The opinion of the court was delivered by: Charles J. Siragusa United States District Judge
This was an action for employment discrimination under the Americans With Disabilities Act and Title VII. Now before the Court is the Court's sua sponte Order to Show Cause directing Plaintiff's attorney, Christina Agola, to show cause why she should not be sanctioned for making misrepresentations to the Court. As set forth below, Ms. Agola is sanctioned.
The underlying facts of this action were set forth in the Court's prior Decision and Order (Docket No. [#30]). The Court will only restate those facts which pertain to the Order to Show Cause.
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. Plaintiff was hired as an Overnight Deli Stocker. 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. 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. As the title implies, a Wal-Mart Greeter's primary duty is to welcome customers as they enter the store.
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 returned or otherwise 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, 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
When performing his re-shopping duties, if 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 was never disciplined for failing to re-shelve heavy items. Plaintiff maintained, 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 claimed that he twice told his supervisors that re-shelving items violated his repetitive-use limitation. However, Plaintiff's prior sworn testimony on this point suggested that he did not expressly complain to anyone about repetitive motion. In any event, Plaintiff was able to perform his re-shopping duties, and did not suffer 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 said that she was surprised to see him, since 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, 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 Plaintiff. 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 did not provide sound, but Plaintiff testified at deposition concerning what was said.
The video showed 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 admitted 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!", but Plaintiff yelled, "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 at the front of the store, during business hours, with customers nearby.
Earlier that evening, another incident had 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. 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. Travis' boyfriend had a welt and blood on his face, though it is unclear how he became injured. 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. 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.
On October 7, 2008, Wal-Mart notified Plaintiff that he was being terminated for violating the company'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 had not been disciplined. On April 24, 2009, NYSDHR issued a "No Probable Cause" determination, dismissing Plaintiff's claims.
On September 18, 2009, Plaintiff filed a complaint with the Workers' Compensation Board ("WCB"), alleging that he was terminated in retaliation for filing a Workers' Compensation claim. On July 16, 2010, following a trial, the WCB Judge dismissed the complaint, finding that Plaintiff's "angry confrontation" with his supervisors provided an adequate reason to fire him. Plaintiff appealed, and on December 14, 2010, a WCB Panel upheld the dismissal, finding that Plaintiff had not produced "any evidence" that he was terminated by Defendant in retaliation for filing for workers' compensation benefits.
On February 10, 2010, Plaintiff, proceeding pro se, filed the instant action. The Complaint [#1] indicated that Plaintiff was suing pursuant to Title VII and the ADA. On the form complaint, Plaintiff checked lines indicating that the discrimination involved Defendant terminating his employment, failing to accommodate him, and retaliating against him. Although Plaintiff had checked the box for Title VII and ADA, the only factual allegations in the Complaint pertain to Plaintiff's alleged disability. Specifically, when asked to briefly state the facts of his claim, Plaintiff wrote: "Was forced to work in a position of which continually caused my pre-existing injury to become more exa[cerbated] than usual." Complaint [#1] ¶ 19. Attached to the complaint is a document entitled "Notice of intent to sue for discrimination," which, again, mentions only Plaintiff's alleged disability, and states, in pertinent part:
The claim is founded in negligence on the part of the Wal-Mart Corp. for discrimination. Claimant states that the Wal-Mart Corp. did in fact not provide the claimant with reasonable accommodations for an injury sustained in the plaintiff's employment capacity pursuant to Title VII of the Americans with Disability Act of whom acted in a Discriminatory manner against the Claimant by not adhering to the ADA. The policy was being applied arbitrarily, in refusing to follow the ADA. The plaintiff also alleges that the Wal-Mart Corp. was discriminatory with respect to the New York Executive Law and the City's Administrative Code.
Complaint, Docket [#1] at p. 6 (emphasis added). Clearly absent from the Complaint is any factual allegation of discrimination based on race, sex, religion or any other factor. In fact, on the form complaint that Plaintiff used, which provided lines for litigants to indicate the basis for their discrimination claim, he marked the line for "disability," but left the lines for "race," "color," "sex" and "religion" blank. Complaint [#1] at ¶ 14. ...