The opinion of the court was delivered by: Charles J. Siragusa United States District Jusdge
This is an action alleging claims pursuant to Title VII of the Civil Rights Act of 1964 ("Title VII), as amended, 42 U.S.C. § 2000e et seq., the New York Human Rights Law ("NYHRL"), Executive Law § 290 et seq., and 42 U.S.C. § 1981 ("Section 1981"). Specifically, the claims are: 1) hostile environment and retaliation claims, under Title VII, against Bedford Paving, LLC ("Bedford"), Hudson Paving and Construction, Inc. ("Hudson"), Central Roadways, Inc. ("Central"), and Carriage Enterprises, Inc. ("Carriage"); and 2) retaliation claims, under NYHRL and Section 1981, against all Defendants. Now before the Court is Defendants' Motion for Summary Judgment (Docket No. [#45]). As explained below, the Title VII claims are time-barred, but there are issues of fact as to whether Defendants retaliated against Plaintiff, in violation of the NYHRL and Section 1981. Consequently, Defendants' application is granted in part and denied in part.
Unless otherwise noted, the following are the facts of this case, viewed in the light most-favorable to Plaintiff. At all relevant times Carriage, Bedford, and Hudson were owned by Stephen Carozza ("Carroza"). Carriage was a commercial landscaping company. Bedford was an asphalt-paving company, and a subsidiary of Carriage. Hudson was a paving and construction company which also provided snow-removal services (snow plowing). At all relevant times, Hudson had a contract to remove snow from the Monroe County Airport ("the Airport"). In connection with this contract, Hudson entered a joint venture, with Central, a company owned by Anthony Pilato ("Pilato"), in which Hudson provided the snow-removal equipment, and Central hired drivers to operate the snow plows. Hudson removed snow both inside and outside the Airport's security perimeter, and plow operators who worked inside the security perimeter were required to have a security clearance from the Airport.
Pursuant to Hudson's snow-removal contract with the Airport, Hudson was required to be available to remove snow at any time of the day or night. In that regard, whenever Airport officials decided that snow removal was necessary, they called Hudson, and Hudson was required to begin plowing within one hour. Therefore, when plowing was requested, Hudson would call someone on its list of plow drivers, and if that driver did not call back within five minutes, it would call another driver, until it found one who was available to plow.
Plaintiff, who is African-American, began working for Bedford and Hudson in or about 1989. Plaintiff performed both paving and plowing work, and was routinely laid off for periods of time between the paving season and the plowing season, after which he would be recalled for work. Specifically, after the paving season ended Plaintiff would be laid off until it began to snow, at which time he would be called and asked to plow at the Airport. There is no indication that Plaintiff plowed snow for anyone besides Defendants during the relevant period.
During the winter of 2004-2005, Central employed Plaintiff to plow at the airport, outside of the security perimeter. Central also employed Greg Schimpf ("Schimpf"), who was responsible for overseeing plowing inside the security perimeter. According to Plaintiff, Schimpf frequently referred to African Americans as niggers. As to this allegation, although he does not specify any dates or times, Plaintiff alleges that Schimpf made statements including, "you plow like a nigger," "I guess I gotta call the nigger," and "you 'nigger rig' everything you touch." Plaintiff indicates that Schimpf made such comments to other employees over the two-way radios that were in the plow trucks, though Defendants dispute that such trucks had two-way radios.
Plaintiff maintains that he complained to Carozza about Schimpf's comments, but Carozza did nothing about the situation. Carozza, however, states that Plaintiff never complained to him about Schimpf until after the 2004-2005 plowing season had ended.
In or about September 2005, Plaintiff filed a complaint with the Monroe County Office of Affirmative Action, which investigated and found that Plaintiff's allegations were corroborated by other employees, including Joe Welch ("Welch"), Eric Benson ("Benson"), and Jimmy Mathis ("Mathis"). Carroza indicates that he subsequently disciplined Schimpf by suspending him. Plaintiff denies that Carozza took disciplinary action against Schimpf, but his contention is based upon hearsay from a co-worker who allegedly saw Schimpf working during the period that he was supposed to be suspended.
Following Plaintiff's complaint to the Monroe County Office of Affirmative Action and the ensuing investigation, Plaintiff continued to perform paving work for Hudson until he was laid off in November 2005. As mentioned above, it was normal for Plaintiff to be laid off during the period between the end of the paving season and the beginning of the snow plowing season, which usually began in late November. According to Plaintiff, it snowed on November 23, 2005, but he did not receive a call asking him to plow. Plaintiff concluded that he was being retaliated against, and on December 2, 2005, he sent a letter to the United States Equal Employment Opportunity Commission ("EEOC"), complaining that he had not been called to work. Docket No. [#53-1] at 2-3. Defendants counter that because of mild weather, there was no need to perform plowing at the Airport until later in December 2005.*fn1 More specifically, Carozza states, in an affidavit, that no plowing was performed at the airport prior to December 9, 2005. Carozza Aff. [#46-2] at ¶ 32.
On December 9, 2005, Doug Schimpf ("Doug"), who is defendant Greg Schimpf's brother, and who was also employed by Central, called Plaintiff's home at approximately 1:00 a.m.*fn2 to ask him to plow at the airport. Plaintiff's wife answered the phone, and Doug indicated that he was calling about snow plowing. Plaintiff's wife said that he was not home, and gave Doug his cell phone number. Doug called Plaintiff's cell phone, and when Plaintiff did not answer, he left a message for Plaintiff, telling him to return the call if he wanted to plow. Plaintiff never responded to Doug's message. In that regard, Plaintiff states that he noticed a message on his cell phone, which stated, "call back if you want to plow," but "the voice in the message was not familiar to him and [he] did not know who the call came from." Pl. Stmt. of Facts at ¶ ¶ 83-84. Plaintiff indicates that he attempted to figure out exactly who had called him, by using a "*66" feature on his home phone, but without success. In short, Plaintiff contends that he did not return the call because he did not have the telephone number of the person who had left the message. However, Plaintiff admits that he assumed that it was one of Defendants' employees calling him to plow. Pl. Aff. ¶ 79 ("At the time, I assumed it was from the defendants, while I don't actually know this for sure."). As mentioned above, however, there is no indication that Plaintiff plowed snow for anyone besides Defendants.
At around this same time, Plaintiff was applying for a truck-driver's position with Veltri Trucking ("Veltri"). A few days after Plaintiff failed to respond to Doug's phone message, Carozza received a communication from Veltri, indicating that Plaintiff was seeking employment with Veltri, and asking for information about Plaintiff's work history.
Carozza contends that after Plaintiff failed to return Doug's phone call, and after he learned that Plaintiff was seeking employment with Veltri, he assumed that Plaintiff was not interested in working for him. Accordingly, Carozza maintains, he never called Plaintiff for any more snow plowing jobs. Plaintiff agrees that he began working for Veltri at that time, but he maintains that he was still interested in plowing snow. On this point, Plaintiff indicates that his employment with Veltri would not have prevented him from also plowing snow, and that it was typical for plow drivers to have other jobs.
On December 19, 2005, Plaintiff wrote a letter to the EEOC, which stated, in pertinent part:
Earlier this month (December) I received a call about 1:16 or 1:18 am one morning, I'll have to wait to get my cell phone bill to give you the exact time. But I had gone out to help a friend and had left my cell phone in my truck. When I returned to my truck I played back the message and was told to "CALL BACK IF I WANTED TO PLOW" [sic] well the voice was not familiar, and there was no number, so whoever called me called from their private home phone.
When I arrived home about 2:30 am my wife said that I had a call about plowing and when asked for a name she was told they would try my cell. Well I *66 [sic] and got nothing. And that was the last call I had from anyone about salting/plowing the airport. Well I believe that call was made because I had complained to Mr. Ron House at the Affirmative Action that none of us four were working. And that was an attempt for the guilty party to say that they had tried to contact me.
Well since that call I have thus found out that Mr. Shimp [sic] the man in question and now also been put in charge of the outside of the gate which is where Mr. Benson and myself worked, by which Mr. Benson was my boss.*fn3 So now what they have done is to make it a very uncomfortable work environment by making Mr. Shimp our boss, and when I told this to Mr. House by voice mail, I have not heard from him, I do believe that this is more than he can handle. As I have left Mr. House several messages and has not returned any of my calls. [sic] Docket No. [#53-3] at 2.
After December 9, 2005, Plaintiff states that he attempted to call Carozzo "many times" to express his interest in plowing at the Airport, but Carozzo did not return his calls. Plaintiff contends that this was unusual, because Carozza had never ignored his calls prior to his complaint to the Monroe County Affirmative Action Office. Plaintiff never received any additional calls asking him to plow. Plaintiff also indicates that Mathis and Benson, who participated in the investigation by the Monroe County Affirmative Action Office, were also never called back to work. ...