REPORT and RECOMMENDATION
KEVIN NATHANIEL FOX UNITED STATES MAGISTRATE JUDGE TO THE HONORABLE RICHARD J. HOLWELL, UNITED STATES DISTRICT JUDGE
Garry Kirkland ("Kirkland"), proceeding pro se, brings this action against his former employer Cablevision Systems New York City Corporation ("Cablevision"), identified in Kirkland's amended complaint as "Cablevision Systems," pursuant to Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e, et seq. ("Title VII"), Section 296(1) of the New York Executive Law ("New York State Human Rights Law") and Section 8-107 of the New York City Administrative Code ("New York City Human Rights Law"). Kirkland alleges that Cablevision terminated his employment, based on his race and color, and retaliated against him for complaining of unlawful discrimination. Kirkland also contends that Cablevision subjected him to a hostile work environment and unequal terms and conditions of employment.
Before the Court are the parties' respective motions for summary judgment, made pursuant to Rule 56 of the Federal Rules of Civil Procedure.
Kirkland, a black male, began working for Cablevision in 1999. He alleges that beginning in 2004, and continuing to his termination in 2008, he was treated differently from white employees and, whenever he complained to his immediate supervisor or to the defendant's employee relations and human resources personnel about the disparity in treatment, he was subjected to retaliation, through unsatisfactory performance evaluations and, ultimately, the termination of his employment.
Kirkland contends that, in August 2004, Michael Kaplan ("Kaplan"), the managing director of the defendant's Bronx Call Center, the facility where Kirkland was then serving as Call Center manager, altered his Wednesday Call Center management team meetings, from 2:00 p.m. to 3:00 p.m., to accommodate a newly appointed white Call Center manager, who, like Kirkland, worked the 3:00 p.m. to midnight shift. Kirkland complained to Kaplan then and, again, in November 2004, that his decision to change the meeting time to accommodate the white employee was discriminatory, because Kaplan had declined to make the same accommodation for Kirkland one year earlier.
In October 2004, Richard Belden ("Belden"), managing director of the defendant's Optimum Stores, and Frank Naples ("Naples"), vice president of the defendant's Billing & Collections Department, selected Kirkland to fill the position Area Operations Manager ("AOM") for Cablevision's Optimum Stores in the Connecticut-Westchester-New York City region ("CWN"), effective November 1, 2004. CWN is the region with the most cash transactions and highest cash volume of the four regions in which Optimum Stores are located. In addition to CWN, the other regions are Northern New Jersey, Southern New Jersey and Long Island. Each region has one AOM. Kirkland's new position was a promotion for him. Upon his promotion, Kirkland reported directly to Belden, as did the other three AOMs: Sandy Wicklund ("Wicklund "), Kerry Burgin ("Burgin"), and Laura Cavazzi ("Cavazzi"), all of whom are white females. Kirkland's starting salary as an AOM was $74,800, a 13% increase over his former salary of $66,200. According to Kirkland, his starting salary was less than the salary paid to each of the other AOMs and, although he managed the largest region, he was always paid less than the other AOMs.
In his AOM capacity, Kirkland was responsible for overseeing the overall operations of all CWN Optimum Stores, managing the stores' staffs and implementing and ensuring compliance with Cablevision's policies and procedures. Six store managers, all of whom were black, reported directly to Kirkland. The store managers supervised the day-to-day operations of the stores and the employees: Team Leaders and Customer Relationship Coordinators ("CRC"), assigned to their respective stores.
In January 2005, Kirkland was given his 2004 annual performance evaluation. Kirkland received a rating of 2.6, which he contends is one-tenth of a point below the 2.7 rating he needed to satisfy the defendant's "Meet Requirements" performance standard. Kirkland maintains that the unsatisfactory performance rating was given to him in retaliation for complaining to Kaplan about racial discrimination, because throughout the review period he was never informed his performance was not meeting requirements, and on several occasions, during the year, Kaplan had complimented his work.
Kirkland recalls that, in or around December 2005, following an employee theft of over $3,000, in cash, from an Optimum Store in northern New Jersey, he recommended to Belden that AOMs assume a more active role in the cash management activities at Optimum Stores, by auditing the cash on hand and maintained in stores' safes; however, his recommendation was not adopted. In the Spring of 2006, Kirkland and a Team Leader audited all the safes in CWN and reported their findings to Belden. Once again, Kirkland recommended that AOMs be permitted to implement a formal audit process and Belden did not adopt the recommendation.
Kirkland contends he made other recommendations to improve efficiency and customer experiences at the Optimum Stores, but none of the recommendations was implemented. According to Kirkland, he asked one of the white female AOMs to submit a recognition proposal to the defendant that Kirkland had submitted previously for approval, unsuccessfully. Kirkland contends that when his colleague submitted the proposal, it was adopted.
Kirkland alleges that he developed and implemented a customer service training program in CWN and presented the same training program in a store located in the defendant's Northern New Jersey region. According to Kirkland, as a result of the training he provided, the New Jersey store exceeded its customer satisfaction rating goal for four consecutive months, and the Northern New Jersey region was designated "Region of the Year for 2007," beating CWN for that designation by .004 percentage points. In or about December 2007, Kirkland maintains that he complained to Belden, in writing and orally, that the formula used to determine the Region of the Year designation was skewed to favor his white counterparts, as it failed to account for differences in the number of transactions occurring at the stores in the various regions. Kirkland, contends CWN stores processed one million more transactions than the stores in the Northern New Jersey region.
In January 2008, when Kirkland was given his 2007 annual performance evaluation, he received an overall rating of 2.7, "Needs Improvement," and did not receive a raise in salary. Kirkland submitted a written rebuttal to his performance evaluation and according to Kirkland, he complained orally to Belden, Lynne Donnelly ("Donnelly"), the defendant's employee relations manager, and Isaac Fennell ("Fennell"), Cablevision's director of administration, responsible for human resources, about his 2007 annual performance evaluation and the discrimination he experienced. However, Kirkland contends he received no "feedback" from them; instead, in February 2008, Belden placed him on a Performance Improvement Plan ("PIP"). Kirkland alleges that since Belden had not advised him during the review period that he was not meeting expectations, the PIP, like the annual performance evaluation, was yet another act of retaliation directed at him for complaining about what he considered to be a biased formula for determining Region of the Year. In July 2008, Kirkland interviewed, unsuccessfully, for the position Managing Director, Optimum Stores. He contends that he did not advance beyond the first round of interviews for the position because of his 2007 annual performance evaluation.
In August 2008, Robert Cockerill ("Cockerill") replaced Belden as managing director of the Optimum Stores. Kirkland recalls that, in his first meeting with Cockerill, after he became Kirkland's supervisor, he advised Cockerill that, under Belden, he had not been treated as the other AOMs had been treated. Shortly after his appointment, Cockerill and Fennell met with the AOMs and administered a "Final Written Warning" to each of them, based upon the results of store audits that had been performed in April 2008. Cockerill explained to Kirkland that the store managers would also be administered Final Warnings and that either he or Fennell would accompany Kirkland when Kirkland administered the Final Warnings to the CWN store managers. Kirkland recalls that he asked Cockerill whether the other AOMs would also be accompanied by him or Fennell when they administered the warnings to their store managers, and Cockerill responded that they would not be accompanying the other AOMs. Kirkland never asked why the other AOMs would not be accompanied when they provided the Final Warnings to their respective store managers. Kirkland testified at his deposition that he assumed he was to be accompanied when administering the Final Warnings to the CWN store managers because he is black and because of the unequal treatment he had received under Belden. Kirkland contends that he complained to Cockerill, in Fennell's presence, that he was being treated unfairly in comparison to his white counterparts because someone would be accompanying him when he delivered the Final Warnings to the CWN store managers. Kirkland contends that neither Cockerill nor Fennell responded to his complaint.
Kirkland submitted a written complaint to Cockerill and Fennell about receiving the Final Written Warning. He protested that it was unfair to discipline him and the other AOMs, whom Kirkland characterized as "all minorities," while Belden, their former managing director, who is a white male and was in charge of the Optimum Stores during the audit process, received a promotion. The Final Written Warnings were subsequently rescinded and replaced with a note to the personnel file of each AOM.
In or about October 2008, Kirkland requested that Cockerill approve Kirkland's request to move his home base store from the Soundview, Bronx County, Optimum Store to the Wappingers Falls, New York, Optimum Store, the facility closest to Kirkland's home; Kirkland sought to reduce his commute time and save himself money. Cockerill denied the request stating that he wanted Kirkland assigned to CWN's highest volume store. Kirkland protested that none of the other AOMs, who were white, was required to work in her highest volume store. According to Kirkland, Cockerill did not respond to his complaint.
Kirkland contends that, in November 2008, Cockerill directed him to interview a white applicant for a Team Leader position and then attempted to pressure Kirkland into hiring the individual. Kirkland advised Cockerill that he wished to interview the remaining candidate for the vacancy, a black male, prior to making his decision. However, Cockerill instructed Kirkland to contact the recruiter for the position and arrange to make a job offer to the white candidate. Kirkland recalls that he solicited Cockerill's opinion of the black candidate and learned that Cockerill had not interviewed him. According to Kirkland, he protested to Cockerill that the process was not fair and advised Cockerill that he would not make his hiring decision until he met with all the applicants.
In that same month, Cockerill and the four AOMs attended an Optimum Stores management team meeting at which a representative from Home Box Office ("HBO") made a presentation. At the end of the presentation, the HBO representative invited the Optimum Stores management team to lunch. Cockerill stated that everyone except Kirkland could join the HBO representative for lunch. When Kirkland demanded to know the reason he was being excluded, Cockerill did not respond to him. Kirkland requested that Cockerill ask an Employee Relations representative to join them and Cockerill reversed his decision immediately and permitted the plaintiff to join the others for lunch.
Kirkland advised Cockerill that he wished to meet with an Employee Relations representative and Cockerill after lunch to discuss what Kirkland viewed as discriminatory treatment. Later Kirkland met with Cockerill, Fennell and Donnelly and expressed his concern about unfair and discriminatory treatment Cockerill had exhibited toward him. Kirkland recalls that he told the others at the meeting "Me and my people are being treated unfairly and not given equal opportunities in this department and it's been going on for a long time." Kirkland maintains that his reference to "my people" was a reference to the defendant's black employees. Cockerill denied the allegations. According to Kirkland, Fennell and Donnelly left the meeting without commenting and never investigated or followed-up on his complaint about discrimination.
Kirkland alleges that, in November 2008, Cockerill, without consulting him, arranged with the Long Island region AOM to have one of her employees, a white male, fill in for a Connecticut store manager, who was about to commence a leave of absence under the Family and Medical Leave Act. Cockerill advised Kirkland that the employee who was being assigned to his region lived in Westchester County, and the assignment to the Connecticut store would shorten his commute and save him money on tolls. Kirkland protested to Cockerill that Cockerill was treating Kirkland unfairly (1) in comparison to white AOMs, by assigning an employee to his region without consulting with him, as is the process when making temporary personnel assignments to the Optimum Stores regions, and (2) by transferring a white employee to a store closer to his home to shorten his commuting time and save him money, when Cockerill had refused to provide the same accommodation to Kirkland, when he requested that his home base store be switched from the Soundview store to the Wappingers Falls store. Kirkland recalls that Cockerill did not respond to his complaint.
In November 2008, Kirkland requested a meeting with a representative of the defendant's Corporate Human Resources Department. He met with Sue Crickmore ("Crickmore"), the defendant's employee relations vice president. During that meeting, Kirkland complained about the discriminatory treatment he received from Cockerill and his predecessor, Belden, and discussed the concerns he had about his 2007 annual performance evaluation, none of which, he maintains, had been addressed by the defendant.
On December 3, 2008, Fennell contacted Kirkland and requested to meet with him the next day. When Kirkland arrived for the meeting, he found Cockerill and Fennell waiting for him in the Soundview Human Resources Office. Fennell advised Kirkland that his employment with the defendant was terminated. Kirkland recalls that he asked for the specific reasons for the termination and Fennell replied only that "the company has decided to end its employment relationship" with Kirkland. Kirkland maintains that the defendant terminated his employment because of his race and retaliated against him for complaining of discrimination.
Kirkland filed a charge against the defendant, with the United States Equal Employment Opportunity Commission ("EEOC"), on February 13, 2009,*fn1 alleging discrimination based on race, color, national origin and sex and that the defendant retaliated against him. In the charge, Kirkland noted, inter alia, that in the preceding two or three years he had complained that he was not treated equally when compared to the white AOMs, and that in August 2008, he advised Cockerill that Belden had not treated him as he had treated the other AOMs. Kirkland alleged that he reminded Cockerill of this, in November 2008, and complained that the unequal treatment continued under Cockerill's watch. Kirkland also recounted the November 2008 meeting with Cockerill, Donnelly and Fennell where he stated "his people" had not been treated fairly for a long time. The EEOC issued Kirkland a dismissal letter and Notice of Right to Sue in August 2009; thereafter, he commenced this action.
For its part, the defendant contends that throughout Kirkland's tenure as an AOM, he was unable to establish a successful working relationship with the CWN store managers he supervised, exercised poor judgment, disregarded its policies and, despite receiving counseling from his managing director and the defendant's human relations and human resources personnel, failed to cure the deficiencies in his performance. The defendant also maintains that at no time during these meetings or on any other occasion, did Kirkland complain to it of discrimination, either in writing or orally.
With respect to the disparity in salaries between Kirkland and the other AOMs, Cablevision contends that the starting salary of three of the AOMs, Kirkland, Wicklund and Burgin, were set by Belden, whose standard practice "when promoting an employee whose salary falls below the salary grade for [the employee's] new position, [was] to increase that employee's salary to around the minimum of that salary grade." Thus, Wicklund's starting salary, as an AOM, was $80,627 and Burgin's starting salary, as an AOM, was $73,400. The defendant maintains that the salaries for these employees were comparable to Kirkland's starting salary. Cablevision maintains that Belden played no role in setting the starting salary Cavazzi earned as an AOM and, further, that her salary cannot be compared to Kirkland's because she had occupied a higher salary-grade position before she became an AOM.
In addition, the defendant contends that, beyond the starting salaries, the difference in salary among the AOMs occurred because those holding the title, other than Kirkland, began in their AOM positions as early as 2002 and had been eligible for year-end bonuses under Cablevision's Management Performance Incentive Plan ("MPIP"). However, prior to November 2004, when Kirkland was promoted, the MPIP was discontinued and all incumbent AOMs received a salary adjustment to account for the elimination of the performance incentive plan. Therefore, according to the defendant, the disparity in salaries that existed among the AOMs had nothing to do with race discrimination and is a function of tenure in the position and the adjustment to salaries occasioned by the cessation of the MPIP.
The following facts are not disputed by the parties.*fn2
Kirkland began working for Cablevision in 1999, and received
the defendant's Employee Handbook, which contains its
anti-discrimination policies and internal complaint procedures. The
handbook encourages an employee to avail himself of Cablevision's open
door policy and internal complaint process, if the employee believes
he has been discriminated against or treated improperly. In such a
circumstance, the handbook directs the employee to contact ...