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Martin v. NY Dialysis Servs., Inc.

United States District Court, W.D. New York

September 10, 2013

ANTHONY L. MARTIN, Plaintiff,
v.
NY DIALYSIS SERVICES, INC., DBA Strong Health Dialysis Finger Lakes Unit, Defendant

Anthony L. Martin, Plaintiff, Pro se, Rochester, NY.

For N.Y. Dialysis Services, Inc., DBA Strong Health Dialysis Finger Lakes Unit, Defendant: Jacqueline Phipps Polito, LEAD ATTORNEY, Littler Mendelson, P.C., Rochester, NY.

OPINION

Page 310

DAVID G. LARIMER, United States District Judge.

DECISION AND ORDER

Plaintiff Anthony Martin (" plaintiff" ) brings this action against his former employer, N.Y. Dialysis Services, Inc. (" Dialysis Services" ), alleging race and gender-based discrimination and retaliation in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (" Title VII" ). Discovery is now completed, and Dialysis Services moves for summary judgment dismissing the plaintiff's claims (Dkt. #27). For the reasons that follow, Dialysis Services' motion for summary judgment is granted, and the complaint is dismissed.

FACTUAL AND PROCEDURAL BACKGROUND

Plaintiff, an African-American male, was hired by Dialysis Services as a patient care technician on August 3, 2009. Plaintiff's responsibilities included setting up patients on dialysis machines, and monitoring their vital signs.

On January 6, 2010, after five occasions of tardiness, Dialysis Services contends that plaintiff was issued a verbal warning that he needed to comply with Dialysis Services' written Attendance and Tardiness Policy. Plaintiff does not dispute receiving that written policy, under which regular attendance and punctuality are required, and leaves of absence must be approved by Dialysis Services. Employees with up to 7 unexcused absences in a 12-month period are considered to " need improvement," and employees with more than seven absences are considered to be performing " unsatisfactorily."

On April 16, 2010, Dialysis Services affirms that it issued a second written warning to plaintiff concerning continuing attendance problems, including being late to work 14 times, leaving work early five times, and calling in sick on three occasions in the preceding six weeks.

According to Dialysis Services' records, between May 3, 2010 and June 9, 2010, plaintiff was late for work an additional 13 times. Operations Manager Steve Imel (" Imel" ), Director of Operations Mark Sciorilli, and plaintiff's supervisor, Susan Struncius (" Struncius" ), met with plaintiff to discuss his continuing attendance problems. Dialysis Services maintains that during that meeting, plaintiff admitted

Page 311

that he had not timely punched in for his shift. After the meeting, plaintiff was issued a final written warning. (Plaintiff admits that there was a meeting and that his attendance was discussed, but denies that he was ever issued any written warning about his attendance problems.)

According to Dialysis Services' records, two days later, on June 11, 2010, plaintiff was a " no call/no show" for his scheduled shift at a different work location, and was written up by the supervisor there. On June 29, 2010, plaintiff reported several hours late for his scheduled shift. Later that day, in light of plaintiff's repeated attendance issues, Imel and Struncius made the decision to ...


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