The opinion of the court was delivered by: Seybert, District Judge:
Plaintiff Vincent Hickey, Jr. ("Plaintiff") commenced this action on March 22, 2010 against the State University of New York at Stony Brook Hospital ("Defendant") asserting claims under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. Presently before the Court are the parties' cross-motions for summary judgment. For the following reasons, both motions are DENIED.
Plaintiff is Puerto Rican and a Born Again Christian. (Pl. Ex. 8.) Defendant hired him as a full-time permanent painter in its Physical Plant Department subject to a probationary period pursuant to the New York Civil Service Law to commence on November 17, 2005. (Def. 56.1 Stmt. ¶ 14; Pl. 56.1 Stmt. ¶ 1.) Defendant terminated Plaintiff from this position prior to the end of his probationary period on October 27, 2006. (Def. 56.1 Stmt. ¶ 15; Pl. 56.1 Stmt. ¶ 4.)
On March 2, 2007, Plaintiff filed a complaint with the New York State Division of Human Rights ("NYSDHR") asserting that Defendant subjected him to unlawful discriminatory practices on account of his ethnicity and religion. (Def. 56.1 Stmt. ¶ 16; Pl. 56.1 Stmt. ¶ 5; Pl. Ex. 8.) Before the NYSDHR held a hearing, however, Plaintiff withdrew his complaint pursuant to a Stipulation of Settlement (the "Stipulation") entered into between Plaintiff and Defendant on March 18, 2008. (Def. 56.1 Stmt. ¶ 17; Pl. 56.1 Stmt. ¶ 7; Def. Ex. A.) In exchange for withdrawing his NYSDHR complaint and releasing all claims against Defendant and its employees, Plaintiff was reinstated to his position as a painter, effective April 10, 2008. (Def. 56.1 Stmt. ¶ 17; Def. Ex. A ¶¶ 2, 10.) Plaintiff's reinstatement was conditioned, however, on his completing a six month probationary period during which he could not proselytize in the hospital or at work and had to report to work on time. (Def. 56.1 Stmt. ¶ 17; Def. Ex. A ¶ 3.) The Stipulation provided for Plaintiff's immediate termination if he breached these terms. (Def. Ex. A ¶ 3.) The Stipulation also stated that "[b]oth parties agree that they are entering into this stipulation willingly, without any coercion or duress." (Def. Ex. A ¶ 9.) Plaintiff disputes that he signed the Stipulation willingly, arguing that he entered into the Stipulation under economic duress. (Pl. 56.1 Counterstmt. ¶ 16.)
Plaintiff was thereafter reinstated as a painter in the Physical Plant Department. His primary supervisor was Fred Eddins, and his day-to-day work was monitored by James Prudenti and Michael Cullen. (Pl. Ex. 14 ¶ 6.) According to Defendant, on April 18, 2008, another supervisor, Joe Sandaire, and Mr. Eddins verbally counseled Plaintiff about his job performance--specifically, the spackling and painting that he had completed was not satisfactory. (Def. Exs. B, C.) Plaintiff asserts that this conversation never happened because on April 18 he was attending mandatory re-orientation. (Pl. 56.1 Counterstmt. ¶ 20; Pl. Ex. 16.) According to Defendant, on April 22, 2008, Mr. Sandaire and Mr. Eddins again verbally counseled Plaintiff regarding his job performance--specifically, he was not completing his assignments in a timely fashion and left his work area in disarray. (Def. Ex. D.) Plaintiff again asserts that this conversation never took place. (Pl. 56.1 Counterstmt. ¶ 20.)*fn2
On April 22, 2008, pursuant to the Stipulation, Defendant held a meeting with Plaintiff, his supervisors, representatives from Stony Brook University's Office of Diversity and Affirmative Action, Plaintiff's union representative, and Defendant's lawyer to discuss the ground rules for Plaintiff's reinstatement. (Def. 56.1 Stmt. ¶ 20; Pl. Ex. 14.) At the meeting, he was told that he was prohibited from entering occupied patient rooms, that he could not read his Bible in patient rooms or offices,*fn3 and that he could not distribute materials and/or proselytize on the premises. (Pl. Ex. 14 ¶¶ 8-10.)
Since being reinstated, Plaintiff had regularly worn a lanyard around his neck printed with the phrase "I ♥ Jesus." (Def. 56.1 Stmt. ¶ 23; Def. Ex. E.) Attached to the lanyard was a clear plastic badge holder containing a piece of paper with the handwritten words "Jesus Loves You!" and a drawing of a cross. (Def. Ex. E.) On the reverse side was the handwritten message:
E Evidence A Appearing R Real (Def. Ex. E.)
On May 1, 2008, Mr. Eddins told Plaintiff that he had to remove the lanyard. (Def. 56.1 Stmt. ¶ 23; Def. Ex. F.) He also explained to Plaintiff that his identification badge, which Plaintiff had clipped to his pants pocket, had to be moved above his waist. (Def. Ex. F.) Mr. Eddins showed Plaintiff Defendant's Administrative Policies and Procedures Manual Code (the "Manual Code"), which described the proper display of employees' identification badges: "above the waist, unencumbered by ornaments, stickers, pins or other material that covers the name and picture." (Def. Exs. F, J.) The Manual Code did not specifically proscribe religious paraphernalia, nor did it specify a dress code or uniform for painters. Plaintiff agreed to wear his badge on his shirt*fn4 but refused to remove the lanyard. (Def. Ex. F; Def. 56.1 Stmt. ¶ 24.) The following day, Plaintiff filed a grievance through the CSEA Union against Mr. Eddins complaining of religious discrimination. (Pl. Ex. 19.) Because claims of discrimination were outside the scope of his collective bargaining agreement, his grievance was referred to the Office of Diversity and Affirmative Action. (Def. Ex. H.)
On May 21, 2008, Plaintiff met with Mr. Cullen and Mr. Prudenti regarding the proper wearing of his identification badge. He was again advised that it has to be worn above the waist at all times and was told to remove the "I ♥ Jesus" lanyard "because it is not part of [his] uniform." (Def. Ex. K; Pl. 56.1 Counterstmt. ¶ 28.) Plaintiff again refused to remove the lanyard stating that he would do so only if other employees were also required to remove their religious paraphernalia. (Pl. 56.1 Stmt. ¶ 20; Pl. Dep. 93 ("You got to tell the Muslim woman she's got to take her scarf off, and the Hindu, with the turban, and the priests walking around with the crosses, they have to take it off. And the Jewish man with the yarmulke is going to have to take off his yarmulke. It's not fair that you want me to take my lanyard [sic], which I have the freedom of my religion and freedom of speech.").
On May 22, 2008, Mr. Eddins sent Mr. Prudenti an email stating that Plaintiff "is still wearing unauthorized items around his neck and his Hospital id [sic] is always backward without the picture facing out as it says in the Manual Code." (Def. Ex. G.) That same day, Plaintiff filed another grievance through his union against Mr. Cullen and Mr. Prudenti asserting that they were creating a hostile work environment. (Pl. Ex. 24.)
On June 4, 2008, Plaintiff filed a complaint with the Office of Diversity and Affirmative Action complaining that Mr. Eddins discriminated against him on the basis of his religion. In the complaint, he stated that he had previously requested an accommodation from his union: "change environment, change days a week (M-F), change hours 7am-3:30pm, change supervisor & supervision." (Def. Ex. O.) The complaint did not mention the lanyard.
On or about June 26, 2008, Carmen Cepeda, Defendant's Supervisor of Concierge Services, submitted a complaint accusing Plaintiff of approaching her, her mother, and her aunt and talking "about God and preaching about religion." (Def. Ex. N.) Her complaint states: "We were nervous and scared because he was not Letting [sic] us go to were [sic] we needed to go. . . . We left Vincent talking to himself at the entrance doorway." (Def. Ex. N.) Plaintiff does not recall this incident. (Pl. Aff. ¶¶ 9-10.)
On August 6, 2008, Mr. Cullen sent a memo to Elizabeth McCoy, Defendant's Chief Human Resources Officer, recommending Plaintiff's termination because of "several incidents and his unsatisfactory job performance." (Def. Ex. Q.) Mr. Cullen cited to the April 18th and 22nd conversations with Mr. Eddins, the May 21st meeting with Mr. Prudenti, and Ms. Cepeda's complaint. (Def. Ex. Q.)*fn5 The following day, Ms. McCoy sent Plaintiff a letter advising him that his probation period would be terminated effective August 20, 2008. (Def. Ex. T.) Plaintiff requested a review of his termination pursuant to the New York Civil Service Law, which was granted. (Def. 56.1 Stmt. ¶ 40.) The review was held on August 13, 2008 and his termination was sustained. (Def. Ex. R.) On or about August 29, 2008, Plaintiff received a letter from the Office of Diversity and Affirmative Action stating that it had reviewed and investigated his complaints of discrimination and found them to be unsubstantiated. (Def. Ex. S.)
Plaintiff thereafter filed two grievances through his union, one on or around August 13, 2008, and the other on or around September 9, 2008, regarding his termination. (Def. Ex. U.) A hearing was held on September 18, 2008, and on September 19, 2008, his grievances were denied for being outside the scope of the union's collective bargaining agreement. (Def. Ex. V.)
On October 29, 2008, Plaintiff filed a third complaint with NYSDHR asserting that he was terminated because of religious discrimination and in retaliation for his previously filed NYSDHR complaints and grievances. (Compl. Ex. 5.) NYSDHR found probable cause to support Plaintiff's allegations (Compl. Exs. 6-7), and the Equal Employment ...