The opinion of the court was delivered by: Wall, Magistrate Judge
Before the court is the defendant's motion for summary judgment. For the reasons set forth herein, the motion is granted. The Clerk is directed to enter judgment for the defendant and to close the case. Each party shall bear its own costs.
The plaintiff, Glenn Jones, is a former employee of the defendant, GEICO. The complaint in this action, filed in June 2004 in New York State court, alleges that Jones was fired in January 2004 in violation of New York's anti-discrimination laws. Jones had fallen on ice in the GEICO parking lot on January 22, 2004, the day before his termination, and was fired on January 23, 2004. Putting aside the defendant's reasons for firing Jones, there is little dispute about the underlying facts of this action.
During the course of Jones's employment, GEICO had in place certain policies and requirements regarding its employees' attendance and leave. GEICO claims that Jones received a number of documents setting forth those policies and requirements, including information about the company's Nondiscrimination, Conflict of Interest and Sexual Harassment policies, copies of GEICO's "Fair Workplace Policies," "Code of Conduct," "Associate Handbook," "Benefit Handbook," and "GEICO Policies and Acknowledgements." Def. 56.1 Stmt. ¶¶3-10. Jones signed receipts for several of these documents and does not deny receiving the others, although he says that he does not remember getting some of them. Pl. 56.1 Stmt. ¶¶3-10.
The document called "GEICO Policies and Acknowledgments" contained a section that required employees to call in unscheduled absences within 30 minutes of their start times and warned that failure to comply with the requirements would lead to disciplinary action up to and including termination. Mahler Aff., Ex. L, p.6. GEICO has defined attendance standards for its employees, referring to attendance as "dependability." Employees are expected to maintain a dependability rating of 97%. Dependability is calculated by dividing an employee's total hours for the prior twelve months, minus total unplanned/unscheduled leave, by total scheduled hours for the prior twelve months. Mahler Aff., ¶12, Fusco Aff. ¶4, Briton Aff., Ex.B, p.40. According to GEICO, dependability is only affected by tardiness, sick time, "unplanned" vacation and unapproved leave without pay. Fusco Aff., ¶4.
GEICO asserts that Jones had a substantial history of violations of various provisions of the employee requirements, including unreported absences and failing to call in to report absences. Jones does not contest most of the facts of that history, although he does claim not to remember some of the details. See parties' Rule 56.1 Stmts. ¶¶18-56. On December 27, 2002, Jones was given a verbal warning that his dependency level had fallen to 94.85% and that further absences could lead to disciplinary action up to and including termination. Fusco Aff. ¶22 & Ex.V. As of May 2003, his dependability level was at 92.3%. His supervisor attests to numerous "reminders" to Jones that he had to call in if he was not going to be at work. Def. 56.1 Stmt. ¶¶43-52. On December 4, 2003, he was issued a written warning for failing to call his supervisor on four dates and failure to call within 30 minutes of his start time on one date, despite repeated warnings. Id. at 53; see Fusco Aff. ¶32 & Ex.Y. The written warning contained the admonition that continued violations might result in further disciplinary action up to and including termination. Fusco Aff., Ex. Y. Jones admits that he got the written warning. Pl.56.1 Stmt. ¶53. On December 19, 2003, Jones took an unplanned vacation day. On December 23, 2003, he was given a verbal warning that his dependability was at 94.8% and that further absences could lead to termination. Def. 56.1 Stmt. ¶55. Jones states that he does not recall being so advised on December 19, 2003, but does not overtly deny the warning. Pl. 56.1 Stmt. ¶55. On January 2, 2004, he allegedly went home four hours early, although Jones states that he does not remember doing so. Id. ¶56.
On January 7, 2004, Jones was issued another written warning regarding his attendance at work. Id. ¶57; see Fusco Aff., Ex. AA. The warning stated that he had been orally warned on December 23, 2003 that his dependability rating was at 94.8% and that any further absence would lead to disciplinary action, up to and including termination. The goal for Jones set out in the warning was that he not have any unexcused or unapproved absences for the next ninety days. The warning plainly stated that failure to meet that goal would "result in further disciplinary action, up to and including termination." There is no indication in the record that Jones contested or questioned any of the allegations set forth in the warning.
Jones fell in the GEICO lot on January 22, 2004. No one at GEICO told Jones that he did not have to call in the next day, a fact that Jones admits. Pl. 56.1 Stmt. ¶65. He did not call in on January 23, 2004, and was fired on that day. The defendant asserts that he was fired for his failure to follow the rules, despite repeated warnings.
The plaintiff's version of the events of January 22 and 23, along with undisputed facts taken from documents in the record, is as follows. On January 22, 2004, Jones slipped and fell on the ice in the GEICO parking lot. See Pl's 56.1 Stmt. ¶59. He reported to the GEICO nurse's office where he spent approximately three and a half hours and completed an accident report. At approximately 9:30 a.m., he went to the hospital. As he was being carried away on a stretcher, the nurse told him that he should not return to work until the workers' compensation doctors told him to. He was told at Syosset Hospital that he had a sprained ankle and was given a work release form stating that he could return to work on January 25. Briton Aff. Ex. C. The time on his discharge form was 11:31 a.m. Id.
Jones called GEICO at 3:30 p.m. that day. He states that he spoke with a male supervisor who told Jones that Jones's usual supervisor, Ms. Fusco, was not in, but that if the release form from the hospital said that Jones did not have to come into work until a certain date, Jones shouldn't worry about coming in until that date. Jones Dep. 178:20-180:11. The supervisor also told him that the return date would be changed when Jones saw his own doctor. Jones admits that although the nurse and the male supervisor both told him that he did not have to report to work the next day, no one told him that he did not have to call in. Jones Dep. 182:4-183:7.
Jones did not report in at 6:00 a.m the next day, nor did he call. His supervisor, Christine Fusco, called him at home. He says that she called to ask him why he had not come in to work and later asked him why he had not called in on that day. He explained that the nurse had told him that he didn't have to come back to work until the workers' compensation doctor said so and that the hospital release papers said he didn't have to go back to work until January 25. No one, he admitted, ever told him that he didn't have to call in. Ms. Fusco told him that he was supposed to call in by 6:30 a.m. whether he had to come in or not. Later that day, Ms. Fusco called Jones back and told him that he was terminated for not calling in. Pl. 56.1 Stmt. ¶70
Jones asserts that his discharge was due to his alleged disability and was in retaliation for filing a Workers' Compensation claim. See Complaint. GEICO takes the position that Jones was fired for failing to call in to report his absence, in violation of GEICO's Leave Policy, and despite being on a written warning regarding absences without leave and other offenses. GEICO also argues that the disability discrimination claim must be dismissed as a matter of law because the plaintiff cannot make out a prima facie case of discrimination, and even if he could, there is no evidence that GEICO's purported reasons for firing Jones were pretextual. GEICO further argues that the Workers' ...