The opinion of the court was delivered by: John T. Curtin United States District Judge
This case has been transferred to the undersigned for all further proceedings. Plaintiff Sitthisak V. ("Jimmie") Chansamone brought this action on February 23, 2010, against defendant NRG Northeast Affiliate Services, Inc. ("NRG"),*fn1 alleging discrimination in employment pursuant to Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e to 2000e-17 ("Title VII"), and New York State Human Rights Law, N.Y. Exec. Law §§ 290 to 297. Pending for determination is NRG's motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. Item 56. Upon consideration of the record as a whole, including the parties' written submissions and oral arguments, defendant's motion for summary judgment is granted.
The following undisputed facts are derived from the parties' Statements of Material Facts filed in accordance with Rule 56 of the Local Rules of Civil Procedure for the Western District of New York (see Items 56-5, 64), as well as from the pleadings, affidavits, exhibits, deposition transcripts, and other submissions on file.
Plaintiff is of Asian descent, born in Laos. He was hired by NRG in November 2003. NRG operates two electricity-generating plants in Western New York -- one located in Tonawanda (referred to as the "Huntley Plant"), and the other located in Dunkirk (referred to as the "Dunkirk Plant"). Plaintiff worked as a "Coal Handler" at the Huntley plant from November 2003 until March 2005, when he voluntarily left to help his family with their construction business in California. He was re-hired by NRG in January 2006, and returned to the Huntley Plant where he worked as a Coal Handler until his resignation in June 2007.
At all times during his employment with NRG, plaintiff was a dues-paying member of the International Brotherhood of Electrical Workers ("IBEW"), Local 97. Under the collective bargaining agreement ("CBA") between NRG and Local 97 governing the terms of plaintiff's employment, union workers are categorized under various classifications, such as "Part-Time Employee," "Temporary Employee," "Probationary Employee," and "Regular Employee." See CBA, Article VI, Sections 1-4 (Item 57-3, pp. 8-9). The position of Coal Handler--essentially, an entry-level job involving operation and maintenance of equipment used to transport coal during the power-generating process--is classified under the category of "Temporary Employee." The CBA defines a "Temporary Employee" as: one hired for a specific job of limited duration not exceeding six (6) months, except that this period may be extended by mutual agreement. The Company and the President/Business Manager of Local Union 97, IBEWor designee will discuss those cases where in the opinion of either the use of a temporary employee continues so long as to indicate that a regular job exists.
Id. at 9. At all times during both periods of his employment at NRG, plaintiff held the position of Coal Handler under "Temporary Employee" status.
Between February and August 2006, plaintiff bid on nine different jobs posted for various higher-paying positions which became available at both NRG facilities. The CBA sets forth the following procedure for bidding on open jobs:
(a) Unless otherwise mutually agreed upon by the Company and the Brotherhood, the Company shall post the notice of a job vacancy on bulletin boards for five (5) working days within the division. After a job is posted it will not be withdrawn unless mutually agreed to.
(b) Except for vacancies to be filled by job seniority, all vacancies shall be posted for a period of five (5) days throughout the Division. Bids submitted will consider regular employees of the Western Division (including laid off employees on the preferential rehiring list) in order of their company seniority. Employees not on regular status are not eligible bidders, but they may use the standard bid form to express their interest in vacancies. There is no obligation on the Company to consider such employees, whether or not there are regular bidders.
If there is no qualified bidder, the vacancy may then be filled by outside hiring. After a job is posted, it will not be withdrawn unless mutually agreed to.
CBA, Appendix A, Section B(3) (Item 57-3, p. 41).
Plaintiff was not offered an interview for any of those nine positions. Eight of the positions were filled by current NRG employees with greater seniority within the company, or by external applicants determined by NRG management to possess superior employment experience and qualifications. See Item 56-5 (Deft. Local Rule 56 Statement), ¶¶41-48. The ninth position, "Utility Mechanic B" at the Dunkirk facility (Vacancy No. D2006-25), was awarded to an external applicant named Kevin Donahue on August 16, 2006. Id. at ¶¶55-56; see also Item 57-4 (Bid Package for Vacancy No. D2006-25); Item 57-5 (NRG Offer Letter 9/16/06).
In early August 2006, prior to the offer of employment to Mr. Donohue, plaintiff telephoned Carson Leikam, Operations Manager at the Dunkirk facility, to ask when he would be interviewed for Vacancy No. D2006-25. Plaintiff testified at his March 31, 2011 deposition in this action that he had never met or spoken with Mr. Leikam prior to this phone call, but he knew Mr. Leikam was the person in charge of hiring at the Dunkirk facility. Item 56-2 (Chansamone Dep.), p. 88. During the phone call, Mr. Leikam told plaintiff that, as a "Temporary Employee," he had no bidding rights under the CBA. Id. at 93, 96; see also Item 56-4 (Leikam Dep.), pp. 97-98, 100-02.
Plaintiff bid on twelve more union jobs posted between August 2006 and April 2007, but was not hired or interviewed for any of those positions. He resigned from his employment with NRG on June 29, 2007.
On October 24, 2007, plaintiff filed a verified complaint with the New York State Division of Human Rights ("NYSDHR"), charging NRG with unlawful discriminatory practices relating to employment in violation of New York Human Rights Law and Title VII of the Civil Rights Act of 1964. See Item 1, pp. 17-18. He alleged that, because of his race, he was denied the opportunity to interview for positions at the Dunkirk facility, and was denied promotion to permanent employment status. He also claimed that he was subjected to racial slurs by a fellow employee in the presence of a supervisor, who took no corrective action. He alleged that he was forced to resign due to stress-related physical ailments. Id.
After investigation, and upon a finding of probable cause, the NYSDHR referred the case to public hearing. The case was assigned to an administrative law judge ("ALJ"), and a hearing session was scheduled for January 15, 2010, to address jurisdictional issues.
At the hearing, plaintiff submitted a written request for dismissal of the administrative complaint in order to pursue his remedies in federal court. Counsel for NRG objected, citing costs associated with earlier adjournments. However, on January 29, 2010, the ALJ issued an order dismissing the complaint on the grounds of administrative convenience, pursuant to Section 297.3(c) of the N.Y. Human Rights Law, id. at 24-25, and on February 9, 2010, the E.E.O.C. issued a Notice of Dismissal and Right to Sue. Id. at 21-23.
Plaintiff filed this action pro se on February 23, 2010, alleging that NRG intentionally discriminated against him based on his race and national origin by failing to offer him an interview for any of the twenty-one positions for which he applied, despite being the "#1 Bidder." Item 1, p. 7. He also claimed that he was subjected to racial slurs and intimidation at the hands of non-management co-workers, which created a ...