The opinion of the court was delivered by: Laura Taylor Swain, District Judge
James McDuffie ("McDuffie" or "Plaintiff"), a former pharmaceutical sales representative for Eli Lilly and Company ("Eli Lilly"), brings this civil action asserting claims for discrimination based on race and age in violation of the New York State Human Rights Law ("NYSHRL") and discrimination based on his military status in violation of the Uniformed Services Employment and Reemployment Act ("USERRA"), 38 U.S.C. §§ 4301-4333, against Eli Lilly and Kathryn Keith ("Keith"), a district manager who supervised Plaintiff for part of his employment at Eli Lilly. Plaintiff also alleges that Eli Lilly breached an employment agreement by failing to reimburse Plaintiff for legitimate business expenses incurred while Plaintiff was employed by Eli Lilly. The Court has jurisdiction of this matter pursuant to 28 U.S.C. §§ 1331 and 1332.
Defendants move for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. The Court has reviewed thoroughly and considered carefully all of the parties' submissions and, for the reasons explained below, Defendants' motion is granted.
The following material facts are undisputed unless otherwise indicated. Plaintiff McDuffie, who alleges in his complaint that he is 52 years old, is an African-American male and is an Army reservist. Plaintiff began working for Eli Lilly as a pharmaceutical sales representative for the Bronx, New York, territory in 1999. (Pl.'s Dep. at 41-42.) Plaintiff's job involved "making sales calls on physicians and trying to persuade them to prescribe Lilly products" as well as "complying with all the administrative obligations" required by Lilly. (Pl.'s Dep. at 342.) Plaintiff's administrative duties included generating and filing expense reports with substantiating documentation, keeping track of pharmaceutical samples that he received and gave away, including filling out and submitting sample cards, pre-planning and logging sales calls, and checking and responding to email and voicemail. (Pl.'s Dep. at 50-51, 57, 60-61, 64, 229.) Plaintiff was also required to enter data into his laptop regarding when he was out of his territory. (Pl's Dep. at 61.) In terms of the balance between sales work and administrative work, Plaintiff testified in his deposition that his first manager, Marino Garcia, communicated to him that his job was eighty percent sales and twenty percent administrative (Pl.'s Dep. at 43-44), but Plaintiff clearly understood that complying with administrative obligations was part of his job. (Pl.'s Dep. at 342.) Plaintiff understood the steps in Eli Lilly's progressive disciplinary system. (Pl.'s Dep. at 140-141.) This disciplinary model consists of a verbal warning, a written warning, probation, and termination. (Id.; see also Keith Dep. at 85.)
Plaintiff was supervised by several different district managers over the course of his employment at Eli Lilly. Defendant Keith became the district manager for the Delta sales division, New York City district, on July 1, 2001, and held that position until approximately June 2003. (Keith Dep. at 7.) Although Plaintiff had very strong sales (Pl.s' Dep. at 144), Plaintiff did not comply with his administrative obligations. Plaintiff received verbal and written warnings from district managers as a result of his lack of compliance. (Pl.'s Dep. at 72; Defs' Ex. C "11/10/00 Email from Marino Garcia" (documenting a verbal warning given the previous day in connection with Plaintiff's failure to submit reports and to check voicemail and email on a daily basis); Pl's Dep. at 80; Defs' Ex. D "5/15/01 Memo from Julie Joyce" (informing Plaintiff that his performance is unacceptable, specifically referencing Plaintiff's failure to reconcile his sample inventory, to record samples in the Eli Lilly database, to regularly mail sample cards, to accurately record physical inventory and to report a theft).)
Plaintiff's non-compliance with his administrative obligations continued after Defendant Keith became district manager. Following "ride alongs" with Plaintiff in October and November 2001, Keith provided Plaintiff with feedback identifying aspects of Plaintiff's administrative work that he needed to improve. (See Defs' Exs. F-G.) In May 2002, Plaintiff received a verbal warning from Keith, citing Plaintiff's continued failure to meet administrative obligations and outlining an action plan to address problems. (See Defs' Ex. H.) Following ride alongs in October 2002, Plaintiff received additional feedback from Keith regarding his failure to comply with his administrative obligations, noting that there had already been many conversations on this subject. (See Defs' Ex. I.) Keith issued a written warning to Plaintiff on 12/18/02, citing his failure to submit documents or information that had been requested, his failure to enter timely his post-call notes, his failure to adhere to Eli Lilly's Good Promotional Practices ("GPP"), his entering of information inconsistent with the definition of a sales call. (See Defs' Ex. J.) The written warning also outlined certain performance expectations that would have to be addressed to improve his performance to an acceptable level. (Id.) This written warning included a warning that failure to meet expectations and sustain acceptable performance and conduct might lead to further disciplinary action, including probation or separation. (Id.) In late February or early March, Keith drafted a notice of probation for Plaintiff based on Plaintiff's continued unacceptable performance with respect to his administrative obligations. (See Defs' Ex. K.) This notice was never actually delivered to Plaintiff. (Keith Dep. at 144.)
Plaintiff acknowledges that he had trouble meeting his administrative obligations. He admits that other sales representatives were better at complying with Eli Lilly's administrative requirements. (Pl.'s Dep. at 334-335.) Plaintiff also admits that at least some of the warnings he received were fair and that the feedback Defendant Keith provided with respect to his administrative duties was accurate. (See Pl.'s Dep. at 86 (admitting that, based on the information that Julie Joyce had at the time, the written warning was fair); Pl.'s Dep. at 127, 128 (Plaintiff had no disagreement with the October and November 2001, or the October 2002, field visit feedback).)
At some point while Keith was Plaintiff's district manager, Plaintiff indicated to a person in the Human Resources Department that he was interested in transferring to the Beta sales division in Massachusetts. (See Pl.'s 141-144.) Plaintiff noted, in connection with the transfer request, that he had problems with the "administrative stuff." (Id.) According to Plaintiff, the manager in the Massachusetts division wanted Plaintiff to work for him and did not think the administrative issues were a big deal. (See Pl's 56.1 at 15.) Keith later told him that he would not be transferred. (Pl's Dep. at 145.) Defendant has a policy of not transferring employees to another position in the company if they are currently in the disciplinary model. (See Shields Aff. ¶ 11.) According to Defendants, Plaintiff was informed of this policy. (See Defs' 56.1 at ¶ 55.) Plaintiff denies knowledge of this policy and makes a conclusory assertion that another employee was transferred because he had done "something wrong." (Pl's Dep. at 145.)
Plaintiff also acknowledges that he spent a lot of time during business hours dealing with military matters. Plaintiff estimated that, right before he and his fellow reservists "got the word to go," he was spending at least ten minutes of every hour on the phone speaking to someone in connection with his military duty. (Pl.'s Dep. at 295.) Plaintiff had a separate cell phone for his military business to prevent it from tying up the phone he used for Eli Lilly business. (Pl.'s Dep. at 164-165.) According to Plaintiff, the only person in management who said anything about his military status was Keith. (Pl.'s Dep. at 293, 340.) And, although some of Plaintiff's co-workers discussed the military with him, those discussions were, according to Plaintiff, not derogatory. (Pl.'s Dep. at 340.) According to Plaintiff, Keith asked why he was "doing so much military time?" (Pl.'s Dep. at 293.) However, Keith never put anything related to Plaintiff's military status or business in his evaluations. (Pl.'s Dep. at 299.) Plaintiff does not believe that Keith took action against him because he was in the military. (Pl.'s Dep. at 300.) Instead, Plaintiff believes that Keith acted as she did because Plaintiff was not meeting Keith's expectations with respect to his administrative obligations, and because Keith thought that he was not ever going to be able to meet her expectations. (Pl.'s Dep. at 300-301.)
The parties dispute the circumstances surrounding the termination of Plaintiff's employment with Eli Lilly. Defendants proffer that Plaintiff resigned from his position at Eli Lilly on the night of March 3, 2003. (Shields Aff. at ¶ 6). According to Defendants, Plaintiff verbally resigned, by phone, on two separate occasions that night -- once to Kristi Shields, Plaintiff's Eli Lilly Human Resources representative, and again to Keith. (Id.; see also Keith Dep. at 30.) Keith states that she discussed the resignation with Kristi Shields and confirmed that a verbal resignation was sufficient to be considered an official resignation from Eli Lilly. (Keith Dep. at 36-38.) Shields' affidavit states that, during her conversation, she confirmed with Keith that the resignation had been accepted by the company. (Shields Aff. at ¶ 8.) According to Keith, Plaintiff called her around lunchtime the following day and said that, because of a slip and fall accident that occurred that morning, he was unable to come to the Eli Lilly premises to resign. (Keith Dep. at 39.) However, when Keith told Plaintiff he had already resigned, Plaintiff disputed the resignation, citing a need for a health benefits, and informed Keith that he would be contacting his lawyer. (Id.)
Plaintiff contends that he did not resign, but also testified in his deposition that he does not remember exactly what he said in the May 3, 2003, calls. (Pl.'s Dep. at 157-159.) According to Plaintiff, his position is that he was terminated. (See Pl.'s Dep. at 190 ("Q: What do you tell people when you talk about why you're not working for Lilly anymore? A: They fired me.").) Plaintiff also contends that Eli Lilly should have promoted him based on his sales accomplishments at Lilly, although he acknowledges that he never requested a promotion and, as noted above, acknowledges that he received fair criticism concerning his performance of the administrative aspects of his job. (Pl.'s Dep. at 315-316, 322-323.)Plaintiff alleges that the failure to promote him and refusal to transfer him were based on race and age discrimination. (Pl.'s Dep. at 322-323, 325-336.)Plaintiff, however, admits that no one at Eli Lilly ever said anything derogatory about his race or his age and he has not identified any similarly situated non-minority or younger individuals who were treated differently. (Pl.'s Dep. at 337.)
Plaintiff asserts that Defendants have failed to pay for all of his legitimate business expenses. Plaintiff was issued a company credit card during his employment at Eli Lilly. (Defs' 56.1 at 90.) Plaintiff admits that he was aware that he was personally liable for expenses incurred on the card. (Pl.'s Dep. at 254.) Plaintiff was aware that he had to fill out expense reimbursement requests and submit supporting documentation in order to be reimbursed. (Pl.'s Dep. at 233.) Plaintiff was aware that there were limits on the types and amounts of expenses that would be reimbursed and that reimbursement was subject to district manager approval. (Pl.'s Dep. at 229-232.) Plaintiff had, during the course of his employment, submitted expense requests that were rejected for lack of documentation or information, and was given an opportunity to resubmit the reports. (Pl.'s Dep. at 232.) According to Defendants, Keith approved all charges that Plaintiff expensed through the reporting system, and Shields explained to Plaintiff that he would need to complete paper expense reports in order to be reimbursed for any additional outstanding expenses. (Keith Dep. at 187; Shields Aff. at ¶ 10.)
Plaintiff originally testified that he was not aware of any expense reports that he submitted to which he was never given a response. (Pl.'s Dep. at 232.) However Plaintiff subsequently testified that some of the submitted expense reports may not have been paid. (Pl.'s Dep. at 241-244.) Plaintiff also acknowledged at his deposition that he was unable to identify some of the charges on the card and that he had no reason to believe that Eli Lilly would be responsible for paying for them. (Pl.'s Dep. at 263.) Plaintiff has not proffered evidence, in response to Defendants' summary ...