The opinion of the court was delivered by: Platt, District Judge.
Before this Court is Defendant's Summary Judgment Motion pursuant to Rule 56 of the Federal Rules of Civil Procedure. The Defendants move to dismiss Plaintiff's Complaint in its entirety. For the following reasons, the Defendant's motion is GRANTED in part and DENIED in part.
Plaintiff, Dolar White, asserts several claims against his former employer and supervisors, alleging discrimination on the basis of his race (African-American), national origin (Jamaican), and age (born on April 6, 1950) in violation of Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act ("ADEA"), the New York State Human Rights Law ("NYSHRL"), and 42 U.S.C. § 1981. Specifically, Plaintiff, a former Store Manager alleges that: (1) he was denied promotions to District Manager; (2) Defendant Kiesiner admonished him regarding his performance; (3) Defendant Dalrymple overly scrutinized his performance; and (4) Defendants Dalrymple and Wortherson forced him to resign as Store Manager. Plaintiff also claims that Defendant Kiesiner gave him an unfavorable rating on his October 2001 Performance Appraisal in retaliation for complaining about not being promoted to District Manager. Finally, Plaintiff alleges that Home Depot breached an implied promise contained in its Employee Handbook.
Plaintiff was hired by Home Depot in March 1986 as a full-time Sales Associate in the Furniture Department of store #1211 in Miami, Florida. (56.1 Stmt. ¶ 49). From 1992 to 1994, Plaintiff was transferred to various stores in New York including stores in Selden, Ozone Park, and Elmont. (56.1 Stmt. ¶¶ 51, 53; 56.1 Counter Stmt. ¶ 53). In each location, Plaintiff held positions as Assistant Manager or Co-Manager. (56.1 Counter Stmt. ¶¶ 53, 54). In October 1996, Plaintiff was promoted to Store Manager of the East Meadow store. (56.1 Stmt. ¶ 54; 56.1 Counter Stmt. ¶54) From there, Plaintiff transferred to the Home Depot store in Red Hook, Brooklyn continuing to serve as Store Manager. (56.1 Stmt. ¶ 57).
In September 2000, Defendant Kiesiner became District Manager for the area encompassing Plaintiff's store. One of Defendant Kiesiner's duties as District Manager was to supervise the operation of all stores within the district, including Plaintiff's store. Defendant Kiesiner walked through Plaintiff's store on multiple occasions. (56.1 Stmt. ¶ 74). Defendant Kiesiner placed three negative memorandums in Plaintiff's employment file. (56.1 Stmt. ¶¶ 78-80; 56.1 Counter Stmt. ¶¶ 78-80). Two, dated June 26, 2001 and July 13, 2001, were given to all Store Managers in the district. (White Decl. ¶¶ 68, 69). The June 26th memorandum called for improvement in the management of payroll and overtime. (56.1 Stmt. ¶ 78; 56.1 Counter Stmt. ¶ 78). The July 13th memorandum discussed an overstock problem. ( 56.1 Stmt. ¶ 79; 56.1 Counter Stmt. ¶ 79). The third, dated September 20, 2001, was addressed specifically to Plaintiff. This memorandum called for the Plaintiff to address deficiencies in the store's alarm system. (56.1 Stmt. ¶ 80, 56.1 Counter Stmt. ¶ 80). On Plaintiff's October 5, 2001 mid-year Review, Defendant Kiesiner gave Plaintiff an overall rating of "2" ("Improvement Needed").
(56.1 Stmt. ¶ 82; 56.1 Counter Stmt. ¶ 82).
In October 2001, Defendant Kiesiner was replaced as District Manager by Defendant Dalrymple. (56.1 Stmt. ¶ 86). Defendant Darlymple also walked through Plaintiff's store on multiple occasions. (56.1 Stmt. ¶¶ 88, 89; 56.1 Counter Stmt. ¶¶ 88, 89). On October 25, 2001, Defendant Darlymple warned Plaintiff that: "(1) he needed to achieve immediate and sustained improvement in the areas of SPI compliance, safety audits, operational controls, overtime maintenance, and store markdowns; and (2) failure to improve these areas could result in the termination of his employment." (56.1 Stmt. ¶ 91).
Defendant Wortherson became Regional Manager in August 2001. (56.1 Stmt. ¶ 92). Defendant Wortherson reviewed the performance of all stores within the region and discussed the conditions of the stores with the relevant District Managers. (56.1 Stmt. ¶ 92). Defendant Darlymple made Defendant Wortherson aware that he had warned Plaintiff regarding his performance. (56.1 Stmt. ¶ 95). On January 17, 2002, Defendants Darlymple and Wortherson conducted a store walk of Plaintiff's store. (56.1 Stmt. ¶ 98). After the walk, Defendants Darlymple and Wortherson discussed their observations with Plaintiff. (56.1 Stmt. ¶ 99). As a result of that meeting Plaintiff retired effective on January 20, 2002. (56.1 Stmt. ¶ 101; 56.1 Counter Stmt. ¶ 101). Defendants contend that Plaintiff was given the option of immediately improving the conditions of his store. (56.1 Stmt. ¶ 100; 56.1 Counter Stmt. ¶ 100). Plaintiff alleges that he was effectively terminated at that meeting. (56.1 Counter Stmt. ¶ 100).
Defendant's Summary Judgment Motion seeks dismissal of Plaintiff's claims on procedural and substantive grounds. Procedurally, Defendants contend that Plaintiff's Title VII and ADEA retaliation claims must be dismissed due to failure to exhaust administrative remedies. Second, Defendants claim that Plaintiff's NYSHRL claims must be dismissed because Plaintiff elected his remedies under New York State law. Third, Defendants contend that Plaintiff may not bring Title VII or ADEA claims against individual defendants. Finally, Defendants assert that a majority of Plaintiff's failure to promote claims are time-barred.
Substantively, Defendants seek dismissal of Plaintiff's claims for lack of requisite proof to establish a prima facie retaliation or discrimination case, or in the alternative, to establish that Defendants' actions amounted to pretext for discrimination. Defendants also seek dismissal of Plaintiff's breach of contract claim based on an implied promise contained in Home Depot's Employee Handbook.
1. Exhaustion of Administrative Remedies
Prior to filing a Title VII or ADEA action, a plaintiff must exhaust his administrative remedies by filing a charge of discrimination with the Equal Employment Opportunity Commission ("EEOC") or the appropriate State agency. 42 U.S.C. § 2000e-5(e); Butts v. City of N.Y. Dep't of Hous. Pres. & Dev., 990 F.2d 1397, 1401 (2d Cir. 1993), superseded by statute on other grounds. The exhaustion requirement is ...