The opinion of the court was delivered by: William M. Skretny Chief Judge United States District Judge
Plaintiff Thomas A. Woodward, proceeding pro se, commenced this employment discrimination action on July 9, 2009. Plaintiff alleges in his complaint that his employer, Defendant Kaleida Health, discriminated against him on the basis of his race, color and gender in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. and New York State Human Rights Law, N.Y. Executive Law §§ 290 et seq. Pending before this Court is the Motion of Defendant Kaleida Health for Summary Judgment dismissing the complaint. For the reasons discussed below, this Court finds the matter fully briefed and oral argument unnecessary, and concludes that Defendant's motion should be granted.
Plaintiff was employed as a printer operator at Defendant's Flint Road laboratory processing center from 1991 to 2008. (Deposition of Plaintiff Thomas A. Woodward, Docket No. 22-8 at 8, 11; Declaration of Gail Krollman, Docket No. 22-16, ¶¶ 7-8; Declaration of Susan Passmore, Docket No. 22-17 ¶¶ 7-8). On August 5, 2008, a co-worker, Amanda Frese, complained to her supervisor that Plaintiff engaged in inappropriate conduct by showing her a photograph on his phone of what appeared to Frese to be Plaintiff and a naked female engaged in a sexual act. (Krollman Decl. ¶ 20; Passmore Decl. ¶ 20; see Docket No. 22-12 at 3-4 (copy of Frese's email to supervisor)). Frese also complained that this was not the first time that Plaintiff had acted inappropriately toward her. (Docket No. 22-12 at 3; Krollman Decl. ¶ 20; Passmore Decl. ¶ 20). Defendant's human resources personnel conducted an investigation into the complaint. (Krollman Decl. ¶ 23; Passmore Decl. ¶ 23). On August 7, 2008, Plaintiff met with his direct supervisor, Michael Straw, and Susan Passmore, the Acting Manager of Human Resources, regarding Frese's complaint. (Pl.'s Dep., Docket No. 22-8, at 20-21; Passmore Decl. ¶¶ 1, 24). At that time, Plaintiff was suspended pending the outcome of the investigation. (Pl.'s Dep., Docket No. 22-8, at 21; Passmore Decl. ¶ 24; see Docket No. 22-13 (corrective action form)). Following this, a co-worker of Frese in the microbiology department, Sue Young, reported that she had previously observed Frese asking Plaintiff to leave her alone, and that a senior-level employee had also asked Plaintiff to leave all microbiology department employees alone. (Pasmore Decl. 22-17 ¶¶ 20, 25, 28). Additionally, Young herself told Plaintiff to leave Frese alone. (Docket No. 22-12 at 13 (Young email); Krollman Decl. ¶ 28; Passmore Decl. ¶ 28; see Pl.'s Dep., Docket No. 22-8 at 18, 23 (acknowledging Sue Young had "warned" him)).
Plaintiff met with Passmore and Straw again on August 11, 2008. (Pl.'s Dep., Docket No. 22-8 at 22; Passmore Decl. ¶ 26). Plaintiff admitted to showing Frese a photograph on his phone, but claimed that it had depicted "just a 'fat guy in a shirt.'" (Passmore Decl. ¶ 26; Pl.'s Dep., Docket No. 22-8 at 16; see Docket No. 22-12 at 10 (Plaintiff's notes)). He also acknowledged that when he approached Frese later on that shift, she informed him that the he was disgusting (Passmore Decl. ¶ 26) and that she would not look at photographs on his phone again (Pl.'s Dep., Docket No. 22-8 at 17; Docket No. 22-12 at 10). Plaintiff apologized to Frese for offending her. (Pl.'s Dep., Docket No. 22-8 at 17; 22-12 at 10 (Plaintiff's notes); Passmore Decl. ¶ 26). On August 12, 2008, Gail Krollman, a senior human resources generalist for Defendant, again interviewed Frese. (Krollman Decl. ¶ 27). Frese reported that she was afraid of Plaintiff, who had previously asked a co-worker where she went running and then showed up at that location, and she further reported that prior to the photograph incident, she had asked Plaintiff to leave her alone. (Krollman Decl. ¶ 27).
Following the investigation, the human resources representatives concluded that, prior to the photograph incident, Frese and at least two-co-workers asked Plaintiff to leave Frese alone, but Plaintiff continued to approach her nonetheless; Plaintiff had no business reason for those contacts; he admitted to showing Frese a photograph she found offensive; and his conduct also made other employees in the microbiology department uncomfortable. (Krollman Decl. ¶ 29; Passmore Decl. ¶ 29). In light of Plaintiff's own admissions and Young's corroborating statements, Krollman and Passmore determined that Frese's allegations of harassment were credible. (Krollman Decl. ¶ 30; Passmore Decl. ¶ 30). Passmore then met with the head of Plaintiff's department, Fran Meyer, and his supervisor Straw, and these three jointly concluded that the severity of Plaintiff's warranted termination of his employment. (Passmore Decl. ¶ 32). Straw and Passmore informed Plaintiff on August 14, 2008 that he was terminated. (Passmore Decl. ¶ 33; see Pl.'s Dep., Docket No. 22-8 at 22). As stated on Defendant's Corrective Action form, prepared by his supervisor Straw, Plaintiff's employment was terminated because:
On August 4, 2008 you showed a picture on your cell phone to a female co-worker that she found [o]ffensive and inappropriate. You admitted that you had been asked in the past to leave this individual alone and to not talk to her, yet you continued to seek her out and to speak to her even after she herself [i]nformed you to leave her alone. This conduct is considered as harassment as it is "unwelcome [b]ehavior that was viewed as demeaning or unacceptable by the recipient[.]" The employee and others at Flint Road feel unsafe and that she is working in an offensive work environment. This type of conduct [c]an not be tolerated. (Docket No. 22-14).
Plaintiff filed a Charge of Discrimination with the Equal Employment Opportunity Commission ("EEOC") in December 2008, which he requested also be filed with the New York State Division of Human Rights, alleging discrimination based upon race and sex. (Docket No. 22-4). Specifically he alleged that Defendant "told me I was previously warned not to talk to my accuser[, a white female co-worker]. I was never told not to talk to her. Instead, I was told to be careful around her." (Docket No. 22-4). He further stated that he "was the only black male in the department," and: [Defendant] conducted a biased investigation. I was given no due process.
I believe the accuser was afraid of me because I am a black male. Unemployment told me the [Defendant] provided information to unemployment that I was told not to speak to the accuser because she believed I was gay. I am not gay. (Docket No. 22-4). Upon review, the EEOC found that Defendant had provided a non-discriminatory reason for Plaintiff's termination, and Plaintiff failed to provide viable comparative information. (Docket No. 22-5 at 2 (letter mailed April 13, 2009)). The EEOC was therefore unable to conclude that the information provided established a violation of federal law by Defendant. (Docket No. 22-5 at 2).
Plaintiff, proceeding pro se, commenced the instant action in this Court on July 9, 2009, alleging employment discrimination pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. and New York State Human Rights Law, N.Y. Executive Law §§ 290 et seq. (Complaint, Docket No. 1, at 1-2). Plaintiff indicated on this preprinted form that Defendant's conduct was discriminatory with respect to race, color and sex. (Complaint at 4). The factual allegations in Plaintiff's complaint are as follows:
"I met a new employee and we had several conversations. When the employee came to work on my shift two other employees informed me that the new person had it out for me and to be careful. I addressed the new person and casual conversations continued. After four months of the new persons employment and feeling that we had a ongoing casual relationship I told a joke with a picture that she concluded was vulgar and harassment to another employee. Later during the shift I was to[ld] I was out of line by the other employee and I apologized to the new person. Four days later I was suspended by HR and told I would be terminated for continued harassment. The new employee did not ever tell me I was bothersome. I was never given any warnings of harassment by HR or Management regarding this or any other employee till now. (Complaint at 5).
Defendant now moves for summary judgment,*fn1 arguing that Plaintiff cannot establish a prima facie case of discrimination because he cannot show that his termination occurred under circumstances giving rise to an inference of discrimination, and that Defendant has provided a ...