The opinion of the court was delivered by: Lindsay, Magistrate Judge:
Plaintiff Paul-Erick Saint Jean ("plaintiff") commenced this employment discrimination action against defendants Acme Bus Corp. and Baumann & Sons Buses, Inc. ("defendants" or the "Company") alleging discrimination and retaliation in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. ("Title VII") on the basis of race, color and national origin. The parties have consented to the undersigned's jurisdiction pursuant to 28 U.S.C. § 636. Before the court is defendants' motion for summary judgment pursuant to Federal Rule of Civil Procedure ("Rule") 56. For the reasons set forth below, defendants' motion is granted.
Defendants provide transportation services to schools and other private customers throughout the region, including Long Island, Westchester and Connecticut. (Defs.' 56.1 Stmt. ¶ 9.)*fn1 Defendants hired plaintiff, a black, Haitian male, on May 11, 2006 as a bus driver working out of the Company's Copiague terminal. (Id. at ¶ 10.) At the time of his employment, plaintiff received a copy of the Company's Employee Handbook. (Id. at ¶ 42.) In June 2006, plaintiff was transferred to the Company's Farmingdale terminal, which operates both van and bus services exclusively for the Association for the Help of Retarded Children of Nassau County ("AHRC"). (Id. at ¶¶ 10-11.) When plaintiff was first transferred to the Farmingdale facility, he was assigned to drive a van during the week and performed bus driving services for the Company on the weekends. (Id. at ¶ 13.) From June 2006 until August 2007, plaintiff received the then-current hourly rate paid to bus drivers for all of his services. (Id. at ¶ 14.)
In August 2007, as a result of a reorganization by AHRC, the Company's exclusive customer at the Farmingdale terminal, all of the bus and van routes in Farmingdale had to be changed.*fn2 (Id. at ¶ 15.) At that time, the Company determined that it would hold a "pick of routes" in order to assign new routes to its drivers, and at a meeting held by the Farmingdale Terminal Manager, Barbara Lawrence, the Company announced a change in its pay policy concerning the hourly rates paid to drivers for the type of services performed on these routes. (Id. at ¶¶ 15-16.) According to the policy, the Company would pay all regular drivers assigned to a regular route at the Farmingdale terminal the rate of pay applicable to the type of service they performed (bus or van), regardless of the type of license held by the employee. (Id.) Under this practice, a bus driver would earn a higher per hour rate than a van driver. (Compl. at 11.)
In addition to regular full-time and part-time drivers, the Company hired drivers to be on "stand-by" or "spare" drivers, available to cover regular drivers' routes when they were out of work due to illness or vacation, who were guaranteed a limited number of hours of work each day and were paid based upon the type of their license, regardless of whether they drove a bus or a van. (Defs.' 56.1 Stmt. ¶ 17.) The Company also hired "casual" drivers, who were not guaranteed any hours of work, only appear for stand-by work on a part-time basis as needed, and were paid an hourly rate based upon the type of their license. (Id. at ¶ 18.)
The Farmingdale terminal conducted a "pick of routes" based on seniority, with each driver's rank determined by the date the individual began working on a regular route (whether van or bus) with both morning and afternoon hours. (Id. at ¶ 19.) Plaintiff's seniority date was determined to be June 12, 2006. (Id.) Out of twelve total bus drivers, ten drivers were more senior than plaintiff. (Id. at ¶ 20.) In addition to plaintiff, the drivers included in the pick of routes at the Farmingdale terminal consisted of two African American drivers, four Haitian drivers and five Caucasian drivers. (Id.) Seven regular bus routes were available for the "pick," and the remaining bus drivers were either assigned to van routes or given "stand-by" or "casual" work. (Id.) Plaintiff chose not to participate in the pick of the routes in August 2007. (Id. ¶ 21.)
In early September 2007, plaintiff was offered work as a van driver and assumed a position as a van driver at the van hourly rate of pay on one of the routes that remained after the other drivers picked their routes. (Id. at ¶¶ 22-23.)
On December 12, 2007, plaintiff filed an administrative complaint of employment discrimination with the New York State Division of Human Rights ("DHR") alleging that the pay practices at the Company's Farmingdale terminal were discriminatory in violation of Article 15 of the New York State Executive Law. (Id. ¶¶ 2-3.) The DHR conducted an investigation into the charges and, finding no probable cause for plaintiff's claim of discrimination, dismissed the complaint. (Id. at ¶ 8.)
The Company offered plaintiff a regular bus route, and in January 2008 he assumed this new position and earned the hourly rate paid to bus drivers. (Id. at ¶¶ 24-26.) The matron assigned to this bus route was Margaret Robinson, an African-American employee. (Id.) On March 3, 2008, there was an incident on the bus between Robinson and plaintiff which involved an exchange of words between them when plaintiff asked Robinson to sit in the back of the bus if she wanted to open the windows. (Compl. at 20.) Robinson objected to this and reported the incident to their dispatcher, plaintiff then asked the dispatcher to contact their supervisor Lawrence, and when plaintiff returned to the dispatcher office, Lawrence met with both Robinson and plaintiff to resolve the matter. (Id.; Defs.' 56.1 Stmts. ¶ 34.) Although plaintiff was offended by the manner in which his supervisor addressed him during the meeting, (Compl. at 21), neither employee was disciplined as a result of the meeting. (Defs.' 56.1 Stmts. ¶ 35.)
On March 31, 2008, plaintiff filed a second administrative complaint with the DHR charging defendants with unlawful discrimination and retaliation and claiming that his assignment to work with Robinson was in retaliation for his first DHR complaint on the basis of race and national origin discrimination. (Id. ¶¶ 4-5.) Plaintiff asserted this assignment was intended to harass him in violation of Article 15 of the New York State Executive Law. (Id.) Following an investigation into the charges, the DHR dismissed the second complaint. (Id. at ¶ 8.)
On May 7, 2008, an confrontation between plaintiff and Robinson broke out while plaintiff was driving AHRC passengers during their morning route. (Id. at ¶ 36.) AHRC received complaints from some of their passengers about the incident on the bus and contacted Barbara Lawrence to remove plaintiff and Robinson from service for AHRC pending an investigation. (Id. at ¶ 37.) The Company suspended both employees pending the results of the investigation. (Id.; Pl.'s Third DHR Compl.) The following day, Lisa Shortell, Quality Assurance Administrator for AHRC, interviewed plaintiff and Robinson. (Defs.' 56.1 Stmts. ¶ 38.) On May 8, 2008, plaintiff returned to AHRC on his own and spoke to Lisa Shortell about the investigation. (Id. ¶ 39.)
On May 9, 2008, AHRC determined that based on their conduct, neither plaintiff nor Robinson should be permitted to service any AHRC routes. (Lawrence Decl., dated February 2, 2011, ¶ 19.) Plaintiff visited the Defendants' Human Resources Department on May 13, 2008 to inquire about the status of his employment. (Defs.' 56.1 Stmts. ¶ 41.) The Company's Human Resources Coordinator, Maureen Ouellette, warned plaintiff that he had violated the Company's policy against communications with a customer when he went directly to AHRC to inquire about the status of the investigation and was told that he was on suspension until further notice. (Id.) Despite the warning, plaintiff returned a second time to AHRC to inquire about the status of the investigation. (Id. at ¶ 43.) Defendants terminated plaintiff's employment on May 19, 2008 for his violation of the Company's policy prohibiting communications with Defendants' customer AHRC. (Id. at ¶ 44.)
On June 2, 2008, plaintiff filed a third administrative complaint with the DHR alleging that the Company's suspension of his employment on May 7, 2008 and the termination of his employment on May 19, 2008 were the result of unlawful discrimination and retaliation on the basis of race, color and national origin based on his previous complaints to the DHR in violation of Article 15 of the New York State Executive Law. (Id. ¶¶ 6-7.) Following an investigation into the charges, the DHR dismissed the complaint. (Id. at ¶ 8.)
Plaintiff commenced the instant action pro se on December 4, 2008, alleging that defendants (1) discriminated against him based on his race (Black) and color (Black) (hereinafter referred to collectively as "race") and national origin (Haitian) by reducing his hourly rate of pay shortly after his hiring in violation of Title VII and (2) retaliated against him based on his race and Haitian national origin in violation of Title VII by suspending plaintiff's employment on May 7, 2008 and terminating his employment on May 19, 2008. Attorney Kristina S. Heuser filed a notice of appearance on behalf of plaintiff on August 3, 2010. By letter application dated September 14, 2010, plaintiff's counsel moved for an extension of time to complete discovery, and the deadlines set forth in the scheduling order were extended sixty days. By application dated November 11, 2010, plaintiff's counsel again requested a sixty-day extension of the discovery deadlines, which was granted. At the final conference held before the undersigned on March 3, 2011, all discovery was deemed complete, the joint proposed pretrial order was accepted for filing, and the case was returned to the district judge for final disposition. On June 2, 2011, the parties consented to the undersigned's jurisdiction.
Defendants now move for summary judgment pursuant to Federal Rule of Civil Procedure 56.
I. Applicable Law and Legal Standards
Summary judgment is proper only "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). "An issue of fact is genuine if 'the evidence is such that a reasonable jury could return a verdict for the nonmoving party.' A fact is material if it 'might affect the outcome of the suit under the governing law.'" Roe v. City of Waterbury, 542 F.3d 31, 35 (2d Cir. 2008) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). In determining whether an issue is genuine, "[t]he inferences to be drawn from the underlying affidavits, exhibits, interrogatory answers, and depositions must be viewed in the light most favorable to the party opposing the motion." Cronin v. Aetna Life Ins. Co., 46 F.3d 196, 202 (2d Cir. 1995) (citing United States v. Diebold, Inc., 369 U.S. 654, 655 (1962) (per curiam)); Ramseur v. Chase Manhattan Bank, 865 F.2d 460, 465 (2d Cir. 1989)).
Once the moving party has met its burden, "the nonmoving party must come forward with 'specific facts showing that there is a genuine issue for trial.'" Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quoting FED. R. CIV. P. 56(e)). The nonmoving party cannot survive summary judgment by casting mere "metaphysical doubt" upon the evidence produced by the moving party. Matsushita, 475 U.S. at 586. Summary judgment is appropriate when the moving party can show that "little or no evidence may be found in support of the nonmoving party's case." Gallo v. Prudential Residential Servs., Ltd., 22 F.3d 1219, 1223-24 (2d Cir. 1994) (citations omitted). However, "the judge's role in reviewing a motion for summary judgment is not to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Anderson, 477 U.S. at 249.
In deciding an employment discrimination case, the Court of Appeals for the Second Circuit has cautioned that "intent often must be inferred from circumstantial evidence found in affidavits and depositions." Schiano v. Quality Payroll Sys., Inc., 445 F.3d 597, 603 (2d Cir. 2006) (citations and internal quotation marks omitted). At the same time, the Court held that "summary judgment remains available for the dismissal of discrimination claims in cases lacking genuine issues of material fact." Id. "The summary judgment rule would be rendered sterile . . . if the mere incantation of intent or state of mind would operate as a talisman to defeat an otherwise valid motion." Meiri v. Dacon, 759 F.2d 989, 998 (2d Cir. 1985). "[T]he salutary purposes of summary judgment - avoiding protracted, expensive and harassing trials - apply no less to discrimination cases than to commercial or other areas of litigation." Id. "When no rational jury could find in favor of the nonmoving party because the evidence to support its case is so slight, there is no genuine issue of material fact and a grant of summary judgment is proper." Gallo, 22 F.3d at 1224.
B. McDonnell-Douglas Burden-Shifting Framework
In an employment discrimination case such as this, where there is no direct evidence of discriminatory conduct, plaintiff's discrimination and retaliation claims brought under Title VII are analyzed under the now familiar burden-shifting analysis set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973). See Jute v. Hamilton Sundstrand Corp., 420 F.3d 166, 173 (2d Cir. 2005); Woodman v. WWOR-TV, Inc., 411 F.3d 69, 76 (2d Cir. 2005). Under McDonnell Douglas and its innumerable progeny, (1) a plaintiff must first establish a prima facie case of discrimination; (2) the burden then shifts to the employer to articulate a legitimate, nondiscriminatory reason for its actions; if the employer does so, the McDonnell Douglas framework and its presumptions and burdens disappear, leaving the sole remaining issue of "discrimination vel non;" and, thus, (3) the burden shifts back to the plaintiff to prove that the employer's stated reason is merely pretextual and that race discrimination was an actual reason for the adverse employment action. See Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (2000). Although intermediate evidentiary burdens shift back and forth under this framework, "[t]he ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff." Id.
II. Evidentiary Challenge
As a threshold matter, plaintiff challenges the admissibility of the declarations submitted by (1) plaintiff's former supervisor, Barbara Lawrence, (2) the director of defendants' human resources department, Maureen Ouellette, and (3) matron Margaret Robinson, on the grounds that they are unsworn affidavits, not notarized and should therefore be considered inadmissible hearsay. (Pl. Mem. of Law in Opp. at 6, 11.) Fed. R. Civ. P. 56 provides that an affidavit submitted in opposition to a motion for summary judgment "must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated." Fed. R. Civ. P. 56(c)(4). ...