approve of Hall-Katz's language, that he would discipline her and would transfer him to the quality assurance unit to help alleviate his 120 mile round trip commute to Lowville. As a result of this second transfer effective June 1990, Plaintiff worked under Dr. Szempruch in the quality assurance unit. See Dkt. No. 141, Trial Tr. at 67-71. Within two weeks of Plaintiff beginning his employment at the quality assurance unit, Dr. Szempruch wrote a performance evaluation program which specified Plaintiff's duties and noted that Plaintiff may be called upon to serve as a psychologist in a different unit but that Dr. Szempruch would remain his supervisor. Plaintiff was employed at the quality assurance unit for nine months and described in most favorable terms its working environment, noting the absence of offensive language and that he never received any reprimands. Id. at 73-75. In late March of 1991, Rome DDSO, however, subsequently transferred Plaintiff to the Western Oneida County I Unit under the supervision of Holmberg, a developmental disability specialist, treatment team leader Toni Verkruysse and Scholotterer, a Psychologist II. Plaintiff testified that he was met with extreme hostility upon his arrival at the new unit with Schlotterer shouting at him. Id. at 76-82. Rome DDSO terminated Plaintiff's employment on June 10, 1991, effective June 14, 1991.
Plaintiff testified that he consulted with a physician who "prescribed" workers' compensation as of June 10, 1991, for the mental injuries allegedly inflicted upon him by the Holmberg unit. See Pl.'s Ex. 76. Plaintiff sent the doctor's prescription by certified mail to either Holmberg or Anthony Labate, Director of Human Resources Management. Plaintiff testified that he had body aches, dizziness, headaches, sleeplessness, digestive problems, and a number of physical and mental problems. Plaintiff testified that the doctor referred him to a psychiatrist, Dr. Sangani, who gave him samples of some medications. See Dkt. No. 138, Trial Tr. at 5-10. As of June 10, 1991, Plaintiff did not have health insurance. Id. at10. Shortly after his termination on June 14, 1991, Dkt. No. 151, Trial Tr. at 542, Plaintiff testified that he entered a catatonic state, which prevented him from applying for unemployment insurance for three to six months. Dkt. No. 138, Trial Tr. at 11-12. At some time, Plaintiff applied for and received unemployment insurance for six months. Id. at 12. Plaintiff also obtained health insurance post-termination, which helped pay for his psychiatric treatment, although there was a high deductible. Id. at 14. Plaintiff also applied for workers' compensation. Rome DDSO contested Plaintiff's workers' compensation application. After three to five years, a hearing was held where Plaintiff was awarded workers' compensation--but not as against Rome DDSO--which he continues to receive to this day. Id. at 17-18. Plaintiff also filed a complaint against Rome DDSO with the New York State Division of Human Rights ("DHR") and Equal Employment Opportunity Commission in January 1992. Id. at 18-19. Plaintiff then filed his complaint in federal court in 1997. Id. at 21. Within six months of his termination but before his federal court filing, Plaintiff applied for various psychology and teaching-related positions. Id. at 21-24.
Plaintiff never filed any grievances while employed by OMRDD, but shortly after his termination, Plaintiff filed three grievances. Dkt. No. 151, Trial Tr. at 499. Plaintiff filed his first grievance on June 27, 1991, in which he complained that the DDSO violated Article 36.2, Subsection 2 of the PEF contract. Article 36.2 is a statement of nondiscrimination unrelated to either Article 13, workers' compensation or Article 20, maintenance of employees' personal history folders. Id. at 500-01. Plaintiff filed his second grievance July 17, 1991, in which he alleged that he was not aware that his civil service status was provisional or the implications thereof. Notably, however, the grievance did not pertain to either Articles 13 or 20 of the PEF contract. Id. at 503-04. Plaintiff filed his third grievance in 1993, which the director of employee relations for the OMRDD, Sheldon Cramer, rejected as untimely, i.e., not filed within thirty days. Id. at 504-05. In his response to Plaintiff's letter, Cramer also noted ...