The opinion of the court was delivered by: Charles J. Siragusa United States District Judge
This is an action pursuant to Title VII of the Civil Rights Act of 1964 ("Title VII), as amended, 42 U.S.C. § 2000e et seq.*fn1 Now before the Court is defendant's motion [#29] for summary judgment and plaintiff's cross-motion [#33] for the same relief. For the reasons that follow, defendant's motion is granted in part and denied in part, and plaintiff's cross-motion is denied.
Unless otherwise noted, the following are the facts of this case, viewed in the light most favorable to plaintiff Jerome Givens ("plaintiff"). In this action, plaintiff alleges employment discrimination on the basis of his race and color, which he identifies as "Afro American" and "Black", respectively. Defendant AMF Terrace Garden Lanes ("defendant") operates a bowling center in Rochester, New York. Defendant hired plaintiff to work part-time at the bowling center's front counter on or about August 18, 2003. At all relevant times, plaintiff was the only person of his race and color employed by defendant. Plaintiff usually worked three days per week, and sometimes four, at the front counter. In addition to working at defendant's front counter, plaintiff also volunteered to work additional hours painting the interior of the bowling center.
Plaintiff contends that he performed his work satisfactorily. In that regard, on November 7, 2003, defendant's General Manager, Mike Montoya ("Montoya"), signed a certification indicating that plaintiff had "demonstrated sufficient competency" and had "satisfactorily completed the evaluation period." Plaintiff recalls only two instances where his managers commented negatively on his job performance. The first time, defendant's Assistant Manager, Scott Mitchell ("Mitchell"), told him to "slow down" when making announcements over the bowling center's PA system. On another occasion, Mitchell spoke to plaintiff about an incident in which plaintiff had accidentally terminated a bowling game from the center's front desk before the customers were finished bowling.
On or about November 17, 2003, defendant hired a white employee, Jeremy Button ("Button"), to work at the front counter. For approximately the next two weeks, Button and plaintiff worked the same shifts while plaintiff trained Button. Then, on Wednesday, November 26, 2003, plaintiff arrived at the bowling center to work his usual shift, and noticed that his scheduled hours had been reduced to one day per week, Sunday, and that Button was scheduled to work the days and shifts that had previously been assigned to him. When plaintiff asked Montoya why he had done this, Montoya responded, "Well, we're trying to give other people more hours." Plaintiff waited for a while and asked to discuss the matter further, but Montoya responded, "Talk to me in a couple of weeks." Plaintiff then left the center and returned on Sunday, November 30, 2003, the day that he was scheduled to work, and saw that he again had been scheduled to work only one day during the coming week. Upset that the schedule had not changed from the previous week, plaintiff told Mitchell that he could not afford to work only one day per week, and that he would be better off collecting unemployment, to which Mitchell responded, "Oh, we can do that." Plaintiff then left the bowling center without working his shift. Plaintiff also did not work his next scheduled shift on December 7, 2003. Plaintiff's employment was eventually terminated when he failed to report for work.
Defendant disputes this version of events in several respects. For example, defendant contends that plaintiff's work performance was consistently sub-par, and that he refused to meet with Montoya and Mitchell to discuss the problem. Defendant further contends that it cut plaintiff's hours only in order to induce him to meet with management.
Following the termination of his employment, plaintiff filed a discrimination complaint with the New York State Division of Human Rights ("NYSDHR"), which simultaneously filed the discrimination charge with the United States Equal Employment Opportunity Commission ("EEOC"). Following an investigation, the NYSDHR dismissed the complaint, finding no probable cause to believe that defendant had discriminated against plaintiff. Plaintiff did not appeal the NYSDHR's decision to New York State Supreme Court, though he could have done so. The EEOC adopted the NYSHDR's findings and issued plaintiff a "right to sue" letter on November 18, 2004. Plaintiff then commenced the subject action. On the form complaint filed in this action, plaintiff alleged that defendant unjustly terminated his employment, harassed him on the basis of unequal terms of employment, and retaliated against him.
Following discovery, defendant filed its summary judgment motion. Defendant contends that plaintiff cannot establish even a prima facie case of discrimination, since the reduction of his work hours had nothing to do with his race. Specifically, defendant maintains that the reduction of plaintiff's hours and the alleged taking of plaintiff's shifts by Button raises no inference of discrimination, for several reasons. First, as discussed earlier, defendant contends that plaintiff's hours were reduced solely because he refused to meet with management to discuss his poor job performance. Moreover, defendant states that it did not "give" plaintiff's hours to Button, since the number of hours that Button worked did not increase after plaintiff's hours were reduced. Lastly, defendant contends that it terminated plaintiff's employment only after he abandoned his job by failing to work the last shift that he was assigned. Defendant also states that any supplemental claim under New York State Law is barred, since plaintiff elected his remedy as to his state-law claim by filing a complaint with the NYDHR. Plaintiff cross-moved for summary judgment.
Plaintiff and defendant's counsel appeared before the undersigned for oral argument of the motions on May 23, 2006. The Court has thoroughly considered the entire record.
The standard for granting summary judgment is well established. Summary judgment may not be granted unless "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). A party seeking summary judgment bears the burden of establishing that no genuine issue of material fact exists. See, Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970). "[T]he movant must make a prima facie showing that the standard for obtaining summary judgment has been satisfied." 11 MOORE'S FEDERAL PRACTICE, § 56.11[a] (Matthew Bender 3d ed.). "In moving for summary judgment against a party who will bear the ultimate burden of proof at trial, the movant may satisfy this burden by pointing to an absence of evidence to support an essential element of the nonmoving party's claim." Gummo v. Village of Depew, 75 F.3d 98, 107 (2d Cir. 1996)(citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986)), cert denied, 517 U.S. 1190 (1996). Once that burden has been established, the burden then shifts to the non-moving party to demonstrate "specific facts showing that there is a genuine issue for trial." Fed. R. Civ. P. 56(e); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). To carry this burden, the non-moving party must present evidence sufficient to support a jury verdict in its favor. Anderson, 477 U.S. at 249. The parties may only carry their respective burdens by producing evidentiary proof in admissible form. FED. R. CIV. P. 56(e). The underlying facts contained in ...