The opinion of the court was delivered by: David G. Trager United States District Judge
Plaintiff Andre Berry ("plaintiff" or "Berry"") brings this action against his former employer Empire Homes Services LLC ("Empire") and Empire employees Joel Glantz ("Glantz"), Steve Silvers ("Silvers"), Mac Baker ("Baker"), Teale Smith ("Smith"), Brent Countryman ("Countryman") and Rick Greene ("Greene") (collectively "defendants"). Plaintiff alleges that defendants discriminated against him on the basis of his race, color and national origin and terminated his employment in retaliation for his complaints of discrimination.*fn1 Plaintiff's claims are brought pursuant to Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e-1 et seq. ("Title VII"), 42 U.S.C. § 1981 ("Section 1981") and the New York State Human Rights Law, New York Executive Law, §§ 296("NYSHRL"). Plaintiff also brings claims for breach of contract and intentional infliction of emotional distress.
Pursuant to Rule 56 of the Federal Rules of Civil Procedure, defendants collectively move for summary judgment. Defendant Baker also moves individually for summary judgment. For the reasons stated below, the motions for summary judgment are granted on plaintiff's federal law claims and plaintiff's state law claims are dismissed without prejudice.*fn2
(1) Overview of Plaintiff's Employment at Empire
Plaintiff, a 39 year old African-American male, was hired in January 2002 by Empire, a national home furnishings company, to work as the Assistant General Manager of the Syosset, New York office. Declaration of Andre Berry ("Pl.'s Decl.") at ¶ 1-2. The Assistant Manager position was unique to Empire's New York office and was created specifically for plaintiff in response to the substantial size of the New York-New Jersey market. Pl.'s Ex. K. at ¶ 10. Glantz, Senior Vice President at Empire and plaintiff's direct supervisor, interviewed and hired plaintiff for the position. Dep. of Andre Berry ("Berry Dep.") at 191:18-21; 219-220:24-25, 2-3. At the time of plaintiff's hiring, Glantz was aware of Berry's race. Id.
On May 27, 2002, plaintiff was promoted to General Manager. Pl.'s Decl. at ¶ 4. Both Glantz and Silvers, also a senior vice president at Empire, were responsible for approving plaintiff's promotion to General Manager in May 2002 and were aware of Berry's race at that time. Id. at 219:16-20; 220:4-6. In January 2004, plaintiff received a wage increase based on his performance evaluation. Defs.' Exs. G and J. On August 18, 2004, plaintiff's employment at Empire was terminated by Glantz. Pl.'s Decl. at ¶ 4, 83.
(2) Alleged Discrimination During Plaintiff's Employment
a. Comments and Behavior By Baker
i. The Alleged "Token Black" Comment
According to plaintiff, at his first General Manager's meeting in Chicago in January 2002, defendant Baker, an Empire Sales Trainer, asked plaintiff if he was Empire's "token black." Pl.'s Decl. at ¶ 9. Plaintiff claims that Baker made this statement in the presence of defendant Smith, Operations Manager at Empire, and 12 other general managers. Pl.'s Decl at ¶ 10. Baker denies that he made this comment. Def. Baker's Statement Pursuant to Local Rule 56.1 ("Def. Baker's 56.1") at ¶ 13.
Immediately after the alleged comment, plaintiff complained to Smith, who, according to plaintiff, failed to take any action against Baker. Pl.'s Decl at ¶ 10-11, 13. The day after the meeting, plaintiff complained about Baker's comment to Kim Nichols in Empire's Human Resources Department. Berry Dep. at 15:5. Approximately a week or two later, plaintiff e-mailed Glantz, Silvers and Smith regarding the comment and was assured by them that they would speak to Baker. Pl.'s Decl. at ¶ 11-15.
A few months after the alleged comment, Baker was promoted from Sales Trainer to National Sales Manager. Pl.'s Decl. at ¶ 16. Plaintiff's promotion to General Manager of the New York office followed soon thereafter in May 2002. Berry Dep. at 195:2-5.
ii. Baker's Alleged Sales Intructions to Plaintiff's Staff
In approximately December 2002, in his new position as National Sales Manager, Baker visited plaintiff's office while plaintiff was not present. Pl.'s Decl. at ¶ 17-18. According to plaintiff, Baker contradicted plaintiff's directions to the Empire sales managers in the New York office*fn3 and instructed them to refrain from sales in certain areas of Brooklyn, Bronx and Queens (specifically African-American and Hispanic neighborhoods). Id. at ¶ 20. Plaintiff alleges that Baker did this in response to plaintiff's race and color and in retaliation for plaintiff's earlier complaint against Baker regarding the "token black" comment. Id. at ¶ 26.
Baker, however, contends that his sales changes were made for legitimate business-related reasons and that he never instructed the sales managers to avoid any neighborhoods. Def. Baker's 56.1 at ¶ 15-19. He points to the fact that a few months earlier, on August 10, 2002, he sent an e-mail to the salespeople encouraging them to show more persistence in closing sales in inner city neighborhoods. Defs.' Ex. H; Def. Baker's Mem. of Law in Supp. of Summ. J. at 3.
iii. The "F--king the Office Manager" Comment
During Baker's same visit to the New York office, plaintiff claims that Baker told plaintiff's staff that plaintiff was "f--king the office manager," Rachel Mott ("Mott"). Berry Dep. at 18:18-20. Although Baker does not deny that he commented about plaintiff's alleged affair with Mott, Baker claims that he merely repeated what the sales managers in plaintiff's office had already told him regarding the relationship.*fn4 Def. Baker's 56.1 at ¶ 23. Baker later reported to Glantz the allegations of a relationship between plaintiff and Mott. Id. at ¶ 23-24. Plaintiff denies that he was having an affair with Mott. Berry Dep. at 179:22-24.
The day after Baker's comment to plaintiff's staff regarding plaintiff's alleged affair, plaintiff complained via phone and e-mail to Glantz and Silvers, and at plaintiff's insistence, a conference call was held with Glantz, Silvers, Baker and plaintiff. Pl.'s Decl. at ¶ 29-30. Although Baker apologized for the affair comment, plaintiff claims that Glantz and Silvers failed to address both Baker's alleged instructions to the sales managers to avoid sales in African-American and Hispanic neighborhoods and his alleged attempts to undermine plaintiff's general sales directives to his staff. Id. at ¶ 30-31.*fn5
iv. The Comment at the General Manager's Dinner
According to an e-mail from Jennifer Brethour Martinez ("Brethour Martinez),*fn6 manager of Empire's Human Resources department, to Michelle Canada ("Canada"), another employee in Human Resources, Baker made a comment during a General Manager's dinner regarding the black neighborhoods where Empire sold their goods.*fn7 Pl.'s Ex. B. Although Brethour Martinez did not hear the comment, she stated in her e-mail to Canada that she "believe[d] [the comment] was referencing some of the black areas." Id. Plaintiff was in attendance at this dinner, and in response to Baker's comment, said to Brethour Martinez, "You got that HR, you know I am documenting." Id. Following the dinner, Brethour Martinez told Baker "that he cannot have these conversations . . . especially in front of [plaintiff]." Id.
i. The Hiring of Countryman and Greene
Defendants Countryman and Greene began working as Empire sales managers in the New York area in 2003.*fn8 Pl.'s Decl. at ¶ 36. According to plaintiff, although Empire's practice was for general managers to participate in the hiring of sales managers in their region, Glantz, Silvers and Baker did not include plaintiff in the hiring of Countryman and Greene. Berry Dep. at 209:13-18; Pl.'s Decl. at ¶ 40, 42-43. Plaintiff further states that other general managers at Empire customarily participated in the hiring of sales managers. Pl.'s Decl. at ¶ 37. Specifically, plaintiff notes that he witnessed Brad Freiss ("Freiss"), another general manager, who is white, participate in the process of hiring sales managers, Id. at ¶ 39, and that other general managers in the region told plaintiff that it was Empire's practice to allow general managers to participate in the hiring process. Id. at ¶ 38. Additionally, plaintiff himself had previously been involved in the hiring of Tom Patrickquin, a sales manager for the region. Id. However, according to Glantz, senior management maintained the ultimate authority in hiring sales managers, and general managers did not have exclusive interviewing capability. Pl.'s Ex. F.
ii. Countryman and Greene's Alleged Behavior and Plaintiff's Attempts to Discipline Them
According to plaintiff, because of his limited input in their hiring, Greene and Countryman did not respect him as the manager. Berry Dep. at 211:18-22. Plaintiff claims that both Greene and Countryman made comments that they did not report to plaintiff but instead to Baker. Id. at 211:23-25.
On May 14, 2003, plaintiff filed an "Employee Notice Warning" form, detailing a May 13, 2003 incident*fn9 in which Countryman referred to Joe Billi, a white Italian American Empire employee, as a "f--king melanza," while on speaker phone in the Empire office.*fn10 Defs. Ex. DD; Berry Dep. at 24:17-21.
Plaintiff claims that this comment was a racial slur and that he complained to Empire's Human Resources Department but was prohibited from disciplining Countryman. Berry Dep. at 25:3-4; Pl.'s Counter Statement Pursuant to Local Rule 56.1 ("Pl.'s 56.1") at ¶ 16. Countryman was transferred shortly after this incident. Pl.'s Compl. at ...