The opinion of the court was delivered by: Michael A. Telesca United States District Judge
Plaintiff Patrick Potenza, ("Potenza"), brings this action pursuant to Title VII of the Civil Rights Act of 1964 ("Title VII"), (codified at 42 U.S.C. § 2000(e), et seq.), and the New York State Human Rights Law against defendant West Irondequoit Central School District ("the School District") claiming that he was retaliated against for complaining of gender discrimination. Specifically, plaintiff claims that after he complained to his supervisors of discriminatory treatment, he was subjected to retaliatory treatment including a suspension and termination of his employment.*fn1
Defendant denies plaintiff's allegations, and moves for summary judgment dismissing plaintiff's Complaint on grounds that plaintiff has failed to state a prima facie case of retaliation. According to the defendant, Potenza can not establish that as a result of engaging in protected activity, he suffered any retaliatory conduct. For the reasons set forth below, I grant defendant's motion for summary judgment, and dismiss plaintiff's Complaint in its entirety.
Plaintiff Patrick Potenza was hired as a cleaner for the defendant West Irondequoit Central School District in 1991. In 1992, he was promoted to the position of Custodial Assistant, and in 1994, was promoted to the position of Custodian.
In 1999, plaintiff was assigned to two schools in the School District: Iroquois Middle School and Colebrook Elementary School. According to the defendant, plaintiff performed his duties poorly at theses schools, and was the subject of many complaints from teachers. Plaintiff contends that he performed his job well at Iroquois, and never received any complaints regarding his work. In response to the alleged complaints, on February 4, 2000, Barbara Carlson ("Carlson"), the Director of Environmental Services for the School District, and plaintiff's supervisor, transferred plaintiff to Irondequoit High School. In this position, plaintiff reported directly to the school Principal, had more mechanical duties, but less cleaning duties and less supervisory responsibilities. Although plaintiff was unhappy about the transfer, he did not file a protest or grievance with his union regarding the transfer. Potenza also reported to Carlson and Carlson's supervisor William Domm ("Domm").
While assigned to Irondequoit High School, plaintiff was the subject of numerous disciplinary memoranda or counselings. On September 11, 2003, Domm issued a memo to the plaintiff indicating that plaintiff was using above-average sick and personal days, and that his use of such time would be more closely monitored. Two months later, Domm issued plaintiff a "final notice" regarding his absenteeism. The final notice was issued contemporaneously with counseling that plaintiff received from Carlson regarding insubordination and other misconduct.
On February 5, 2004, three months after his final notice and counseling regarding insubordination, plaintiff was again counseled, this time for failing to respond on January 27, 2004 to calls made over the radio, telephone and public address system requesting his assistance for shoveling snow. Upon being located, plaintiff claimed that he was sick, and left work.
On March 3, 2004, the Principal of Irondequoit High School, Patrick McCue ("McCue") issued a performance evaluation of Potenza, criticizing his performance. Specifically, McCue indicated concern with the school's overall appearance, Potenza's ability to work with others to complete all necessary cleaning and maintenance, and plaintiff's responsiveness and attendance.
On May 25, 2004, Potenza was again counseled by Carlson regarding his attendance and time-keeping. Carlson discussed plaintiff's leaving work early, failure to adhere to his work schedule, and failure to keep an accurate accounting of his work hours. This counseling session was followed with another counseling session on June 3, 2004 regarding plaintiff's failure to accurately cite the reason for a leave request. Carlson met yet again with the plaintiff on June 17, 2004, when it was learned that Potenza falsely claimed to have worked a full day on June 11, 2004, when in fact he arrived one-half hour late to work.
Despite Principal McCue's concerns about Potenza's lack of responsiveness to requests made of him that were set forth in Potenza's March, 2004 performance evaluation, McCue thereafter on September 9, 2004 wrote a detailed memorandum to the plaintiff explaining McCue's continued dissatisfaction with Potenza's performance in those areas. Carlson again counseled plaintiff regarding his poor job performance.
In January, 2005, school security guard Mike Pratt reported that plaintiff routinely drove on school grounds in the early morning with his car lights off. Pratt complained that because he couldn't see plaintiff's vehicle, he almost became involved in an accident with Potenza. Potenza ignored an email from Carlson asking him to drive on school property with his headlights on.
Two months later, plaintiff was counseled against whistling "circus music" anytime Carlson or another supervisor were near him. Also in March, 2005 McCue again notified the plaintiff that he was failing to meet McCue's expectations with respect to his job performance. In April 2005, after receiving complaints from several employees, Carlson again met with the plaintiff regarding unauthorized absences and improper time keeping.
On September 8, 2005 a Custodial Coordinator informed Carlson of several deficiencies in plaintiff's performance over the summer months, including insubordination towards supervisors, and failure to properly supervise summer cleaning crews. The same coordinator wrote a follow-up e-mail in November, 2005, informing Carlson that staff members continued to complain about Potenza's performance. In December, 2005, the Coordinator again informed Carlson that McCue continued to have problems with plaintiff's responsiveness to requests for service and cleanliness of the school.
In November, 2005, Carlson learned that plaintiff had been self-assigning overtime, and using overtime to complete work that was scheduled to be completed during his regular shift. In December, 2005, plaintiff refused to assist in the delivery of a grand piano to the school, and another custodian was required to help receive the piano and place it in the auditorium for a concert that evening.
In January, 2006, plaintiff retained legal counsel, and in a letter from counsel to the Superintendent of the School District dated January 26, 2006, complained that he was being sexually discriminated against by Carlson. Although plaintiff did not offer an explanation of why he believed he was being discriminated against, Potenza claims in this action that Carlson often made him feel uncomfortable by commenting on his physical appearance. He claims that on one occasion, Carlson demonstrated the use of a digital camera by zooming the camera in on plaintiff's crotch area. Potenza further claims that Carlson once commented on new black coats worn by custodial employees by saying that she "liked her men in black."
On February 2, 2006, Potenza filed a discrimination charge with the Equal Employment Opportunity Commission ("EEOC") claiming that he had been the victim of gender discrimination and sexual harassment. The EEOC investigated the charge, but in a Notice of Dismissal of the charges dated May 23, 2006, found no probable cause for action against the defendant.
On February 8, 2006, eight days after he filed his charge with the EEOC, Potenza received his annual performance evaluation from Principal McCue. The evaluation indicated that Potenza needed improvement in several areas, including communication with school district personnel, initiative, and follow-through. After receiving this evaluation, plaintiff did not receive any job counselings or disciplinary actions for approximately one year, and in 2007, ...