The opinion of the court was delivered by: William M. Skretny United States District Judge
In this action, Plaintiff David Lester alleges that his former employers, Defendants M&M Knopf Auto Parts and Delco Remy American, Inc.,*fn1 unlawfully discriminated against him based on his race and disability. He seeks redress under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. ("Title VII"), the Civil Rights Act of 1870, as amended, 42 U.S.C. § 1981, the Americans With Disabilities Act of 1990, as amended, 42 U.S.C. § 12101 et seq. ("ADA"), and the New York Human Rights Law, N.Y. Exec. Law § 290, et seq. ("NY HRL"). Presently before this Court is Defendants' Motion for Summary Judgment. For the reasons stated below, Defendants' motion is granted in part and denied in part.
Plaintiff instituted this action on October 18, 2004, and filed an Amended Complaint on April 15, 2005. Defendants filed an Answer thereto on April 22, 2005.
Defendants filed the instant Motion for Summary Judgment on December 5, 2005. In support of their motion, Defendants filed a Rule 56 Statement of Undisputed Facts, with appendix, and a memorandum of law. This Court thereafter issued a scheduling Order directing Plaintiff to file a response to Defendants' motion on or before January 17, 2006.
On January 18, 2006, one day after the deadline imposed by this Court, Plaintiff filed the Affidavit of David Lester, which included both an affidavit and a section entitled "Counterstatement of Material Facts." Plaintiff re-filed this affidavit in redacted form on January 31, 2006. This submission was the only response Plaintiff filed in opposition to Defendants' motion.
On February 14, 2006, this Court issued an Order granting Defendants' request to strike Plaintiff's January 18 and January 31 filings because they failed to satisfy the requirements of this district's local rules.*fn2 In particular, this Court found that Plaintiff's submissions failed to comply with Local Rule 7.1(e) because they did not include an answering memorandum, and failed to comply with Local Rule 56.1(b) and (d) because they did not include a separate, short and concise statement of disputed facts supported by citations to admissible evidence in the record. (See Docket No. 42.)
This Court declined, however, to grant summary judgment in Defendants' favor, as Defendants requested and as Local Rule 7.1(e) would permit, and instead afforded Plaintiff additional time to file and serve a proper response to Defendants' motion. In addition, this Court specifically warned Plaintiff that further non-compliance could result in the material facts asserted by Defendants being deemed admitted under Local Rule 56.1(c) or could lead to the motion being resolved in Defendants' favor pursuant to Local Rule 7.1(e). (See Docket No. 42.)
On February 28, 2006, despite this Court's previous Order and its warning of the consequences for failing to file a proper response, Plaintiff filed only a memorandum of law and the Affidavit of David Lester, with exhibit, in opposition to Defendants' motion. Plaintiff again inexplicitly failed to file a Rule 56 Statement of Disputed Facts as required by the local rules. Defendants filed reply memoranda on January 30 and March 14, 2006.*fn3
"When a party has moved for summary judgment on the basis of asserted facts supported as required by Fed.R.Civ.P. 56(e) and has, in accordance with local court rules, served a concise statement of the material facts as to which it contends there exist no genuine issues to be tried, those facts will be deemed admitted unless properly controverted by the nonmoving party." Glazer v. Formica Corp., 964 F.2d 149, 154 (2d Cir. 1992). In light of Plaintiff's express failure to properly controvert Defendants' statement of facts, this Court will deem those factual assertions admitted to the extent they are supported by the record evidence. See Local Rule 56.1(c) (statements of undisputed fact that are not controverted by the non-moving party are deemed admitted); Cassidy v. Nicolo, No. 03-CV-6603, 2005 WL 3334523, at *2 (W.D.N.Y. Dec. 7, 2005) (facts asserted by the defendants deemed admitted where the plaintiff failed to file a response); Samborski v. W. Valley Nuclear Svcs. Co., Inc., No. 99-CV-213, 2002 WL 1477610, at *1-3 (W.D.N.Y. June 25, 2002) (same).
Defendant M&M Knopf Auto Parts operates in Buffalo, N.Y., under the name Great Lakes Core Supply. (Defendants' Statement, ¶ 2.*fn5 ) It is in the business of procuring, sorting, cleaning and breaking down used car and truck parts, and then selling those parts to companies that rebuild them for sale in the aftermarket. (Defendants' Statement, ¶ 1.) Paul Gahagan is the current general manager at Great Lakes and Lee Bush (Gahagan's father) is the former general manager. (Defendants' Statement, ¶ 3.)
In September of 1996, Gahagan and Bush hired Plaintiff, who is African-American, to work as a general laborer at Great Lakes' Selkirk Street facility. (Defendants' Statement, ¶¶ 2, 3.) Gahagan, Bush and Plaintiff had all previously worked together at the predecessor company called World Auto Parts, with several other individuals who also became M&M Knopf employees -- Vito Verni, Carlos DeChellis and Ed Orrange. (Defendants' Statement, ¶ 4.) As a general laborer, Plaintiff worked on the docks unloading trucks and packing and sorting materials. (Defendants' Statement, ¶ 6.) Defendants also assigned Plaintiff to other tasks in the facility, depending on need. (Defendants' Statement, ¶ 7.)
At the time Plaintiff was hired, M&M Knopf employed approximately eight people at the Great Lakes Selkirk Street facility. (Defendants' Statement, ¶ 8.) The labor force grew to nineteen individuals by 2004, twelve of whom were minorities belonging to various ethnic groups, and seven of whom were Caucasian. (Defendants' Statement, ¶ 10.) However, given the seasonal nature of the business, M&M Knopf had to implement various layoffs over the years due to lack of work. (Defendants' Statement, ¶ 17.)
M&M Knopf did not make layoff decisions based on seniority, nor did it have a policy of implementing layoffs by seniority. (Defendants' Statement, ¶¶ 18, 20.) Instead, given the small size of the Selkirk Street facility, M&M Knopf's goal was to maintain the best workforce it could by retaining the most qualified, highly productive and versatile employees. (Defendants' Statement, ¶ 18.) To that end, the company also evaluated whether the duties of an employee being considered for a layoff could be absorbed by remaining employees. (Defendants' Statement, ¶ 19.)
Plaintiff contends that Gahagan first laid off Plaintiff and a Cambodian employee due to "no work" in January of 1997. (Defendants' Statement, ¶¶ 21, 22.) Gahagan denies laying off Plaintiff at this time. (Defendants' Statement, ¶ 23.)
In 1999 or 2000, Gahagan conducted a layoff at the request of M&M Knopf's corporate office due to a work slowdown. (Defendants' Statement, ¶ 24.) He laid off Plaintiff and an Asian employee named Laysoth Soy. (Defendants' Statement, ¶ 25.) Gahagan selected Plaintiff and Soy for the layoff because he and the other managers determined that they were the least productive employees at the facility, and because they determined that the remaining employees could absorb their job duties. (Defendants' Statement, ¶ 26.) M&M Knopf recalled Plaintiff to work after approximately three or four months. (Defendants' Statement, ¶¶ 27, 28.)
In January of 2003, the corporate office again instructed Gahagan to implement a layoff due to lack of work. (Defendants' Statement, ¶ 30.) Gahagan laid off Plaintiff and John Haak, a Caucasian.*fn6 (Defendants' Statement, ¶ 31.) Again, Gahagan selected Plaintiff and Haak for the layoff because he and the other managers determined that they were the least productive employees at the facility, and because they determined that the remaining employees could absorb their duties. (Defendants' Statement, ¶ 33.) In March of 2003, Gahagan recalled Plaintiff to work and increased his pay. (Defendants' Statement, ¶ 35.) Haak was not called back to work. (Defendants' Statement, ¶ 36.)
Upon Plaintiff's return, Gahagan assigned him to the "tear down" area due to an employee shortage at that time. (Defendants' Statement, ¶ 40.) In this position, Plaintiff was responsible for disassembling starters and alternators, and sorting component parts for resale. (Defendants' Statement, ¶ 41.) The ability to meet production expectations and to complete tasks with speed and quality was required of employees working in the "tear down" area. (Defendants' Statement, ¶ 45.)
Plaintiff did not perform well. He continuously failed to meet production expectations. (Defendants' Statement, ¶ 42.) For example, Plaintiff produced approximately three drums of electrical components per day, while his two co-workers -- Eddie Ernest and Junior Loder -- produced approximately ten drums each per day. (Defendants' Statement, ¶ 43.) Ed Orrange, the electrical manager, counseled Plaintiff regarding his lack of productivity. (Defendants' Statement, ¶ 44.)
In late 2003, the corporate office again instructed Gahagan to implement a layoff due to lack of work. (Defendants' Statement, ¶ 46.) Gahagan first laid off Joseph Vega, a Caucasian employee who worked in the "tear down" area. (Defendants' Statement, ¶ 47.) Gahagan then laid off Plaintiff on January 22, 2004, because of his low productivity, particularly when compared to Ernest and Loder. (Defendants' Statement, ¶ 48.) In addition, Plaintiff was selected for the layoff because both Ernest and Loder were deemed more qualified than Plaintiff given their "superior knowledge" of auto parts and testing equipment. (Defendants' Statement, ¶¶ 49-50.) Gahagan advised Plaintiff that he would be the first to be recalled when the company was able to rehire employees. (Defendants' Statement, ¶ 61.)
During this layoff, Plaintiff repeatedly telephoned Great Lakes to determine his status, and the company encouraged him to stay in touch. (Defendants' Statement, ¶ 57.) In April of 2004, Gahagan received authority from the corporate office to add an employee due to a slight increase in work. (Defendants' Statement, ¶ 58.) Rather than hire a new employee, Gahagan recalled Plaintiff. (Defendants' Statement, ¶ 59.) Gahagan did not recall Vega, a Caucasian employee, despite the fact that Vega was laid off prior to Plaintiff. (Defendants' Statement, ¶¶ 60.)
Plaintiff returned to work in the "tear down" area in Ed Orrange's department. (Defendants' Statement, ¶ 62.) Plaintiff worked for two days and then never returned or contacted the company. (Defendants' Statement, ¶¶ 63, 64.) M&M Knopf later sent Plaintiff a letter advising him that his employment was terminated because he abandoned his job. (Defendants' Statement, ¶ 67.)
2. Plaintiff's Disability
Plaintiff claims that he suffers from "fetal alcohol syndrome" caused by his mother's consumption of alcohol during her pregnancy with him. (Defendants' Statement, ¶ 118.) He does not identify any physical limitations as a result of this condition, but he reports taking medication for depression and high blood pressure. (Defendants' Statement, ¶ 128.)
Plaintiff alleges that as a result of this condition, he is not a fast learner and has difficulty with his memory. (Defendants' Statement, ¶ 119.) He claims that he has difficulty remembering numbers and that Gahagan wrote part numbers down for him when necessary to perform his job. (Defendants' Statement, ¶ 129.) Plaintiff alleges that after eight years of working for M&M Knopf, he "could perform as far as laborer," but had difficulty with the "mental aspect" of the job. (Defendants' Statement, ¶ 131.)
Despite his condition, Plaintiff testified that he can read and write, and in fact, enjoys reading about American history. (Defendants' Statement, ¶ 125.) He is able to remember and discuss such topics as religion, politics and history. (Defendants' Statement, ¶ 126.) In addition, Plaintiff watches televison news programs and reads the local newspaper. (Defendants' Statement, ¶ 127.)
Plaintiff alleges that he advised Gahagan and Bush at the time that he was hired that his mother drank when she had him and that "it took time" for him to learn things. (Defendants' Statement, ¶¶ 120, 121.) According to Plaintiff, Gahagan and Bush responded, "that's okay" and "don't worry about it." (Defendants' Statement, ¶ 122.) Gahagan denies that Plaintiff ever advised him of his fetal alcohol syndrome. (Defendants' Statement, ¶ 123.) However, Plaintiff contends that M&M Knopf laid him off due to his disability because Gahagan allegedly told him that "you're the best worker we got, but you're too slow." (Defendants' Statement, ¶ 132.)
C. Plaintiff's EEOC Charges
Plaintiff first filed a Charge of Discrimination with the United States Equal Employment Opportunity Commission ("EEOC") on May 11, 2004. (Defendants' Appendix, Exhibit H.) Therein, Plaintiff alleged that he had been laid off on January 22, 2004, because of his race. He also asserted a hostile work environment claim. After conducting an investigation, the EEOC found no evidence to support Plaintiff's claims of unlawful discrimination and issued him a Right to Sue Letter on July 22, 2004. (Defendants' Appendix, Exhibit I.)
Plaintiff filed a second Charge of Discrimination with the EEOC on November 4, 2004, wherein he alleged that he had been laid off on January 22, 2004, because he is disabled. (Defendants' Appendix, Exhibit J.) He also asserted a hostile work environment claim. On December 6, 2004, Plaintiff filed an Amended Charge, in which he included both his race-based and disability-based discrimination claims, as well as his hostile work environment claim. (Defendants' Appendix, Exhibit K.) The EEOC dismissed Plaintiff's Amended Charge on April 8, 2005, after Plaintiff requested that the EEOC issue him a Right to Sue Letter. (Defendants' Appendix, Exhibit L.)
III. DISCUSSION AND ANALYSIS
A. Summary Judgment Standard
Federal Rule of Civil Procedure 56 provides that summary judgment is warranted where 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 judgment as a matter of law." FED. R. CIV. P. 56(c). A "genuine issue" exists "if the evidence is such that a reasonable jury could return a verdict for the non-moving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). A fact is "material" if it "might affect the outcome of the suit under governing law." Id.
In deciding a motion for summary judgment, the evidence and the inferences drawn from the evidence must be "viewed in the light most favorable to the party opposing the motion." Addickes v. S.H. Kress and Co., 398 U.S. 144, 158-59, 90 S.Ct.1598, 1609, 26 L.Ed.2d 142 (1970). "Only when reasonable minds could not differ as to the import of evidence is summary judgment proper." Bryant v. Maffucci, 923 F.2d 979, 982 (2d Cir. 1991). The function of the court is not "to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Anderson, 477 U.S. at 249.
In the context of employment discrimination cases, the United States Court of Appeals for the Second Circuit has explicitly cautioned district courts to use extra care when deciding whether to grant summary judgment because "the ultimate issue to be resolved in such cases is the employer's intent, an issue not particularly suited to summary adjudication." Eastmer v. Williamsville Cent. Sch. Dist., 977 F. Supp. 207, 212 (W.D.N.Y. 1997) (quoting Gallo v. Prudential Residential Servs., 22 F.3d 1219, 1224 (2d Cir. 1994)). Nonetheless, "[t]he summary judgment rule would be rendered sterile . . . if the mere incantation of intent or state of mind would operate as a talisman to defeat an otherwise valid motion." Meiri v. Dacon, 759 F.2d 989, 998 (2d Cir. 1985). Indeed, the Second Circuit has noted that "the salutary purposes of summary judgment -- avoiding protracted, expensive and harassing trials -- apply no less to discrimination cases than to commercial or other areas of litigation." Id.
B. Plaintiff's Discrimination Claims
Defendants argue that they are entitled to summary judgment on Plaintiff's discrimination claims because (1) several of the claims are untimely, (2) several of the claims have not been exhausted, and (3) Plaintiff cannot meet his evidentiary burden on the remaining claims. Plaintiff urges this Court to deny Defendants' motion because the continuing violation doctrine applies and he has set forth sufficient evidence to raise triable issues of fact on the merits of his discrimination claims.
Plaintiff brings his employment discrimination claims under separate provisions of law containing different limitations periods. For purposes of Plaintiff's Title VII and ADA claims, a charge of discrimination must be filed with the EEOC within 300 days of the alleged discrimination. 42 U.S.C. §2000e-5(e); 42 U.S.C. § 12117(a); Harris v. City of New York, 186 F.3d 243, 247 n. 2 (2d Cir. 1999). Plaintiff's § 1981 claims, on ...