The opinion of the court was delivered by: Hurley, Senior District Judge
In his complaint, as amended, Plaintiff Omar Taylor ("Plaintiff" or "Taylor") has asserted claims of race and gender discrimination and retaliation under 42 U.S.C. § 1981 and Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e et seq. ("Title VII"), as well as a claim under the Equal Pay Act, 29 U.S.C. §206(d)(1) ( the "EPA")against Defendant Family Residences and Essential Enterprises, Inc. ("Defendant" or "FREE"). Presently before the Court is Defendant's motion for summary judgment. For the reasons set forth below, the motion is granted.*fn1
The following facts are taken from Defendant's Statement of Uncontested Facts Pursuant to Local Rule 56.1 ("Defendant's Statement"), Plaintiff's "Contesting Defendants [sic] Statements of Uncontested Facts in Opposition to Defendant's Motion for Summary Judgment," ("Plaintiff's Counterstatement"), and the evidence submitted. The facts are undisputed unless otherwise noted.*fn2
Plaintiff, a black male, was an employee of Defendant beginning on August 6, 2001. Defendant is a not-for-profit agency that offers a wide variety of services for persons with mental illnesses, developmental disabilities and traumatic brain injuries. Its programs include group homes, apartments, respite programs, day treatment and vocational programs. Plaintiff was hired by Michelle Flood ("Flood") as a Direct Care Counselor at a rate of $9.00 per hour.*fn3 Flood was a Residential Administrator, responsible for overseeing administration of numerous residential programs run by FREE. Robert Budd ("Budd"), Chief Administrative Officer, approved Plaintiff's hire. Upon commencing employment, Plaintiff was given a copy of FREE's Employee's Handbook. The handbook specifies that an employee will be paid for accrued but unused vacation when the employee leaves. It also specifies that "[s]ince paid sick days are to be used when you are ill, unused sick days will not be paid at termination or upon retirement."
Plaintiff initially worked as part of a floating team. On September 27, 2001 he was assigned to FREE's Parsonage facility and received a pay increase to $9.25 per hour. At Parsonage, he worked the overnight shift, which was either 12:00 a.m. to 8:00 a.m. or 11:00 p.m. to 7:00 a.m.
In October 2001, Plaintiff and two co-workers, Steve DeRosa and Jessica Regan ("Regan"), had an argument about doing their jobs. All three individuals were counseled about the necessity of teamwork and getting along.
In January 2002, Regan and another female co-workers alleged that Plaintiff had engaged in sexually harassing behavior. According to the written statements by these co-workers, the inappropriate behavior included making sexually explicit remarks to them, such as they needed "good black dick" and describing sexual acts he would like to perform. Also, it was claimed that Plaintiff whistled at one of them and blocked her in the hall and in doorways. The allegations were investigated by FREE's then Director and Assistant Director of Human Resources, who, based on their investigation, recommended Plaintiff's termination. Senior management, including Budd, approved the recommendation and Plaintiff was discharged on January 15, 2002. Flood was responsible for communicating the decision to terminate him to the Plaintiff and for signing his termination memorandum. Plaintiff was advised that he could use FREE's Problem Solving Procedure, set forth in the employee manual, to "appeal" the termination.
Plaintiff did utilize the Problem Solving Procedure. During the procedure, he met with Barry Donowitz ("Donowitz"), the Chief Operating Officer of FREE. Plaintiff did not tell Donowitz that he attributed his termination to race or gender discrimination. Rather he told Donowitz his termination was discriminatory because "they never, ever spoke to me about it . . . My part of the story was never told." Plaintiff also met with Budd. He did not tell Budd his termination was discriminatory, but only complained that he never had a chance to tell his side of the story.*fn4 Plaintiff told Budd that he did not engage in any inappropriate behavior and that the two female co-workers had fabricated the accusations against him to get him fired. During the meeting Plaintiff became, in Budd's view, quite arrogant and intimidating. When Budd advised Plaintiff his behavior was inappropriate, Plaintiff apologized and said he did not realize his behavior appeared aggressive. Budd pointed out that it was possible that Plaintiff's peers perceived him to be intimidating or aggressive, especially since he is larger and taller than his female co-workers. Plaintiff responded that he had not looked at it that way. After reviewing all the evidence, Budd could not definitively say whether the co-workers or Plaintiff were being truthful. After due consideration, especially in light of Plaintiff's appropriate response to Budd's feedback during the meeting, Budd decided to give Plaintiff a second chance. According to Defendant, Plaintiff was rehired effective February 11, 2002. According to Plaintiff, his termination was rescinded and he should have been paid for the period January 16, 2002 to February 10, 2002 when he was out of work. Plaintiff also claims that Flood was upset that Plaintiff was allowed to return to work and was "out to get him."
Plaintiff was advised that upon his return he would not be returning to the Parsonage facility in order to avoid future conflicts with the two female co-workers who had complained about him. In addition, in an effort to avoid situations where Plaintiff could be subjected to accusations of inappropriate conduct, Budd decided that Plaintiff should not be assigned to work shifts with only one female co-worker. Rather, Plaintiff could be assigned to work a shift alone or with a male co-worker, or with more than one co-worker (of either gender).*fn5
Because he had obtained another job, upon his rehire/reinstatement Plaintiff advised FREE that he was only available to work overnight shifts from 11:00 p.m. to 7:00 a.m. He could not work the 12:00 a.m. to 8:00 a.m. shift because he would not have enough time to get to his other job which started at 8:15 a.m. Plaintiff was placed at the Ridge residence where he worked the 11:00 p.m. to 7:00 a.m. shift, full-time, from February 11, 2002 to March 2, 2002. Defendant claims that Plaintiff's placement at Ridge was only temporary while a permanent placement was found, a claim disputed by Plaintiff. In any event, Plaintiff was then offered an overnight full-time position at the Pineway facility. Plaintiff worked at Pineway on a few occasions but declined the position because the position was the midnight to 8:00 a.m. shift and he could not get to his other job, through which he received medical benefits, on time. Plaintiff did not work any shifts at FREE from March 11, 2002 to March 28, 2002. In late March or early April Plaintiff was offered a 16 hour per week overnight shift at the Wood Road facility from 11:00 p.m. to 7:00 a.m. on Thursday and Friday nights. Plaintiff signed a Request For Change in Hours or Location Form dated April 4, 2002 reflecting this new assignment. Nonetheless Plaintiff claims that this was a demotion resulting in the loss of full-time status and the benefits associated with that status. Plaintiff's title was changed to "Crisis Counselor," the title used for direct care counselors at the Wood Road facility, and his pay increased to $9.50 per hour. Flood avers that she advised Plaintiff's new supervisors of the guidelines set by Budd for Plaintiff's rehire but does not know whether the supervisors ensured compliance with the guidelines.
For the first two months that he worked at Wood Road, Plaintiff worked on Friday and Saturday nights or Thursday and Friday nights. He regularly worked on Thursday and Friday nights from mid-June until the end of August 2002. In August 2002 Plaintiff's rate of pay was increased to $9.79 per hour.
Once Plaintiff began working less than 24 hours per week, he no longer accrued sick or vacation time. Also, FREE does not pay for unused sick days upon termination. Pursuant to this policy, Plaintiff's sick time accruals were eliminated when he became part-time on the theory that his full-time employment had ceased. Plaintiff noticed about the end of September or early October 2002 that his accruals had "vanished." Apparently, Plaintiff's September 22, 2002 pay stub indicated he had accrued 44.28 hours of sick time. FREE claims this was an error caused by glitches in the computer program that recorded employee's accruals. The problem was fixed in October 2002, resulting in Plaintiff's pay stub reflecting he had no accrued sick time. Plaintiff contends that since he was "reinstated" in February 2002, the 44.28 hours shown on the September pay stub was an accurate representation of the sick time he had accrued prior to his reinstatement and when he worked full-time after his reinstatement. Plaintiff claims the loss of this sick time was improper because the policy does not state that sick time will be lost if an employee goes from full-time to part-time.
FREE requires that all employees in direct care positions attend certain annual training and that if an employee is out of compliance with a required training, he or she is suspended. Once the employee meets the training requirement, she/he may resume work. In 2002, the Education and Training Department kept records of all employee training and notified supervisors when employees were due to attend specific trainings After the supervisor received the notification that an employee was due for training, the supervisor would notify the employee and they would select a convenient training time. In August 2002, Plaintiff was due to attend mandatory CPR training as well as training in strategies for crisis intervention and prevention. When Plaintiff had not met both these training requirements, he was suspended on October 3, 2002 until October 14, 2002, when his training was completed.
FREE pays a higher rate to direct care counselors who are willing to work every week on Friday and Saturday night or Saturdays and Sundays during the day. These employees are referred to as "weekend only" employees. "Weekend only" employees are paid more than other employees because these shifts are the least desirable and the most difficult to fill. In addition, "weekend only" employees are not eligible for benefits, so the higher pay rate is intended to make the shift more attractive. Effective September 2002, FREE paid entry level crisis counselors $9.50 per hour while entry level "weekend only" counselors earned $12.00 per hour. Thursday and Friday are not considered "weekend only" shifts and when a relief worker fills-in for co-workers on Friday and Saturday nights, they are not considered "weekend only" positions.
During the summer of 2002 Jessica Kelly ("Kelly"), a Hispanic female, was employed as a "weekend only" counselor at Wood Road at the rate of $14.00 per hour. Her employment with FREE ended August 31, 2002.
According to Plaintiff, when Kelly left FREE, he advised his supervisor that he was interested in replacing her. The supervisor told him to fill out the paper work necessary for the change. In the meantime, he could begin working the shift and once the change was approved Plaintiff would be paid retroactively for the difference in pay rate. Then in October, after having complained that he was not being paid the same as Kelly and after his sick time accruals disappeared, he put in a second request for the change.
According to Defendant, Plaintiff began covering some of Kelly's shifts in September 2002. Then, in October, Plaintiff advised his Program Director that he would like to be considered for the "weekend only" shift so he could be paid at the higher rate. The Program Director told him to fill out the paperwork, which was done on October 25, 2002.
There is no dispute that the request for the change was approved by the Program Director and Flood but when it was submitted to Budd for approval, it was rejected.
According to Defendant, it was rejected because of the nature of the Wood Road facility and the difficulty in staffing "weekends only" shifts. Consumers placed in Wood Road typically remain there temporarily for intense psychiatric support and evaluation. It is FREE's practice to avoid having male employees assigned (without any female co-workers) to a residence where there are female consumers who may have personal hygiene needs, such as toileting. Although most of the consumers at Wood Road are capable of toileting themselves, there are occasions when female consumers with personal hygiene needs do reside there. In those situations, male employees working there are "swapped" with female employees at other locations until the female consumer with personal hygiene needs no longer resides at Wood Road. Budd felt that it would be difficult to "swap" Plaintiff in such situations for several reasons. First, Plaintiff was unwilling to work in certain geographical locations. Second, the guidelines put in place in February 2002 would limit the potential locations where Plaintiff could be swapped. Finally, there was the general difficulty in staffing "weekend only" overnight shifts. Because of the geographical and other limitations on where Plaintiff could be swapped, Budd claims approving Plaintiff to the position would create staffing problems.
Plaintiff contends that he was denied the position because he is a man. Plaintiff claims he never turned down a shift due to its geographical location. He also claims there is no evidence of the "swapping system." According to Plaintiff, Flood told him that his gender was the reason he was denied the weekend only position.
Although Flood says she did meet with Plaintiff, she denies having told him that his request had been rejected because he is a man. Other male employees have been assigned to the Wood Road facility on a permanent basis.
After Plaintiff's request for the "weekend-only" position was denied in November 2002, he stopped reporting to work and never called to request any shifts. According to Plaintiff, he was given an "ultimatum." He was told he was denied a shift he had already been working because he was a male. He was told that he could continue to work that shift as long as he didn't mind being paid at the lesser non-weekend only rate. "The real problem was not [Plaintiff] working the Wood Road shift it was defendant refusing to properly pay Plaintiff to work at Wood Road."
Plaintiff filed a charge of discrimination with the New York State Division of Human Rights on January 15, 2003. Thereafter, Plaintiff filed his original pro se complaint on December 4, 2003. Defendant answered on February 24, 2004. On March 9, 2005, Plaintiff made his first motion to amend his complaint seeking to add claims of "race discrimination pursuant to section 1981 through 1988 of Title 42 of the United States Code" and "disparate treatment under New York State and Federal Wage and Hours Laws" Defendant opposed the motion. By Order dated March 31, 2006, the Court granted the motion to add his § 1981 claim but denied the motion as to the §§ 1982 to 1988 claims and the unspecified "New York State and Federal Wage and Hours Laws." Plaintiff then moved to amend his complaint so that it asserts claims for gender discrimination, disparate treatment, retaliation, violations of the Equal Pay Act and race discrimination. (See Plaintiff's Motion to Amend Complaint, Docket No. 68-1 at p. 22.) By Memorandum and Order, dated January 31, 2007, the motion to amend was granted (1) as to Title VII except for the allegations of a preference for females prior to March 2002; (2) as to the Equal Pay Act only with respect to the allegations regarding Plaintiff's pay vis a vis Ms. Kelly and (3) as to § 1981 granted regarding the allegations that Plaintiff was being paid less than a white co-worker and being retaliated against when he complained about his racially discriminatory pay; but otherwise denied. Familiarity with the Court's March 31, 2006 and January 31, 2007 Memorandum and Orders is presumed.
I. Summary Judgment Standard
Summary judgment pursuant to Federal Rule of Civil Procedure 56 is only appropriate where admissible evidence in the form of affidavits, deposition transcripts, or other documentation demonstrates both the absence of a genuine issue of material fact and one party's entitlement to judgment as a matter of law. See Viola v. Philips Med. Sys. of N. Am., 42 F.3d 712, 716 (2d Cir. 1994). The relevant governing law in each case determines which facts are material; "only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). No genuinely triable factual issue exists when the moving party demonstrates, on the basis of the pleadings and submitted evidence, and after drawing all inferences and ...