The opinion of the court was delivered by: Glasser, United States District Judge:
Plaintiff Michael K. Peterson ("Peterson" or "plaintiff") brought this action against his former employer, Long Island Rail Road Company ("LIRR" or "defendant"), alleging retaliation in violation of the Family and Medical Leave Act of 1993 ("FMLA"), 29 U.S.C. §§ 2601 et seq., and race-based employment discrimination in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq., The New York State Human Rights Law ("NYSHRL"), N.Y. Exec. Law § 296, et seq. (McKinney 2010), and the New York City Human Rights Law ("NYCHRL"), N.Y.C. Admin. Code § 8-502. Peterson also alleges intentional infliction of emotional distress under New York State Law. Before the Court is defendant's motion for summary judgment, pursuant to Rule 56 of the Federal Rules of Civil Procedure. For the reasons set forth below, defendant's motion is GRANTED.
The following facts are undisputed unless otherwise noted.*fn1
Peterson, an African-American male, worked as an Electrician
for the LIRR in the Department of
Engineering for approximately 11 years. He was represented by the
International Brotherhood of Electrical Workers, Local 589 ("IBEW"),
pursuant to a Collective Bargaining Agreement between LIRR and IBEW.
At all times relevant to his Complaint Peterson worked on Gang # 40,
under the direct supervision of Gang Foreman Jerry Cummings
("Cummings"). Cummings' superior was Electrical Supervisor Vito Dorsi
("Dorsi"). Dorsi was responsible for the electrical facilities on the
LIRR and oversaw 26 workmen, divided into four work crews or "gangs",
including Gang # 40. Declaration of Priscilla Lundin dated November
11, 2011 ("Lundin Decl.") Ex. E ("Dorsi Dep."), at 15.
On May 10, 2007, Peterson requested intermittent FMLA leave in order to care for his wife, who suffers from hypertension. Lundin Decl. Ex. N. This request was granted for the twelve-month period of July 1, 2007 to June 30, 2008. See id. Ex. O. During that period, Steven Daleo ("Daleo"), Chief Engineer, Planning & Administration, wrote to Peterson twice, updating him on the status of his FMLA leave. By a letter dated March 17, 2008, Daleo notified Peterson that as of March 11, 2008, he had only 48 hours of FMLA leave remaining from his 480 hour entitlement. Lundin Decl. Ex. P. By a letter dated May 20, 2008, Daleo notified Peterson that as of April 21, 2008, he had exhausted his FMLA leave. Lundin Decl. Ex. Q.
For seven months, Peterson took intermittent FMLA leave without incident.
However, Peterson alleges that beginning in March 2008 and ending with his suspension from service on May 14, 2008, LIRR subjected him to harassment and disparate treatment, including "excessive scrutiny" and "verbal harassment" in retaliation for his taking FMLA leave. Compl. ¶¶ 23-24; Lundin Decl. Ex. D ("Pl.'s Dep."), at 21-22. Plaintiff alleges that he made verbal complaints to his immediate supervisor, Jerry Cummings ("Cummings"), about this harassment but he did not ask Cummings to take any action. See Lundin Decl. Ex. C, ¶ 14. Plaintiff did not make a complaint to any other members of management or the Diversity Management Department, although plaintiff testified that he was aware of the LIRR's Equal Employment Opportunity policies and the procedures for making a complaint. See Pl.'s Dep. at 18-22. Specifically, plaintiff alleges three incidents of harassment occurred:
Plaintiff alleges that the harassment began in March 2008 when he was working at Inwood Station, installing a new service line. Pl.'s Dep. at 24-25. Peterson had just returned from four weeks of paid vacation. Peterson alleges that Dorsi, his supervisor, approached him and said "Mike, so where were you? Did you have a big project or something on your vacation?" Id. at 25. Peterson ignored the question, told Dorsi that he was working on live wiring, and continued working. Id. At the end of the working day, Peterson complained to Cummings that "I felt like I was being harassed because not only were [sic] I working on a live panel, he did not even ask -- he came directly to me and pointed out statements. No one else was -- it's not like he conversed with anyone else." Id. at 27. Peterson testified that it was unusual for a Supervisor to speak directly to him, rather than the Foreman. Id. at 28. Dorsi could not recall this conversation ever taking place. Dorsi Dep. at 41.
On April 8, 2008, Peterson was working at Floral Park Station when he received a call from his wife that she was ill and needed to be taken to the hospital. Pl.'s Dep. at 34. Pursuant to FMLA policy, Peterson called his foreman, Cummings, and informed him he needed to leave. Id. at 35. According to Peterson, he also called Dorsi, who approved Peterson leaving. However, Peterson alleges that Dorsi later visited Floral Park, looking for him, and told Cummings that he "didn't like the way that went down." Id. Peterson interpreted Dorsi's statement as a form of harassment for his taking FMLA leave. Id. at 39.
Defendant disputes plaintiff's account. Dorsi testified that Peterson did not call him and the first he heard of Peterson's absence was when he visited the Floral Park Station on a routine site visit. Dorsi Dep. at 41-42. Cummings told him that Peterson had had something to eat that didn't agree with his stomach and had gone home sick. Id. at 44. Dorsi then called Peterson on his cell phone and Peterson told him he was not sick but taking FMLA leave to care for his wife. Id. at 46. Dorsi testified that he was angry with Cummings for failing to keep him informed and was concerned that either Cummings or Peterson had not been honest about the reasons for Peterson's absence. Id. at 47, 51-52, 59. Peterson and Cummings are close friends: Peterson was the best man at Cummings' wedding. Pl.'s Dep. at 60. Dorsi testified that he reprimanded Cummings for not reporting Peterson's absence right away. Id. at 45, 48-49.
The time sheet Cummings prepared for that day records Peterson as "Time Stopped at 1:30p -- sick (FMLA)." Lundin Decl. Ex. S. At deposition, plaintiff admitted that he improperly received paid sick leave for the time he took off on April 8, 2008 when, in fact, he was caring for his wife on FMLA time, which is unpaid. Pl.'s Dep. at 52-54; see also Lundin Ex. R (Employee Attendance Report indicating plaintiff took sick leave on April 8, 2008 and FMLA leave for the following three days).
On May 14, 2008, Peterson was working at Douglaston Station with his co-workers Dave Williams and Malikee Joseph, both of whom are African-American.
Pl.'s Dep. at 40-41. Dorsi visited the job site to check on the crew but did not see Peterson there. Dorsi asked Williams and Joseph if Peterson was at work and they said that he was. Dorsi Dep. at 67-68. According to Peterson, Dorsi returned later in the afternoon and spoke with the men again, asking if Peterson had been at work all day.
Pl.'s Dep. at 43. When Peterson learned of this, he confronted Dorsi as Dorsi was leaving the job site. Both men testified that Peterson began the conversation by asking Dorsi to speak to him directly and not to ask his colleagues about his attendance. Peterson alleges Dorsi became angry and defensive, Pl.'s Dep. at 44; Dorsi alleges Peterson used foul language and began threatening him, Dorsi Dep. at 70-71. It is undisputed that the argument escalated into shouting and Williams and Joseph intervened, separating Peterson and Dorsi. Peterson testified that they "stepped in front of us." Pl.'s Dep. at 45. Dorsi recalled they had to physically restrain Peterson and that in the struggle Williams fell to the ground and tore his jeans. Dorsi Dep. at 71-72. Peterson testified that at one point in the argument, he said "Well, I'm doing what I am supposed to. I'm here," to which Dorsi responded, "You people abuse your FMLA." Id. at 45. The only two employees in Gang # 40 taking FMLA leave were Peterson and Cummings, both of whom are African-American. Dorsi is Caucasian. Plaintiff interpreted Dorsi's statement to be a reference to his race. Compl. ¶ 27. Dorsi denies ever making such a statement. Dorsi Dep. at 81.
After the argument, Dorsi called his supervisor, Joseph Conway ("Conway"), to report the incident. Conway ordered everyone involved to report to his office in Bethpage. Lundin Decl. Ex. F, at 14. Dorsi, Cummings, Peterson, Williams, Joseph, and Vinny Cuomo, an IBEW union representative, met there. Id. at 14. After speaking with Dorsi and Cummings and taking written statements from Williams and Joseph, Conway suspended Peterson from service. Pl.'s Dep. at 65; Lundin Decl. Ex. F, at 29, 36. Conway testified that based on his own observations of Peterson in Bethpage he believed him to be a threat to himself or others. Lundin Decl. Ex. F, at 31.
A. First Disciplinary Proceeding
On May 16, 2008 LIRR issued a Notice of Trial, charging Peterson with "Assaulting Two Employees; Threatening a Supervisor with Physical Harm; Conduct Unbecoming an Employee." Compl. ¶ 29; Lundin. Decl. Ex. U. Peterson's disciplinary trial was held on June 9 and July 10, 2008. Peterson attended the trial, represented by the IBEW, and had the opportunity to testify, call witnesses, cross examine LIRR's witnesses, and make a closing statement. Pl.'s Dep. at 63. At the conclusion of the trial, the trial transcripts and exhibits were forwarded to Steven Daleo, the reviewing officer, who found the evidence supported the charges and determined termination was appropriate. Daleo Decl. ¶ 31; Lundin Decl. Ex. X (Notice of Dismissal).
On September 2, 2008, the IBEW appealed Peterson's dismissal. Michael D. Chirillo ("Chirillo"), then-Director of Labor Relations (Administration) for the LIRR, conducted an appeals hearing on September 30, 2008. See Declaration of Michael D. Chirillo, dated November 10, 2011 ("Chirillo Decl.") ¶¶ 8-10. At the hearing, Chirillo proposed reducing Peterson's dismissal to a 30 working day suspension and to pay Peterson 30 working days of back pay, if Peterson pled guilty. Id. ¶ 11. Peterson declined this offer on October 20, 2008. Id. ¶ 12. Two days later, Chirillo modified Peterson's dismissal to a time-out-of-service suspension of approximately 5 1/2 months, reinstating his employment with LIRR. Id. ¶ 13.
In accordance with the Collective Bargaining Agreement, Peterson was directed to submit to a physical with the LIRR Medical Facility so that he could be approved to return to work. Id. ¶ 14. By a letter dated October 30, 2008, LIRR instructed Peterson to attend a physical on November 6, 2008. Lundin Decl. Ex. FF. Peterson failed to appear on that date. LIRR sent a second letter, dated November 10, 2008, directly ordering Peterson to attend a physical on November 20, 2008. Id. Ex. GG. In that ...