The opinion of the court was delivered by: Hon. Harold Baer, Jr., District Judge
On August 8, 2005, Plaintiff, Gour G. Bhaduri ("Bhaduri" or "Plaintiff"), proceeding pro se, filed a complaint against his employer, Summit Security Services, Inc. ("Summit" or "Defendant"), that alleged race and national origin discrimination, retaliation, and hostile work environment claims pursuant to Title VII of the Civil Rights Act of 1964, as well as age discrimination pursuant to the Age Discrimination in Employment Act of 1967 ("ADEA"), as codified, 29 U.S.C. §§ 621-634. Defendant moved to dismiss the Complaint for failure to state a claim. In an August 8, 2006 Opinion and Order,*fn1 the motion to dismiss was granted with respect to the retaliation claim but denied with respect to Plaintiff's claim that he received less money due to his race and national origin. Since Plaintiff, with the Court's permission, amended his complaint to allege instances of harassment and age discrimination that occurred within the statute of limitations, those claims will be considered here also. On October 20, 2006, Defendant filed another motion to dismiss the Amended Complaint and all remaining claims pursuant to Federal Rules of Civil Procedure 12(b)(1), lack of subject matter jurisdiction, and 12(b)(6), failure to state a claim. This 12(b)(6) motion was, with notice to the Plaintiff and at the behest of the Defendant, converted to a motion for summary judgment. For the reasons set forth below, this motion is DENIED.
The facts set forth below are undisputed, unless stated otherwise. Plaintiff, born in India on March 1, 1927, was hired as a full-time security guard by Summit on April 22, 1992. Plaintiff remains employed as a security guard with Summit and is currently assigned to the 110 Lafayette Street work site.
1. Plaintiff's 1993 New York State Division of Human Rights Complaint
Shortly after hire, Plaintiff's work assignment was changed from a full-time schedule to a part-time schedule without benefits. Bhaduri requested a full-time schedule but his request was denied by the Personnel Officer. Thus, on February 23, 1993, Bhaduri filed an age discrimination complaint with the New York State Division of Human Rights ("NYSDHR"). Neil Fenton Declaration ("Fenton Decl."), Ex. A. He was subsequently terminated in February 2004. Pl.'s Mot. in Opp'n of Def. Motion to Dismiss ("Pl.'s Opp'n"), Ex. 38, Employee Termination Notice.
On or about October 3, 1994, as a result of Bhaduri's complaint to the New York State Division of Human Rights, Summit entered into an agreement with the Plaintiff whereby they agreed, among other things, to reinstate Bhaduri as a full-time employee at the pay rate of $6.00 per hour. Fenton Decl., Ex. C, Pre-Determination Conciliation Agreement ("Agreement") ¶ 5 (Sept. 29, 1994). The Agreement further provided that in the event that there was no work site available that paid $6.00 per hour, Bhaduri would be paid at the rate set for the work site to which he was assigned. Id. He was reinstated as a security guard for Summit on October 6, 1994, but the Agreement provided that his seniority would be retroactive to the start of his employment on April 22, 1992. Id.
2. Plaintiff's Work Environment
As a result of the 1993 NYSDHR complaint, Plaintiff claims that he has been harassed by Summit employees in order to force him to quit his job. Their reason -- he was too old to do the job. The harassing conduct alleged by the Plaintiff ranges from verbal taunts and threats to assignment to arduous and unpleasant tasks (which are purportedly outside of his job description). A sample of the alleged harassing conduct, dating from 1993 to present, gathered from his affirmations as well as deposition testimony, follow.
* Assignment to work sites all over the city, with little to no notice, and no compensation for travel costs.
* Told to appear at a work site and was then prevented from entering or reporting for work.
* Given long shifts without a break and assigned World Trade Center site for the longest period of time.
* Assigned to work sites with poor work conditions.
* Yelled at, taunted and physically threatened by co-workers and field supervisors.
Plaintiff contends that he suffered bronchitis and other illnesses as a result of some of his assignments to work sites with harsh conditions.
3. Plaintiff's Work History
During Plaintiff's tenure at Summit, particularly in the early years, his work assignments have been to various work sites. The chronology of his transfers is as follows:
April 25, 1992 -- 305 63rd Street*fn2
May 1, 1992 -- 254 Canal Street / 110 Lafayette Street
March 5, 1993 -- 145 East 32nd Street (NYU Medical Center)
October 6, 1994 -- 254 Canal Street / 110 Lafayette Street
January 5, 1995 -- 1460 Broadway and 41st Street
July 21, 1995 -- 542 West 112th Street (Columbia University)
January 8, 1996 -- 1460 Broadway
February 15, 1996 -- 21 West Street
June 4, 1997 to present -- 254 Canal Street/ 110 Lafayette Street
Letter from Neil Fenton to Honorable Harold Baer, Jr. (October 31, 2005). This chronology excludes any work sites to which Plaintiff was temporarily assigned.
Once Plaintiff was granted full-time status, he was eligible to join the Union available to Summit employees, Allied International Union ("Union"). He did so. The Union bargains on behalf of all members and on their behalf, enters into a Collective Bargaining Agreement ("Agreement") with Summit that regulates wages, hours, and the conditions of their employment. Plaintiff's wages are governed by both the Collective Bargaining Agreement and the work site to which he is assigned. Upon rehire as a full-time employee, Bhaduri signed a statement that acknowledged this fact. It provided as follows.
1. I, Gour Bhaduri, fully understand that my present hourly rate of pay is determined by
the location to which I have been assigned.
2. I also fully understand that my present assignment can be changed due to any Operational Requirement, Account Closure, Disciplinary Action, Client Request, or other circumstances.
3. I also fully understand that my current hourly rate of pay can be changed to the hourly rate which prevails at ...