The opinion of the court was delivered by: Dora L. Irizarry, U.S. District Judge
Plaintiff, Valentin Adia, brings this action against the defendant, MTA Long Island Railroad Company ("LIRR") alleging: (1) age-based discrimination in violation of the Age Discrimination in Employment Act ("ADEA"); (2) national-origin based discrimination in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"); and (3) retaliation in violation of the ADEA and Title VII. Plaintiff also alleges analogous state and local law violations under the New York State Human Rights Law ("NYSHRL") and the New York City Human Rights Law ("NYCHRL"). LIRR now moves for summary judgment.
For the reasons set forth below, defendant's summary judgment motion is granted.
A. Plaintiff's Employment with LIRR
Plaintiff was employed with defendant, LIRR from 1986 until his termination in 2002. (Def.'s Rule 56.1 Statement of Material Uncontested Facts ("Def.'s 56.1") at ¶¶ 1, 88.) Plaintiff, age 55 at the time of his termination, is of Filipino ancestry. (Adia Dep. at 5.) In April 1986, plaintiff began work as a Budget Administrator in LIRR's Capital Budgets Department. (Def.'s 56.1 at ¶ 1.) In March 1992, plaintiff was promoted to Financial Systems & Network Administration Manager in LIRR's Finance Department. (Id. at ¶ 3.) From 1998 to 2000, Controller Jerome Cavana ("Cavana") directly supervised plaintiff. (Id. at ¶ 4.) In February 2001, LIRR hired Kim Porcelain ("Porcelain") to succeed Cavana as Controller and as plaintiff's immediate supervisor. (Id. at ¶¶ 4-5.) Porcelain is of Chinese and Vietnamese ancestry and was 33 years of age at the time of plaintiff's termination. (Id. at ¶ 20; Porcelain Dep. at 7.)
Plaintiff alleges that while working under Porcelain, he was discriminated against and treated dissimilarly from his colleagues. (Pl.'s Am. Compl. at ¶ 19.) Specifically, Porcelain allegedly gave plaintiff unrealistic project deadlines and unnecessarily berated and criticized him in front of co-workers. (Adia Dep. at 26-34, 70.) Plaintiff contends that, on two or three occasions, Porcelain made comments about plaintiff's failure to remember assigned tasks and frequently asked if he "understood English." (Pl.'s Am. Compl. at ¶ 49; Pl.'s Rule 56.1 Counterstatement ("Pl.'s 56.1") at ¶ 102.)
In September 2001, Porcelain received a call from Mel Braverman ("Braverman"), president of Morellato Inc., complaining of the poor consulting services plaintiff provided to Morellato. (Def.'s 56.1 at ¶¶ 59-60.) Procelain informed LIRR's Vice President and Chief Financial Officer, Nicholas DiMola ("DiMola") of Braverman's call. (Def.'s 56.1 at ¶¶ 60, 63, 66). Beginning in November 2001, Porcelain began regularly counseling plaintiff on his work performance to ensure that plaintiff was working on his assigned LIRR projects. (Id. at ¶ 64.) Porcelain often observed plaintiff performing non-LIRR related work and overheard plaintiff talking on the telephone concerning non-LIRR related business. (Porcelain Aff. at ¶¶ 30-31.)
B. Plaintiff's March 2002 Performance Review and Peer Review
In early March 2002, Porcelain formally reviewed plaintiff's work performance and issued him an overall rating of "1" ("unacceptable") on a scale of 1 to 5. (Def.'s Aff Ex. J; Def.'s 56.1 at ¶ 37.) Porcelain indicated that plaintiff exhibited a "lack of cooperation" and failed to achieve results. (Id. at ¶¶ 37-38.) Porcelain also found plaintiff's work "unstructured" and "counterproductive." (Id.) In an accompanying memorandum, Porcelain noted that (1) plaintiff's responsibilities as Financial Systems Manager "[were] not being performed to an acceptable level of quality work;" . . . (2) "projects under [plaintiff's] supervision [were] poorly managed, [and did] not follow Information Systems standards and experience[d] delays;"(3) "[plaintiff's] overall systems project ownership, management, organization, coordination  and reporting [were] poor and need[ed] considerable improvement;" and (4) "[plaintiff's] ability to provide information in an honest and timely manner [was] lacking and therefore, raise[d] great concern and require[d] considerable and immediate improvement." As a result of plaintiff's poor performance, he was placed on 90 days probation in late March. (Adia Dep. at 70.) Plaintiff notes that he never received a performance review rating below 3.5 (satisfactory) prior to this performance review. (Def.'s 56.1 at ¶ 36; Pl.'s 56.1 at ¶ 37.)
Plaintiff then met with the Executive Director of Human Resources, Rosanne Neville ("Neville"), to discuss plaintiff's performance review.*fn1 (Pl.'s 56.1 at ¶ 42.) Neville suggested plaintiff prepare a report for DiMola indicating why plaintiff believed his performance review was unjustified. (Adia Dep. at 58.) After meeting with plaintiff, DiMola established a peer review committee to conduct an independent review of plaintiff's work performance. (Def.'s 56.1 at ¶ 44-45.)
The peer review committee was composed of a 55-year-old representative from the Finance Department and a 60-year-old representative from the Information Services Department. (Id. at ¶¶ 47- 51.) Plaintiff alleges that the performance review was not based upon his "performance as a whole but solely on his work on the 'SDLC,' [a specified computer] system" for which plaintiff received no training. (Pl.'s 56.1 at ¶ 40.) Plaintiff further alleges that he previously informed Porcelain of his lack of training or familiarity with the system. (Adia Dep. at 70, Velez Aff. at ¶¶ 4, 6.) Porcelain participated in two peer review committee meetings before Neville removed Porcelain from the committee to relieve the "pressure" on plaintiff. (Adia Dep. at 74-75.)
Ultimately, the peer review committee concluded that plaintiff "[did] not have the necessary skills, training, and/or experience to meet the IT related job requirements as outlined in his Job Description Questionnaire." (Def.'s 56.1 at ¶ 58.) Specifically, the committee concluded that "[plaintiff's] systems development approach did not conform to LIRR technology standards, causing him to miss target dates and produce sub-quality deliverables." (Id. at ¶¶ 55.) The committee further concluded that plaintiff's "project implementations were chaotic and beleaguered with problems resulting from his flawed approach and lack of appropriate documentation" and that plaintiff "spent far too much time blaming his subordinates and others for his performance problems and looking for justification to bypass LIRR standards, time that should have been expended on quality systems and analysis and design." (Id. at ¶¶ 56-57.)
In mid-March 2002, Porcelain also met with DiMola to discuss plaintiff's performance review and informed DiMola that Porcelain observed plaintiff working on non-LIRR related business during work hours. (Porcelain Aff. at ¶ 32.) Based on this information and plaintiff's poor performance review, around March 20, 2002, DiMola requested that the MTA Auditor General's Office investigate plaintiff. (Def.'s 56.1 at ¶¶ 67-69.)
The MTA investigation consisted of: (1) analyzing plaintiff's work phone records from February 1, 2001 to April 15, 2002 for non-LIRR related calls; (2) interviewing the executives of frequently called companies; (3) analyzing plaintiff's computer hard drives at LIRR for evidence of inappropriately stored or referenced material; (4) reviewing plaintiff's internet usage at LIRR for selected days; (5) reviewing various financial records of the two companies found on LIRR hard drives; and (6) interviewing key LIRR officials. (Def.'s 56.1 at ¶ 77.)
Meanwhile, on April 30, 2002, plaintiff filed a complaint with the Equal Employment Opportunity Commission ("EEOC") alleging age and national origin discrimination. (Johnson Aff. Ex. D.) Later, the EEOC issued a report stating that it was unable to conclude that the information presented constituted a statutory violation. (Id.)
On May 2, 2002 the MTA concluded its investigation and reported its findings to DiMola, Neville, and Porcelain. (Id. at ¶ 72.) The MTA concluded that plaintiff conducted business using LIRR resources for three outside companies, including Morellato Inc. ("Morelatto"), DiMatteo Distributors ("DiMatteo"), and MAB Finer Wines and Spirits ("MAB"). (Id. at ¶ 78). Specifically, the MTA investigation revealed the following:
With respect to Morellato, the MTA Investigation found: (1) 49 calls made to Morellato from the plaintiff's LIRR telephone extension; (2) cancelled checks indicating Morelatto paid $4,175 to plaintiff from June 2001 through August 2001 for computer consulting services; (3) correspondence between plaintiff and Morellato on plaintiff's computer at LIRR evidencing plaintiff's significant involvement in Morellato's business; and (4) that Morelatto had hired plaintiff as a computer consultant. (Id. at 79.)
With respect to DiMatteo, the MTA Investigation revealed: (1) 145 calls made to DiMatteo from plaintiff's LIRR telephone extension; (2) that plaintiff maintained corporate financial records for DiMatteo (including disbursements, ledgers, etc.) on his LIRR computer; (3) vendor records indicating that plaintiff was paid ...