The opinion of the court was delivered by: Michael A. Telesca United States District Judge
Marcus Jackson ("plaintiff" and/or "Jackson"), an African-American male and former employee of the University of Rochester ("defendant" and/or the "University"), brings this action alleging that the University improperly discriminated against him on the basis of his race in violation of Title VII of the Civil Rights Act of 1964. Specifically, Jackson contends that the University unlawfully discriminated against him with respect to the terms and conditions of his employment, harassed him because of his race, retaliated against him for complaining about defendant's discriminatory treatment and eventually terminated his employment.
The defendant has moved for summary judgment on the grounds that all of plaintiff's claims fail to set forth a prima facie case of discrimination and that plaintiff was terminated pursuant to a legitimate non-discriminatory reason. Furthermore, defendant argues that several of plaintiff's causes of action fail to state a claim as a matter of law. Plaintiff, who is appearing pro se, responds that summary judgment cannot be granted because plaintiff was racially discriminated against and wrongfully terminated and has not had the "opportunity to obtain testimony or subpoena witnesses." See Plaintiff's Opposition at ¶¶ 1 and 4 ("Plaintiff's Opp."). Plaintiff further argues that "the real issues have not been addressed, nor are the University's claims true." Id.
Plaintiff, an African-American, was employed by the defendant from approximately 1996 to January 16, 2002. He was initially hired in the nutrition department as a temporary porter and was offered a permanent job two weeks later as a tray line assistant. Plaintiff later moved on as a salad maker then as a tray change assistant and eventually he worked in the soup production department. His last position was in the Diet office where he was a Diet Clerk under the supervision of Tom Campagna and Lori Brown where he remained until January 16, 2002.
Plaintiff was a member of a union and the terms of his employment were subject to a Collective Bargaining Agreement ("CBA"). Under the CBA, any misconduct by plaintiff was subject to progressive discipline, which meant that any discipline received by Jackson would have to follow a multi-step process. Plaintiff's own exhibits reveal that he had disciplinary issues while employed at the University, including tardiness, taking unauthorized breaks and expressing inappropriate displeasure with legitimate schedule changes. Performance evaluations dated June 8, 1998 and December 17, 1999 reveal that Jackson needed to improve his attendance and communication skills. Between January 1, 2000 and November 1, 2000, plaintiff was late to work sixteen times.
In response to plaintiff's attendance issues and consistent with the CBA's progressive discipline program, he was first given a verbal warning, then a written warning, then a two-day suspension on November 13, 2000 and finally a five-day suspension on April 20, 2001. The next step for any additional violation was termination. Plaintiff concedes the underlying attendance problems that led to the suspensions. Indeed, when plaintiff filed a grievance after the five-day suspension was issued it was not to contest the attendance problems but to question other miscellaneous counseling entries in his file that he felt were unwarranted. Plaintiff's claim was eventually dismissed.
Occasionally, plaintiff communicated work place concerns to his manager, Alfonse Caldiero. The records reflect however, that Jackson did not attribute any of his concerns to race. Significantly, Mr. Caldiero does not recall any other African-American employees complaining about differential treatment or harassment by any of plaintiff's supervisors.
In December 2001, Jackson attended the Employee Assistance Program (the "EAP") and met with one of the counselors, Joanne Dermady to discuss his work related concerns. On January 15, 2002, Jackson returned and again met with Ms. Dermady. During that session, plaintiff told her that he would go home and get his gun if someone in the department ever made him angry. Further, plaintiff revealed that he had previously brought a gun to work with the intent to use it, but did not do so because no one upset him that day.
Based on Ms. Dermady's conversation with the plaintiff she, notified the University because she determined Jackson's threat to be credible and feared for the potential serious harm that may occur to other University employees. The University then decided that plaintiff had to be terminated. Subsequently. on January 16, 2002, Jackson was arrested by the Rochester Police and was transported to the psychiatric unit at Strong Memorial Hospital for evaluation. On the same day, the University informed plaintiff that his employment was terminated.
In plaintiff's opposition papers (and during his oral argument on July 25, 2006) he states that he does not own a gun nor does he have an arrest record. He further claims that he was falsely accused of events that never happened such as filing a false security report stating he was arrested with illegal guns. At oral argument plaintiff denied that he made the alleged threatening statements to the EAP counselor. However, in a letter sent to plaintiff dated January 16, 2002 confirming his termination, Charles A. Dye, Human Resources Manager, indicated that plaintiff's statements regarding bringing a gun to work and using it on any supervisor or employee who made him angry was discussed with plaintiff. See Plaintiff's Opp. at Ex. 29B. In that same meeting, plaintiff did not deny making the alleged threat, but did say that his "statements were taken out of context and misunderstood." Id.
Plaintiff filed a grievance with his union to contest his termination. After proceeding through all stages of the grievance procedure, including a hearing by a neutral arbitrator from the American Arbitration Association, the arbitrator determined that his termination was for just cause.
On July 19, 2002, plaintiff filed a charge of discrimination with the Equal Employment Opportunity Commission ("EEOC"), alleging that the University had discriminated against him on the basis of his race and color. The EEOC issued a Right to Sue letter on October 28, 2003, finding no probable cause to the allegations made by Jackson that the University engaged or is engaging in unlawful discriminatory practices. On February 20, 2004, Jackson commenced the instant action against the University alleging that he was improperly discriminated against on the ...