The opinion of the court was delivered by: H. Kenneth Schroeder, Jr. United States Magistrate Judge
The parties have consented, pursuant to 28 U.S.C. § 636(c), to have the undersigned conduct all further proceedings in this case, including entry of judgment. Dkt. #25.
Plaintiff commenced this action seeking damages pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. ("Title VII"), for the termination of his employment as a corrections officer at the Gowanda Correctional Facility ("Gowanda"), in retaliation for his testimony in support of a civilian employee's claim of harassment. Dkt. #11. The defendant asserts that plaintiff was terminated due to his absence from employment without leave and his failure to contact his employer during his absence. Dkt. #54, p.8.
Currently before the Court is defendant's motion for summary judgment (Dkt. #26), and plaintiff's motions for summary judgment. Dkt. ##43, 47. For the following reasons, defendant's motion is granted and plaintiff's motions are denied.
Plaintiff commenced employment as a corrections officer at Gowanda on September 18, 1989. Dkt. #53, ¶ 1. As documented by the declaration of Lt. Wiley, Attendance Control Officer at Gowanda, and Ann Albrecht, Head Clerk for Personnel at Gowanda, plaintiff's employment history was permeated with attendance issues. Dkt. ##29 & 39. For example, an arbitrator upheld defendant's April 7, 1999 notice of discipline for incurring nine absences within nine months, including six days absent without leave, and submitting altered medical documentation with respect to four of those days. Dkt. #39, Exh. A, pp.42-53. Voluminous counseling records addressed plaintiff's repeated failure to timely produce adequate medical documentation to justify his absences. Dkt. ##29 & 39.
On March 15, 1999, Jerald Goncalves, an Affirmative Action Administrator with the New York State Department of Correctional Services ("DOCS"), Office of Diversity Management, interviewed plaintiff regarding a civilian employee's complaint that another corrections officer harassed her because of her sexual orientation. Dkt. #32, ¶ 9 & p.4; Dkt. #33, pp.60-63. Plaintiff provided a written statement on May 13, 1999. Dkt. #33, pp.54-58.
Plaintiff alleges that following his interview, other corrections officers retaliated against him by refusing to speak to him. Dkt. #44, ¶ 9. At his deposition, plaintiff conceded that this behavior did not interfere with his ability to perform his job duties and that he never made any complaints to his superiors regarding this behavior.
Dkt. #37, pp. 62, 66. The investigation, which included interviews with numerous employees at Gowanda, resulted in the corrections officer receiving formal counseling. Dkt. #33, pp.60, 71.
Plaintiff was formally counseled on January 28, 2000 following 14 absences in the previous six months, including five absences without leave. Dkt. #39, Exh. A, pp.28, 34.
Plaintiff served his suspension with respect to the April 7, 1999 notice of discipline from April 6, 2000 through May 5, 2000, and then failed to report to work on May 6, 2000. Dkt. #29, ¶ 19 & p.140; Dkt. #33, ¶ 49.
On May 31, 2000, plaintiff was arrested in Collins, New York and ultimately convicted of facilitating the unlicensed operation of a motor vehicle; operation of an unregistered motor vehicle; and a parking violation. Dkt. #39, Exh. A, pp.70, 74. In attempting to determine the outcome of these charges, the Superintendent at Gowanda informed plaintiff that an attempt was made to send you a certified letter which was returned to the facility stamped "not deliverable as addressed." It is every employee's responsibility to keep their current address on file. You are hereby directed to inform the Personnel office of your correct, current address.
Dkt. #39, Exh. A, p. 72. Plaintiff filed a notice of address change with the Personnel office on September 13, 2000. Dkt. #33, Exh. B, p.313.
On October 13, 2000, plaintiff was cited for operation of a motor vehicle with a suspended license. Dkt. #33, Exh. A, p. 74. Following his failure to appear in court with respect to this charge, an arrest warrant issued, resulting in plaintiff's arrest while on duty at Gowanda on December 7, 2000. Dkt. #33, Exh. A, pp.75-77. A Notice of Discipline dated January 2, 2001 proposed thirty days suspension for plaintiff's third charge of operating a motor vehicle with a suspended license, failure to report the charge and his arrest at Gowanda for failing to appear on the charge. Dkt. #33, Exh. A, p.87. Discipline was not imposed as plaintiff was terminated before arbitration of his grievance. Dkt. #29, p.202.
Plaintiff was arrested on February 17, 2001 and charged with driving with a suspended license. Dkt. #29, pp.116, 198; Dkt. #36, ¶ 16.
Plaintiff was formally counseled on February 19, 2001, following six absences between May 6, 2000 and December 30, 2000. Dkt. #39, Exh. A, p.40.
On Febraury 23, 2001, plaintiff avers that he slipped on some ice on the sidewalk while he was escorting inmates to the infirmary for sick call. Dkt. #44, ¶¶ 27-28. In his affidavit, plaintiff states that Nurse Comstock filled out an accident report and told plaintiff that he had filed it with Fire and Safety.*fn1 Dkt. #44, ¶ 29. Nurse Comstock declares that he filled out an employee accident report for plaintiff and gave it to plaintiff so that he could obtain a signature from the area sergeant and give one copy of the triplicate form to the Personnel office and one to the Chart office. Dkt. #31. Plaintiff's supervisors, Sergeant Dembik and Sergeant Russell, deny any report of an accident by plaintiff on February 23, 2001. Dkt. #36, pp.35, 41-42. The Personnel office also denied receipt of plaintiff's accident report. Dkt. #36, pp.18, 21, 27.
Later that evening, plaintiff avers that he called Gowanda and told Sergeant Parisi that he would not be in to work because of his injury and that he had a doctor's appointment in a week. Dkt. #44, ¶ 33; Dkt. #52, p.7. Gowanda's report of absence indicates that plaintiff reported off with a bad back. Dkt. #33, p.93.
Plaintiff saw his doctor on March 2, 2001 and was diagnosed with lower back strain. Dkt. #44, ¶¶ 35, 37. He was instructed to stay out of work for two weeks. Dkt. #44, ¶ 37. Plaintiff gave his doctor a Workers' Compensation form to complete and return to Gowanda, but later determined that the doctor had mailed the forms to the Empire State Insurance Fund. Dkt. #44, ¶¶ 38-39.
By letter dated March 5, 2001, plaintiff was advised that
Due to the length of your absence, we are provisionally designating your absence as leave under the Family Medical Leave Act. Upon submission of the attached medical form from your physician, we will make a final decision on your status.
Please have your physician complete the attached medical form and submit it to me no later than 3/12/2001 to cover your current absence.
Dkt. #33, p.95. This letter, which was mailed to the address provided by plaintiff in his notice of address change on September 13, 2000, was returned by the post office on March 12, 2001, with a stamp, ...