The opinion of the court was delivered by: Townes, United States District Judge
Plaintiff Anthony Smith ("Plaintiff" or "Smith") brings this action against Long Island University and Southampton College ("LIU" or "Defendants") alleging discrimination and retaliation*fn1 in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000(e) et seq. ("Title VII"), and analogous state law violations under the New York State Human Rights Law. Defendants move for summary judgment pursuant to Fed. R. Civ. P. 56(c). For the reasons set forth below, Defendants' motion is granted.
A. Smith's Work History Plaintiff, a dark skinned Native American, was hired as a custodian at LIU's Southampton Campus in 1979. (Dan Gearon Affidavit ("Gearon Aff.") at ¶ 13; Deposition of Anthony Smith ("Smith Dep.") at 28:2-3.) In 1990, Plaintiff filed a complaint against LIU with the New York State Division of Human Rights ("SDHR") alleging racial discrimination ("1990 charge") and then commenced a federal action in 1993 against LIU alleging discrimination based on his color and national origin. (Smith Dep. at 46:25, 47:2-18, 48:15-21.) In January 1996, a trial was held and a jury rendered a verdict in LIU's favor. (Smith Dep. at 48:22-25, 49:2-7.) Throughout the litigation, which spanned over three years, Smith continued to be employed by LIU. (Smith Dep. at 48:8-11.)
On his first day back to work following the trial, Smith was called into the office of Dan Gearon ("Gearon"), Director of the Physical Plant at LIU's Southampton Campus. (Smith Dep. at 60:17-21.) Gearon allegedly told Smith that he was "like the boy who cried wolf" and that he didn't want to hear about any more of Smith's complaints. (Smith Dep. at 60:25, 61:2-3.) Smith also claims that, after the trial, he was occasionally forced to perform his job responsibilities in shorter lengths of time than his similarly situated co-workers. (Smith Dep. at 56:5-25.) Smith said that one of his immediate supervisors, Frank Jones, was responsible for some of these new time restrictions. (Smith Dep. at 56:14-16.)
In February 1997, LIU outsourced its management of custodial employees to LARO Service Systems ("LARO"). (Gearon Aff. at ¶ 16.) According to Plaintiff, Gearon told the custodians that he was tired of their lawsuits, compensation cases and squabbling about promotions, and therefore, they were being outsourced to LARO. (Smith Dep. at 62:10-25.) The custodians were compensated by LARO and all scheduling, including vacation time, was controlled by LARO. (Gearon Aff.at ¶ 21.) LARO also supervised the custodians and directed their job positions and details. (Id.) All the custodians at the Southampton Campus were employees of and under the complete control of LARO from February 1997 through September 30, 1998 at which time the contract between LARO and LIU was terminated. (Id. at ¶ 22.)
On March 17, 1999, Smith filed another charge of discrimination against LIU with the SDHR (the "1999 charge"). His charge included complaints about not being promoted to a locksmith/carpenter position and a Mechanic Level B position, both in early 1998. He also complained that Mr. Gearon would not meet with him in May 1998 to discuss tuition assistance. Defendants note that all of Plaintiff's allegations in the 1999 charge stem from the time he was employed by LARO. (Gearon Aff. at ¶ 15.) Smith then filed the instant action in June 2003, and filed an Amended Complaint in April 2005.
B. Smith's Retaliation Claims
In his Amended Complaint, Plaintiff alleges that he was subjected to retaliation for his prior complaints of discrimination. Specifically, he alleges that three positions became available during the period of December 1997 through June 1998 at the Southampton Campus and he was not selected to fill any of those positions because Defendants were retaliating against him for filing the 1990 charge.
The first position that Plaintiff claims he was unjustifiably denied was a maintenance mechanic position requiring locksmith and carpenter skills which was previously held by LIU employee Ernie Shoen. (Gearon Aff. at ¶¶ 30, 31.) The maintenance mechanics, who did not belong to the same union as the custodial workers and were never employed by LARO, had three pay levels -- B, A and AA -- with B being the lowest and AA being the highest. (Id. at ¶ 27.) Shoen was leaving his position because he decided to retire. A maintenance mechanic who is at the point of retirement, like Shoen, is usually at the AA level. (Id. at ¶ 28.)
Pursuant to the collective bargaining agreement with Local 30, the Maintenance Mechanics Union, LIU was not required to post the locksmith/carpenter opening and accepted no applications for the position. (Gearon Aff. at ¶ 32.) Ron Mazzaferro ("Mazzaferro"), the lead groundskeeper at the time, and also a level AA maintenance mechanic, indicated that he was interested in the position and was transferred into the position. (Id. at ¶¶ 33, 36.) This lateral transfer did not alter Mazzaferro's pay scale in any way. (Id. at ¶ 36.)
Plaintiff claims he was more qualified than Mazzaferro for this position although he admits he had no formal training in carpentry and locksmith. (Smith Dep. at 98-104.) The totality of his experience in these fields was work he performed on his own house or on relatives' homes, and a few side jobs he did many years ago. (Id.)
The transfer of Mazzaferro to Shoen's position left a groundskeeper/maintenance mechanic level B position available. (Gearon Aff. at ¶ 37.) This job was posted on February 10, 1998. (Id.; see also Gearon Aff., Exh. M.) LIU received numerous applications for this position and interviewed six candidates, including Smith. (Gearon Aff. at ¶ 38.) The position was ultimately awarded to Frank Jones, an African-American, who was at the time, like Smith, also employed by LARO and was functioning as foreman of the custodial workers. (Id. at ¶ 39.)
Prior to his employment with LARO, Jones was employed as a custodian for LIU. (Id.) Jones began working for LIU in 1969, ...