The opinion of the court was delivered by: Trager, J.
Plaintiff Steve J. Kahn ("Kahn" or "plaintiff") brings this action against defendant HIP Centralized Laboratory Services, Inc. ("CLS" or "defendant"), pursuant to the Age Discrimination in Employment Act, 29 U.S.C. § 623(a), et seq. ("ADEA") and Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. ("Title VII"). On March 27, 2006, defendant's motion for summary judgment addressing the first two of plaintiff's four causes of action was granted in part and denied in part.*fn1 On May 18, 2006, defendant's request to file a second motion for summary judgment on plaintiff's two remaining causes of action was granted. These two causes of action allege that plaintiff was subjected to a hostile work environment on account of his age and on account of the fact that he filed complaints of discrimination with his supervisor, local and federal administrative agencies and in federal court.
Construed in the light most favorable to plaintiff, the non-moving party, the facts are as follows.*fn2
Plaintiff has worked for CLS, a not-for-profit medical testing laboratory, since November 1970, and remains employed there. He has worked in several departments throughout his tenure at CLS.*fn3 In 1970, plaintiff was hired by CLS as a licensed technician.*fn4 In 1974, Kahn began working in the Hematology Department, where he remained for approximately five or six years. (Oct. 22, 2004 Dep. of Steve J. Kahn ("Khan Tr.") at 32.) Next, Kahn worked in the Chemistry Department for approximately nineteen years under various supervisors, including Susan Tan and Michael Paleos, CEO of CLS. (Id.)
In 1995, plaintiff spoke to Tan in order to request a one-week bereavement leave to attend the funeral of his brother in Trinidad.*fn5 (Khan Aff. ¶ 4.) Tan informed him that when she spoke with Paleos about the requested leave, Paleos told her that "he did not need the older workers around, especially those with three or more weeks of annual leave because if your work could be performed during an absence of three weeks or more, you are not needed."*fn6 (Khan Aff. ¶ 5; Kahn Tr. at 149, 157.) Plaintiff was also told by another employee, Cherie Eng, that Paleos told her that "he didn't want people like [Khan] . . . around because [they] have five week vacation."*fn7 (Khan Tr. at 115, 149.) In August 1995, a week after plaintiff returned from his bereavement leave, he was transferred by Paleos, his supervisor at the time, to Client Services. (Id. at 31.)
Plaintiff alleges that this transfer to Client Services was a demotion from his prior position as a laboratory technician. Upon moving to Client Services, plaintiff was placed on probation.*fn8 On January 16, 1996, Janet Gherradi, a new Client Services manager, extended plaintiff's probationary period in Client Services by an additional four weeks. (Aff. of Sharon Greenberg in Support of Def.'s Second Mot. for Summ. J. ("Greenberg Aff."), Ex. A.)
According to plaintiff, "both in 1995 and 1996, Mr. Paleos had told me that he was going to get rid of me because he did not want older workers."*fn9 (Kahn Aff. ¶ 19.) At some point between March 23, 1996 and April 8, 1996, plaintiff confronted Paleos and informed Paleos that he planned to file an EEOC claim.*fn10 (Kahn Tr. at 228.) Plaintiff "told [Paleos] that I figured out what he was doing with older workers . . . . So I was going to take it to the EEOC. I was going to file a complaint against him." (Kahn Tr. at 231.) According to plaintiff, Paleos responded that he would "get rid of [him], one way or another".*fn11 (Id. at 227-32, 239-40.)
Plaintiff also maintains that twice in 1996, while he was working in Client Services, Gherradi, his supervisor in Client Services, said to him, "Don't let that grey beard fool you. You're not too old to start over."*fn12 (Khan Aff. ¶ 9.) Plaintiff maintains that these comments were made immediately after Gherradi spoke to Paleos about plaintiff. Additionally, plaintiff alleges that after he complained to Paleos about discrimination, Gherradi began to ignore him. Plaintiff also claims that Gherradi would, when greeting plaintiff and his female co-workers, say "Good morning Ladies, Good afternoon Ladies," despite plaintiff's presence. (Kahn Tr. at 205.) Additionally, plaintiff alleges that, during his tenure in Client Services, he was taken "advantage of" and "swamped" with work. (Khan Tr. at 170.) Specifically, plaintiff avers that his fellow employees would forward many calls to him because as a technician, he was the most qualified employee. (Id.)
On April 8, 1996, Gherradi informed plaintiff that he was being suspended for five days because he failed to call in a positive throat culture on March 4, 1996 and failed to call in a "panic value" on March 23, 1996. The facts surrounding this suspension are explained in more depth in Kahn I, 2006 WL 842916, at *3.
Shortly after confronting Paleos and threatening to file an EEOC complaint, plaintiff dual filed, on April 24, 1996, his first formal complaint with the New York City Commission on Human Rights (the "NYCCHR") and the EEOC, alleging that he was subjected to disparate treatment, including being demoted from a laboratory technician to a client services representative, being put on probation, being cited for unsubstantiated performance deficiencies and being suspended. (Affirm. of Richard J. Reibstein in Support of Def.'s Second Mot. for Summ. J. ("Reibstein Aff."), Ex. C.) Plaintiff charged that he was discriminated against because of his color, race, gender and national origin in violation of both local and federal law. (Reibstein Aff., Ex. C.)
On May 1, 1996, plaintiff dual filed a Verified Amended Complaint with the NYCCHR and the EEOC and included the allegation that on or about April 30, 1996, defendants demoted him from full-time to part-time employment in retaliation for plaintiff's aforementioned complaint. (Reibstein Aff., Ex. D.) On November 10, 1997, plaintiff filed a Second Amended Verified Complaint with the NYCCHR and EEOC, which raised, for the first time, allegations of age discrimination. (Reibstein Aff., Ex. E ¶ 4.)*fn13
On or about May 2, 1996, plaintiff was moved from Client Services to the Microbiology Department. (Kahn Aff. ¶ 24.) As part of this transfer, plaintiff's schedule was changed, requiring him to work Mondays, Tuesdays and Thursdays from 4:00 p.m. until 8:00 p.m. and Saturdays from 1:00 p.m. until 5:00 p.m. (Id.) This change caused plaintiff to lose three hours of a work a day, resulting in a decrease in pay. Furthermore, plaintiff was given only two days notice of this transfer; plaintiff claims this violated his union contract, which requires two weeks notice of any shift change. (Id.; Kahn Tr. at 219, 245.)
Plaintiff worked as a laboratory technician in Microbiology until March 1997 when he was transferred to the Accessioning Department to work as a laboratory aide. Plaintiff's supervisor in the Accessioning Department was Marie Hraich. On November 19, 2001, plaintiff was briefly reassigned as a laboratory technician. However, after plaintiff failed to pass his probationary period, he was transferred back to the Accessioning Department, where he is currently employed.
Plaintiff was disciplined several times while working in the Accessioning Department. In December 2002, plaintiff received an employee warning and disciplinary action notice for entering an incorrect total volume and improperly processing a sample. (Greenberg Aff., Ex. B.) The Employee Warning memorandum for this incident lists four prior "counselings" and one verbal action taken against plaintiff between September 2002 and December 2002. (Id.) In August 2003, plaintiff received another employee warning and disciplinary action notice for failing to properly follow CLS scanning protocols. (Greenberg Aff., Ex. C.)
On May 6, 2003, plaintiff filed suit in federal court. On April 8, 2004, plaintiff filed a Second Amended Complaint.
On March 27, 2006, Kahn I granted defendant's summary judgment motion regarding plaintiff's age discrimination claims. Summary judgment, however, was denied on plaintiff's retaliation claims, which covered plaintiff's suspension, transfer to the Microbiology Department and transfer to the Accessioning Department. Kahn I concluded that the strong temporal proximity between the first two actions and defendant's protected activities precluded summary judgment. Regarding the third action, Kahn I found a causal connection between this transfer and defendant's complaints based upon the fact that plaintiff was transferred a month before other employees in his department. Kahn I denied summary judgment regarding plaintiff's hostile work environment claims because the issue was not briefed by the parties.
(1) Exhaustion of Administrative Remedies
Defendant argues that plaintiff failed to exhaust his administrative remedies because he raised hostile work environment claims in his court complaint but not in his initial administrative charges of discrimination with the NYCCHR and the EEOC. It is not necessary to decide this issue, because, for the reasons set forth below, plaintiff's age-based hostile work environment claim fails on the merits. See Oparaji v. United Fed'n of Teachers, 418 F. Supp. 2d 139, 146-147 (E.D.N.Y. 2006) (refusing to address exhaustion claims where claims failed on the merits); Del Franco v. New York City Off-Track Betting Corp., 429 F. Supp. 2d 529, 541 ...