The opinion of the court was delivered by: William M. Skretny Chief Judge United States District Court
Plaintiff Cardell Williams (hereinafter, "Plaintiff"), acting pro se, commenced this employment discrimination action by filing a Complaint in the United States District Court for the Western District of New York. (Docket No. 1.) Therein, he alleges that Defendant Alterra Assisted Living Home Health Corp./ Brookdale discriminated against him based on his race and color, and retaliated against him for filing a complaint with the New York State Division of Human Rights. Plaintiff brings this action pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. (hereinafter, "Title VII") and the New York State Human Rights Law, N.Y. EXEC. L. §§ 296 et seq. (hereinafter, "NYHRL"). Presently before this Court is Defendant's Motion for Summary Judgment.*fn1 (Docket No. 20.) Plaintiff opposes the motion.*fn2 For the reasons stated below, Defendant's motion is granted.
Alterra Assisted Living Home Health Corp./ Brookdale (hereinafter, "Alterra" or "Defendant") operates assisted living residences for elderly and memory-impaired individuals. (Compl. p. 30.) Plaintiff was hired as a part-time Dietary Aid, on July 25, 2003, at Alterra's Wynwood of Kenmore location, by Dining Service Manager Carolyn Elia (hereinafter, "Elia"). (Def.'s Stmt.*fn3 , ¶ 1.)On the day he was hired, Plaintiff received a document titled, "Alterra Attendance Expectations" which, among other things, requires that an employee who is going to be late for a shift call at least two hours in advance of the scheduled start time. (Pl.'s Dep. 108:4-110:16.)
As a Dietary Aid, Plaintiff was responsible for serving the residents, dishwashing, and cleaning. (Def.'s Stmt. ¶ 2.) It appears Plaintiff performed his job without incident for approximately six months. On January 28, 2004, Plaintiff received a Corrective Action Notice, which states he became argumentative with and made derogatory remarks about a resident. (Def.'s Ex. A.) Elia counseled Plaintiff that "he must change his actions... [or] he will be terminated." (Id.)
On April 24, 2004, Elia completed a performance appraisal for Plaintiff. (Def.'s Ex. B.) She assessed him as meeting expectations with regard to "Alterra Cornerstones," job knowledge, quality, dependability, initiative, and communication. (Id.) However, Elia indicated Plaintiff's customer service skills and quantity of work still needed improvement.
(Id.) She further noted that Plaintiff "needs to learn how to take criticism without taking it personally when it comes to the job" and "does not respond well to orders." (Id. pp. 4-5.)
Plaintiff received another Corrective Action Notice from Elia on August 21, 2004 for attendance violations. (Def.'s Ex. C.) Elia noted that Plaintiff did not show up for his Saturday morning shift, gave no notice, and was starting to show a pattern of not coming in on weekends. (Id.) Plaintiff was told his attendance had become an issue and that additional attendance problems could lead to termination. (Id.) Elia marked the Notice as a final written warning. (Id.)
On December 15, 2004, Elia requested that employees provide her their schedule or hours of availability for the upcoming quarter. (Elia Dep. 70:16-18.) Elia's staff consists primarily of students whose schedules change during the course of the school year. (Id. 50:15-16.) Therefore, she requires they update their availability in writing on a quarterly basis. (Id. 47:18-20, 50:14-20.) Schedules were typically prepared a month in advance and posted two weeks ahead of time. (Id. 70:6-9.) Plaintiff did not provide Elia with a verbal or written schedule after December 15th. (Id. 50:17-20.) Without his schedule, Elia was forced to schedule Plaintiff only as a "fill-in," covering employees who called off, or who were on disability leave or paid time off. (Def.'s Stmt., ¶¶ 22, 28.) On January 1, 2005, Elia documented Plaintiff's failure to provide her with his school schedule. (Ex. D.)
Plaintiff was again late for work on January 3 and 6, 2005. (Def.'s Ex. E.) When Elia explained that being late caused residents to be served late, Plaintiff responded, "I don't care." (Def.'s Ex. F.) He was late again on January 14, 2005. (Def.'s Ex. E.)
On or about January 19, 2005, Plaintiff found a diamond ring in the Alterra Parking lot that belonged to one of the residents. (Pl. Dep. 15:21-22; Def.'s Stmt., ¶ 23.) The residents nominated him for "Employee of the Month," which he received. (Pl. Dep. 16:7.)
On or about January 21, 2005, Plaintiff complained to Elia about his lack of hours on the upcoming two week schedule. (Id. 18:16.) In addition, Plaintiff's mother called Alterra's Employee Hotline to discuss the reduction in her son's hours. (Def.'s Stmt., ¶ 30; Def.'s Ex. G.) She spoke with Janeen Podbutzky (hereinafter, "Podbutzky"), Human Resources Assistant, on February 1, 2005. (Def.'s Stmt., ¶ 31; Def.'s Ex. G.) Podbutzky agreed to look into the matter, and on February 7, 2005, she informed Plaintiff's mother that her son's hours were reduced because he never gave Elia his availability as requested, and two staff members had returned from vacation. (Id.) In addition, as a "limited part-time" employee, Plaintiff was not guaranteed a certain number of hours. (Def.'s Stmt., ¶ 35.)
On February 24, 2005 Plaintiff attended a mandatory staff meeting where he received a copy of "Rules for Personal Conduct" containing the policy and procedure for attendance, and where the "Zero Tolerance Policy for Attendance" was discussed. (Def.'s Ex. I; See also, Def.'s Ex. H.)
Shortly thereafter, on March 4, 2005, Plaintiff filed a discrimination complaint with the New York State Division of Human Rights (hereinafter, the "DHR"), in which he alleged that because Elia was unhappy a black employee had received the "Employee of the Month" award, she proceeded to cut his hours and criticized him for coming in late. (DHR Verified Complaint, March 4, 2005, ¶¶ 4, 8.)
After Plaintiff was again late for his shift on March 12, 2005, Elia prepared a third Corrective Action Notice, which she again recorded as a final written Notice. (Def.'s Ex. I.)
On April 29, 2005, Plaintiff was counseled by Elia and the new Residence Director, Jeannine Monteleone (hereinafter, "Monteleone") for showing up twenty-five minutes late for work on April 23rd. (Def.'s Stmt., ¶ 43; Def.'s Ex. E.) Monteleone warned that if Plaintiff was late again, he may be terminated. (Def.'s Ex. E; ...