The opinion of the court was delivered by: Pitman, United States Magistrate Judge
This is an employment discrimination action in which plaintiff alleges that he was demoted and then terminated by virtue of his age and race and subjected to unequal terms of employment. By notice of motion dated January 30, 2009 (Docket Item 13) defendant moves for summary judgment dismissing the complaint. For the reasons set forth below, defendant's motion is granted in all respects, and the complaint is dismissed.*fn1
Chaluisan Paper Fibers Corp. ("CPF") is a weigh station engaged in the business of sorting unrecylable matter from paper and cardboard (Affidavit of David Chaluisan, sworn to January 23, 2009 ("Chaluisan Aff."), ¶ 1, annexed as exhibit C to the Declaration of Cindy S. Minniti, dated January 23, 2009 ("Minniti Decl.")). CPF hired plaintiff in March 2000 as a Machine Opera-tor/Forklift Driver (Chaluisan Aff. ¶ 3). Plaintiff, who is an African-American male, was 67 years of age at the time he was hired (Chaluisan Aff. ¶ 3).
Plaintiff initially worked as a Machine Operator/Forklift Driver during the night shift, from 11:00 p.m. to 7:00 a.m. (Transcript of Plaintiff's Deposition, taken on November 13, 2008 ("Plaintiff's Dep.") at 69, annexed as B to the Minniti Decl.; (Chaluisan Aff. ¶ 4). Plaintiff repeatedly damaged CPF's property while operating the forklift (Chaluisan Aff. ¶ 5). As a result, CPF reassigned plaintiff in 2003 to work as a Laborer (Picker/Sorter) (Chaluisan Aff. ¶¶ 5-6). At the time plaintiff was reassigned, he was being supervised by Willie Graves, who is also an African American male and is older than plaintiff (Chaluisan Aff. ¶ 4). Although the rate of pay for a Laborer (Picker/Sorter) was less than the rate earned by a Machine Operator/Forklift Driver, CPF continued to pay plaintiff the higher hourly rate he earned in the latter position (Chaluisan Aff. ¶ 6). Plaintiff never objected to being reassigned to work as a Laborer (Sorter/Picker) (Chaluisan Aff. ¶ 7).
Plaintiff had additional problems at work in November 2005. He was stooped over and was unable to perform the essential functions of his job (Chaluisan Aff. ¶ 10). Rather than terminate plaintiff's employment, CPF transferred plaintiff from the night shift to the day shift (Chaluisan Aff. ¶¶ 8, 10). No union grievance was filed objecting to this transfer (Chaluisan Aff. ¶ 9). Even after the transfer, however, plaintiff was unable to perform the essential functions of a Laborer (Picker/Sorter); he was unable to bend and to lift which were essential to his job of separating unrecyclable material from recyclable material (Chaluisan Aff. ¶ 10). Nevertheless, CPF did not terminate plaintiff's employment, and instead attempted to find a way in which plaintiff could do his job (Chaluisan Aff. ¶ 11).
CPF advised plaintiff to see a physician concerning his limited range of motion (Chaluisan Aff. ¶ 12). Plaintiff did consult with a physician who could find no medical reason for plaintiff's problems and cleared him for work (Chaluisan Aff. ¶ 13). Plaintiff's supervisor at CPF met with him in January 2006 and explained to plaintiff that he should find some other type of work (Chaluisan Aff. ¶ 14). In response, plaintiff begged not to be terminated and spontaneously offered to retire if CPF permitted him to work for one more year (Chaluisan Aff. ¶¶ 14-15). PFC accepted plaintiff's offer (Chaluisan Aff. ¶ 16).
Although plaintiff's work throughout 2006 was poor, he was not disciplined because CPF relied on his promise that he would retire after one more year of employment (Chaluisan Aff. ¶ 17). In February 2007, however, plaintiff refused to retire although he admitted to CPF that he had previously agreed to do so and was hardly working at all by that time (Chaluisan Aff. ¶¶ 18-21). Defendant terminated plaintiff's employment, effective February 28, 2007 (Chaluisan Aff. ¶ 19).
Plaintiff's union filed a grievance on his behalf, alleging that plaintiff's termination constituted a violation of the collective bargaining agreement, and an arbitration hearing was held on November 27, 2007 at the union's office in Manhattan (Opinion and Award of Arbitrator William J. DiCindio, dated December 27, 2007 ("Arb. Dec'n"), at 1-2, annexed as Exhibit A to the Minniti Decl). Plaintiff was represented by counsel at the arbitration hearing (Arb. Dec'n at 1). Although plaintiff testified and denied entering into the agreement to retire, the arbitrator found his testimony in this regard to be incredible (Arb. Dec'n at 8, 11-12). The arbitrator concluded that there was no evidence to support plaintiff's claim of discrimination and that there was just cause for plaintiff's termination (Arb. Dec'n at 13, 17-18).
The arbitrator's conclusions that plaintiff was not the victim of age or racial discrimination are corroborated by the following testimony that plaintiff gave at his deposition in this matter:
Q: Why did you feel there were unequal terms and conditions of your employment? Aside from being terminated, were there any other complaints against the company?
Q: You have no examples of other instances other than the termination where you felt that you were treated differently?
A: No, I don't feel that.
Q: Anything else? There were no other instances?
Q: Why do you think this happened in regards to the termination?
A: That's something that I have been trying to figure out for my own self, why did this happen. That's what I said to you, it's not what was done, it's the way it was done. And I still say that. It's not what he had done, it's the way he went about doing it. I feel that it was unnecessary to do it like that and I felt like that was out of the state of the law. I have been saying that all the time. It's not that I want to bring this but the damage is already done. I am out of work. I never ...