The opinion of the court was delivered by: Naomi Reice Buchwald United States District Judge
Plaintiff Alix Formilien ("Formilien") brings this action against his former employer, Beau Dietl & Associates, Inc. ("Beau Dietl"),*fn1 asserting claims for discrimination on the basis of both his race and national origin as well as a hostile work environment and retaliation under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., as amended ("Title VII"), the Civil Rights Act of 1866, 42 U.S.C. § 1981, as amended ("§ 1981"), and also state and municipal laws. Defendant Beau Dietl moves for summary judgment on all of these claims, arguing that it had legitimate and nondiscriminatory as well as non-retaliatory reasons for all of its employment decisions as to Formilien, who served as a security officer, including its decision to terminate him. For the reasons stated above, Beau Dietl's motion for summary judgment is granted as to the federal law claims, and we exercise our discretion to dismiss the remaining state and municipal law claims.
A. Beau Dietl, Formilien, and the Role of Security Officers
Beau Dietl, which maintains its principal place of business in New York, New York, provides security officers on both a temporary and permanent basis to serve at the sites of its clients. First DeJesus Aff. ¶ 2; Formilien Aff. Ex. 4 ¶ 2. Describing the position of a security officer, the Security Officer Handbook (the "Handbook"), which contains "policies, procedures, and regulations . . . prepared for the guidance of all employees" of Beau Dietl, states that "the primary function of a security officer is to protect life and property." Id. at Ex. I ("Handbook") 3, 8 (describing the general duties of a security officer and listing inter alia "[t]aking charge of and enforcing access control . . . systems" and "making certain no unauthorized removal of property takes place"). By its own terms, the Handbook, which was provided to Formilien, "is a tool to assist [security officers] in performing [their] assigned duties" that is intended "to inform [them] of [c]ompany [p]olicy" and that should be carried "on [their] person whenever [they] are on duty." Id. at ¶ 13, Handbook 25.
Beau Dietl hired Formilien to work as a security officer on or about April 15, 2006, the date on which he was first assigned to a client site.*fn3 Id. at Ex. D 1. Formilien is a black male whose country of origin is Haiti and who resides in Brooklyn, New York. Pl.'s R. 56.1 Ex. 3 ¶ 1. Between April 15, 2006 and February 26, 2007, the date of his termination from Beau Dietl, Formilien was assigned to a client site on almost 200 days and worked for over 1,800 hours. First DeJesus Aff. Ex. D 1-5 (reflecting payroll information for the entirety of Formilien's term of employment).*fn4 In particular, Formilien worked for Conde Nast Publications at five sites in Manhattan for 111 days between April 15, 2006 and January 16, 2007; Estee Lauder Companies, Inc. at four sites in Manhattan for fourteen days between August 31, 2006 and November 15, 2006; The Morgan Library at one site in Manhattan for forty-one days between September 12, 2006 and January 25, 2007; and Bombardier Transportation ("Bombardier") at one site in Queens for thirty-one days between October 25, 2006 and February 21, 2007. Id.*fn5
According to Leibin DeJesus ("DeJesus"), who at all relevant times served as an Operations Assistant Manager at Beau Dietl, security officers do not receive permanent assignments insofar as their allocation to client sites is determined on an as-needed basis by clients. Id. at ¶ 9. As DeJesus further explains, Formilien, like many of the security officers employed by Beau Dietl, was often transferred and temporarily assigned from one client site to another client site in order to cover for the planned or unexpected absences of his colleagues. See Def.'s R. 56.1 ¶ 2; First DeJesus Aff. ¶ 2, Ex. D. By way of example, in the second quarter of 2006, payroll records reflect that forty-six security officers were transferred four or more times between client sites by Beau Dietl. See First DeJesus Aff. Ex. A (listing security officers). Of the thirty-seven of these forty-six security officers whose race is identified, thirty were black and seven were Hispanic. Id. Of the twenty-three of these thirty black security officers whose national origin is identified, twelve were from the United States, eight were from Haiti, and three were from Jamaica. Id. Of the four of these seven Hispanic security officers whose national origin is identified, one was from Puerto Rico, one was from Panama, one was from Ecuador, and one was from Guatemala. Id. During this same period, we note that Formilien exclusively worked for Conde Nast Publications and almost entirely at a single one of its client sites in Manhattan where he was assigned for forty-two days. See id. at Ex. D 1-2.
B. Formilien's Assignment to JFK
On October 25, 2006, Formilien voluntarily attended a special training session that was conducted by Bombardier at its client site at the John F. Kennedy International Airport ("JFK") in Queens, which Bombardier required all security officers from Beau Dietl to complete before being assigned there due to certain safety issues. Def.'s R. 56.1 ¶¶ 4-5; First DeJesus Aff. ¶¶ 5, 9; Second DeJesus Aff. Ex. A 1. It is not disputed that Formilien understood that as a result of his participation in this special training session that he would be assigned whenever necessary to JFK. Def.'s R. 56.1 ¶ 5. In late December 2006, Beau Dietl assigned Formilien to JFK on six days between Saturday, December 30, 2006 and Sunday, January 7, 2007 to cover for another security officer, Jean Faneau ("Faneau"), who was on vacation. Id. at ¶ 6; First DeJesus Aff. ¶ 6, Ex. D 4, Ex. E 1.*fn6 In the middle of January 2007, Beau Dietl once more assigned Formilien to JFK on three days between Friday, January 19, 2007 and Sunday, January 21, 2007 to again cover for another security officer, Leslie Whylly ("Whylly"), who was on vacation. First DeJesus Aff. Ex. D 5, Ex. E 1.
Earlier, on January 16, 2007, Beau Dietl had terminated another security officer, David Merius ("Merius"), who was among the few employees who had received the special training session that Bombardier required of security officers serving at JFK. Id. at ¶¶ 7, 10-11, Ex. B 10; Second DeJesus Aff. Ex. A 3. According to DeJesus, as a result of this development, after Formilien worked a few more days at JFK following Whylly's return from vacation, he was assigned to the client site on a more regular basis to replace Merius. Def.'s R. 56.1 ¶ 9; First DeJesus Aff. ¶ 7, Ex. D 5, Ex. E 1.*fn7 Between Wednesday, the 31st of January and Wednesday, the 21st of February, the final day on which he was assigned to a client site before his termination, Formilien was assigned exclusively to JFK, working on seventeen days. See First DeJesus Aff. Ex. D 5.
When Formilien was informed by DeJesus that he would be assigned to JFK on a more regular basis, he complained to her about the assignment, explaining that it was difficult for him to travel to the client site. Id. at ¶¶ 8-9; Second DeJesus Aff. Ex. A 1-2 (noting Formilien expressed "concerns with being late to the assignment due to [the] need to take several buses from his residence"). Notwithstanding DeJesus's reminder that he was specially trained in October 2006 to accommodate this variety of circumstances and that the failure of an employee of a paramilitary organization to follow lawful instructions from a supervisor could lead to that employee's termination, Formilien initially refused to report as instructed to JFK. Def.'s R. 56.1 ¶¶ 11, 16; Second DeJesus Aff. Ex. A 2. See also Handbook 6, (listing "[i]nsubordination" as among the "grounds for reprimand, suspension, or dismissal").
At some point thereafter, Formilien spoke with Michael Matarrese ("Matarrese"), who at all relevant times served as the Operations Vice President at Beau Dietl and who again reminded Formilien of the purpose for which he was specially trained and also communicated to Formilien that he would be reassigned once Beau Dietl arranged for other security officers to receive the requisite training from Bombardier. Second DeJesus Aff. Ex. A 1-2; First DeJesus Aff. ¶ 9. While in the past Beau Dietl appears to have asserted that Formilien was never threatened with termination should he refuse to report as instructed to JFK, Formilien claims that Matarrese did in fact deliver such a threat. Second DeJesus Aff. Ex. A 2; Formilien Aff. ¶ 9. As his employment record reflects, Formilien ultimately decided to report as instructed to JFK.
C. Formilien's Internal Complaint of Discrimination
According to Formilien, apparently following these interactions with DeJesus and Matarrese, he visited the office of Richard Dietl ("Dietl")--the "Dietl" of Beau Dietl--"[i]n the last week of January 2007" in order "to complain that he was being treated unfairly due to his race and national origin." Pl.'s R. 56.1 ¶ 6. Though Dietl was not available, Dietl's assistant recorded in a note Formilien's allegations that "Matarrese was exhibiting favoritism for Hispanic employees and forcing Formilien to work at JFK under threat of losing his job." Id. at ¶ 7. Though it is not entirely clear, it appears that Formilien in this same exchange with Dietl's assistant also complained in particular that "when he was moved from location to location he was in each instance replaced by a[n] . . . Hispanic--in effect that Hispanics were given preferential treatment by receiving the more comfortable [client] sites while Formilien was forced to move around and work nearly exclusively at JFK." Id. at ¶ 8.
According to Beau Dietl, however, Formilien never complained about discrimination "to his supervisors." Def.'s R. 56.1 ¶ 10. In context, we interpret this assertion as contesting the fact that Formilien ever complained to Dietl's assistant of race and national origin discrimination.*fn8
Acknowledging this stark disagreement, Formilien further claims that Dietl's assistant, to whom he had complained, provided the note setting forth his allegations to Matarrese, "who then . . . began to harass [him]." Id. at ¶ 7. As the only example of this harassment, Formilien asserts that Matarrese approximately two weeks later "forced him to work at JFK for [twenty-seven] hours straight without a break or food."
Id. Beau Dietl does not dispute that between Saturday, February 10, 2007 and Sunday, February 11, 2007 Formilien continuously worked for over twenty-seven hours at the client site. Instead, Beau Dietl admits that on the 10th Formilien was scheduled to work a shift at JFK from noon to midnight, at the conclusion of which Whylly was supposed to assume the guard post at the facilities of Bombardier, which could not be left unmanned. See First DeJesus Aff. Ex. D 5; Second DeJesus Aff. Ex. A 2, 3. When Whylly did not arrive at midnight, Formilien waited until between 10:00 a.m. and 12:00 p.m. on the 11th to contact DeJesus. Upon receiving the telephone call, DeJesus immediately arranged for Faneau to relieve Formilien, which occurred at 3:30 p.m., the earliest relief that was possible under the circumstances. See Second DeJesus Aff. ¶ 3, Ex. A 2. In connection with this extended shift, Formilien earned eleven hours of overtime wages on the 11th. See First DeJesus Aff. Ex. D 5.
After relieving Formilien on the 11th, Faneau himself faced similarly exigent circumstances and was required to remain on guard for over twenty-four hours. See Second DeJesus Aff. ¶ 3, Ex. A 3. Relieving Formilien during the midst of what was actually Formilien's scheduled shift on the afternoon and evening of the 11th, Faneau remained on guard through his own scheduled shift from 12:00 a.m. to 8:00 a.m. on the 12th but was not relieved in the morning as expected by Vernon Coleman, another security officer who had fallen ill. Id. Thus, Faneau was obliged to remain at JFK until 4:00 p.m. when a supervisor of Beau Dietl was finally able to arrive at the client site. See id. In the wake of this chain of events, Beau Dietl recognized the urgency of additional security officers receiving the special training sessions deemed necessary by Bombardier, which were eventually conducted, alleviating the acute demand for qualified employees. See id.
It does not appear that Formilien disputes any of these facts. However, in a prior filing with the New York City Commission on Human Rights, Formilien apparently suggested that Whylly claimed in a later conversation with Formilien that he had informed DeJesus at 10:00 p.m. on the 10th that he would not be able to report for his scheduled shift at JFK. See id. at 3. Apart from the hearsay issue, DeJesus denies that Whylly or for that matter anyone else contacted her or Beau Dietl's weekend service center prior to Formilien on the morning of the 11th. See id. at 2-3.*fn9
D. Formilien's Repeated Lateness
Both before and after complaining to Dietl's assistant of being
discriminated against on the basis of his race and national origin,
Formilien arrived late for scheduled shifts at JFK. Prior to airing
his grievances, on Sunday, January 21, 2007, Formilien was one hour
and twenty minutes late for a shift that began at midnight. See
Formilien Aff. Ex. 1 3. On Monday, January 22, 2007, he was again
thirty minutes late for another shift that began at 4:00 p.m. and
which may or may not have preceded his complaint. See id. at
4.*fn10 Having lodged his accusations against
Matarrese, Formilien was then two hours and forty minutes late on
Sunday, February 4, 2007 for a shift that began at noon,*fn11
thirty minutes late on Wednesday, February 7, 2007 for a
shift that began at noon, thirty minutes late on Monday, February 12,
2007 for a shift that began at noon, and
one hour and thirty-seven minutes late on Wednesday, February 21, 2007
for a shift that began at midnight. See id. at 5-8. These six
incidents of lateness are all documented in a separate Beau Dietl
Employee Warning Notice (a "notice"), each of which DeJesus asserts
that she issued to Formilien and that he refused to sign. See id. at
3-8 (listing "Refused" in place of "Signature of Employee"). In the
Handbook, Beau Dietl lists among the "grounds for reprimand,
suspension, or dismissal" a security officer's "[t]ardiness or failure
to report for work without [providing] prior notification" to a
supervisor or the office at least four hours ahead of time. Handbook
Notwithstanding the fact that lateness is a ground for dismissal, in connection with the first five instances on which Formilien was late, Beau Dietl only issued him a warning. See Formilien Aff. Ex. 1 3-7. After the sixth incident on February 21, 2007, however, Formilien was placed on a probationary period of ninety days. The notice in connection with this incident moreover warned that dismissal would follow "should [the] incident occur again." Id. at 8. While Beau Dietl issued these successive warnings to Formilien, its own policies do not require that a security officer be informed of any disciplinary action taken against him, whether that action is termination or a lesser reprimand.
Significantly, Formilien does not contest that he was indeed late on these six occasions as set out in each notice. Indeed, we emphasize that the payroll information for each of the dates on which Formilien was late corroborates the amount of his tardiness and reflects the according diminishment in the number of hours for which he was compensated, information that would have certainly registered with Formilien when he received the impacted pay checks. See First DeJesus Aff. Ex. D 5. However, Formilien claims, contrary to the assertion of DeJesus, that during his employment with Beau Dietl he "was never made aware of any 'write-ups' for lateness, tardiness, or absenteeism in violation of any . . . employment policies, written or oral . . . much less asked to sign them." Pl.'s R. 56.1 ¶¶ 2, 4; Formilien Aff. ¶¶ 3, 5. Instead, Formilien claims that he only learned about all of the notices when Beau Dietl attached them to a letter submitted to NYCCHR on May 17, 2007. See Pl.'s R. 56.1 ¶ 3; Formilien Aff. ¶ 4, Ex. 1 1-2. He further alleges that "[i]t was only after I complained of discrimination--at the end of January 2007--that the purported 'write-ups' were ...