The opinion of the court was delivered by: Kenneth M. Karas, District Judge
Plaintiff, Louis I. Octobre ("Plaintiff" or "Octobre"), alleges that he was fired by Defendant, Radio Shack Corporation ("Defendant" or "Radio Shack"), because of racial discrimination, in violation of 42 U.S.C. § 1981 ("§ 1981") and N.Y. Executive Law § 296 (McKinney 2009) ("NYSHRL"). (Compl. ¶¶ 13-16.) Defendant moves for summary judgment. For the reasons stated herein, Defendant's motion is granted.
A. Plaintiff's Employment and Subsequent Dismissal
Plaintiff was employed by Defendant in various capacities from October 5, 1995, until December 13, 2006. (Def.'s Statement of Undisputed Material Facts Pursuant to Local R. 56.1 ("Def.'s 56.1 Stmt.") ¶ 1; Pl.'s 56.1 Statement in Opp'n to Defs.' [sic] Mot. for Summ. J. (Pl.'s 56.1 Stmt.") ¶ 1.)*fn1 At the time of his termination, Plaintiff worked as a Senior Store Manager. (Pl.'s 56.1 Stmt. ¶ 1.)
In or about "late 2006," Defendant's Loss Prevention Services conducted an inventory investigation of the store managed by Plaintiff. (Id. ¶ 4.) The Parties do not agree on the exact amount of the Plaintiff's inventory loss, but both agree that it was somewhere at or exceeding $5,000. (Id.; Pl.'s Mem. of Law in Opp'n to Defs.' [sic] Mot. for Summ. J. ("Pl.'s Mem.") 5.) At the conclusion of the investigation, Plaintiff was fired by his supervisor, District Manager Millicent Quinones ("Quinones"), who cited three reasons for his termination: "(a) failing to report employee theft, (b) [the] inventory loss at the store [P]laintiff managed, and (c) failing to conduct weekly cage counts . . . ." (Mem. of Law in Supp. of Def.'s Mot. for Summ. J. ("Def.'s Mem.") 4; see Compl. ¶¶ 7(e)-(h).) Radio Shack replaced Plaintiff with another African-American employee. (Decl. of Lynelle J. Slivinski, Esq., in Supp. of Def.'s Mot. for Summ. J. ("Slivinski Decl.") Ex. J, at unnumbered second page.) Plaintiff maintains that these reasons were pre-textual, and that race was the decisive factor in the decision to terminate his employment. (Pl.'s Mem. 3-8.)
B. Thefts at a Store Managed by Plaintiff
Both Parties reference Plaintiff's alleged failure to report employee theft, but the major dispute between the Parties appears to concern a customer theft. Sometime prior to December 9, 2006, a customer stole a laptop from the store managed by Plaintiff. (Def.'s 56.1 Stmt. ¶ 6; Aff. of Ambrose W. Wotorson in Opp'n to Defs.' [sic] Mot. for Summ. J. ("Wotorson Aff.") Ex. 7 ¶¶ 11-12; Pl.'s Mem. 4.) Plaintiff asserts that he reported the theft, and Defendant asserts that he did not properly do so. (Wotorson Aff. Ex. 7 ¶ 11; Decl. of Paul Votto in Supp. of Def.'s Mot. for Summ. J. ("Votto Decl.") Ex. 6.) Defendant's view is based on the fact that Plaintiff never filled out a "Loss and Damage Report," which is the formal way to report merchandise loss. (Votto Decl. Ex. 2, at D528 (outlining how a Loss and Damage Report could be filed); id. Ex. 6 (stating that Plaintiff never filed "an L&D").) Plaintiff's view is based on his belief that he noted the inventory loss in an inventory report and that this procedure had been acceptable in the past. (Wotorson Aff. Ex. 7 ¶ 11.)
A subsequent employee theft also occurred at the store Plaintiff managed. On December 9, 2006, a sales associate conducted a fraudulent refund for $270.93. (Votto Decl. Ex. 4; Def.'s 56.1 Stmt ¶ 6 accord Pl.'s 56.1 Stmt. ¶ 6.) The Parties do not dispute Plaintiff's reporting of the employee theft, instead focusing on the report, or lack thereof, of the laptop theft. (Def.'s Mem. 7-9; Pl.'s Mem. 4-5; Reply Mem. of Law in Supp. of Def's Mot. for Summ. J. ("Reply Mem.") 3-4.) During a subsequent loss investigation, the sales associate claimed to have conducted the fraudulent refund because Plaintiff pressured her to pay for the stolen laptop. (Votto Decl. Ex. 5, at D11-12.)*fn2 Plaintiff denies giving any such instruction to the sales associate. (Wotorson Aff. Ex. 7 ¶ 12.) At her deposition, Quinones could not recall if Radio Shack believed Plaintiff. (Id. Ex. 6, at 134 ("Q. . . . [D]id the company disbelieve Mr. Octobre? A. I don't think so. I'm not sure. I don't have an answer for that.").)
There are two kinds of product checks that Defendant normally requires at its stores. The first is known as an "inventory," which is a "periodic count of all merchandise in the store." (Reply Mem. 5; Slivinski Decl. Ex. G, at 114-16.) Inventories are conducted once every three or four months. (Slivinski Decl. Ex. G, at 114-16.) The second kind of product check is a "cage count," which is performed weekly and involves a physical count of small, high-value merchandise such as "wireless handsets [and] digital cameras," which are secured in a locked area. (Reply Mem. 5 & n.1; Votto Decl. Ex. 2, at 2 (stating that "[a]t minimum, a physical count must be performed weekly on all secured merchandise by the Store Manager").) Plaintiff did not conduct cage counts between early October and December 2006. (Votto Decl. Ex. 3; Pl.'s Mem. 6.)
As previously noted, the store Plaintiff managed sustained an inventory loss of at least $5,000 in or about late 2006. (Pl.'s 56.1 Stmt. ¶ 4; Pl.'s Mem. 5.) As a result of this inventory loss, Paul Votto, a Loss Prevention Manager for Radio Shack, conducted a loss investigation. (Votto Decl. ¶¶ 1-2.) Votto's investigation concluded that Plaintiff had failed to adequately follow the cage count and inventory procedures. (Id. Ex. 1.) He also prepared a memorandum, which was sent to Quinones, that detailed Plaintiff's policy violations. (Id. Ex. 3.) Votto was also responsible for investigating the sales associate's theft, and prepared a statement outlining his findings. (Id. Ex. 4.) This investigation also resulted in a memorandum, which was sent to Quinones, and which included the sales associate's allegations regarding Plaintiff's behavior, as well as a statement indicating that Plaintiff admitted applying improper pressure to the sales associate. (Id. Ex. 6.)
On April 24, 2007, Plaintiff filed his complaint alleging wrongful termination on the basis of race in violation of § 1981 and NYSHRL. (Compl. ¶¶ 13-16.) The case was referred to Magistrate Judge Fox for all purposes on April 24, 2007, pursuant to the standing order of Chief Judge Kimba M. Wood. The case was re-assigned to this Court on August 6, 2007. Defendant moved for summary judgment ...