The opinion of the court was delivered by: John G. Koeltl, District Judge
AMENDED MEMORANDUM OPINION AND ORDER
The plaintiff, Rachel Jenkins ("Jenkins"), brings these actions against the New York State Banking Department ("Department"). The plaintiff, a 52 year-old African-American woman, alleges that the defendant discriminated against her on the basis of her race and gender in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. ("Title VII"), the New York State Human Rights Law ("NYSHRL") and the New York City Human Rights Law ("NYCHRL"). The plaintiff further alleges that the defendant discriminated against her on the basis of her age in violation of the Age Discrimination in Employment Act of 1967, 29 U.S.C. § 621, et seq. ("ADEA"), and on the basis of her Christian religion. Additionally, the plaintiff alleges that the defendant retaliated against her after she filed her first complaint with the Department of Human Resources, and failed to promote her at any time during her employment. The defendant moves for summary judgment pursuant to Federal Rule of Civil Procedure 56.
The standard for granting summary judgment is well established. This Court may not grant summary judgment unless "the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c)(2); see also Matican v. City of New York, 524 F.3d 151, 154 (2d Cir. 2008); Bouboulis v. Transport Workers Union of America, 442 F.3d 55, 59 (2d Cir. 2006). "[T]he trial court's task at the summary judgment motion stage of the litigation is carefully limited to discerning whether there are any genuine issues of material fact to be tried, not in deciding them." Gallo v. Prudential Residential Servs. Ltd., 22 F.3d 1219, 1224 (2d Cir. 1994). The substantive law governing the case will identify only those facts that are material and "[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); see also Carvel v. Franchise Stores Realty Corp., No. 08 Civ. 8938, 2009 WL 4333652, at *12 (S.D.N.Y. Dec. 1, 2009).
In determining whether summary judgment is appropriate, a court must resolve all ambiguities and draw all reasonable inferences against the moving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (internal citation omitted); see also Gallo, 22 F.3d at 1223. Summary judgment is improper if there is any evidence in the record from any source from which a reasonable inference could be drawn in favor of the nonmoving party. See Chambers v. T.R.M. Copy Ctrs. Corp., 43 F.3d 29, 37 (2d Cir. 1994). If the moving party meets its initial burden of showing a lack of a material issue of fact, the burden shifts to the nonmoving party to come forward with "specific facts showing a genuine issue for trial." Fed. R. Civ. P. 56(e)(2). The nonmoving party must produce evidence in the record and "may not simply rely on conclusory statements or on contentions that the affidavits supporting the motions are not credible." Ying Jing Gan v. City of New York, 996 F.2d 522, 532 (2d Cir. 1993); see also Scotto v. Almenas, 143 F.3d 105, 114-15 (2d Cir. 1998) (collecting cases); Carvel, 2009 WL 4333652, at *12.
Where as here, a pro se litigant is involved, although the same standards for dismissal apply, the Court must give a pro se litigant special latitude in responding to summary judgment motion. See McPherson v. Coombe, 174 F.3d 276, 280 (2d Cir. 1999)(courts "read the pleadings of a pro se plaintiff liberally and interpret them 'to raise the strongest possible arguments that they suggest'")(quoting Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994)); Vitrano v. State Farm Ins. Co., No. 08 Civ. 00103, 2008 WL 2696156 at *1 (S.D.N.Y. Oct. 18, 2008). In particular, the pro se party must be given express notice of the consequences of failing to respond appropriately to a motion for summary judgment. See McPherson, 174 F.3d at 281; Vital v. Interfaith Med. Ctr., 168 F.3d 615, 620-21 (2d Cir. 1998); see also Ford v. Choice Personnel, Inc., No. 06 Civ. 7200, 2009 WL 35032, at *2 (S.D.N.Y. Jan. 6, 2009).
In this case, as required by Local Rule 56.2, the defendant provided the plaintiff with a "Notice to Pro Se Litigant" dated March 24, 2009 as required by Local Rule 56.2 which sets out the responsibilities of the pro se plaintiff in responding to a motion for summary judgment. The Notice advised the plaintiff of the procedures for responding to a motion for summary judgment, including the requirement that the plaintiff submit a response to the defendants' statement pursuant to this District's Local Rule 56.1 and to submit counter-evidence. The plaintiff demonstrated her understanding of the summary judgment procedure by submitting an affidavit and evidence in response to the motion.*fn1
The following facts are taken from the evidence submitted to the Court and are construed in the light most favorable to the plaintiff. All facts are undisputed unless otherwise noted.
The plaintiff is an African-American female; she was born on June 23, 1957 and is currently 52 years of age. (Defs.' 56.1 Stmt. ¶ 2.) The defendant has employed the plaintiff since 1980. (Defs.' 56.1 Stmt. ¶ 1.) The plaintiff is employed as a Clerk 1, Grade 6 and is now assigned to the Mortgage Banking Division, although she previously worked in the Office Services Division. (Defs.' 56.1 Stmt. ¶ 47, 48; Rulon Aff. ¶ 5, Jan. 26, 2006.) The plaintiff's job responsibilities include, among other things, processing transactions and monitoring records in a variety of organization settings. (Rulon Aff. ¶ 5, Jan. 26, 2006.) Tae Ibraheem, Principal Account Clerk, is the plaintiff's direct supervisor. (Defs.' 56.1 Stmt. ¶ 28; Rulon Aff. ¶ 5, Jan. 26, 2006.)
The plaintiff has received three Notices of Discipline (NOD). (Defs.' 56.1 Stmt. ¶ 40; Jenkins Dep. 66; Rulon Aff. ¶ 6, Jan. 26, 2006.) The plaintiff was served with an NOD dated February 3, 2005 based on a series of nine incidents of misconduct and insubordination. (Rulon Aff. ¶ 6 & Ex. A, Jan. 26, 2006.) A number of the plaintiff's offenses involve her failure to appear for scheduled meetings with her supervisors despite being advised verbally and in writing that the plaintiff's attendance was mandatory and that refusing to appear would constitute insubordination. (Rulon Aff. Ex. A, Jan. 26, 2006.) The plaintiff was also found to have left work in the middle of the day to take unauthorized breaks in violation of a staff memorandum and to have left work early to deliver certified mail to the postal unit in violation of direct orders from her supervisor and a staff memorandum. (Ibraheem Aff. ¶¶ 21-22.) Additionally, the plaintiff was found to have refused to comply with direct orders from her supervisor, Mr. Ibraheem, to complete specific tasks throughout her work day.
The second NOD, dated June 28, 2005, was issued for two unauthorized absences. (Defs.' 56.1 Stmt. ¶ 33; Rulon Aff. Ex. B, Jan. 26, 2006.) In the first occurrence, the plaintiff left work at a time earlier than the time she was authorized to leave, despite being told by her supervisor that she was not allowed to leave early. (Rulon Aff. ¶ 7 & Ex. B, Jan. 26, 2006.) The second unauthorized absence occurred on Apr. 7, 2005 when the plaintiff was absent from work without calling and without authorization. (Rulon Aff. Ex. B, Jan. 26, 2006.)
While the plaintiff requested the day off as a vacation day, her supervisor, Mr. Ibraheem, denied the request, and the plaintiff was notified in writing. (Defs.' 56.1 Stmt. ¶ 29; Jenkins Dep. 18 & Ex.B.) The plaintiff argues that her supervisor should have given her a verbal denial of her request and that returning her request slip to her with a written denial was not sufficient because he should not have assumed that she would read the slip. (Jenkins Dep. 147-48.) The plaintiff argues that "somebody should have said something" to bring the denial to her attention, it was not her responsibility to read the slip because she was busy. (Jenkins Dep. 151-52.) However, the plaintiff had the request slip that had been marked denied in her desk for a week and could have looked to see if her request had been checked approved or denied at any time.
The plaintiff grieved her NOD dated June 28, 2005. She appeared in front of a time and attendance umpire at a hearing on September 19, 2005, represented by a Civil Service Employees Association ("CSEA") Representative, Barbara Moore. (Rulon Aff. ¶ 7, Jan. 26, 2006.) On September 22, 2005, the time and attendance umpire imposed a fine of $150.00, to be taken out of her pay in $50.00 increments. (Defs.' 56.1 Stmt. ¶ 34; Jenkins Dep. Ex. O). The plaintiff alleges that her pay was docked based on her age, but she proffers no evidence in support of the allegation.*fn2 (Defs.' 56.1 Stmt. ¶ 24; Jenkins Dep. 17-18.)
The plaintiff's final NOD resulted from an incident of insubordination on October 12, 2005. (Defs.' 56.1 Stmt. ¶¶ 35-40; Jenkins Dep. Ex. G.) The statement of charges includes four specifications that the plaintiff claims are untrue. (Jenkins Dep. 63, 81.) According to the defendant, the incident began when the plaintiff refused to give her co-worker and acting supervisor, Ileana Jardines, a registered letter in her possession. (Rulon Aff. ¶¶ 8-9, Jan. 26, 2006.) Ms. Jardines reported the incident to Human Resources and Diana Rulon, Chief Administrative Officer, who then accompanied Ms. Jardines to the plaintiff's workstation to speak with the plaintiff. (Rulon Aff. ¶ 10, Jan. 26, 2006.) Ms. Rulon repeatedly directed the plaintiff to give the letter to Ms. Jardines, and when the plaintiff finally complied, she ripped up the registered mail receipt and told Ms. Jardines to write out a new receipt herself. (Rulon Aff. ¶ 10, Jan. 26, 2006.)
Ms. Rulon then asked the plaintiff to prepare a new registered mail receipt or she would lose her job, although the plaintiff's claim denies this. (Rulon Aff. ¶ 11, Jan. 26, 2006; Jenkins Dep. 65.) The plaintiff continued to refuse to fill out the form and, when Ms. Rulon said that the plaintiff would lose her job, the plaintiff responded, "then she'd lose it." (Rulon Aff. ¶ 11, Jan. 26, 2006.) After the plaintiff refused to fill out the form, Ms. Rulon took the letter, and states that the plaintiff mocked her and Ms. Jardines as they walked away. (Rulon Aff. ¶ 11, Jan. 26, 2006.) The plaintiff concedes that she did not fill out a slip for Ms. Jardines, even after being asked by Ms. Rulon. (Jenkins Dep. 77.) However, the plaintiff contends that she did not "refuse" to do what Ms. Rulon told her to do, only that she "didn't do it," but she fails to provide any distinction between the two. (Jenkins Dep. 77-79.)
The plaintiff was served with a statement of charges that included the above conduct. The final specification in the statement of charges indicates that Ms. Rulon asked the plaintiff what tasks she was working on and plaintiff refused to respond. (Jenkins Dep. Ex. G.) The plaintiff received this statement of charges after the incident along with the proposed penalty that she be terminated. (Defs.' 56.1 Stmt. ¶ 40; Jenkins Dep. 71.)
Following this incident, the plaintiff was placed on administrative leave. (Defs.' 56.1 Stmt. ¶ 39.) The plaintiff was told to surrender her department ID and not to appear at work or contact anyone except Human Resources. (Jenkins Dep. 71.) The plaintiff was directed to call Human Resources every day at ten and two for further instructions. (Jenkins Dep. 72.) The conditions of the plaintiff's administrative leave were memorialized in a letter dated October 12, 2005 that the plaintiff received. (Defs.' 56.1 Stmt. ¶ 39; Jenkins Dep. Ex. I.) The defendant contends that the plaintiff refused to sign a copy of the letter, but the plaintiff alleges she was never asked to sign the letter. (Jenkins Dep. 72 & Ex. I.) The plaintiff further contends that she was not given an explanation for why she was placed on administrative leave and that this was another incident of discrimination. (Defs.' 56.1 Stmt. ¶ 6.) However, the administrative leave commenced immediately after the plaintiff's act of insubordination regarding her refusal to relinquish the certified mail and subsequent ripping of the certified mail receipt. (Jenkins Dep. 87-88.) The plaintiff returned from administrative leave on May 15, 2006 and was assigned to the Mortgage Banking Division. (Defs.' 56.1 Stmt. ¶ 47.)
The plaintiff contested the third NOD in a grievance proceeding where she was represented by CSEA Representative Paul Levine. (Jenkins Dep. Ex. H.) On or about June 19, 2007, the parties entered into a voluntary settlement agreement of the charges stemming from the October 12, 2005 occurrence. (Jenkins Dep. Ex. H.)
The conditions of her settlement were as follows: (1) the plaintiff was suspended without pay for a period of five days; (2) the plaintiff forfeited fifteen days of annual leave accruals; and (3) the plaintiff received a twenty-day disciplinary suspension without pay held on abeyance for a period of eighteen months from the date of the settlement. (Jenkins Dep. Ex. H.) If the plaintiff was charged with an act of misconduct involving insubordination within the eighteen month time period, the penalty held in abeyance would be imposed. (Jenkins Dep. Ex. H.) If no such act was charged within that time period, the abeyance would be ...