The opinion of the court was delivered by: Hon. Harold Baer, Jr., United States District Judge*fn1
Plaintiffs Eimont Bronzini ("Mr. Bronzini") and Lolita Bronzini ("Mrs. Bronzini"), a married couple who immigrated to the United States from Lithuania, commenced this action against their current employer, Defendant Classic Security LLC ("Classic"), alleging unlawful employment discrimination based on their race, national origin, age, retaliation and Mrs. Bronzini's gender in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000(e), et seq., the Age Discrimination in Employment Act of 1967 ("ADEA"), 29 U.S.C. § 621, et seq., the New York Sate Human Rights Law, N.Y. Exec. Law §§ 290, et seq., and the New York City Human Rights Law, N.Y. City Admin. Code §§ 8-101, et seq. Mr. Bronzini also asserts discrimination claims pursuant to the Americans with Disabilities Act of 1990 ("ADA"), 42 U.S.C. §§ 12101, et seq., and the Equal Pay Act of 1963 ("EPA"), 29 U.S.C. §§ 206(d), et. seq. Mrs. Bronzini also asserts a discrimination claim pursuant to the Family and Medical Leave Act of 1993 ("FMLA"), 29 U.S.C. § 2601, et seq.
Defendant now moves for summary judgment pursuant to Fed. R. Civ. P. 56. For the reasons set forth below, Defendant's motion is granted.
Mr. Bronzini asserts that Classic failed to provide him with work assignments, failed to pay him at the pay rate of a Fire Safety Director ("FSD"), made mistakes in his paychecks and did not provide him with breaks. Classic, a limited liability company, provides twenty-four-hour, on-site security at various buildings and construction sites throughout New York City and employs approximately 700 men and women. (Jessamy Aff. ¶¶ 2, 16.) To be certified as a FSD, an employee must take a fire safety class and pass both a written test and an on-site examination administered by the fire department. The on-site examinations are unique to each building. (Id. ¶ 18.)
Classic's duties with respect to employees' schedules are governed by a collective bargaining agreement ("CBA") between Classic and the National Union of Security Officers & Guards ("Union"). (Id. ¶ 14.) The CBA permits Classic to set work schedules based on company needs. (Id.) All of Classic's security officers and FSDs are Union members.
Classic assigns work shifts to employees based on each employee's skill set, experience, pay rate, the preference of Classic's clients and the employee's preferred work schedule. (Id. ¶ 4.) Additionally, a client of Classic may request that Classic remove specific employees from its building. (Pls.' Statement of Facts ¶ 9.) Employees who are not given permanent shift assignments or who want more hours are assigned to the "bench." (Jessamy Aff. ¶ 5.) Employees assigned to the bench are "on call" to fill in for absent security personnel and are guaranteed a minimum of four hours of pay per day irrespective of whether they are assigned to a full eight-hour shift. (Id.)
Classic does not have a formal employee break policy. (Jessamy Aff. ¶ 11; Patchen Aff. Ex. E.) At job sites where two or more security officers are on duty, officers may provide coverage for each other to allow for breaks. (Jessamy Aff. ¶ 11.) Where only one officer is on duty, field supervisors, who visit each job site, provide the officer with a break. (Id. ¶ 9.)
Mr. Bronzini was hired as a security officer on January 22, 2004, with an initial salary of $9.00 per hour. In 2005, a year in which he worked an average of thirty-seven hours per week, Mr. Bronzini submitted payroll discrepancy forms on five occasions to address payroll errors. (Id. ¶ 48.) Classic investigated his claims and paid Mr. Bronzini a total of $387.00 in back pay, as he requested. (Id. ¶ 48; Pls.' Ex. 37.) Similarly, in 2007, Mr. Bronzini received back pay due to payroll discrepancies eleven times, for a total 47.15 hours of work. (Jessamy Aff. ¶ 49.)
Mr. Bronzini completed the FSD training course on March 15, 2006. He passed the written FSD exam on March 29, 2006, and received a certificate of completion from the fire department on August 29, 2006. (Id. ¶ 20.) On December 7, 2006, Mr. Bronzini received a raise from $9.00 to $12.00 per hour to reflect his new responsibilities as a security officer with fire safety training. (Id. ¶ 21.) However, Mr. Bronzini never completed the on-site examination that was required to complete his FSD training. He was first assigned to 625 Madison Avenue ("625 Madison") as a security officer with fire safety training. (Id.) On December 8, 2006, Mr. Bronzini called the Union and complained that he nevertheless was paid less than the FSDs staffed at that building. Mr. Bronzini's charge of discrimination, filed January 3, 2007, with the Equal Employment Opportunity Commission ("EEOC"), noted the pay difference. On January 10, Classic gave Mr. Bronzini another raise, including retroactive pay to November 18, 2006, in the amount of $687.23. Classic stated that Mr. Bronzini would receive another raise once he completed the on-site examination that was required for FSD certification. (Id. ¶ 21.)
On March 6, 2007, Classic's Director of Operations, Roderick Jessamy ("Jessamy"), scheduled two such on-site exams at 625 Madison for Mr. Bronzini, for April 7 and September 28, 2007.*fn2 (Id. ¶ 25.) However, before the first scheduled examination, Classic received several complaints about Mr. Bronzini's job performance and his interactions with others. For example, on March 7, 2007, the account representative responsible for 625 Madison sent an email to Jessamy objecting to Mr. Bronzini's professionalism and fire safety competency. He also stated that Classic's client, i.e., 625 Madison, had complained about Mr. Bronzini's interactions with its tenants and his interaction with his co-workers. (Id. Ex. J.) Classic's fire safety consultant, Metro Fire Safety,*fn3 also contacted Jessamy with a complaint that Mr. Bronzini had problems listening to others and that Mr. Bronzini could have problems making announcements to the building, in the event of a fire emergency, because of his lack of proficiency in the English language. (Id. Ex. M.)
Classic claims that, as a result of such complaints, it canceled Mr. Bronzini's March 10 and 17 shifts at 625 Madison and permanently eliminated his Saturday shift. On March 19, 2007, Mr. Bronzini filed a grievance with the Union alleging that his shift assignments were improperly removed, but the Union took no action. (Id. ¶¶ 28, 29.) Classic then cancelled the on-site exams scheduled at 625 Madison and reassigned Mr. Bronzini to 320 E. 53rd Street ("53rd Street"). (Id. ¶¶ 30, 32.) Jessamy thus rescheduled the on-site FSD exam for October 31, 2007 at 53rd Street, but asserts that he was forced to cancel the exam due to problems with 53rd Street's fire command station. (Id. ¶¶ 34, 35.) After receiving more complaints about Mr. Bronzini's job performance, Classic reassigned him to 415 E. 59th Street ("59th Street"). (Id. Exs. X, W.) On August 14, 2008, the fire department arrived at 59th Street to administer Mr. Bronzini's on-site exam but refused to do so, allegedly because the 59th Street location did not require its officers to be certified FSDs.
Mrs. Bronzini was hired on December 2, 2004 as a security officer, almost two months after she submitted her employment application to Classic. During the first seven months of her employment, Mrs. Bronzini was assigned to the "bench." On December 25, 2004, Mrs. Bronzini, the only employee on the "bench" that day, was assigned to fill a vacant shift at a construction site at 120 E. 29th Street ("29th Street"). (Am. Compl. at 1.) Mrs. Bronzini claims that this assignment was not safe because there was no heat, garbage cluttered the ground, and rats ran around the site. (Id.) There is no evidence that Mrs. Bronzini complained about her work assignment. In July 2005, Mrs. Bronzini received a forty-hour-per-week work schedule.
From October 16 to November 27, 2006, Mrs. Bronzini took a leave of absence so that she could care for her elderly mother. (Jessamy Aff. ¶ 51.) During her absence, Carol Reddick ("Reddick"), a 42-year-old African-American woman, filled in for Mrs. Bronzini's one-day-per-week shift at 35 E. 21st Street ("21st Street"). (Id.) Reddick already worked four days per week at that location. Classic asserts that, during this time, the 21st Street building manager requested that Ms. Reddick permanently take over Mrs. Bronzini's one-day-per-week shift, and Classic complied. (Id.) As a result, Mrs. Bronzini's total hours per week at all the ...