The opinion of the court was delivered by: Charles J. Siragusa United States District Judge
This an action for employment discrimination under the Americans With Disabilities Act and Title VII. Now before the Court is Wal-Mart Stores East, L.P.'s motion for summary judgment. (Docket No. 22). The application is granted, and Plaintiff's attorney is ordered to show cause why sanctions should not be imposed on her.
Plaintiff Abidan Muhammad is a male who identifies his race as "black."*fn1 Plaintiff was employed by Defendant Wal-Mart for only seven months, including two months spent on medical leave.
On February 29, 2008, Defendant hired Plaintiff as an Overnight Deli Stocker at its store on Chili Avenue in Rochester, New York. As a deli stocker, Plaintiff's duties were "[t]o stock meat, to get the meat, put it in the freezer, and then to restock it in the coolers outside." Pl. Dep. at 55. There is no indication that when applying for this job, Plaintiff indicated that he would be unable to handle pork products due to his Muslim faith, or that such faith ordinarily interfered with him performing his job, which manifestly involved handling pork. Plaintiff indicates, however, that on one occasion he complained to a supervisor about having to handle pork:
One time we was during the holiday season -- you know, my last name is Muhammad. And, you know, Muslims don't touch or eat pork. Dan forced me to pick the pork up, and I told him I couldn't touch it. . . . He said, "No, you're not supposed to eat it. And it's your job, so you got to do it." Pl. Dep. at pp. 311-313. It does not appear that Plaintiff pursued the issue further, and at a subsequent hearing before the Worker's Compensation Board, Plaintiff indicated that his regular job duties included handling pork: "I was doing a lot of restocking meats, fresh meats like beef, pork, stuff like that." Def. Summary Judgment Motion [#22] , Ex. M at p. 4.
In June 2008, Plaintiff experienced pain in his hands. On July 12, 2008, Plaintiff requested an initial one-month leave of absence for carpel tunnel syndrome, which Defendant granted. On July 14, 2008, Plaintiff completed an application for worker's compensation benefits. Defendant initially opposed the application, but Plaintiff was later granted benefits. After Plaintiff's initial medical leave expired, Defendant granted him two additional extensions of medical leave. On September 10, 2008, Plaintiff returned to work, with a doctor's note stating: "[Plaintiff] may not do repetitive use of hands and may not lift [greater than] 25 pounds...these restrictions will last until October 1st, 2008."
In response to the doctor's note, Defendant assigned Plaintiff to the position of Greeter during his usual overnight hours. A Wal-Mart Greeter's duties are to welcome customers as they enter stores and to place stickers on bags of items a customer wishes to return.
There was already another employee, Shanelle Cherry ("Cherry"), who was working as a Greeter due to her own medical restrictions. Plaintiff and Cherry both worked as Greeters at the same time. Occasionally, though, both were required to perform "re-shops," which involved taking un-purchased merchandise from the front of the store and returning it to the store's shelves, at their own pace. The exact number of times that Plaintiff actually performed re-shops is unclear, but it appears it was infrequent, and in any event, as discussed below, he worked as a Greeter a maximum of only twenty days. See, Def. Summary Judgment Motion [#22], Ex. M at p. 18 ("I had been assigned to the front door as a greeter. Sometimes they would have me do reshops sometimes." [sic]) (emphasis added). *fn2
While performing his re-shopping duties, when Plaintiff came across an item which weighed more than 25 pounds, he simply "just didn't lift it" and left it in the cart. Plaintiff never violated his lifting restriction, and he was never disciplined for failing to re-shelve heavy items. Plaintiff maintains, though, as part of this action, that re-shelving items generally violated his doctor's restriction on repetitive use of hands. In that regard, Plaintiff now claims that he twice told his supervisors that re-shelving items violated his repetitive-use limitation. See, Pl. Resp. [#26], Appendix at pp. 5-6. However, Plaintiff's prior sworn testimony on this point suggests that he did not expressly complain to anyone about repetitive motion: "Q. Did you discuss that with an assistant manager? A. They already knew that in writing [from the doctor's note] that I wasn't supposed to, that I was to be reassigned to light duty." Def. Summary Judgment Motion [#22], Ex. M at p. 32 (emphasis added). Moreover, Plaintiff does not explain why, if he believed that re-shelving required "repetitive use" of his hands, he continued to do it, thereby violating his doctor's instructions, when he refused to violate the doctor's other limitation, on lifting items weighing more than 25 pounds.
In any event, Plaintiff was able to perform his re-shopping duties, and he does not indicate that he suffered any ill effects from doing so.*fn3
September 30, 2008 was the last day that Plaintiff worked for Defendant. Plaintiff arrived at work at 10 p.m. and punched in, using his magnetic name badge, in the usual manner. When Plaintiff arrived at the Greeter's station, Cherry acted surprised to see him, and indicated that she had heard a rumor that he had been fired. Plaintiff advised Cherry that he had not been fired. At 11:45 p.m., Plaintiff took a 15-minute break,*fn4 during which he tried to access Wal-Mart's intranet system to request a transfer to a different store, purportedly because he no longer felt comfortable at the Chili Ave. location. Employees were entitled to access the intranet system on their breaks for that purpose. Plaintiff tried to log onto the intranet three times, but according to him, he could not log on because the system did not recognize him as being "clocked in" that evening. Plaintiff maintains that he attempted to again swipe his identification card to "punch in," but the system did not accept his card.
Immediately thereafter, while still on his break, Plaintiff approached Assistant Manager Frank Henry ("Henry"). Plaintiff did so, since he was concerned about the status of his employment, based on Cherry's comment about him being fired, and based upon the fact that his identification badge did not seem to be functioning. Henry, who was standing and talking with Assistant Manager Dan Berner ("Berner") and Support Manager Frank Costello ("Costello") by the cash registers when Plaintiff approached, stepped aside to talk with him. Plaintiff asked Henry if he was fired, to which Henry responded, "not to my knowledge." Plaintiff then asked why his badge did not seem to be working. Henry indicated that he did not know why Plaintiff's badge was not working, and said that he would "look into that." At that point, it was a few minutes before midnight, and Henry told Plaintiff that he should return to work because his break was over.
Plaintiff returned to his Greeter's post for approximately one minute, then walked back to where Henry was still speaking with Berner and Costello. An exchange followed, which, significantly, was captured on the store's video cameras, and was submitted to the Court as Exhibit J to Defendant's motion. The video file does not provide sound, but Plaintiff testified at deposition concerning what was said.
The video shows Plaintiff briskly approaching Henry from behind, while Henry was still speaking with Berner and Costello. Plaintiff threw his identification badge and lanyard to floor, and exclaimed, "This shit don't work!" This abrupt interruption caused Henry to turn quickly and retreat several steps from Plaintiff, who is much larger physically than Henry. Plaintiff pursued and stood directly in front of Henry in a confrontational manner. Plaintiff admits that he was upset because he felt that Henry had acted dismissively toward him in their prior conversation. As Plaintiff was confronting Henry, Berner yelled"Abidan, back off!" and Plaintiff yelled back, "No. You back off!" while pointing at Berner. Plaintiff walked away a few steps, then returned and stood directly in front of Berner and said, "My name is Abidan...I'm a man...I'm a grown man. You want to talk to me like a grown man...I'm tired of the way y'all treat people around here." Plaintiff also accused store officials of "trying to play him." Berner then told Plaintiff to leave the store, to which Plaintiff replied, "I said what I had to say, I'm out of here," and left the store. The incident took place in the front of the store, during business hours, with customers nearby.
Earlier that evening, another incident occurred at the store involving a black female associate named Chastity Travis. As Travis was arriving at the store for her shift, she and her boyfriend were standing outside, when the boyfriend suddenly shoved her, knocking her through the store's door. See, Miller Dep., [#27-2] at p. 7; see also, Pl. Appendix, Ex. C ("[A] young woman came tumbling through the now opened door and fell to the ground."). A store employee observed that, after Travis got up from the ground, she and her boyfriend yelled profanities at each other, and each called the police to complain about the other. See, Pl. Appendix, Ex. C. Travis' boyfriend had a welt and blood on his face, though it is unclear how he became injured. Miller Dep. [#27-2] at p. 11; see also, Pl. Appendix, Ex. C ("As for . . . what had caused the dispute and injury to the man, I did not see."). Afterward, Travis was upset, crying, and having a hard time talking, and a manager provided her with ice packs. Id. at pp. 7-9. Store management provided police with videotape of the incident, which did not show any physical altercation leading up to Travis being shoved through the door. Id. at pp. 7, 9. Defendant did not take any disciplinary action against Travis for violating the store's anti-violence policy, because it viewed her as being the victim of domestic violence. See, Irvine Dep. [#27-2] at p. 23 ("This was a domestic dispute with her boyfriend. Her boyfriend was beating her up and threw her though our door. The police were called and a police report was filed, so in this incidence, [sic] workplace violence did not apply to that.").
Later that day, Henry and Berner informed Store Manager John Irvine ("Irvine") about the incident involving Plaintiff. Irvine informed Plaintiff that he was suspended pending an investigation, which included reviewing witness statements, video surveillance and speaking with Plaintiff about the incident. On October 7, 2008, Irvine notified Plaintiff that he was being terminated for violating Wal-Mart's workplace violence policy, by intimidating, yelling at, and attempting to bully his supervisors.
On October 27, 2008, Plaintiff filed a complaint with the New York State Division of Human Rights ("NYSDHR"), which was cross-filed with the Equal Employment Opportunity Commission ("EEOC"). The complaint alleged that Defendant fired Plaintiff because of his race and disability, and failed to accommodate him. With regard to race, Plaintiff stated, in pertinent part: "No black people in senior management position that could be sensitive to the needs of black employees. . . . Intimidating all of the minority associates[.] [They] told me they were intimated by me." As for disability, Plaintiff wrote, in pertinent part: "Suffer from carpal tunnel syndrome, diabetes and hypertension still made to violate doctor's orders no repetitive motion made to do reshops in store." [sic]
The NYSDHR complaint further stated: "I was terminated for voicing my opinion in a loud voice." When asked to explain why he believed that he was discriminated against, Plaintiff gave two examples. First, he stated that a female employee, Travis, had been involved in a physical altercation with her boyfriend on Wal-Mart property, and was suspended but not terminated. Second, Plaintiff indicated that Berner had raised his voice to him when telling him to "back off" from Henry, but Berner ...