The opinion of the court was delivered by: Charles J. Siragusa United States District Judge
This is an action for retaliation brought under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq, 42 U.S.C. § 1981 and the New York State Human Rights Law. The matter is before the Court on a motion for summary judgment (Docket No. 36) filed by Eastman Kodak ("Kodak"). For the reasons stated below, the application is granted.
Except where otherwise indicated, the following relevant facts are undisputed and taken from the parties' submissions pursuant to W.D.N.Y. Local Rule of Civil Procedure 56.1.*fn1 Philip White ("White"), who is a black African-American male, born on July 21, 1952, was hired by Kodak in 1973 and was terminated on August 17, 2006. In November 2001, he was transferred to Kodak's Service Marketing Operations group ("SMO") and assigned the position of Account Management Representative ("AMR"). At the time of his transfer, White was a paygrade K8, the level at which he was kept by Kodak, although the paygrade of starting AMRs was only K4 (the full range being K4 to K8 in this group). The SMO group had about 40 AMRs. From October 2003 until June 2004, White's supervisor in the SMO was Thomas Broderick ("Broderick"). Then, from June 2004 through August 2006, his supervisor was Christine Gage ("Gage"). When she was on maternity leave in August 2005 through February 2006, Deborah Latta ("Latta") supervised him. At all times relevant to this lawsuit, the SMO group had three other black African-American employees, all of whom were female. (Gage Reply Aff. ¶ 6.)
White's job as an AMR was to communicate with customers of Kodak concerning renewal of their service contracts with the company. White, and the other AMRs, were assigned customers based on geographic districts around the country. White's routine job activities included speaking with customer and processing billing, accounting and service information into Kodak's computerized customer billing and invoice system called the ESS system.
Since White, at the time of his transfer, was new to AMR position, Kodak, as was its custom, allowed him three years in the position before evaluating him against the expectations of a K8 paygrade AMR. This allowed him to retain the salary and benefits he had prior to his transfer. Thus, in the first year, Kodak rated White against the performance standards of a K4 paygrade, then K6 in his second year, then a combination of K6 and K8 in his third year. Finally, in 2005, he was expected to meet all the requirements of a K8 paygrade AMR. His first Employee Performance Assessment took place in 2002 and was a development rating, in which it was noted that he could improve by staying focused on his work, completing the backlog of data entries and improving his knowledge of policies and procedures. In 2003, rated against the K6 standards, White was found to meet them.
In 2004, however, White received an Employee Performance Assessment noting "Results Met Some; Not All Objectives." (Gage Aff., Ex. B.) Gage reported that after White finished his special assignment on the 91 Day Report*fn2 at mid-year, he maintained a low productivity for the remainder of the year. She also noted that he took only one-third the average number of calls of other AMRs and was not able to independently resolve complex issues, a requirement of the higher paygrade AMR ratings.
In 2005, the first year White was rated against the higher K8 standards, he again received an Employee Performance Assessment noting "Results Met Some; Not All Objectives." (Gage Aff., Ex. D.) The assessment further noted that White had made mistakes in processing credits and invoices and that other AMRs complained that he was taking excessive lunch hours and breaks, making long personal phone calls, and, at the same time, was asking them for assistance in covering his workload. Latta had prepared the performance assessment and showed it to Gage when the latter returned from maternity leave. Gage agreed with it, and, in May 2006, both supervisors showed it to White. White strongly disagreed with the 2005 performance evaluation. When Gage tried to counsel him with regard to leaving work for long periods without notifying her, White sent her an email accused her of threatening him and hanging "punitive mandates" over his head. The full contents of that email message are as follows:
Today you approached me regarding advising you about a couple of extended lunch hours to attend to my personal health issues or health issues of my mother. I have always tried to advised you of these matters I'm sure you have several examples of emails providing prenotices and make up time also in the form of email usually the following morning. The attached emails represent such examples. I've expressly tried to inform you accordingly of such matters. Furthermore, I always try to attend to such matters during my lunch hour as much as possible. I'm typically at work early approx 30 minutes to an hour early which should account for such matters.
Also, in your absence when I have a need t [sic] leave early I've informed Allen, Tom, Dave, Rita etc of any emergencies. I have no history of any absence problem that I'm aware of. Plus you and I have talked extensively about this matter since you shared your own mother is a diabetic.
You called attention to weds June 1st when I came back later after a lunch hour visit with my mother. Let me say that many unexpected issues arrise [sic] when dealing with a elderly senior person who's life is in the balance. This situation is clearly an exception, not the norm.
When doing so I'm not checking my watch every minute to guard against inventory control by management. I've always operated on an honor system. Which is to advise management when and where appropriate. Yet, there are always the unexpected events under these kinds of conditions. One would hope that in the current environment of work life flexibility and FMLA , that employees can have some measure of flexibility without threats such as this is the last time I'm going to talk to you about this. I've not disrespected you or anyone for that matter when it comes to dealing with such matters. Nor do l owe Kodak any make up time. Please allow me the flexibility of managing such matters absent of unjustified supervisory pressures.
Let me give you some examples of needed family support for a sick parent:
[T]hursday my mother has an appointment at 11:30 AM for heart exam. Monday June 13th she has a appointment for head and neck CT Scan for internal bleeding. She has fallen several times and endured bodily harm. Myself and her doctor are trying to get to the bottom of the dizzy spells and falling incidents. This is vital so she can function and not have to lay in bed or on a couch all ay after having urinating and so on on herself because she is afraid to get up to walk. She is not eating properly creating more problems. She has been to emergency several times over the last two to three months due to diabetic condition. She was admitted last week for three days. She has on going problems with medication we are trying to resolve, and so on. So a mere personal phone call or two, or an unsuspected extended lunch is the least of my problems. This is yet another episode of supervision being unsympathic [sic] to employee needs, and making hasty determinations with accusations and threats of consequences without first simply talking to people. Yet, even after we talked you still choose to maintain your position of hanging so called punitive mandates over my head. You mentioned during our meeting that You may start to have this type of discussion with others in the department.
Since I'm the first one I feel even more satisfied. This is just a string of many other incidents that apply to select people in the department. let me say, in the future I will take vacation for such personal needs to avoid this kind of scrutiny. Not a problem.
Starting tomorrow and [F]riday I have lunch hour personal needs. Any time beyond my normal one hour I will take as vacation. Also, I'll let you know upon returning that I've had an unexpected event. (Phillip White email to Christine M. Gage (Jun. 8, 2005, 5:17 PM), attached to Gage Aff. as Ex. E, at 23 (in the .pdf file) (emphasis in original).)
On November 14, 2005, White filed the first of two charges with the Equal Opportunity Employment Commission ("EEOC"). He alleged that Kodak was discriminating against him on account of race, age and disability. (Blankopf Aff., Ex. C, at Ex. 48.) More specifically, he complained that he had not received any pay raises, or promotions, that he was subject to workplace harassment, and that he was given no accommodation was a carpal tunnel injury. (Id.) Kodak filed its response in February 2006 and on July 20, 2006, the EEOC dismissed the complaint as unfounded and issued a right to sue letter, dated July 20, 2006. Subsequently, on October 3, 2006, White commenced the subject action. (Blankopf Aff., Ex. C, at Ex. 50.)
White's job performance did not improve in 2006. In that regard, Gage noted: I continued to notice the same or similar problems with Mr. White's job performance in the first half of 2006. He not only continued to fall behind in processing data for his districts, but he also continued to make mistakes in the how he processed the data. For example, in Spring 2006, he repeatedly reinstated service contracts retroactively for time periods during which the customer had outstanding invoices for service calls, without performing the necessary processing to cancel out the outstanding invoice. (See e-mails dated 4/28/06 and 5/18/06, attached within Exhibit F.) Left as is, this discrepancy would be flagged by Kodak's auditors as impermissible double-billing by Kodak. In my opinion, this was an obvious and significant failure by Mr. White to comprehend and adhere to basic department policies. (Gage Aff. ¶ 27.) Rita Root, an Operations Team Leader in the SMO, wrote emails to Gage dated May 18 and May 24, 2006, complaining about White's work. In her May 24th email, she informed Gage that she was, sitting with Phil [White] every day, due to the fact that I have found so many errors on the credit reports. Here are the two reports. I have gone thru [sic] March. I only briefly look over April (I just got it yesterday), but as you can see there are errors with that month also. I have highlighted them in yellow. When I review these reports with Phil do you what to be there? Examples or the error: Incorrect reason code, Incorrect ins # used, Incorrect ins # for that dollar amount, not following the reinstatement policy. Phil knows (sometimes) to credit out a per call invoice, but doesn't fix the record to prevent that from happening again. These are only a few of the things I found and will be reviewing. I know that this review will take along time, Phil questions everything. I think this review should be soon due to the number of errors. (Exhibit H.) Gage questioned White about another contract issue, involving another company, in an email dated April 27, 2006. (Gage Aff., Ex. F.) She stated in a reply email to him the following day that, her "concern is that from auditing it is not lawful for us to have a paid service agreement and an outstanding per call on the same AR# within the same time frame." (Id.) In his deposition, White, when questioned about the training he received from Root, stated that he was going to adopt only some of the approaches she was telling him to use. (White Dep., at 241.)
Gage also noted that White was not processing carekits*fn3 on a daily basis, as she required of every AMR. In an email dated May 18, 2006, she told White that carekits had been in his folder since April 17. (Gage Aff., Ex. F.) In her email, she further instructed White to process his carekits by the end of the week. Although White responded that he was working on them, when Gage checked on the carekits the following week, she noted that another AMR had processed White's carekits. (Gage Aff. ¶ 28.) Additionally, Gage received a complaint from one of White's co-workers that he was out of the office for long periods of time and that she and others had to help him with his workload. This complaint also reported White sleeping at his desk, reading the newspaper, and giving wrong information on the phone. (Gage Aff., Ex. G., at K 10932.)
Since White was not making improvements and had failed to achieve his performance objectives, Gage discussed the situation with Broderick and Senior Human Resources Manager Lisa Wainwright ("Wainwright"). After this discussion, she decided to issue a performance memorandum to White, the first step in the formal counseling process at Kodak. The memorandum contained detailed requirements for White to meet, and set a follow-up review for June 22, 2006. (Gage Aff. ¶ 48.) In that regard, Gage and Wainwright met with White on June 13, 2006, to give him the performance memorandum and to discuss it with him. (Gage Aff., Ex. I.) When informed of the memorandum, White became furious and said that he shouted at Gage several times and called her a ...