The opinion of the court was delivered by: Matsumoto, United States District Judge
Plaintiff Matthew Suarez ("plaintiff" or Suarez") brings this action alleging employment discrimination in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000, et seq. ("Title VII"), 42 U.S.C. § 1981 ("Section 1981"), New York State Executive Law § 296 ("NYSEL") and New York City Human Rights Law, Administrative Code § 8-107 ("NYCHRL"). (See generally, Doc. No. 8, Amended Complaint ("Am. Compl.").) In this lawsuit, plaintiff claims that because of his Puerto Rican origin and Hispanic race, he was subjected to disparate treatment with regard to the terms and conditions of his employment with defendant American Stevedoring, Inc. ("defendant" or "ASI"), particularly with respect to defendant's decisions to train and assign overtime opportunities, and discharge plaintiff. Plaintiff also claims that he was subjected to a hostile work environment based on his Puerto Rican origin and Hispanic race, and that he experienced retaliation for his participation in protected activities.
Defendant now moves for summary judgment, pursuant to Federal Rule of Civil Procedure 56, seeking dismissal of plaintiff's Amended Complaint. For the reasons set forth herein, defendant's motion is granted in part and denied in part.
The following facts, taken from the parties' statements pursuant to Local Civil Rule 56.1, are undisputed unless otherwise indicated. The court has considered whether the parties have proffered admissible evidence in support of their positions and has viewed the facts in the light most favorable to the nonmoving plaintiff.
A. American Stevedoring, Inc.
Defendant ASI is a stevedoring company engaged in the business of loading and unloading ships and employs longshoremen to perform these tasks. (Doc. No. 31, Defendant's Rule 56.1 Statement ("Def. 56.1 Stmt.") ¶¶ 1, 3.) Defendant operates two terminals: one in Red Hook, Brooklyn and one in Port Newark, New Jersey. (Id. ¶ 1.) All longshoremen who work for defendant are members of the International Longshoremen's Association, AFL-CIO (the "ILA") Local 1814 (the "Union"). The ILA uses a hiring hall to supply workers to several stevedore companies, including ASI, represented by the New York Shipping Association, Inc. ("NYSA"). (Def. 56.1 Stmt. ¶¶ 3-6, 37.)
At all relevant times, all terms and conditions of employment for Union longshoremen, including defendant's employees, were governed by a collective bargaining agreement ("CBA") entered into by the ILA and the NYSA. (Id. ¶¶ 7-8.) Among other things, the CBA governed the hiring, utilization, compensation, discipline and termination of covered longshoremen, and set forth procedures for the filing of any complaint or dispute arising out of a longshoreman's employment, regardless of where the longshoreman was employed. (Id. ¶ 8; see generally, Declaration of James P. Melia, Ex. A, CBA, Art. XXV, at Bates Nos. 102-107.) The CBA is interpreted and administered jointly by the NYSA-ILA Contract Board (the "Contract Board"), whose decisions on the interpretation and administration of the CBA are final and binding upon all Union members and NYSA-ILA member employers. (See Def. 56.1 Stmt. ¶ 10.)
As required by the Waterfront Commission of New York Harbor (the "Waterfront Commission"), a legislatively-created agency that, inter alia, regulates longshore employment, an applicant must be "sponsored" by a prospective employer to be employed as a longshoreman. (See id. ¶¶ 11, 14.) Once the Waterfront Commission issues a security clearance to the applicant, and the applicant joins the Union, the applicant is placed on their sponsor's list and is the first to be called by the sponsor when needed to work. (Id. ¶¶ 14-15.) Longshoremen on defendant's list must report for work unless they have previously indicated that they are unavailable to work. (Id. ¶ 17.)
The basic equipment used to move shipping containers at defendant's Brooklyn terminal includes a hustler, a top loader and a reach stacker, each of which has its own training and certification requirements. (Id. ¶¶ 19, 20-23.) Training is carried out periodically and candidates for training are selected by seniority. (Id. ¶ 23.) Training is conducted individually and if the longshoreman fails to appear for his scheduled training, the training is cancelled and that individual's name is dropped to the bottom of a list of longshoremen waiting to be trained. (Id.) Although defendant asserts that an employee trained on a particular machine is assigned to work on that machine based on his seniority (Id. ¶ 24), plaintiff contends that defendant "did not comply with its own rules because plaintiff was skipped on the top loader plenty of times[.]" (Doc. No. 28, Plaintiff's Amended Counter-Statement Pursuant to Rule 56.1 ("Pl. 56.1 Stmt.") ¶ 24.) It is undisputed that a longshoreman need not operate a reach stacker or top loader even if he is qualified to do so. (Def. 56.1 Stmt. ¶ 24.) Instead, he may request to operate a hustler, which is considered by some longshoremen to be an easier and less stressful job. (Id.)
A longshoreman's hourly base pay is determined according to his date of entry into the industry. (Def. 56.1 Stmt. ¶ 26.) Hourly skill and position differentials are then added to the base pay. (Id.) The hourly skill and position differentials for a hustler, reach stacker and top loader are the same. (Id.; CBA, Art. 3 § 5, Bates No. ASI 0017-0018.)
B. Plaintiff's Employment at ASI
Plaintiff is an individual of Puerto Rican origin and Hispanic race who was employed as a longshoreman at ASI from January 16, 2003 to January 3, 2006. (Def. 56.1 Stmt. ¶¶ 36, 79, 92; see also Affidavit of Richard V. Singleton II, Esq. ("Singleton Aff."), Ex. N, Calendar of Absences.) In 2002, ASI sponsored plaintiff and his brother, and both individuals underwent screening by the Waterfront Commission before commencing employment at ASI. (Def. 56.1 Stmt. ¶¶ 30, 32.)
Before commencing employment at ASI, plaintiff attended an NYSA-ILA orientation program, which, inter alia, explained NYSA-ILA policies relating to absenteeism and the procedures for filing a grievance under the CBA. (Id. ¶ 34.) Plaintiff does not deny that he attended the orientation, or that the program included an explanation of policies relating to absenteeism. (See Pl. 56.1 Stmt. 34.) Although plaintiff testified that he knew that he could file grievances about his "work hours" (Singleton Aff., Ex. A, Deposition of Matthew Suarez ("Pl. Dep.") at 107-108), he contends that "[n]obody explained . . . the relationship of NYSI-ILA CBA to the longshoreman's employment or the procedures of filing a grievance[.]" (Pl. 56.1 Stmt. ¶ 34.) During the orientation, plaintiff was also provided with a copy of an employee handbook issued by the Contract Board. (Def. 56.1 Stmt. ¶ 35; Melia Decl., Ex. B, "Employee Handbook.") Among other things, the Employee Handbook explains NYSA-ILA's policies relating to absenteeism and anti-discrimination, and sets forth procedures for filing complaints or grievances with the Union. (Def. 56.1 Stmt. ¶ 35.) Although plaintiff does not deny he was given the Employee Handbook, he asserts that although he "was given a lot of documents at the orientation[,] nobody [sic] explained nor read the Company's harassment policy[.]" (Pl. 56.1 Stmt. ¶ 35; Pl. Dep. at 109.) Plaintiff testified that he did not read through any of the documents provided to him during the orientation. (Pl. Dep. at 189.)
Pursuant to the Employee Handbook
"[a]ny employee who wants to report . . . unlawful harassment should promptly report the matter to his or her management supervisor. If . . . the employee believes it would be inappropriate to contact that person, the employee should immediately contact any other member of management. Employees can raise concerns and make reports without fear of reprisal.
(Melia Decl., Ex. B, at Bates No. ASI 0312.)
Under the CBA, the NYSA and ILA adopted a joint Anti-Discrimination and Anti-Harassment Policy for employees covered by the CBA. (Def. 56.1 Stmt. ¶ 69.) The policy and amendments thereto require employees to make complaints of "job-related harassment" and other forms of discrimination to "their management supervisor, designated employer representative, or the industry EEO Officer." (Melia Decl., Ex. C and D, NYSA-ILA Anti-Discrimination Policies, at 8; see Def. 56.1 Stmt. ¶ 74.)
Once plaintiff obtained clearance from the Waterfront Commission and became a member of the Union, plaintiff commenced employment as a longshoreman. (Def. 56.1 Stmt. ¶¶ 36-37.) Plaintiff and his brother had a similar seniority designation and had priority of employment with ASI, their sponsor. (Id. ¶¶ 38-39.) Although plaintiff primarily worked for ASI, he also worked for other NYSA-member employers in and around New York Harbor when requested to do so. (Id. ¶ 40; Pl. Dep. at 161-163.) When a longshoreman works for any NYSA-member employer, whether or not it is their sponsor, the terms and conditions of his employment, including policies regarding absenteeism, remain unchanged and are governed by the NYSA-ILA policies and CBA. (See CBA, Art. I, at Bates No. ASI 009; Melia Decl., Ex. E, Absentee Procedures.)
All longshoremen at defendant's Brooklyn terminal received equipment assignments from ASI's tractor foreman, Salvatore (Sal) Buzzetta. (Def. 56.1 Stmt. ¶ 43.) Plaintiff asserts that Mr. Buzzetta was his "supervisor." (Pl. 56.1 Stmt. ¶ 43.) It is undisputed that Mr. Buzzetta had no authority to hire, promote, evaluate, suspend, terminate or discipline plaintiff. (Def. 56.1 Stmt. ¶ 45; Pl. Dep. at 269.)
Soon after plaintiff commenced employment with ASI, plaintiff was trained and certified on a hustler and, in March 2005, plaintiff was certified to operate a top loader. (Def. 56.1 Stmt. ¶¶ 45-46; Pl. 56.1 Stmt. ¶ 45-46.) In early 2005, ASI began to acquire reach stackers and started to phase out the less efficient top loaders. (See Def. 56.1 Stmt. ¶ 50.) By the time plaintiff was certified on top loaders, they were "rarely used." (Id.) Plaintiff was never trained or certified to operate a reach stacker. (Def. 56.1 Stmt. ¶ 51; Pl. Dep. at 132-133, 160.)
Plaintiff claims that he was denied the opportunity to be trained on a reach stacker because of his race or national origin. (See Pl. 56.1 Stmt. ¶ 52; Def. 56.1 Stmt. ¶ 52.) Defendant asserts that it offered to train plaintiff to operate a reach stacker but plaintiff refused. (Doc. No. 31, Affidavit of Sabato Catucci "S. Catucci Aff.") ¶ 30.) Plaintiff never filed a grievance with the Union or complained to anyone about not being trained on the reach stacker. (See Pl. Dep. at 224, 237.) Plaintiff's brother was certified on all three machines. (See Pl. Dep. at 73-73.)
Defendant further contends that despite plaintiff's certification to operate a top loader, plaintiff requested of Mr. Buzzetta that plaintiff not to be assigned to that machine. (See Doc. No. 31, Affidavit of Salvatore Buzzetta ("Buzzetta Aff.") ¶ 4.) Further, Mr. Buzzetta claims that plaintiff was "not good at operating" a top loader and that plaintiff advised him that he preferred to drive a hustler. (Id.) Mr. Buzzetta states that he "respected" plaintiff's request and that plaintiff did not request to be assigned to a top loader, nor complain "that he was not being assigned to that machine." (Id.)
By contrast, in an affidavit submitted in response to defendant's instant motion, plaintiff states that he "never expressed a need or wish to operate a hustler to Sal Buzzetta." (Doc. No. 26, Ex. E, Affidavit of Matthew Suarez ("Pl. Aff.") ¶ 9.) Plaintiff states that he "asked Sal Buzzetta plenty of times why I was being skipped over on the top loader for people with less pier seniority than I and he would say 'I can put whoever I want on that machine'." (Id.) Notwithstanding, at his deposition, plaintiff testified that he did not believe Mr. Buzzetta's comment because the assignments to work on a particular machine are based on seniority. (See Pl. Dep. at 236-237.)
C. Plaintiff's Allegations of Discrimination and Retaliation
In addition to allegedly being passed over for training, plaintiff testified that while employed at ASI, he was denied overtime on two occasions: once on or about December 24, 2004 and once on or about May 1, 2005. (See Pl. Dep. 240-243; Singleton Aff., Ex. J, Grievance dated May 5, 2005.) Although plaintiff "believed" overtime assignments were based on seniority, he did not know "who got the overtime assignments in [his] place[.]" (Pl. Dep. 239-240.) With respect to the former incident, plaintiff testified that he "just [did not] know why I wasn't brought in." (Pl. Dep. at 241-242.) Plaintiff testified that he filed a grievance concerning that incident and acknowledged that he was paid. (Id. at 241.) With respect to the latter incident, plaintiff's grievance states that he returned to work "5 minutes" late and was "refused work, resulting in me missing out on 11 hours of overtime. The reason for me being late was that on that day it was raining pretty heavily so I went home to get some rain gear." (Singleton Aff., Ex. J.)
Plaintiff testified that within the first week of his employment at ASI, Mr. Buzzetta and others directed racial and ethnic slurs at plaintiff. (Pl. Dep. at 91-92, 103-104.) Plaintiff testified that Mr. Buzzetta called him "stuff like spic, half spic, Goya bean, just nasty comments." (Id. at 69.) Plaintiff asked Mr. Buzzetta not to "use that type of language," however, Mr. Buzzetta apparently "laughed" and "ignored" plaintiff's protests. (Id. at 92.) According to plaintiff, Mr. Buzzetta directed slurs towards plaintiff "[a]lmost on a daily basis" and in the presence of co-workers. (Id. at 93-94, 98-99.) Plaintiff testified that on one occasion, while plaintiff was on a break, Mr. Buzzetta told plaintiff, in the presence of co-workers, to "get in the truck you fucking spic, it's time to go back to work." (Id. at 94.) Plaintiff further testified that Al Deliso, ASI's timekeeper, used derogatory language towards plaintiff on a "couple" of occasions and that there "possibly" were other employees present on these occasions. (Id. at 99-100.) Plaintiff also testified that other unnamed people used offensive language towards plaintiff. (Id. at 103-104.) Mr. Buzzetta denies using any racially-insensitive language towards plaintiff. (Doc. No. 31, Ex. B, Excerpts from the Deposition of Salvatore Buzzetta ("Buzzetta Dep.") at 61.)
Plaintiff also points to the testimony of two witnesses who observed ASI employees engaged in racially-insensitive banter and racial hostility toward plaintiff. Clint Catucci, the Assistant Terminal Manager and Facilities Security Officer at ASI's Brooklyn terminal, testified that he heard Hispanics referred to as "Spics." (Doc. No. 26, Ex. A, Excerpts from the Deposition of C. Catucci ("C. Catucci Dep.") at 14.) Mr. Catucci, however, also testified that such comments were intended to be "joking, . . . nothing harsh . . . like derogatory towards anyone . . . ." (Id. at 15.) Further, plaintiff's co-worker, Equan Womble, testified that he heard Mr. Buzzetta use discriminatory language toward plaintiff "about three times a week or so." (Doc. No. 26, Ex. C, Excerpts from the Deposition of Equan Womble ("Womble Dep.") at 73.)
Specifically, Mr. Womble testified that Mr. Buzzetta regularly said "get your Puerto Rican ass in the truck, you are a Puerto Rican fuck up, things of that nature." (Id.) Mr. Womble also testified that he observed Mr. Buzzetta "put his finger in his [plaintiff's] butt . . . . [and plaintiff] said to stop." (Id. at 57.) Plaintiff, however, testified that Mr. Buzzetta never touched his rear end or genitalia. (Pl. Dep. at 271.)
Plaintiff further testified that on one occasion, during the summer of 2005, Mr. Buzzetta threatened plaintiff's physical safety. Specifically, plaintiff testified that
Me and Equan [Womble] were standing in front of the shack on our break, and Sal Buzzetta came speeding towards us [in his car] and slammed on the brakes and came within a foot of hitting us. So Equan got angry and said what are you doing, and he [Buzzetta] goes shut the fuck up, you dumb n****r . . . .
(Pl. Dep. at 122.) Plaintiff claims that Mr. Womble was prompted to complain to the Waterfront Commission as a result of this incident. (See id. at 122-123.)
On August 3, 2005, plaintiff testified, under oath, at a hearing before the Waterfront Commission in support of Mr. Womble's complaint arising from the car incident involving Mr. Buzzetta. (Def. 56.1 Stmt. ¶ 106; see Pl. Dep. at 124-125.) At the hearing, plaintiff testified that Mr. Buzzetta directed racial slurs at African-American co-workers, including Mr. Womble and a female employee. (See Singleton Aff., Ex. L, Excerpts from plaintiff's testimony at the hearing on Aug. 3, 2005 ("Hearing Tr.") at 9.) When plaintiff was asked at the hearing whether Mr. Buzzetta directed racial or ethnic slurs at "Latin people, Hispanics . . . or any other Spanish or Hispanic people," plaintiff responded as follows: "No, not that I am aware, not to me. I wouldn't take that, personally . . . I wouldn't take it, I wouldn't take it lightly." (Id. at 10.)
At his deposition, plaintiff testified that because he feared retaliation, he did not complain to the Waterfront Commission or to anyone other than Mr. Buzzetta about discrimination he experienced at ASI. (Pl. Dep. at 124-125.) Plaintiff explained that prior to this testimony before the Waterfront Commission, plaintiff was told by a lawyer, who represented neither plaintiff nor Mr. Womble, to be "sure" before plaintiff went "through with the complaint" because Mr. Buzzetta would retaliate. (Pl. Dep. 121, 124-125, 233.) Plaintiff further testified that following his testimony before the Waterfront Commission, he felt threatened because Mr. Buzzetta said "if you make a complaint against me again, you'll see what happens." (Pl. Dep. at 144-145.) Mr. Buzzetta did not follow through on this threat or engage in any conduct that suggested he would carry out the threat. (Id. at 151.) Plaintiff testified, however, that as a result of his testimony before the Waterfront Commission, Mr. Buzzetta's harassment intensified and increased in frequency, and Mr. Buzzetta passed over plaintiff for assignment on the top loader in favor of less senior longshoremen. (Id. at 126-130.)
D. The NYSA-ILA Absenteeism Policy and Plaintiff's Termination
The CBA, which governed the terms of plaintiff's employment, adopted absenteeism policies mandated by the NYSAILA. (Def. 56.1 Stmt. ¶ 54; Melia Decl., Ex. E, NYSA-ILA Absenteeism Policies (collectively, the "Absenteeism Policy").) Pursuant to the Absenteeism Policy, all ILA longshoreman, such as plaintiff, were required to report to work as assigned and to remain at work until their assignments were completed. (Def. 56.1 Stmt. ¶ 55.) Additionally, the Employee Handbook states, in relevant part, that
There are a number of requirements you must meet . . . in order to continue your employment in the industry. They include the following . . . Failure to show up for work as ordered or leaving work without your employer's permission will be dealt with under terms of the NYSA-ILA Absentee Program and could result in the loss of your sponsorship and thus, your right to work in the industry.
(Melia Decl., Ex. B, Employee Handbook, at 4-5, Bates No. ASI 0308.) Attendance is monitored and violations of the Absenteeism Policy are heard and decided, and appropriate sanctions are imposed by the NYSA-ILA Committee on Absenteeism ("Committee on Absenteeism"), whose decisions are reviewed by the Contract Board. (Def. 56.1 Stmt. ¶ 57.)
During plaintiff's employment with ASI, if an ILA longshoreman violated the Absenteeism Policy, he received a series of penalties, including warning letters, suspensions and eventually a permanent bar from industry employment. (See generally, Def. 56.1 Stmt. ¶¶ 58-65.) It is undisputed that from September 23, 2003 through October 24, 2007, a total of 23 longshoremen, including plaintiff, were permanently barred from the industry for violations of the Absenteeism Policy. (Id. ¶ 68; see also Melia Decl., Ex. K, List of Permanently Barred Individuals.)
Under the Absenteeism Policy that was in effect from January 1, 2003 through September 30, 2005, a longshoreman could violate the Absenteeism Policy ten times before being suspended for three months from industry employment.*fn1 (Id. ¶ 58.) A longshoreman returning from a three-month suspension would start with a "clean attendance record." (Id. ¶ 59.) Upon the second series of violations leading to the tenth violation of the Absenteeism Policy, a permanent bar from industry employment would be imposed. (Id.) A longshoreman who faces a three-month suspension or permanent bar may explain to the Committee on Absenteeism why sanctions should not be imposed. (Id. ¶ 60.)
Effective October 1, 2005, the NYSA-ILA instituted a stricter Absenteeism Policy, which imposed a permanent bar from industry employment following the first ten violations. (Id. ¶ 63.) It did not provide for a "clean record" after the first occurrence of the tenth violation. (Id.)
It is undisputed that the Committee on Absenteeism warned plaintiff numerous times about his repeated violations of the Absenteeism Policy. (Def. 56.1 Stmt. ¶ 81; Pl. 56.1 Stmt. ¶ 81; Singleton Aff., Ex. K, Absenteeism Related Correspondence.) The warning letters advised plaintiff that "[a]bsenteeism and leaving work early hurt our productivity and our ability to compete with other ports. It also can jeopardize workplace safety." (See, e.g., Singleton Aff., Ex. K, Letters dated 10/8/03, 10/22/03, 3/3/04, 3/17/04, 6/2/04, 6/16/04, 6/23/04, 6/1/05, 6/22/05, 6/29/05, 7/20/05, 8/10/05, 9/7/05, 1/11/06, 1/18/06.) Notwithstanding these warning, plaintiff continued to be absent. (Def. 56.1 Stmt. ¶ 81; Pl. 56.1 Stmt. ¶ 81.)
During his employment with ASI, plaintiff was suspended on 11 occasions for periods ranging from one week to three months for unexcused violations of the Absenteeism Policy related to his employment at ASI and other NYSA-member employers at which plaintiff had accepted employment. (See Def. 56.1 Stmt. ¶ 83.) Although plaintiff does not dispute this fact, he contends that he "was suspended and terminated from his employment because of his national origin and as well as retaliation for going to [sic] Waterfront Commission and with Mr. Womble to file a complaint against Sal Buzzetta . . . ." (Pl. 56.1 Stmt. ¶ 83.)
Before receiving a three-month suspension for violations of the Absenteeism Policy, on June 2, 2004, plaintiff attended a hearing before the Committee on Absenteeism. (Def. 56.1 Stmt. ¶ 86; Melia Decl., Ex. F, Minutes.) During this hearing, plaintiff explained that he did not have a car and could not afford one. (See id.) When asked whether he liked his job, plaintiff responded, "Yes. I like this job very much." (Id.) Plaintiff did not mention at the June 2004 hearing that he was absent from work due to discrimination, retaliation or a hostile work environment at ASI. (Pl. Dep. at 179, 183.)
By contrast, at his deposition, plaintiff testified that he was absent from work at ASI because he "had personal problems" coping with Mr. Buzzetta's discriminatory conduct. (See Pl. 56.1 Stmt. ¶ 89; Pl. Dep. at 178.) Plaintiff testified that he "was stressed out with what I was dealing with at work that I didn't really want to be there." (Id.) Notwithstanding, plaintiff also testified that the "bulk" of his unexcused absences leading to his three-month suspension were caused by his inability to access other ports at which he had accepted employment, rather than his desire not to work at ASI. (Pl. Dep. at 179, 183.)
Following plaintiff's return to work from his three-month suspension, from October 1, 2004 through September 30, 2005, plaintiff accumulated nine violations of the Absenteeism Policy for failing to report to work and one violation for leaving work early. (Id. ¶¶ 90-91.) As a result of plaintiff's continued attendance issues, and following a hearing before the Committee on Absenteeism, on December 20, 2005, plaintiff was permanently barred from industry employment. (Id. ¶¶ 92-93.)
During a hearing on December 19, 2005 to determine whether plaintiff should be permanently barred from the industry, plaintiff was asked by James Melia, the Executive Vice President of Operations and Chief Operating Officer of the NYSA, why plaintiff should be permitted to "continue working in the industry." (Melia Decl., Ex. G, Minutes, Bates Nos. ASI 0569 -- ASI 0571.) Plaintiff testified, "I have problems with my lungs. They are not inflating properly. . . . I think the industry has caused this problem. I drive a hustler, sometimes for long periods of time. . . . The trucks I drive are dirty and dusty. You keep breathing this and it has to cause problems." (Id.) When plaintiff was reminded that he had previously served a three-month suspension, plaintiff testified "[t]hat was because I didn't have a car to get to work." (Id., Bates No. ASI 0571.) Plaintiff did not indicate that he was absent from work due to discrimination, retaliation or a ...