The opinion of the court was delivered by: Charles J. Siragusa United States District Judge
This is an action pursuant to Title VII of the Civil Rights Act of 1964 ("Title VII), as amended, 42 U.S.C. § 2000e et seq. Now before the Court is Defendant's motion [#18] for summary judgment. For the reasons that follow, Defendant's application is granted and this action is dismissed.
Unless otherwise noted, the following are the facts of this case, viewed in the light most favorable to Plaintiff.*fn1
Defendant Staples, Inc. is a retail office supply chain store. Defendant "has a zero tolerance for associate theft of merchandise of services, [sic] regardless of the value that is appropriated." (Affidavit of Joseph Grimmer ¶ 4). Defendant "consistently terminates associates who violate company policy, regardless of race." Id. at ¶ 8.
Plaintiff is an African-American. Defendant hired Plaintiff in 2004 for the position of Supply Associate at its store in Irondequoit, New York. During the next two years, Plaintiff's supervisor, Richard Ostendorf ("Ostendorf"), who was the General Manager of the Irondequoit store, gave him pay increases, and promoted him to the position of Residential Technician. (Ostendorf Affidavit ¶ 4).*fn2 In his capacity as Residential Technician, Plaintiff repaired customers' computers. Id. On July 24, 2006, Ostendorf learned, from the store's Operations Manager, that Plaintiff had shipped a personal item using the store's UPS account. Id. at ¶ 5. Ostendorf investigated the incident, and concluded that Plaintiff had violated Defendant's policy, which resulted in the termination of Plaintiff's employment:
During my initial interview, I found out that on July 14, 2006, Plaintiff brought his personal motherboard in to the Store's ship center and asked the specialist on duty, Jennifer Leone, to ship it for him. Because Plaintiff's job relates to technology services and could require him to ship customers' defective products back to the manufacturer, Leone did not question his request but shipped his item using Store UPS account. . . . After the initial interview, I notified Joseph Grimmer in the Loss Prevention department on July 26, 2006 to report the incident. . . . On July 28, 2006, Grimmer interviewed Plaintiff and Leone and received their handwritten statements regarding the shipment. Leone stated that she did not know the item was for Plaintiff's personal shipment. . . . After completing the interview, Grimmer notified the incident [sic] and transmitted copies of the written statements to Senior Human Resources Manager, Teresa Mosher. . . . Subsequently, after consulting with Human Resources, we decided to terminate Plaintiff's employment for violation of company policy (theft). (Ostendorf Aff. ¶ ¶ 6-11).
On July 28, 2006, in connection with Defendant's in-store investigation, Plaintiff gave a written statement, which states, in relevant part:
I brought in my personal motherboard from home to be shipped in the copy center . . . . [A] conversation rose up between me & Jen [Jennifer Leone] the receiving specialist about my motherboard. She said that she would send it with the freight via UPS. I warned her that this motherboard is my personal board that if there's gonna be a problem, I have no problem going to the copy centers UPS paying for shipping it off. She said that it would be okay, she'll take care of it. [sic] (Joyce Declaration [#18-3], Exhibit C). The same day, Leone also gave a written statement to Defendant, which states, in relevant part:
[A]bout one week ago Patrick came to me and told me he had something to ship. He asked me if he should go to copy center or if I should ship it. When I asked him what it was he told me it was a motherboard. I then assumed it was for a tech job [and] told him I could do it. . . . I had not asked specifically if it were personal.
(Joyce Declaration [#18-3], Exhibit 2-A).
On September 28, 2006, Plaintiff filed a discrimination complaint with the New York State Division of Human Rights. In his complaint, Plaintiff stated, in relevant part:
On July 14, 2006 I brought in my personal motherboard to work to be shipped out in the copy center. . . . I then spoke to Jen [Jennifer Leone] a white employee who works in the receiving department. She asked me why I would spend money to have it shipped out in the copy center when she could do it for free with the respondent's UPS service. I warned her that this was illegal and told her not to do it, but she took the motherboard and shipped it anyway. (Joyce Declaration [#18-3], Exhibit B). Thereafter, the Division of Human rights dismissed the Complaint, finding no probable cause to believe that Defendant had discriminated against Plaintiff. On July 25, ...