The opinion of the court was delivered by: Cedarbaum, J.
Davidson Chukwuka sues the City of New York, the New York City Human Resources Administration, Richard Beck, and Sherry Berkowitz for employment discrimination under Title VII of the Civil Rights Act of 1964 ("Title VII"), as amended, 42 U.S.C. § 2000e et seq., employment fraud, constructive discharge, and interference with retirement benefits under the Employment Retirement Income Security Act ("ERISA"), as amended, 29 U.S.C. § 1001 et seq. Defendants move for partial summary judgment on the Title VII claim on the ground that Chukwuka cannot establish a prima facie case of discrimination. Defendants also filed a supplemental motion for summary judgment on the remaining claims. Today, I granted the supplemental motion for summary judgment in open court. For the reasons that follow, defendants' motion on the Title VII claim is granted.
Chukwuka is a black man of Nigerian national origin. He started working for the New York City Human Resources Administration ("HRA") in September 1990 as a provisional case manager. After taking a series of civil service examinations, he became a permanent Staff Analyst II in the Bureau of Reconciliation and Control ("BORAC"), one of the divisions of the HRA. Defendant Sherry Berkowitz was the Assistant Deputy Commissioner of the HRA Finance Office and defendant Richard Beck was the Director of BORAC.
In the complaint, Chukwuka alleges eight instances of discrimination on the basis of national origin, citizenship, race, and color. For each alleged instance, the material facts are as follows. The facts are undisputed except where noted.
First, in May 2002, Chukwuka requested two and a half weeks of leave to transport his brother's body to Nigeria and attend the funeral there. Beck approved the leave, but he required Chukwuka to finish all of the work assigned to him before he left.
Second, in September 2002, Edith Barrow, Chukwuka's then-direct supervisor, evaluated Chukwuka for the period of October 1, 2001, through September 30, 2002. Barrow gave Chukwuka a rating of "outstanding" for that period. Once she completed the evaluation, she showed it to Chukwuka, and both signed it. In April 2003, Beck modified the evaluation and changed several ratings from "outstanding" to "very good." He did not change the section of the evaluation entitled "Justification for overall rating."
The parties dispute whether Beck had the authority to change Barrow's ratings. In her deposition, Berkowitz testified that the evaluation policy required that an employee's immediate supervisor write the employee's evaluation and then discuss that evaluation with his own supervisor. The second-level supervisor could change the evaluation if he did not agree with the immediate supervisor's ratings or comments. Once the second-level supervisor approved the evaluation, it was shared with the employee. Berkowitz further testified that if the immediate supervisor had not consulted the second-level supervisor, as required by this policy, then the second-level supervisor could change the evaluation even after the employee saw it. According to Chukwuka, however, this policy did not exist. He points to the deposition testimony of Michelle Foulks, the commissioner of the unit. Foulks agreed with Berkowitz that an immediate supervisor reviewed the evaluation of an employee with a second-level supervisor, but she testified that it was in the province of an immediate supervisor to evaluate an employee, irrespective of the position of the second-level supervisor.
Third, in February 2003, Beck had a meeting with Chukwuka in which Beck accused Chukwuka of making a work-related mistake. Beck threatened to demote Chukwuka, yelled several obscenities at him, and called him "you foreigner." Later Beck discovered that people in a different department were responsible for the mistake. According to Chukwuka, those people were Caucasian and Beck never yelled at them after he discovered that they had made the mistake.
Fourth, in April 2003, Beck directed Robert Martin, Chukwuka's immediate supervisor at the time, to carefully supervise Chukwuka. To Chukwuka's knowledge, Martin never gave him a negative evaluation as a result of Beck's directive.
Fifth, on September 2, 2003, Chukwuka sent an email to his immediate supervisors, Angel Brito and Martin, advising them that he would be taking his annual leave from October 14, 2003 to November 10, 2003. Later that day, Martin emailed Brito, copying Beck, and wrote that before Chukwuka's vacation request could be approved, they had to discuss with Chukwuka whether he could finish the work assigned to him before he left and whether he would be back in time to cover his work for the next month. Martin also wrote that after this discussion with Chukwuka, they should get feedback from Beck regarding the request. Beck then forwarded the request to Berkowitz and asked her how she wanted to handle it given her past instructions not to approve vacations longer than fifteen days. Berkowitz responded that she did not want employees out of the office for longer than fifteen days, and Beck informed Chukwuka, Brito, and Martin of Berkowitz's response. On September 3, 2003, Chukwuka emailed Brito, Martin, and Beck, and wrote that he did not know about this policy. Beck responded that Berkowitz had discussed the policy with the BORAC staff several months before Chukwuka had made his request. Berkowitz herself then emailed Chukwuka and wrote that Beck was enforcing her policy and that she had told Chukwuka about the policy when she had met with the BORAC staff in the spring. She also wrote that it would affect Chukwuka's unit if he were gone for a month. Chukwuka changed his flight to shorten his vacation, although he could not recall how much the fee was to do this.
The parties dispute the existence of the vacation policy and how defendants enforced it. Chukwuka asserts that he was never aware of the vacation policy and that it was never distributed in writing. Further, he states that Martin was never aware of the policy either until Chukwuka made this request. He also asserts that a twenty-day vacation was approved for Grace Taylor, another employee in the unit. Berkowitz, however, testified in her deposition that she established such a policy in the spring of 2003 and that she had established a similar policy in every unit she had managed. Also, Martin testified in his deposition that he recalled hearing about the vacation policy at some point before Chukwuka made his request. And Taylor, who is African-American, was out of the office for a combination of annual leave, sick leave, and work training. The work training did not count toward annual leave, and therefore she was not out on annual leave for more than ten consecutive days.
Sixth, on July 2, 2004, Beck sent Chukwuka a memorandum in which he noted that Chukwuka had taken a two-hour lunch that day and that, as a result, there had not been adequate coverage in the unit. Beck also wrote that he would take steps to ensure that Chukwuka was not compensated for the additional one hour that he took for lunch. Chukwuka denies the facts in Beck's memorandum.
Seventh, on April 5, 2005, Beck sent Chukwuka a memorandum in which he stated that Chukwuka had been gone from his workstation from 9:55 A.M. to 10:35 A.M. Beck wrote that Chukwuka would not receive credit for the time that he was away from ...