The opinion of the court was delivered by: Hurley, Senior District Judge
This action is one of several pending before this Court in which a former employee of Defendants Hustedt Chevrolet, Hustedt Chevrolet Inc. ("Chevrolet Inc."), Hustedt Hyundai, and/or Hustedt Hyundai, Inc. (collectively "Dealership Defendants") is seeking redress for the alleged discriminatory and retaliatory practices of Defendant Charles Chalom ("Chalom"),*fn1 owner of Dealership Defendants, and hostile work environment created by him. In the instant case, Plaintiff Paul Weiss ("Plaintiff" or "Weiss") asserts claims under Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq., the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq., and the New York Executive Law § 296. More specifically, he alleges that he was subjected to a hostile work environment based on gender, religion, and disability and that he was subjected to retaliatory discharge. He further alleges that Defendants unlawfully interfered with his rights granted under the Family Medical Leave Act, 29 U.S.C. § 2601 et seq. ("FMLA") and that defendants failed to pay him for accrued but unused vacation pay. Presently before the Court are Defendants' motion for summary judgment and Plaintiff's cross-motion for partial summary judgment. For the reasons set forth below, Defendants' motion is granted in part and denied in part and Plaintiff's motion is denied.
Dealership Defendants are engaged in the sale and lease of cars and trucks. Weiss was employed by Chevrolet Inc. as finance manager from 1992 to 1994 and as finance director for the period 1997 until October 2004,*fn2 at which time he claims he was constructively discharged.
Chalom owns 100% of the stock of Chevrolet Inc.*fn3 and was Weiss's supervisor. Chalom has the final decision-making authority for the Dealership Defendants.
Josephine Caronia ("Caronia") was also employed by Chevrolet Inc. and held the position of Controller. Other co-workers of Plaintiff and Caronia were Kevin Pratt ("Pratt"), Andrew Levy ("Levy") and Frank Ventimiglia ("Ventimiglia"). Caronia, Weiss, Pratt and Ventimiglia all commenced actions against Defendants alleging discrimination.*fn4 It is alleged that Chevrolet Inc. "suffered from an extremely hostile work environment, where use of ethnically, racially and sexually inappropriate slurs and insults by the owner, Charles Chalom, was [sic] a normal and daily course of events." (Pl.'s Mem. in Opp. at 9.)
Weiss claims he was subject to a hostile work environment as a result of his religion. Weiss is Jewish, as is Chalom. According to Weiss, Chalom made only one statement based on Plaintiff's religion in the 8-1/2 years of his employment at Chevrolet Inc.: sometime "probably in 2004" Chalom told other people in the office that Weiss was a "Russian Jew Spy" and "don't believe anything he ever tells you. He is a liar." (Weiss Dep. 20, 58.)*fn5
Weiss also claims he was subjected to a hostile work environment based on disability. Weiss has diabetes. Weiss testified that at least 3 to 4 times, Chalom made demeaning comments directly to him about his diabetes, although he could recall only three specific instance. (Weiss Dep. at 50, 54-55.) The first incident occurred when Chalom, who liked to talk about his experiences with women, said to Weiss "you must have problems being a diabetic, that must affect you." (Weiss Dep. at 42.) Weiss could not recall even the year in which this comment was made. (Id. at 41.) Chalom's second comment was "you had better watch your wife because I know you can't take care of her, so someone else will." Again, Weiss could not provide a time frame for the comment. (Id. at 43-44.) The third comment was made by Chalom probably in "2003 or 2004" in front of a number of employees, while Weiss was speaking with Caronia. Chalom said "what kind of bullshit are you telling these women Weiss? You are an impotent diabetic." (Id. at 47.)
Weiss also claims he was subject to a hostile work environment based on sex. He offers the following support.
a. Chalom interrogated male employees, including Ventimiglia . . . and Weiss as to whether they were having an affair with Caronia. (Caronia Dep. p. 326).
b. Chalom testified that Caronia dressed to "tease men in the entire building," and stated that she provoked them sexually. (Chalom Dep. p. 136).
c. Chalom was concerned about Caronia and men in the dealership. He testified that Caronia dressed improperly, and that she did so "for every man in the building. She used her sex appeal to get what she's getting. I thought at one time those men going to sue me. Paul Weiss and Frank Ventimiglia going to sue me for sexual harassment for [Caronia], that's what I was worried about." (Chalom Dep. p. 137).
d. In the summer of 2004, Chalom accused Weiss of having a sexual affair with Caronia. Weiss was in an office with Ventimiglia and another manager and Chalom told Weiss, I know you're having sex with [Caronia]. All she has to do is bat her eyes at you and you do whatever she wants. She's taking control of you. I don't want you having an affair with her. (Weiss Dep. p. 470).
e. Chalom testified that Weiss was a "coward" and that he was scared of Caronia. (Chalom Dep. p. 184).
f. Weiss recalled that Chalom would physically grab Caronia's breasts in front of other people Once Chalom grabbed Caronia and pulled her on his lap in front of Weiss and Ventimiglia and told them to leave his office as Caronia struggled to get off his lap. (Weiss Dep. p. 80).
g. Chalom came to Weiss almost in tears telling Weiss that he had to talk to Caronia for Chalom. Chalom told Weiss he should tell Caronia Chalom was good for Caronia and that she should be with Chalom and that she should sleep with Chalom. (Weiss Dep. p. 80-81).
h. Chalom discussed Caronia with Weiss approximately 10-15 times in the last year of Weiss's employment. (Weiss Dep p. 81). (Pl.'s Resp. to 56.1 at p. 23-24.)
Weiss also offers the following incidents which he terms "workplace offensiveness."
C Weiss was called in to Chalom's office where Chalom was meeting with General Motors executives and Weiss was asked to tell them how much money he made. When Weiss asked Chalom why he was asking the question, Chalom slammed his hands on the desk and screamed, "you make more money that the President of the United States, Get the f--k out of my office.["] Weiss believes this was done to humiliate him in front of General Motors executives.
C Chalom accused Weiss of anti-Semitism towards Chalom.
C Referring to the [Ventimiglia, Caronia, Pratt and Levy,] Chalom stated that he "made them somebody from nobody."
C Chalom's behavior worsened as Weiss worked there, beginning in the year 2001.
C Chalom made derogatory comments non stop.
Chalom admitted using the "F" word in the dealership. The word 'nigger' in the dealership. [sic]
C Chalom referred to the owner of a competing dealership as a "queer" or as the "queer nation." When Chalom wanted to intimidate or embarrass or yell at the managers he would say "you are like that f-----g queer of the queer nation of Ramp Chevy. Chalom made references to the competing owner's sexual orientation at least 40-50 times, probably a lot more."
C Chalom had a meeting with his managers, including
Weiss, where he yelled and screamed at them and told them that they worked like a bunch of f-----g pussies and they were all a bunch of f-----g queers and they should go to work at the f-----g queer nation, screaming and pounding on his desk while saying these things.
C Weiss heard Chalom make offensive and vulgar remarks about ethnic groups and minorities five to ten times. Weiss was referring to blacks and Italians. The first time Weiss heard Chalom make remarks about Black people was in 2003. Chalom mentioned that one of his female employees was married to a "nigger."
Pl.'s Resp. to 56.1 at p. 25-27 (record citations omitted).
Weiss also offers evidence of two incidents of violence by Chalom. Caronia testified at her deposition that she saw Chalom grab Weiss by the arm and pull Weiss by his arm. Neither the circumstances surrounding the incident nor its approximate date are specified. (Caronia Dep. at 366.) According to Weiss's deposition testimony another incident occurred in the summer of 2004. "Chalom began mumbling to Weiss and when Weiss asked Chalom whether he had been talking to Weiss, Chalom blurted out, who the f--k do you think you are, My name is on the dealership, you are not more important than me then ran at Weiss, grabbed him and pushed him down." Pl.'s Resp. to 56.1 at p. 25 (citing Weiss Dep. 18-19; Caronia Dep. at 366-67.)
Turning then to Weiss's retaliation claim, Weiss relies upon his deposition testimony that he complained to Chalom about his sexual harassment of Caronia; in the last year of his employment he complained to Chalom ten to fifteen times at least. He "told Chalom to leave Caronia alone, to forget about it and just stop, that he was hurting himself and hurting her and hurting everyone around him." (Pl.'s Resp. to 56.1 at 28 (citing Weiss Dep. at 79-81).) As to his own treatment, Weiss says he "also objected to Chalom cheating him on commissions by lowering the value of traded in cars after the new car had been delivered. This occurred in 2003 and 2004. Weiss informed Chalom that here was a mistake on his commissions. Chalom told Weiss, among other things, this is not a democracy, I can do whatever I want. If you don't like it get out." (Id. (citing Weiss Dep. at 60-61).)
As a result of these "protests" Weiss says Chalom assigned "Emad," an individual who was not qualified, to work in Weiss's department, thereby decreasing Weiss' potential income. Emad was assigned to work with Weiss in June 2004, after Ventimiglia advised Chalom he did not want to work with Emad. When Weiss told Chalom that Emad was doing things he thought were illegal, Chalom told him to leave the individual alone or Weiss would be fired and that it was none of his business. Weiss was asked by General Motors to "pull the deals;" Emad was eventually arrested. (Pl.'s Resp. to 56.1 at 28-29.) The nature of ...