The opinion of the court was delivered by: Joseph F. Bianco, District Judge
Pro se plaintiff Charles Patrick ("plaintiff") brings this action under the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et seq., alleging that defendant New York City Transit Authority ("NYCTA") retaliated against him for filing a prior discrimination lawsuit against defendant.*fn1 Defendant moves, unopposed, for summary judgment pursuant to Federal Rule of Civil Procedure 56. Despite plaintiff's failure to oppose the motion, the Court independently conducted a review of the record and finds that summary judgment for defendant is warranted.*fn2
The facts, undisputed by plaintiff, are provided below. For the purposes of this motion, the Court notes that it has construed the facts in the light most favorable to the non-moving party - in this case, the plaintiff - "with all factual ambiguities resolved and all reasonable inferences drawn in his favor."*fn3 Capobianco v. City of New York, 422 F.3d 47, 50 n.1 (2d Cir. 2000) (citations omitted).
Pursuant to Public Authorities Law § 1201 et seq., NYCTA is a public benefit corporation. See N.Y. Pub. Auth. Law § 1201(1). NYCTA was created by the State of New York for the purpose of operating transit facilities. (Def.'s 56.1 Stmt. ¶ 1.) Plaintiff began his employment with NYCTA in August 1970 as a Railroad Stock Assistant, and was promoted to Railroad Stock Worker Level II in 1974. (Pl.'s Dep. at 8-9.) According to the MTA's Rules and Regulations, which govern the operation of the New York City Transit System (see Affidavit of Patrick McGreal (hereinafter "McGreal Aff.") ¶ 18, Ex. B), the duties and responsibilities of a Railroad Stock Worker include, under direct supervision, receiving, checking, classifying, storing and distributing materials and supplies to the transit system's storerooms and facilities. (Id., Ex. B at 237.) The duties and responsibilities of a Railroad Stock Worker Level II include, under direct supervision, receiving, checking, classifying, storing, and distributing supplies and materials in the storerooms of NYCTA. (Id., at 238.) A Level II Railroad Stock Worker also drives, loads, and unloads or operates department vehicles; unpacks materials and supplies and counts sorts, marks and places them; takes inventory and fills requisition; separates obsolete and scrap materials, and keeps records. (Id.) The job descriptions are not exhaustive and employees may be called upon to perform duties that are generally covered by a job title, even though not specifically enumerated in the Rules and Regulations, but which the NYCTA is otherwise authorized to prescribe. (Id. ¶ 30, Ex. B at 237.)
B. Plaintiff's Prior Lawsuit
In 1999, plaintiff instituted an action against NYCTA in the United States District Court for the Eastern District of New York alleging discrimination based on his age in violation of the ADEA. See Patrick v. N.Y. City Transit Auth., 99-CV-1024 (RJD). That case was dismissed on summary judgment. (See id., Memorandum and Order dated March 2, 2004 (Doc. Entry # 32.); see also Pl.'s Dep. at 15.) Plaintiff instituted the present action alleging retaliation by defendant since December 1, 2001, in response to the filing of the discrimination suit.*fn4 (Compl. at 3-4.) Plaintiff's complaint alleges that plaintiff was subjected to excessive disciplinary action, seniority and union contract violations, and wrongful suspension. (Compl. at 4.)
C. Responsibilities and Regulations under the Collective Bargaining Agreement
Plaintiff, along with most Railroad Stock Workers, is represented by the Transport Workers Union, Local 100 (the "Union"). (McGreal Aff. ¶ 3.) NYCTA and the Union entered into a Collective Bargaining Agreement and subsequent Memorandum of Understanding which amended the Collective Bargaining Agreement, covering the time period of January 1, 2000 to December 15, 2005 (hereinafter referred to as the "CBA"). (Id.) The CBA contains provisions regarding the terms and conditions of employment of the employees represented by the Union. (Id.) The CBA also contains disciplinary and contract grievance processes for employees represented by the Union. (Id.) The disciplinary grievance process is a series of steps/hearings which culminates in arbitration. (Id., ¶ 4.)
Pursuant to the CBA, if an employee fails to appear on two occasions at any step hearing in the disciplinary grievance procedure, the grievance shall be deemed abandoned and the penalty imposed. (Id., ¶ 6.) Employees are to be notified of such hearings through personal service or by certified mail. (Id., Ex. A. at 40.) The Union or the employee may appeal disciplinary actions within five days of notification of the decision at Step I of the grievance process. (Id., ¶ 7.) The CBA requires that employees, the Union and the NYCTA strictly adhere to the time limits provided in Section II of the CBA. (Id., ¶ 8.)
The CBA also provides regulations regarding vacation time. Specifically, for an employee working in the Division of Supply Logistics, the CBA provides:
Employees must submit their requests for vacation in unscheduled single days, Accumulated Vacation Allowances (AVA), and/or personal leave days (PLD) no sooner than fifteen (15) days prior to the requested days. Such requested time will be granted, by seniority, when coverage is available, five (5) working days in advance of the requested day. Requests to use leave in these categories submitted by employees less than five (5) working days prior to the requested day shall be reviewed by Management and approved or denied on the same day submitted based upon staffing requirements and the needs of service. Requests to use leave in these categories submitted with less than forty eight (48) hours notice prior to the requested day shall be deemed emergency requests and may be approved or denied by Management subject to proof of emergency and the needs of service.
With respect to assignments, under the CBA, an employee may express his or her preference to work on certain assignments, as listed by management - this is referred to as "a pick." (Id., ¶ 15.) The employee picks those assignments for a specified period of time from the list of available assignments, in order of seniority, and once a particular assignment or time is picked, it is removed from the list of assignments available for picking by persons with lower seniority. (Id.) For an employee in the division of Supply Logistics, the CBA states that it "is understood that any employee must be qualified for the job he/she selects [during the pick process], and in addition must be able to meet normal production in a reasonable length of time, normally a period of ten (10) days." (Id. ¶¶ 9-10 (quoting id., Ex. A at 150).)
On May 1, 2000, at plaintiff's request, an informal meeting was held between plaintiff, plaintiff's union representative and Howard Kocan ("Kocan"), regarding plaintiff's concerns that his pick preference was being violated.*fn5 (Kocan Aff. ¶ 30; see also id., Ex. B.)
At the May 1, 2000 meeting, plaintiff's pick assignment/preference - warehousing - was discussed and Kocan explained to plaintiff that warehousing is any task other than the receipt of material from a vendor/inter storeroom transfer, kitting or utility. (Id., ¶ 4.)
Kocan also discussed with plaintiff the definition of seniority rights with respect to a pick preference versus daily assignments. (Id.) Plaintiff was informed that his seniority rights were not a factor in determining a particular warehousing task in Buses Base Support/East New York. (Id.) Plaintiff was also informed of the procedure of complying with orders and grieving after the fact on issues other than health and safety - specifically, he was reminded of his obligation to comply with any supervisor's or manager's order or assignment that does not seriously impact health or safety. (Id., ¶¶ 4- 5.)
On June 14, 2000, as a result of repeated verbal feedback from plaintiff's two immediate supervisors and Deputy Superintendent Curley Brown ("Brown"), regarding plaintiff's frequent challenges to assignments based on claims of seniority or pick preference, Kocan again met with plaintiff. (Id., ¶¶ 5-6.) Plaintiff's union shop steward was also present at the meeting. (Id.) Three of the same issues that were discussed at the May 1, 2000 meeting were again discussed at the June 14, 2000 meeting: (1) an explanation of warehousing; (2) an explanation of seniority rights with respect to pick preference versus daily assignments; and (3) the procedure for complying with orders and grieving after the fact on issues other than health and safety. (Id., ¶ 7.) Also discussed were the consequences of refusing orders and/or assignments, and plaintiff was warned that refusing orders and/or assignments would be considered gross insubordination and would result in disciplinary action. (Id.) It was also discussed that challenging an order and/or an assignment would be considered the same as a refusal, and Kocan reminded plaintiff that compliance with a supervisor's or manager's orders is mandatory and not subject to discussion. (Id., ¶¶ 5, 7.) Plaintiff was also told that no employee owns any particular job or has a fixed job assignment or work location with a job preference. (Id.)
On October 13, 2000, at 7:10 a.m., plaintiff attempted to sit in a chair and fell to the floor, sustaining injuries to his left hand. (Id., ¶ 9.) Plaintiff requested medical care and an ambulance took plaintiff to Brookdale hospital at 8:05 a.m. (Id.) As of 7:10 a.m., the time of plaintiff's injury and request for medical care, plaintiff ceased his full work status and became classified as injured on duty ("IOD"), which is covered by workers' compensation. (Id., ¶ 10.) Because he was no longer in a work status, according to management, contractually, he was not entitled to get a coffee or lunch break. (Id.)
Kocan arrived at Brookdale hospital at 8:45 a.m. and stayed until plaintiff was seen by a doctor and released. (Id., ¶ 11.) At that time, it was NYCTA procedure for the NYCTA medical assessment center ("MAC") to assess employees who were injured on duty. (Id.) Therefore, after plaintiff was released from the hospital, Kocan brought plaintiff to the MAC for evaluation. (Id.) The NYCTA physician gave plaintiff a "no work" status until November 1, 2000, and a revisit to the MAC was scheduled for November 1, 2000. (Id., ¶ 12; see also id., Ex. D.)
On September 13, 2000, Kocan spoke with plaintiff regarding four instances of lateness since July 24, 2000. (Id., ¶ 8.) Kocan also pointed out that plaintiff had three instances of lateness in June 2000 and warned plaintiff that, if he continued this pattern, it ...