The opinion of the court was delivered by: Siragusa, J.
This employment discrimination case is before the Court on Defendants ITT Industries' and ITT Goulds Pumps' ("ITT")*fn1 motion for summary judgment seeking dismissal of the complaint. For the reasons stated below, the motion is granted.
Plaintiff Steve D'Eredita ("D'Eredita") commenced this lawsuit by filing a complaint with this Court on April 5, 2007, in which he raised three causes of action as follows:
(1) discrimination after engaging in a protected activity (giving ITT notice he was suffering from dyslexia and could not work alone on his assembly line) in violation of Title VII of the Civil Rights Act of 1964;
(2) discrimination by wrongful retaliation after making a good faith complaint of discrimination in violation of New York State Executive Law section 290; and
(3) discrimination by a pattern of illegal retaliation in violation of New York State Human Rights Law, Executive Law section 290 et seq. by failing to take any remedial action in light of his good faith complaint of discrimination.
However, in her memorandum of law in opposition to the motion for summary judgment, Plaintiff's counsel, Christina Agola, Esq., states the following:
This is an action brought pursuant to the Americans with Disabilities Act for discrimination in that defendant failed to accommodate Plaintiff and engage in the interactive process and for retaliation. (Pl.'s Mem. of Law, at 1.) This position was reiterated by Ms. Agola's associate, Jason Little, Esq., who appeared for Plaintiff at oral argument. Despite the confusing way in which the complaint was drafted, ITT interpreted the lawsuit to involve a claim under the Americans with Disabilities Act and, accordingly, the Court will do the same.
The parties agree on the following facts for the purposes of this motion. ITT manufactures residential and commercial water supply and wastewater centrifugal and turbine pumps, controllers, variable frequency drives and accessories, in production facilities located in Seneca Falls and Auburn, New York. Each of the plants is covered under separate labor agreements with the same union, Local 3298 of the United Steelworkers. D'Eredita started working for Goulds Pumps, Inc. ("Goulds"), in 1987 at the Seneca Falls plant. When ITT acquired Goulds in 1997, it also inherited the labor agreements. The agreements allowed limited rights to "bump" and bid between facilities and, on or about February 18, 2002, D'Eredita was bumped from the Seneca Falls facility to the Auburn facility by a person with greater contractual seniority. Those "bumping" rights were eliminated on August 2, 2003, per the labor agreement.
From February 18, 2002, until February 20, 2004, D'Eredita held the title of Commercial Assembler (Level 6) at the Commercial Factory in Auburn ("Commercial Factory"). With respect to that position, ITT developed, with union approval, a job description (which D'Eredita points out was the same or virtually identical to the description for all the jobs D'Eredita held), providing that a Commercial Assembler must:
Assemble all variations of the Water Systems Commercial-line pump. Make special mounting arrangements and follow standard assembly procedures, to include: cleaning, scraping, fitting and performance testing of all pumps assembled. Read and interpret formal orders and bills of material. Responsible for proper ID of all material. Verify parts v. specifications. Work from assembly instructions. Use hand and power tools. Repair production line pumps and perform miscellaneous duties as required.
(D. Brown Decl., Ex. A.) Part of the assembly process involves entering bar code numbers into a computer. Douglas H. Brown ("Brown"), the Team Leader for ITT's Commercial Factory since 1996, stated in his declaration that, a Commercial Assembler must be able to quickly read and process a wide variety of written materials in order to perform the essential functions of the job at all positions on the assembly line. It is my expectation that all Commercial Assemblers be trained on all aspects of the assembly process to ensure that the Company can meet changing customer demands.
(D. Brown Delc. ¶ 12.) D'Eredita, in his letter of April 26, 2005, to John E. Thompson, Investigator with the U.S. Equal Employment Opportunity Commission, stated that, "I was having difficulties immediately. I should have been job failed. I was told on the 3rd day on the job to pick up the pace and that I was too slow." (Pl.'s Appendix to Local Rule 56.1 Statement of Facts Not in Dispute, Ex. F, at 1.) D'Eredita repeated the same information at his pre-trial deposition when he said, "The next day, bang. You've got to get moving. You're not fast enough." (D'Eredita Dep., at 140.) Nevertheless, D'Eredita disputes that one of the job requirements was speed. (See Pl.'s Response to Def.s' Statement of Material Facts ¶ 12.)
The Auburn factory has seven assembly lines, each with focus on a specific product. Lines one through four manufacture small end-suction pumps. Lines five and six manufacture large end-suction pumps. Line seven manufactures stainless steel vertical pumps. The number of assemblers on a line varies with customer needs and product specifications, but line two generally had only one assembler, and the other lines from one to three assemblers. On line seven, which has three assemblers for example, the first assembler reviews the customer's work order containing information concerning the model, quantity, and due date requested by the customer. He then reviews the Bill of Material to determine what parts are necessary to build the pump ordered. This requires the first assembler to identify the parts necessary to commence the manufacturing process. The second assembler on line seven completes assembly of the pump, and must also refer to the work order and Bill of Material to ensure the pump is being built according to specifications. The second assembler administers various tests to ensure the pump operates according to specifications. The third assembler on line seven then reviews the Bill of Material to determine if the pump requires a motor. If it does, he locates the correct motor number and installs it. The third assembler then completes the process by packing the pump, which again involves reviewing the Bill of Material to determine how to pack it according to specifications. Finally, the third assembler reviews various numbers to ensure that the model number, bar code, and date are correctly entered in order to generate various labels that are placed on the pump and package.
Lines two and three produced the same "family" of pumps with the difference being that line three was equipped to handle a much higher volume. (D. Brown Decl. ¶ 19.) The sales records for 2003 and 2004 show that 65% of the workload for this family of pumps occurred on line three, whereas approximately 35% of the workload was handled on line two. Consequently, line three was staffed with two assemblers and line two typically needed only one. A second assembler was sent to line two on shifts where it could be justified by customer demands.
ITT strove to train all Commercial Factory assemblers on all aspects of the assembly process so they could be easily moved to any position on any line, thereby permitting ITT to efficiently respond to customer requirements. The Commercial Factory has a number of long-standing "Shop Behavior Rules" established to provide reasonable guidelines for employees. One prohibition in the workplace is "neglect of or inattention to duties" as written in Shop Rule No. 6. D'Eredita committed a number of errors, which ITT alleges violated this rule. Some of D'Eredita's violations merely resulted in counseling, while others resulted in discipline. D'Eredita's errors are summarized in a chart included in Brown's reply declaration ¶ 13. Although D'Eredita disputes whether he was at fault for the errors that occurred while he worked as the third assembler on line seven, ITT moved him to line two, where he worked alone. While on line two, D'Eredita continued to make errors, which ITT alleges violated Rule 6. On July 24, 2003, D'Eredita asked for help and complained that he was the only person working alone, and stated his supervisor would tell him every day that he was too slow. (D'Eredita Dep., at 92.) However, after several of these errors, which D'Eredita disputes and claims were not his fault, ITT formerly disciplined him, and on August 5, 2003, suspended him for two days. After a hearing on August 6, 2003, D'Eredita was reinstated effective the following day. The union did not grieve the suspension. At about the time of the August 6 hearing, D'Eredita believes that he mentioned to his supervisor that he was "crossing [his] letters and numbers, especially [his] numbers." (D'Eredita Dep., at 104.) He concluded that if he had help, "this wouldn't be happening, but I don't know why it's happening." (Id., at 105.)
On November 6, 2003, Brown met with D'Eredita and others after discovering that D'Eredita had assembled ten pumps on July 17, 2003, using the wrong motor. Brown then warned D'Eredita that he would elevate the discipline to discharge if he received one more complaint from August 5, 2003, forward, and encouraged D'Eredita to consider some other area of work at ITT, since it appeared to Brown that D'Eredita was not well suited for assembly work at the Commercial Factory. On November 14, 2003, Brown discovered yet another error D'Eredita had made while he was working on line two. ITT had received two pumps from a customer, each with the wrong motors.
The Bill of Material indicated that the pumps were to include Motor No. E07876; however, D'Eredita incorrectly used Motor No. E07878. Brown's investigation revealed that the pumps had been built on August 8, 2003, the day after D'Eredita had been reinstated from his two-day suspension for defective work. Brown, D'Eredita and the union representative met on November 14, 2003 to discuss the situation, and Brown informed D'Eredita that he would decide the following Monday what course of action to take. As he had on previous occasions, D'Eredita told Brown that he needed more help on his line.
On November 21, 2003, ITT held a suspension hearing with D'Eredita, his supervisor, a union representative and employees from human resources. At the hearing, D'Eredita produced, for the first time some, evidence that he might have a disability. He provided a letter from Mark S. Ryan, M.D., dated November 20, 2003, indicating that D'Eredita "probably has mild dyslexia" and recommending further testing to confirm the diagnosis. Dr. Ryan also stated in his letter that he did not consider D'Eredita to be disabled and recommended that D'Eredita be considered for transfer to "another position at Goulds [sic]." (J. Brown Decl., Ex. H.) ITT points out that at no time prior to November 20, 2003, did D'Eredita ever suggest that he suffered from dyslexia.
At the November 21 hearing, D'Eredita said that he thought he was doing the job right, "but I was just racing." (Id., at 106.) D'Eredita also recalled that sometime after August 6, 2003, there was another time when he was suspended, and he remembered telling Brown, "I don't know how many times you heard it from me. I need help on my line." (Id., at 110-11.)
At the November 21st hearing, supervisory personnel at ITT decided that D'Eredita should be encouraged to bid for other jobs at the Commercial Factory. D'Eredita points out that during this hearing, ITT's Director of Human Resources, Dawn DeRue ("DeRue"), commented that although she was aware of the requirements of the Americans with Disabilities Act, she did not believe there was anything further the company could do for D'Eredita, since he had to perform the essential functions of his job as an average man. (Suspension Hearing for Steve D'Eredita, Small Conference Room, Friday, November 21, 2003, attached as Exhibit HH to Volume II of Pl.'s Appendix to his Local 56.1 Statement of Material Facts, at 1-2.) Present at the hearing was Jerry Watkins, a union representative, who asked whether there were any jobs D'Eredita could bid on that were either at a slower pace, or required working on a large lot of the same part numbers. In that regard, D'Eredita had said that the less he had to look at, the less chance there was for errors and also that the pace was slower at Seneca Falls and, consequently, he had time to comprehend what was going on. DeRue reviewed D'Eredita's personnel file and added that despite D'Eredita's claim that he did not have problems at Seneca Falls since the pace was slower, that was not correct. She pointed out that there was in fact a similar situation at Seneca Falls when D'Eredita worked for Bob Cordovani in Bedplating and Shipping in 2001, and he bed-plated the wrong serial number on a pump. (DeRue Decl. ¶ 19.) D'Eredita countered that he was bedplating and "these were special orders that were produced at a constant pace. That's why I had a problem." (Ex. HH, at 2.) At the conclusion of the hearing, D'Eredita was suspended and allowed to return to work on November 25, 2003. The union did not grieve the suspension.
On February 12, 2004, Brown learned from a quality assurance technician that a pump built by D'Eredita on February 5, 2004, leaked while the technician was conducting a random out-of-box audit. D'Eredita contended that the box had been damaged. The pump was tested on February 12, 2004, and "water poured out of the weep hole-very apparent that it leaked." (D. Brown Decl. ¶ 45.) D'Eredita disassembled the pump and all observed a gap between the seal faces, which had caused the leak. The parts were inspected and none were found to be defective. D'Eredita then reassembled the pump with the same parts with the seal faces now together, the pump was tested and did not leak. Nonetheless, D'Eredita disclaimed blame and stated his opinion that the seals could "relax" while in storage and, therefore, cause a leak. To test this theory, Brown kept the pump in ITT's Returned Material Operations area and, one week later, had D'Eredita retest the pump. After a week of storage to allow the seals to "relax," D'Eredita tested the pump and it did not leak. Brown concluded that D'Eredita had improperly installed the mechanical seal when he built the pump. Consequently, Brown prepared a memorandum stating that D'Eredita would be suspended with intent to discharge.
ITT held another suspension hearing on February 20, 2004. During the hearing, D'Eredita stated that he had successfully bid on a job on a paint line in another factory at the Auburn facility, but had withdrawn his bid when he was told by Doug Hay that he would be doing assembly and packing instead of working on the paint line. (DeRue Decl. ¶ 24.) D'Eredita conceded, however, that he had no knowledge concerning what an assembly job on the line in that factory may have been like, what kind of pumps were made, how fast was the pace in that factory, whether he would have help, or on what line he would have been placed. Nor, did he make any attempt ...