The opinion of the court was delivered by: Denise Cote, District Judge
Michael Golden ("Golden"), who is now proceeding pro se, is employed by the New York City Department of Environmental Protection ("DEP") as a laboratory associate. He has sued the DEP, complaining principally of race, national origin, and disability discrimination. The disability claim arises from torticollis, which causes involuntary muscle spasms and shaking.
Golden describes discriminatory treatment in the mid-1990s when he was working in the organic laboratory and then the metals unit of the DEP. In 1999, he was transferred to the sampling unit, and in 2001, to the general chemistry lab. He next complains of harassment in 2003. In that year he was served with disciplinary charges for being absent from work without providing proper documentation and for use of profanity against supervisors. Golden was suspended for five days after an Office of Administrative Trials and Hearings ("OATH") proceeding at which he was represented by counsel. The administrative law judge ("ALJ") who heard his case ordered this suspension on August 27, 2004. In July 2004, Golden was transferred to the marine science unit, and is now assigned to the North River Control Center.
Plaintiff's counsel filed this action on February 28, 2006. In the midst of fact discovery, in October 2006, plaintiff's counsel withdrew, and the plaintiff has proceeded since that time pro se. On March 2, 2007, the defendant filed a motion for summary judgment.
In an amended complaint of March 22, 2006, plaintiff pleaded nine claims. Five of the claims arise under federal statutes. Golden asserts a violation of the Americans with Disabilities Act ("ADA"), three claims under Title VII of the Civil Rights Act of 1964 ("Title VII") for discrimination, harassment and retaliation, and a violation of the Family Medical Leave Act ("FMLA").
The plaintiff does not oppose the motion to dismiss the ADA and Title VII claims as time-barred. The EEOC issued a right to sue letter to Golden on October 20, 2005. Golden was required by statute to file these claims within 90 days of receipt of the letter, which is presumed to occur three days after mailing. The complaint was filed roughly five weeks late, on February 28, 2006.
Because this disposes of the ADA and Title VII claims, it is unnecessary to resolve the alternative grounds presented by the defendant for dismissing those claims. It bears noting, however, that one of those alternative grounds is for dismissal of all ADA and Title VII claims arising from acts occurring before September 17, 2003, as time barred by the requirement that a complaint of discrimination be filed with the New York State Division of Human Rights within 300 days of the act of discrimination. Golden filed his complaint on July 12, 2004. The amended complaint does not identify any wrongdoing that occurred after September 17, 2003, and almost all of the plaintiff's submissions on this motion concern events occurring before that date. Golden has not opposed this prong of the defendant's motion either.
As a result, the only remaining federal claim is the FMLA claim. The defendant moves for summary judgment on this claim and asks that the Court decline to exercise supplementary jurisdiction over the state law claims.
The defendant argues that Golden has not identified any violation of the FLMA. It offers evidence that the plaintiff was offered the opportunity to work "flex time" to accommodate any intermittent health problems so long as he worked a full seven-hour day.
Golden does not deny that he was allowed to work a flex-time schedule. In opposition to this motion, the plaintiff explains that his FMLA claim rests on two grounds. First, he was denied leave on March 12 and May 1, 2003 to rest from an injury to his back. He asserts that he had injured his back in 1999 and continues to be plagued by back problems. Second, he was denied permission to use FMLA leave to excuse intermittent early departures from work, which occurred when he felt a need to avoid crowds during rush hour because of a fear that he could aggravate his back injury. Instead of permitting use of such leave, he asserts that the DEP disciplined him for being AWOL. Golden contends that the FMLA does not require him to refer to the FMLA when making requests for these accommodations.
The only evidence to which Golden refers to support this claim is three request-for-leave forms. On February 26, Golden requested three days of sick leave from February 21 to 25 with pay. It was denied on March 7, with the notation that he was given leave without pay because he had two working days to submit "proper documentation." On March 13, 2003, Golden requested annual leave with pay for March 12, and on May 2, 2003, Golden requested annual leave with pay for May 1. Both were denied with the notation "AWOL." Golden wrote on the latter two forms that the reason for the request was "resting workers comp injury while therapy is denied."
Although Golden does not refer to any other specific evidence to support his FMLA claim, an explanation of what lies behind this claim can be found in the August 27, 2004 decision by the ALJ following the OATH hearing. She summarized the testimony of Golden and his supervisor concerning the plaintiff's hours. The supervisor testified that he informed Golden on June 5, 2003 that he could start his job each day at any point between 7:30 a.m. and 8:30 a.m., but had to work a full seven hours or submit a leave slip. At that point Golden insulted the supervisor. After the meeting, Golden continued his pattern of leaving work early without submitting leave slips. Golden was given a written warning about the unauthorized departures on September 2, and then left early on fifteen days between September 9, 2003 and March 18, 2004, without obtaining authorization.
At the hearing, Golden admitted using offensive language in the June 5 meeting. He also explained that he needed to avoid crowded subways because of his back condition. He asserted that before the June 5 meeting he had not been required to make up time at the end of the day if he were late or to submit forms requesting leave. He admitted being advised on June 5 that he would be required to work seven hours a day. Golden asserted that he also understood from that conversation that he would no longer be able to use compensatory time to cover any lateness and, as a result, he no longer submitted leave slips.
The ALJ concluded that Golden had insulted his supervisor and used profanity in the June 5 meeting. She found that it was the department procedure to require all employees to submit a leave slip if they could not be present the full seven hours of a workday, and that Golden was advised of this orally on June 5, and in writing on September 2. After the written warning, on fifteen separate occasions Golden did not seek authorization to work less than the full seven hours. The ALJ also found that the leave time would have been ...