The opinion of the court was delivered by: Laura Taylor Swain, United States District Judge
Plaintiff Richard Cruz ("Plaintiff" or "Cruz") brings this employment discrimination action against his former employer Oxford Health Plans, Inc. ("Defendant" or "Oxford"). In his Amended Complaint,*fn1 Cruz asserts that Oxford violated Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. §2000e, et seq., and the New York State Human Rights Law, New York Executive Law §§ 290 et seq., by allowing its agents to create a hostile work environment, to discriminate against Cruz because of his gender, to condition terms of his employment on requests for sexual favors, and to retaliate against Cruz for reporting this inappropriate conduct.*fn2 Defendant has moved for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. Defendant has also moved to strike Plaintiff's attorney's certification in opposition to the summary judgment motion, and seeks sanctions against Plaintiff's attorney. Plaintiff has cross-moved to reopen discovery.
The Court has jurisdiction of Plaintiff's federal claims pursuant to 28 U.S.C. § 1331 and supplemental jurisdiction of Plaintiff's state law claims pursuant to 28 U.S.C. § 1367.
The Court has considered carefully all of the parties' submissions. For the reasons stated below, Defendant's motion for summary judgment is granted in its entirety. Defendant's motion to strike is granted as to paragraphs ten through twenty-seven of Plaintiff's attorney's certification. Defendant's request for sanctions is denied. Plaintiff's cross-motion to reopen discovery is denied.
Except as otherwise specified, the following material facts are undisputed. Defendant Oxford is a managed health care insurance company based in Trumbull, Connecticut, with offices in various states including New York. In July 1996, Oxford hired Plaintiff Richard Cruz to work in its Medical Management Department as a Medical Management Coordinator ("MMC") in its White Plains office. His job responsibilities as an MMC consisted of fielding telephone inquiries from hospitals and doctors' offices regarding authorizations and pre-certifications. By 1997, Cruz began performing additional "liaison" duties or "special projects," as did other MMCs. A performance review, prepared by Plaintiff in July 1997, recited that he had been offered the position of Liaison sometime during his first year at Oxford. (Fishberg Decl., Ex. 16.) Plaintiff listed his position as "BRK Liaison" on his review form, but testified at his deposition that he never received any documentation from Oxford indicating an official change in title. (Cruz Dep. at 56-57.) Plaintiff's supervisor at the time, Carol Feeney ("Feeney"), stated in a September 5, 1997, performance evaluation that Plaintiff had "assumed the role of Liaison for the Brooklyn Team" and that he had performed very well. On the evaluation form, Feeney identified Plaintiff's position as MMC. (Fishberg Decl., Ex. 17.)
During the relevant periods, Oxford's written policies provided employees with a specific number of "select days" off that could be used for any purpose during the year, but distinguished between "planned" select days (those of which the employee gave the company at least 24 hours' advance notice) and "unplanned" days. Oxford's policies provided that excessive use of unplanned days could lead to corrective action. The protocol for MMCs was that they were to call an Absentee Hotline to report any unplanned absences. (Def. 56.1 Stmt. ¶ 14.*fn3 ) The Medical Management Department had an "availability to work" standard for monitoring employees' records with respect to adherence to their work schedule. Based on Cruz's three unplanned select days during the July 15,1996, to March 10, 1997, "Availability to Work" review period, Feeney characterized Cruz's performance as "below expectations" in this regard, and issued him a written warning and counseled him that additional unplanned absences could result in disciplinary action. (Id. ¶ 15.)
By 1998, Oxford had become increasingly concerned about performance and efficiency levels in the White Plains office, including the office's phone call handling volume. (Id. ¶ 23.) Oxford decided to bring White Plains and all of its other offices that were staffed with MMCs into compliance with the standards maintained at its Trumbull, Connecticut, headquarters. (Id. ¶ 24.) In July 1998, Loretta ("Laurie") DeRosa ("DeRosa") was assigned to Oxford's White Plains office from the Trumbull headquarters, and was tasked with restructuring and improving the overall efficiency of the office. (Id. ¶¶ 25-26.) As part of the restructuring plan, DeRosa was directed develop a plan to return the White Plains MMCs who were working as Liasons to their normal duties of responding to telephone inquiries. (Id. ¶ 28.) Throughout 1999, both male and female MMCs were returned to the telephone duty function on a full time basis. (Id. ¶¶ 58, 61-63.) In an April 1999 performance evaluation issued to Plaintiff by Carol Feeney, Feeney commented that "[a]ny change in [Plaintiff's] job responsibilities is a reflection of organizational change and not his ability." (Fishberg Decl., Ex. 19.) Plaintiff's compensation and benefits remained the same when his duties were changed. (Cruz Dep. at 84; Def. 56.1 Stmt. ¶ 63.)
Cruz's work hours were changed from 8:00 a.m. to 4:30 p.m. to 9:30 a.m. to 6:00 p.m. around the time period in which his duties were changed. Cruz alleges that the shift change occurred sometime after December 1999. (Def. 56.1 Stmt. ¶ 65.) The work hours of other MMCs were changed in connection with the restructuring as well. (Id. ¶ 67.)
In January 1999, Feeney issued Plaintiff a warning concerning excessive unplanned absences taken during the year 1998. (Id. ¶ 30.) In his February 1999 self-evaluation form for the 1998 work year, Plaintiff complained that he still had the title of coordinator despite his three years with the company and that he felt he had reached a "stone wall regarding any advancement within the company." (Id. ¶ 31.)
Plaintiff alleges that, in early 1999, DeRosa asked him to attend two meetings to explain the role of "Liaison" to Oxford doctors. (Id. at 85.) After that first meeting, DeRosa told him to wear a certain brown suit that "looked good" on him at the next meeting.*fn4 (Id.) After that second meeting, DeRosa came over to his desk, thanked him for attending the meeting and stroked the back of his head. (Id. at 92.) At the time, Plaintiff took DeRosa's actions as being "innocent" and "overly friendly." (Id. at 88, 94.)
Plaintiff alleges that he applied for the job of Project Manager sometime before September 1999 by informing DeRosa and Sharon Brown ("Brown"), a supervisor in his department, of his interest in the position. (Id. at 117, 119.) Oxford's written employment policies required at all relevant times that, to apply for a posted position, an applicant had to meet with a Human Resources representative, obtain the department manager's signature on the application, and submit a written application and resume to Human Resources. (Fishberg Decl., Ex. 12.) Plaintiff stated at his deposition that he had not followed that application procedure for posted positions because the Project Manager position had not officially been posted. (Cruz Dep. at 117, 119, 121.) Plaintiff also alleges that, in practice and notwithstanding the written policy, employees were to speak to their supervisors about open positions or positions for which an employee might want to apply. (Id. at 212:17-213:14.) Both men and women applied for the position. Neither DeRosa nor Brown had any role in selecting the candidate who obtained the Project Manager position. (Def.'s 56.1 Stmt. ¶ 40.*fn5 ) In October 1999, upon learning that Rosa Petagine had been named for the position, Plaintiff and approximately forty co-workers (male and female) submitted a memorandum to the human resources department expressing their frustration at the position not having been posted and asserting that employees in the department were "selected by favoritism as opposed to knowledge of the job." (Fishberg Decl., Exs. 20-21; Def. 56.1 Stmt. ¶ 39.)
Plaintiff alleges that he applied for various unposted positions throughout 1999, including those of Provider Relations, Team Leader, and ENT Supervisor, though he proffers no specific dates. (Cruz Dep. at 121-122; 216-219.) He acknowledges that he did not submit anything in writing, but rather claims to have applied by informing Brown and DeRosa of his interest in the positions. (Id. at 213) Plaintiff does not identify exactly who was chosen for the positions or what their qualifications were, nor does he assert that Brown or DeRosa were directly responsible for those hiring decisions. (Id. at 218-220, 211.)
At some point during the October-November 1999 time frame, Brown led a meeting in which she explained to the White Plains MMCs that expectations had been increased and that policies and procedures would be enforced more rigorously. (Def. 56.1 Stmt. ¶ 69.) Supervisors began to enforce polices such as those governing personal phone calls and adherence to break and lunch hour schedules more strictly. (Id. ¶ 70.) MMCs were frequently written up for infractions including extended lunch periods and personal telephone calls. (Id. ¶ 71.)
In October 1999, Feeney resigned. Plaintiff began reporting to Lisa Bollotino on October 4, 1999. (Id. ¶ 47.) In a November 9, 1999, review covering the October 4th-November 9th period, Bollotino rated Plaintiff in the second-lowest of four performance categories. (Id. ¶ 48.)
Plaintiff alleges that, sometime in late 1999,DeRosa called him into an office and propositioned him sexually, saying: "I need you to start being a team player . . . If you decide to play along with me maybe I can further you along here at Oxford . . . Maybe if you and me can start seeing each other or dating or even going farther than that." (Id. ¶ 52-53.) Plaintiff alleges that he turned her down and that, sometime thereafter, he complained to Brown about the incident. (Cruz Dep. at 132, 153-54.) Plaintiff testified that he did not recall exactly when he reported the incident to Brown, but knows that he did not do so until after experiencing changes in his job responsibilities. (Id. at 153-54.)
Oxford's written telephone use policy, effective July 1, 1995, prohibited non-emergency personal telephone use during work hours, and provided that failure to comply with the policy could result in corrective action up to and including employment termination. The December 13, 1999, version of the policy announced that Oxford provided telephones for business-related calls and continued: "Although there will be occasions when employees will need to use company telephones for personal reasons, those calls should be made only when absolutely necessary." The 1999 policy further provided that "Employees who abuse the use of company telephones by making or receiving excessive personal calls will be subject to corrective action up to and including termination of employment." Both policies provided for the monitoring of use of phones, and Cruz had signed a "Phone Monitoring Release" in July 1996, acknowledging that "business related phone calls may be monitored . . . by appropriate supervisory/management personnel. The purpose of such monitoring is understood to be evaluative for business purposes." (Def. 56.1 Stmt. ¶¶ 5-6.) Plaintiff was issued a verbal warning by Sharon Brown for berating Oxford and using four-letter words during a non-emergency personal phone call to his wife on January 28, 2000. (Id. ¶¶ 87-88.) In Plaintiff's performance review issued on February 10, 2000, for the period of April to December 1999, Brown rated Plaintiff's performance as "Below Target," in three of the five evaluation categories. (Fishberg Decl., Ex. 29.) On February 23, 2000, Plaintiff called in sick by leaving a message on Brown's voice mail saying his stomach was "f***ed up." (Def.'s 56.1 Stmt. ¶ 96.) Brown issued Plaintiff a written warning on February 24, 2000, which referred to his "continued use of vulgar and inappropriate language and . . . availability for work" as the reasons for the warning, citing the February 23, 2000, voicemail message and three unplanned select days taken in January and February 2000. The written warning concluded: "Should your work availability performance not improve and/or should this display of vulgar behavior occur again, further corrective action may take place up to and including termination of employment." (Id. ¶ 99.) Plaintiff was then observed on February 29, 2000, making at least two personal phone calls during work hours. (Id. ¶ 104.) Brown collected Plaintiff's telephone records and found that, in the previous months, he had made numerous other personal calls during work hours. (Id. ¶ 105.) Other male and female medical management employees, including other MMCs, were disciplined for vulgar or inappropriate language and/or personal telephone use during work hours. (Id. ¶¶ 101,112.)
On March 1, 2000, acting on the advice of the human resources department, Brown terminated Plaintiff's employment, citing his repeated failure to adhere to Oxford's policies, taking into account both the verbal and written warnings he had received. (Id. ¶¶ 113-114.) Finally, Plaintiff alleges that his unemployment benefits were challenged and temporarily terminated by Defendant after Plaintiff filed charges with the New York State Division of Human Rights. (Cruz. Dep. at 10:23 - 11:25; Pl. 56.1 Stmt. ¶¶ 117-118.) Oxford contends that any delayed benefits were ultimately paid within a short period of time. (Def. 56.1 Stmt. ¶¶ 117-118).
Plaintiff asserts that his failure to obtain promotions at Oxford, changes in his working conditions that he perceived as adverse, scrutiny of his workplace behavior and negative evaluations and warnings concerning his work and behavior, and, ultimately, his termination from employment, were the products of gender discrimination and/or retaliation for his refusal of DeRosa's alleged proposition or his reporting of the alleged proposition. Notwithstanding the Defendant's submission of affidavits by Brown and DeRosa denying that DeRosa was involved in the various working condition and discipline decisions, Plaintiff argues that DeRosa was ...