The opinion of the court was delivered by: Sifton, Senior Judge.
MEMORANDUM OPINION AND ORDER
Plaintiff Gary Williams ("Williams") brings the first of the above captioned actions (04 CV 0471) against British Airways, PLC ("BA") alleging that defendant: (1) discriminated against him due to his disability in violation of the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq ("ADA"); and (2) discriminated against him and created a hostile work environment due to his race and national origin, and retaliated against him for his complaints of discrimination in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq ("Title VII") and 42 U.S.C. § 1981.*fn1 In a second action (06 CV 5085) against BA, plaintiff alleges, in addition to the federal claims described above, state claims of discrimination based on race and disability and retaliation under New York Executive Law § 296 et seq.*fn2
Currently before the Court is plaintiff's unopposed motion to consolidate plaintiff's two separate actions against BA pursuant to Federal Rule of Civil Procedure 42(a). Also before the Court is defendant's motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. For the reasons set forth below, plaintiff's motion to consolidate the action is granted,*fn3 and summary judgment is granted in favor of defendant on all claims in both actions.
The following facts are drawn from the parties' depositions, affidavits, exhibits, and Local Rule 56.1 statements. Disputes are noted.
Plaintiff Gary Williams is a black male of Jamaican origin who was hired as a telephone sales service assistant by defendant British Airways in November 1990. BA is an international air carrier with a principal office and place of business in Jackson Heights, New York.
In 1991, Williams became a Customer Service Agent for BA at John F. Kennedy International Airport ("JFK Airport"). "Customer service involves the departure and arrival process, the check-in process, the lounges, baggage service, operations, load control, special services agents, ticketing." Def. Exh. E, Dep. of Douglas Caines ("Caines"), BA Customer Service Director, p. 11.
Plaintiff alleges several workplace incidents involving race during the 1990s. In 1992, a white co-worker, Colleen Delpeninno, allegedly called Williams a "f--cking black bastard." Plaintiff reported the incident to his manager and filed a complaint with the New York State Department of Human Rights ("NYSDHR"), which dismissed the case for lack of probable cause.
Def. Exh. B, Williams Dep., p. 416. On July 4, 1994, plaintiff made an internal complaint against a white BA supervisor, Sally Petrosovics, for allegedly calling him "boy" and stated that he should "know his place." Williams Aff. ¶30. The company investigated the incident and concluded that Williams had been "insubordinate." Def. Exh. A, Letter from Larry Jones, Manager of Administration to Williams dated Oct. 28, 1994, D01147. Ms. Petrosovics also received a letter stating she had used inappropriate language. Def. Exh. B, Williams Dep., p. 114. On November 9, 1994, plaintiff filed a NYSDHR complaint, which was later dismissed for lack of probable cause.
Around the same time, plaintiff alleges that unidentified BA personnel put "[a] black doll from the lounge hanging with a string around its neck in the special services office." Def. Exh. B, Williams Dep., p. 419. See also Def. Exh. K, Dep. Of Roma Klass, BA Customer Services Agent, p. 139.
Plaintiff also alleges that BA supervisor, Bob Schiafano, referred to another black employee as "HNIC," an acronym for "Head Nigger in Charge," and on one occasion told plaintiff that he could "smile now because I [plaintiff] know I am not at the back of the bus." Def. Exh. B, Williams Dep., p. 410. Both times, plaintiff complained to another supervisor, who said he would "follow up."
On January 12, 2001, plaintiff slipped and fell in the employee parking lot of United Airlines at JFK Airport. The accident was immediately reported to the manager on duty. Plaintiff thereafter received treatment for his injuries.
On January 29, 2001, plaintiff's physician, Dr. Anthony J. Spataro ("Dr. Spataro"), submitted a Physician's Release to Return to Work form to Work & Well, a medical organization providing case management services to BA.*fn4 Dr. Spataro diagnosed a "cervical neck sprain" and stated that Williams could return to light duty, that he could sit, stand, or walk for 6-8 hours, but that he could not lift, carry, climb, bend, grasp or handle anything. Def. Exh. A, D00870. On March 9, 2001, Dr. Spataro submitted another release, stating that Williams could return to light duty, but could lift no more than 20 pounds.
Plaintiff returned to work on March 12, 2001.*fn5 He was rostered to work in the Terraces Lounge (the "Lounge"), the first class passenger lounge. His duties involved sitting at the front desk and greeting passengers as they entered. On March 16, 2001, plaintiff was assigned to Immigration, where he checked passengers' travel documentation, Def. Rule 56.1 Statement, ¶¶ 59-62, and "remov[ed] bags from the carousel and [took] them to baggage services."*fn6 Williams Aff., ¶ 14. He was also assigned to Queue, where he directed passengers to their flights. Def. Rule 56.1 Statement, ¶¶ 59-62. That same day, on March 16, 2001, plaintiff's co-workers had to escort him from the workplace because his back gave out and he could not stand or walk without assistance. Williams Aff., ¶ 15. Dr. Spataro determined that plaintiff's disability at that time was "total, not working." Id.
Plaintiff did not work from March 16, 2001 through June 22, 2001.
In an Independent Medical Examination Report ("IME") conducted by Work & Well, Dr. Philip Harris, a physical medicine and rehabilitation specialist, opined that following a month-long treatment, plaintiff "should be able to return to work in a light duty position where he has the ability to change off between walking and sitting." Def. Exh. M, D02398. Dr. Harris stated that plaintiff would be "fit for temporary alternate duty" from July 6, 2001 and could return to "full duty without restrictions" on August 6, 2001. Def. Exh. M, D02399. On June 22, 2001, plaintiff's physician, Dr. Spataro, released him to work on light duty as of June 25, 2001, with the restrictions of "no walking, standing or lifting." Def. Exh. A, D00459.
On June 25, 2001, Williams returned to work.*fn7 Up until August 15, 2001, he was rostered in either the Lounge or Documentation and Paging, both positions plaintiff said he could perform despite his injury. From August 22, 2001 until October 3, 2001, Williams was rostered to the Lounge.
On October 4, 2001, after plaintiff tripped on a carpet at the BA terminal, Dr. Spataro stated that "[p]atient is unable to work until further notice." On October 18, 2001, Dr. Spataro released him to work, restricting him to "no lifting, no standing, minimal walking." Def. Exh. A, D00432. Between October 22, 2001 and February 9, 2002, Williams was primarily rostered to the Lounge.
On January 7, 2002, plaintiff underwent another IME, in which the doctor reported that plaintiff "could work at a sedentary type of occupation not requiring him to stand all day long, bend forward or carry any objects more than 5 or 10 pounds." Def. Exh. A, D00395. Following the IME, BA Performance Manager Joe Brooks ("Brooks") requested that plaintiff begin working at the Check-In counter for short periods. BA offered him a chair (including back support and arm rests) so he would not have to stand and Baggage Service Agents to tag and lift baggage for him. See Def. Exh. A, D00396, D02758. Williams was rostered to Check-In on the mornings of February 9, 10, and 11, 2002, and subsequently moved to the Lounge.
On February 14, 2002, Dr. Spataro cleared Williams to return to work on February 25, 2002. From February 25, 2002 to March 5, 2002, plaintiff was rostered to work in the Lounge. Between March 7, 2002 and July 12, 2002, Dr. Spataro submitted several forms to Work & Well stating that Williams was unable to work until his next evaluation.
On June 10, 2002, Dr. Aric Hausknecht, another of plaintiff's physicians, submitted a Physician's Release to Return to Work form, stating that plaintiff was "fit for temporary alternate duty from 6/10/02" and that plaintiff could lift five pounds. Def. Exh. A, Physician's Release to Return to Work form, D02717. On July 30, 2002, Williams underwent another IME, from which Dr. Koval concluded that plaintiff could return to work provided he did not lift anything exceeding 10-15 pounds. Brooks sought clarification via a facsimile dated August 2, 2002 from Dr. Spataro regarding the conflicting doctor's assessments. Dr. Spataro did not respond other than to submit another form stating that the patient was unable to work.
Based on the results of the July 20, 2002 IME, Brooks wrote to plaintiff requesting that he return to work on August 14, 2002 and that the company was "prepared to make the necessary accommodations and follow th[e] current restriction as outlined in the fitness for duty examination to facilitate your immediate return to the workplace."*fn8 Def. Exh. A, Letter from Brooks to Williams dated Aug. 12, 2002, D00380. On August 14, 2002, plaintiff, accompanied by Doreen Willaum, a union official, met with Brooks. Williams presented notes from three doctors to controvert the IME findings. Brooks did not debate William's medical condition, but noted the Company's position based upon the IME. Def. Exh. A, Email from Brooks to other BA Managers, D00381.
Williams testified that when he returned to work on August 15, 2002, he was assigned to the check-in counter. Although a chair had been provided, the chair was not suitable for the counter, so he stood. When no baggage services agent was available, he lifted several bags exceeding 50 pounds.*fn9 After two hours, he complained of pain and was assigned to the Lounge. See Def. Exh. B, Dep. Of Gary Williams, p. 355-56. At the Lounge, plaintiff complained of pain in his lower leg and was taken to the Jamaica Hospital Emergency Room. He was advised not to work for seven days. Williams, however, wrote to Brooks on August 18, 2002, that he would continue to "report to work in order to protect his employment" and on the advice of the union. See Def. Exh. A, Letter from Williams to Brooks, D02684; Def. Exh. B. Dep. Of Gary Williams, p. 365. On August 21, 2002, Brooks wrote to Williams, noting that the Jamaica Hospital report permitted him to return to work on August 22, 2002 and that "British Airways is prepared to make the necessary accommodations to facilitate your immediate return to the workplace. As such, you are expected to return to work as scheduled." Def. Exh. A, Letter from Brooks to Williams, D00379.
On September 3, 2002, Williams filed a complaint with NYSDHR, alleging violations of Title VII and the ADA by defendant BA. Williams worked a total of four days thereafter, rostered to Check-In, Lounge/Immigration, and Kiosk/Self-Service. See Def. Rule 56.1 Statement, ¶ 153. Plaintiff's last date on BA's payroll was October 1, 2002.
From March 2001 to September 2002, plaintiff was rostered to work 130 days. He was rostered to the Terraces Lounge for 83 days, Documentation & Paging for 39 days, Queue for one day, Kiosk/Self-Service for one day, and six days in Check-In. On two of the six days in Check-In, plaintiff was moved to the Terraces Lounge. On another day when plaintiff was rostered to Check-In, plaintiff's name on the roster ...