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Hudson v. Greyhound Lines

March 24, 2008

JOHN E. HUDSON, PLAINTIFF,
v.
GREYHOUND LINES, INC. AND GLI HOLDING COMPANY, DEFENDANTS.



The opinion of the court was delivered by: William M. Skretny United States District Judge

DECISION AND ORDER

I. INTRODUCTION

In this employment discrimination action, pro se Plaintiff John E. Hudson alleges that Defendants Greyhound Lines, Inc. and GLI Holding Company discriminated and retaliated against him in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. ("Title VII"), § 290 of the New York Human Rights Law ("NY HRL"), and the Civil Rights Act of 1870, as amended, 42 U.S.C. § 1981 ("§ 1981").

This Court has federal question jurisdiction over Plaintiff's federal claims pursuant to 28 U.S.C. § 1331, and supplemental jurisdiction over his state claims pursuant to 28 U.S.C. § 1367. Presently before this Court is Defendants' Motion for Summary Judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure.*fn1 For the reasons discussed below, Defendants' motion is granted.

II. BACKGROUND

A. Procedural History

Plaintiff commenced this action on December 23, 2004, by filing a Complaint in the United States District Court for the Western District of New York. (Docket No. 1.) On February 16, 2006, this Court granted in part and denied in part Defendants' Motion to Dismiss the Complaint. (Docket No. 17.) At that time, Plaintiff's hostile work environment claims under federal and state law were dismissed, and his discrimination and retaliation claims were limited to those falling within the applicable statute of limitations periods as follows: Title VII claims occurring on or after January 11, 2002; § 1981 claims occurring on or after December 23, 2000; NY HRL claims occurring on or after December 23, 2001.

Plaintiff filed an Amended Complaint on May 22, 2006, alleging race discrimination and unlawful retaliation in violation of Title VII, § 1981, and the NY HRL. (Docket No. 20.) On November 3, 2006, Defendants filed a Motion for Judgment on the Pleadings seeking dismissal of Plaintiff's retaliation claims. (Docket No. 37.) In a Decision and Order filed September 11, 2007, this Court denied Defendants' motion, finding that Plaintiff had sufficiently plead his retaliation claims. (Docket No. 87.)

Defendants filed the instant Motion for Summary Judgment on May 31, 2007. (Docket No. 71.) Plaintiff filed submissions in opposition on July 10, 2007, and Defendants filed a reply memorandum on July 16, 2007. (Docket Nos. 81-83, 86.) This Court took the motion under advisement without oral argument.

B. Facts*fn2

Defendant Greyhound Lines, Inc.*fn3 ("Greyhound") operates a nation-wide bus service. (Defendants' Statement, ¶ 1.*fn4 ) In 1975, Plaintiff began working for Greyhound as a driver in its Buffalo, NY terminal. (Defendants' Statement, ¶¶ 1-3; Plaintiff's Statement; ¶ 1.*fn5 ) It appears that Plaintiff worked for Greyhound between 1975 and 1989 without incident. (Plaintiff's Statement, ¶ 2.) But then in 1990, Plaintiff injured his shoulder while unloading freight from his bus. (Defendants' Statement, ¶ 5; Plaintiff's Statement, ¶ 2.) Plaintiff filed a workers' compensation claim and returned to work in July 1993 after passing a driving "refresher course," a Department of Transportation physical, and a drug screening test. (Defendants' Statement, ¶¶ 5, 6; Plaintiff's Statement, ¶ 3.)

Two months after returning to work, Plaintiff re-injured his left shoulder and went out on leave again for the next eight years. (Defendants' Statement, ¶¶ 7, 9; Plaintiff's Statement, ¶¶ 4, 5.) He had surgery on his shoulder in April 1996 and again in December 2000. (Defendants' Statement, ¶ 8; Plaintiff's Statement, ¶¶ 9, 12.) In October 2001, Plaintiff received a return-to-work slip from his physician indicating that he could return to work on November 13, 2001. (Defendants' Statement, ¶ 9; Plaintiff's Statement, ¶ 13.)

On November 13, 2001, Plaintiff went to Greyhound's Buffalo terminal and presented his return-to-work slip to John Comstock, who was the driver supervisor. (Defendants' Statement, ¶ 10; Plaintiff's Statement, ¶ 14.) Comstock advised Plaintiff that he could not return to work until he passed the driving "refresher course," the Department of Transportation physical, and a drug screening test. (Defendants' Statement, ¶¶ 11, 13.) Plaintiff admits that he was aware that he needed to meet each of these requirements before he could return to work. (Defendants' Statement, ¶ 12.) Comstock offered to schedule Plaintiff for the three requirements and then contacted Greyhound's labor relations department to discuss Plaintiff's return to active duty. (Defendants' Statement, ¶¶ 13, 14; Plaintiff's Statement, ¶ 17.)

Plaintiff maintains that Comstock told him it would take only five or ten days to complete this process. (Plaintiff's Statement, ¶¶ 17, 18.) Plaintiff waited until the end of November 2001, but never received a phone call or letter from Greyhound relative to his return to work. (Plaintiff's Statement, ¶ 19.) Plaintiff also maintains that he regularly visited the terminal to inquire about his status. (Plaintiff's Statement, ¶¶ 20, 21.)

In the meantime, Greyhound's labor relations department directed Comstock to the risk management department for a determination as to whether Plaintiff was cleared to return to work. (Defendants' Statement, ¶ 15.) Vanessa Simon, a risk management department employee, instructed Comstock to halt Plaintiff's return to work until she could verify the status of Plaintiff's workers' compensation case with his caseworker. (Defendants' Statement, ¶ 15.)

Thereafter, in January 2002, Comstock received notices from the New York State Workers' Compensation Board advising that proceedings would continue on March 28, 2002. (Defendants' Statement, ¶ 16.) Comstock understood these notices to mean that Plaintiff's workers' compensation case was still active and consequently Plaintiff's return to work would need to be delayed until at least after March 2002. (Defendants' Statement, ¶ 16.)

On March 12, 2002, Plaintiff telephoned Greyhound's human resources department in Dallas, TX to inquire about his status with the company. (Defendants' Statement, ¶ 17; Plaintiff's Statement, ¶ 22.) He spoke with Kim Labbe, who advised him that Greyhound's records showed that his employment was erroneously terminated on July 4, 1999, but was corrected that same day with a re-hire notation. (Defendants' Statement, ¶¶ 17, 18; Plaintiff's Statement, ¶ 22.) Sheila Talley, also of the human resources department, confirmed that Greyhound's records showed that Plaintiff was terminated on July 4, 1999. (Defendants' Statement, ¶ 19.) Plaintiff allegedly became angry and told Talley and Labbe that he was going to sue Greyhound for ten million dollars. (Defendants' Statement, ¶ 21.) Plaintiff admits that he probably used profane language during this exchange because he was "pissed off and had an attitude up to [his] neck." (Defendants' Statement, ¶ 20.)

That same day - March 12, 2002 - Plaintiff telephoned Comstock at the Buffalo terminal and requested to see his personnel file, which Comstock permitted. (Defendants' Statement, ¶ 22; Plaintiff's Statement, ¶ 23.) When Plaintiff arrived at the terminal, he told Comstock about his July 4, 1999 termination, and said, "I see why you didn't call me back to work . . . because I was terminated July 4, 1999 . . . so that's the reason why you didn't call me back to work." (Defendants' Statement, ¶ 23.) Plaintiff maintains that he discovered an insubordination memo in this file, and that when he asked Comstock about it, Comstock refused to let him review his file further. (Plaintiff's Statement, ¶¶ 25-27.) Plaintiff then threatened to file a lawsuit. (Plaintiff's Statement, ¶ 29.)

After this encounter, Comstock verified with the human resources department that Plaintiff's employment with Greyhound had previously been terminated and he was told to stop processing Plaintiff's return to work. (Defendants' Statement, ¶ 24.) Comstock telephoned Plaintiff and relayed this information to him. (Defendants' Statement, ¶ 24.)

On March 14, 2002, Jim Smith from Greyhound's labor relations department contacted Comstock and told him that the human resources department's records were erroneous, and that Plaintiff remained on long-term disability status. (Defendants' Statement, ¶ 25.) Smith asked Comstock to contact the risk management department and proceed with Plaintiff's return to work. (Defendants' Statement, ¶ 26.) Comstock spoke to Simon, who again told him to wait before processing Plaintiff's return to work until she received clearance from Plaintiff's workers' compensation case manager. (Defendants' Statement, ¶ 27.)

Comstock eventually received permission to process Plaintiff's return to work. (Defendants' Statement, ¶ 29.) In April 2002, he sent Plaintiff a letter offering him an unconditional return to active duty and advising him that his physical was scheduled for May 7, 2002. (Defendants' Statement, ¶ 29.) In the letter, Comstock advised Plaintiff that "it is imperative that you keep this appointment" and warned him that "failure to do so will subject you to discipline, up to and including discharge." (Defendants' Statement, ¶ 30.) Plaintiff did not report for the scheduled physical examination. (Defendants' Statement, ¶ 31.)

In June 2002, Mike Fleischhauer, Greyhound's district manager, sent Plaintiff a letter again offering him an unconditional return to active duty and advising him that a second appointment for a physical examination was scheduled for July 11, 2002. (Defendants' Statement, ¶ 32.) Fleischhauer's letter contained the same warnings that Comstock's did but Plaintiff nonetheless failed to appear for the physical. (Defendants' Statement, ¶¶ 33, 34.)

In August of 2002, Fleischhauer sent Plaintiff another letter offering him an unconditional return and advising him that a third appointment for a physical examination had been made for September 3, 2002. (Defendants' Statement, ΒΆ 35.) Despite the repeat of the warnings, Plaintiff failed to ...


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