The opinion of the court was delivered by: Dora L. Irizarry, United States District Judge:
Plaintiff Emanuel St. Jean brought the instant complaint against defendants United Parcel Service General Service Co. and United Parcel Service, Inc. ("UPS"), (collectively, "Defendants"), alleging that Defendants illegally imposed discipline and supported a hostile work environment based on Petitioner's race, and in retaliation for Plaintiff lodging complaints within the company and labor union, and with the National Labor Relations Board ("NLRB") and Equal Employment Opportunity Commission ("EEOC"). Specifically, Plaintiff claims race discrimination, hostile work environment and retaliation in violation of: (i) Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e et seq.; (ii) the Civil Rights Act of 1866, 42 U.S.C. § 1981 ("Section 1981"); (iii) the New York State Human Rights Law ("NYSHRL"), N.Y. Exe. L. § 290 et seq.; and (iv) the New York City Human Rights Law ("NYCHRL"), N.Y.C. Admin. Code § 8-107, et seq. Defendants move for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure.*fn1 Plaintiff opposes. For the reasons set forth below, Defendants' motion is granted in its entirety.
Plaintiff, an African American male, began his employment for Defendants on or around January 2002 as a part-time sorter in Defendants' facility in Maspeth, New York, and was advanced to a full-time sorter position in June 2008. (Plaintiff's 56.1 Statement ("Pl. 56.1") at ¶¶ 6, 9; Defendant's 56.1 Statement ("Def. 56.1") at ¶¶ 6, 9; Certification of Wendy Johnson Lario ("Lario Cert.") Ex. A, May 11, 2010 Deposition of Plaintiff ("Pl. Dep. 1") at 42, 121.) Plaintiff is currently employed as a full-time sorter and has received all contractually agreed raises. (Pl. 56.1 at ¶ 10; Def. 56.1 at ¶ 10.)
In September 2005, Plaintiff's former supervisor, Russell Morrill (Caucasian), verbally reprimanded Plaintiff for taking excessively long breaks in violation of the company's rule providing part-time employees with one 10-minute break and full-time employees with one 15-minute break. (Pl. 56.1 at ¶¶ 18-20; Def. 56.1 at ¶¶ 18-20.) In addition, Morrill suspended Plaintiff for calling in sick and not reporting to work on an unspecified day. (Pl. Dep. 1 at 48.)
At some point prior to 2008, for four consecutive days, Plaintiff wore a t-shirt with the words "[n]agging," "asinine," "incompetent," and "E. coli." written next to each letter of the name "Nicole," which referenced Nicole Rochester, Plaintiff's supervisor at the time. (Def. 56.1 at ¶¶ 13, 14; Pl. 56.1 at ¶¶ 13, 14; Lario Cert. Ex. B, June 8, 2010 Deposition of Plaintiff ("Pl. Dep. 2") 395-402.) Dave McKenna, Division Manager, told Plaintiff to stop wearing the shirt, and the shirt was confiscated. (Pl. Dep. 2 at 399-402.) Management also disciplined Plaintiff for workplace violence and allegedly spitting at a co-worker, which Plaintiff denies. (Def. 56.1 at ¶¶ 15, 17; Pl. 56.1 at ¶¶ 15, 17; Pl. Dep. 2 at 393-95.)
Plaintiff filed two complaints with Defendants' Corporate Help Line in 2005, complaining that his supervisors are harassing him by, among other things, following him into the restroom, singling him out for discipline, and reprimanding him for various issues including excessive bathroom breaks. (Lario Cert. Exs. G, H.) The complaints do not claim that race was the basis for any of the supervisory or disciplinary conduct. (See id.) Also, although undocumented in official grievances, Plaintiff also states that Morrill repeatedly referred to Plaintiff as a "parrot," while another supervisor called Plaintiff a "faggot." (Pl. Decl. at ¶ 9.)
In response to a string of delivery-vehicle thefts at the Maspeth facility, Defendants formalized what is now known as the "15-minute rule," which prohibits employees from remaining at the Maspeth facility for more than 15 minutes after the end of their shift unless they have a legitimate work-related reason to do so. (Lario Cert. Ex. D, June 23, 2010 Deposition of Daniel Daly ("Daly Dep.") at 51-53, 58-59; Lario Cert. Ex. E, June 30, 2010 Deposition of Barry Bragton ("Bragton Dep.") at 58-62.) Although the rule was implemented in the summer of 2008, Plaintiff alleges that Defendant did not issue an official notice of the requirement until October 2008. (Pl. Decl. ¶ 28, Ex. 2; Pl. Dep. 1 at 164).
Plaintiff violated the 15-minute rule on at least six documented occasions, including on: (i) August 28, 2008*fn2 when Plaintiff clocked out at 3:26 A.M. and reported to the guard booth to exit the facility at 5:05 A.M., (Pl. 56.1 at ¶ 32; Def. 56.1 at ¶ 32; Certification of Micala Campbell Robinson ("Robinson Cert.") Exs. A, G); (ii) August 29, 2008 when Plaintiff clocked out at 3:43 A.M. and reported to the guard booth at 4:36 A.M., (Pl. 56.1 at ¶ 35; Def. 56.1 at ¶ 35; Robinson Cert. Exs. A, F; see also Pl. Decl. at ¶¶ 42-44); (iii) August 30, 2008 when Plaintiff clocked out at 4:47 A.M. and reported to the guard booth at 5:28 A.M., (Pl. 56.1 at ¶ 38; Def. 56.1 at ¶ 38; Robinson Cert. Exs. A, H); (iv) September 5, 2008 when Plaintiff clocked out at 3:34 A.M. and reported to the guard booth at 4:19 A.M., (Pl. 56.1 at ¶ 41; Def. 56.1 at ¶ 41; Robinson Cert. Exs. B, I); (v) October 11, 2008 when Plaintiff left the facility four hours after clocking out, (Robinson Cert. Ex. C; see also Lario Cert. Ex. V at UPS3); and (vi) December 5, 2008 when Plaintiff left the facility two hours after clocking out, (Robinson Cert. Ex. E; Pl. Dep. 1 at 254).
After Plaintiff's first violation, Security Supervisor Gary Depoto (Caucasian), verbally reminded Plaintiff of the 15-minute rule and, upon Plaintiff's subsequent failure to leave the premises, Mr. Depoto called the police who escorted Plaintiff out of the facility without arresting him. (Robinson Cert. Ex. A; Pl. Decl. at ¶¶ 47, 48; Def. 56.1 at ¶¶ 35, 36; Deposition of Gary Depoto ("Depoto Dep.") at 91-92; Certification of Douglas Trandiak ("Trandiak Cert.") ¶ 5.) Although Plaintiff filed grievances alleging "intimidation and harassment" related to Depoto's verbal reprimand and call to the police, Plaintiff did not allege that race was a basis for Depoto's conduct. (Pl. Dep. 1 at 139-40; Lario Cert. Exs. I, J.)
Plaintiff was issued a 72-hour notice of discipline for his second violation of the 15-minute rule. (Pl. 56.1 at ¶ 37; Def. 56.1 at ¶ 37; Lario Cert. Ex. V at UPS3.) Plaintiff subsequently filed grievances that included complaints of harassment based partly on the 72-hour notice of discharge imposed on him. (Lario Cert. Exs. L, M.) Following Plaintiff's third violation of the 15-minute rule, Sort Manager Darnell Pottinger (African American), issued to Plaintiff a second 72-hour notice of violation, including the possibility of discharge. (Def. 56.1 at ¶ 39; Pl. 56.1 at ¶ 39; Lario Cert. Ex. V at UPS3; Trandiak Cert. at ¶ 6.) On September 11, 2008, Division Manager Barry Bragton (African American), suspended Plaintiff based on continued non-compliance with the 15-minute rule; however, the Union challenged the suspension and the matter was docketed for arbitration. (Lario Cert. Exs. O at ¶ 29, T; Pl. Dep. 1 at 262-63; Trandiak Cert. ¶ 4.) On October 11, 2008, Plaintiff was issued a second notice of discharge for leaving the facility four hours after clocking out and, on November 19, 2008, Plaintiff received a third notice of discharge. (Lario Cert. Ex. V at UPS3; Robinson Cert. Ex. D.) On December 5, 2008, Plaintiff received a fourth notice of discharge for leaving the facility two hours after clocking out. (Pl. Dep. 1 at 254; Robinson Cert. Ex. E; see also Def. 56.1 at ¶ 46; Pl. 56.1 at ¶ 46.)
Several other UPS employees violated the 15-minute rule and were disciplined; however,
they eventually complied. These employees include: Thomas Brooks (African American); Keston Dick (African American); Philip Martorana (Caucasian); John Mendez (Hispanic); William Lay (Caucasian); and Christopher Williamson (African American). (See Bragton Dep. at 112-113; Daly Dep. 61; Pl. Decl. at ¶ 37; Robinson Cert. Exs. D, E, J, K; Trandiak Cert. ¶¶ 18, 23, 24, 26, 32, 34.)
Defendants employ a "Clean In/Clean Out" Policy for employees who work inside the Maspeth facility, which requires those employees to pass through a metal detector upon arrival to and departure from the facility. (Pl. 56.1 at ¶ 64; Def. 56.1 at ¶ 64; Lario Cert. Ex. Q; Robinson Cert. Ex. M.) If an employee sets off the metal detector, the employee is instructed to sit on a bench and remove his or her shoes for a secondary inspection. (Pl. Dep. 2 at 338; Robinson Cert. Ex. M.) Employees who work on the outside, such as Drivers, are not subject to the same security policy. (Def. 56.1 at ¶ 65; Lario Cert. Ex. Q.)
In November 2008, Plaintiff set off the metal detector while exiting the facility, so Security Supervisor David McGinnis (Caucasian) instructed Plaintiff to remove his shoes. (Pl. Dep. 2 at 338; Robinson Cert. Ex. M.) Plaintiff did not comply, and claims that he requested the presence of a Shop Steward to which McGinnis responded, "No shop steward . . . . You either take off your shoes or you could leave and you'll lose your job." (Pl. Dep. 2 at 338-39.) Plaintiff waited approximately 25 minutes before Shop Steward Martorana arrived of his own accord, at which time Plaintiff submitted to a second wand test and was allowed to leave the guard booth. (Declaration of Sandra D. Parker in Opposition to Defendants' Motion for Summary Judgment ("Parker Decl.") Ex. 10; Pl. Dep. 2 at 345.)
As Plaintiff was leaving, Martorana heard McGinnis state, "[t]hat guy right there is a piece of shit." (Pl. 56.1 at ¶ 72; Def. 56.1 at ¶ 72; Pl. Dep. 2 at 345-46.) Plaintiff filed a complaint with the Corporate Help Line regarding McGinnis's unprofessional conduct, denial of shop steward representation, and reference to Plaintiff as a "piece of shit." (Pl. Dep. 2 at 345-46.) Management met with McGinnis, who wrote a statement acknowledging his poor judgment and conduct, and placed the statement in his personnel file. (Pl. 56.1 at ¶ 73; Def. 56.1 at ¶ 73; Daly Dep. at 99-101, 104.) Plaintiff filed a grievance regarding McGinnis's refusal to provide ...