United States District Court, E.D. New York
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Harsharan Sethi, Plaintiff, Pro se, Plainview, NY.
For Randy Narod, Eric Lee, Deborah Morrissey, Cambridge Who's Who Publishing, Inc., Defendants: Randy Scott Zelin, LEAD ATTORNEY, A. Jonathan Trafimow, Juan L Garcia, Moritt, Hock & Hamroff, LLP, Garden City, NY.
MARGO K. BRODIE, United States District Judge.
MEMORANDUM & ORDER
MARGO K. BRODIE, United States District Judge:
Plaintiff Harsharan Sethi brought the above-captioned action against Defendants Randy Narod, Erica Lee, Deborah Morrissey, Mitchel Robbins, Brian Wasserman,
Stanley Pitkiewicz, Richard Someck, Israel Dorinbaum, Neil Schorr, Donald Trump, Jr., and Cambridge Who's Who Publishing, Inc. (" CWW" ) alleging race and national origin discrimination under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (" Title VII" ), and the New York State Human Rights Law, N.Y. Exec. Law § 290 et seq. (" NYSHRL" ). Plaintiff also brought claims against all Defendants under the Fair Labor Standards Act (" FLSA" ) and the New York State Labor Law (" NYLL" ), alleging failure to pay overtime compensation and violation of recordkeeping requirements. Defendants moved for summary judgment on all claims. At oral argument on May 9, 2013, the Court granted Defendants' motion for summary judgment as to Plaintiff's FLSA claim against individual Defendants Mitchel Robbins, Brian Wasserman, Stanley Pitkiewicz, Richard Someck, Israel Dorinbaum, Neil Schorr, and Donald Trump, Jr., and Plaintiff's claims for violation of the record-keeping provisions of the FLSA and the NYLL. After oral argument Plaintiff cross-moved for summary judgment on his remaining claims. By Memorandum and Order dated September 30, 2013 (" Sept. 30, 2013 Decision" ), the Court denied Defendants' and Plaintiff's motions for summary judgment as to Plaintiff's FLSA and the NYLL claims for failure to pay overtime compensation. The Court deferred ruling on the parties' motions for summary judgment as to Plaintiff's Title VII and NYSHRL claims, pending the submission of additional documentation as set forth in the Sept. 30, 2013 Decision. The Court has reviewed the additional submissions of the parties. For the reasons set forth below, the Court denies Plaintiff's motion for summary judgment as to his Title VII and NYSHRL claim and grants Defendants' motion for summary judgment as to Plaintiff's Title VII and NYSHRL claim.
The Court assumes familiarity with the facts of this proceeding which are set forth in detail in the Court's Sept. 30, 2013 Decision. The Court provides a summary of the facts necessary to explain its decision.
a. CWW and the individual Defendants
CWW is a private company that " assists its members with strategies for enhancing their professional profiles." (Def. Mem. 3.) Randy Narod is the President of CWW and owns 85 percent of CWW. (Narod Dep. 5:22-6:2, 8:12-2; Pl. 56.1 ¶ ¶ 65-66.) Defendant Erica Lee is the Chief Operating Officer and Chief of Operations and Logistics for CWW. (Lee Decl. ¶ 1; Pl. 56.1 ¶ 32.) Deborah Morrissey is the Vice President of Human Resources for CWW. (Morrissey Dep. 5:19-24; Pl. 56.1 ¶ 1.) Plaintiff was interviewed for his position at CWW by both Narod and Lee. (Def. 56.1 ¶ 11; Pl. 56.1 ¶ 115; Sethi Dep. 39:25-40:2.) According to Narod, Lee made the decision to hire Plaintiff and Lee had the authority to send a termination severance agreement to Plaintiff without discussing it with Narod in advance. (Narod Dep. 38:5-21, 52:12-53:2; Pl. 56.1 ¶ 94.) According to Lee, she made the recommendation to hire Plaintiff to Narod, and Narod accepted the recommendation and approved the decision to hire Plaintiff. (Lee Decl. ¶ 17.)
b. Plaintiff's educational background and work at CWW
Plaintiff was born and educated in India. (Sethi Dep. 9:21-10:19.) He obtained a bachelor's degree in business administration, with a major in finance and a minor in business management. (Sethi Decl. Ex. 3.) His professional experience prior to CWW included working as a manager of
information systems for approximately seven years. ( Id.) Plaintiff worked as the Director of Management Information Systems (" MIS Director" ) at CWW from July 21, 2008 to May 10, 2010. (Am. Compl. ¶ 2; Answer ¶ 2.) Plaintiff reported to Lee. (Def. 56.1 ¶ 25; Sethi Decl. ¶ 15.)
c. May 2009 USA Honors Society email
In approximately May 2009, Plaintiff received an email from the " USA Honors Society" (" Honors Society" ), a new company established at CWW. (Am. Compl. ¶ ¶ 27-28; Sethi Dep. 82:16-86:4.) The email indicated that Plaintiff had been selected for membership in the Honors Society for his contributions to the profession. (Am. Compl. ¶ ¶ 27-28; Sethi Dep. 82:16-86:4.) Plaintiff believed that the representations in the email were false, and reported his concerns to Lee. (Am. Compl. ¶ ¶ 27-28; Sethi Dep. 82:16-86:4.) According to Lee, " Plaintiff believed [the Honors Society] was a separate entity [from CWW] and that customers should be advised of this." Although she explained otherwise, Plaintiff continued to believe that CWW was engaged in " wrongful business offerings." (Lee Decl. ¶ 36.)
After this incident, Plaintiff claims he experienced changes in his duties and responsibilities, including a unilateral increase in his work hours. (Sethi Dep. 86:5-90:8.) Plaintiff claims that he endured long hours of work in retaliation for questioning things such as the Honors Society, when he would receive overtime pay, and why he had to provide technical support to Narod's personal businesses outside of CWW. (Pl. 56.1 ¶ ¶ 127-30; Sethi Dep. 88:22-89:21.) Plaintiff alleges that as part of the " abus[e]" he subsequently experienced, beginning in September 2009, CWW's executives and managers constantly remarked about Plaintiff's Indian heritage, including calling him " Harshidoodle" or " Harshipoodle" in front of other employees. (Am. Compl. ¶ 31.)
d. November 2009 confrontation with Narod
On November 10, 2009, Plaintiff attended a meeting with Narod, Lee and Morrissey. (Sethi Decl. ¶ 26; Sethi Dep. 130:19; Lee Decl. ¶ 52.) According to Plaintiff, during this meeting Narod " physical[ly] assault[ed]" him. (Sethi Dep. 124:2; see also Pl. 56.1 ¶ ¶ 133-134; Sethi Dep. 120:2-125:25.) Plaintiff accused CWW of illegality, telling Narod, " This company is illegal. What you are doing here is illegal." (Sethi Dep. 122:4-5.) Narod allegedly responded, " You f--king Indian, what do you think about yourself? I will make sure you are sent back to India. You don't know who you are dealing with. You fear my wrath in your dreams." (Pl. 56.1 ¶ 133; Sethi Dep. 116:21-125:19.) Narod also told Plaintiff, " [I]f this is illegal, you are part of it, so we both will go to jail." (Sethi Dep. 124:20-22.) Plaintiff claims that during this meeting Narod " charged" at him, slapped his face, and " chested" him, hitting Plaintiff with his chest. ( Id. at 122:19-123:21.) Defendants admit that a meeting occurred, but deny Plaintiff's allegations concerning what happened at the meeting. (Def. Cross-Mot. 56.1 ¶ ¶ 132-34.)
e. Chief Technology Officer position
In January 2010, CWW created a Chief Technology Officer (" CTO" ) position. (Def. 56.1 ¶ 52; Pl. Resp. 56.1 ¶ 52.) Lee announced via email on January 13, 2010, that CWW was about three days away from hiring a CTO. (Docket Entry No. 84-1 at 1-2.) Lee wrote that all of the applicants had over twenty-plus years of experience and had managed technology for large companies. ( Id.) Plaintiff forwarded the announcement to Narod and asked, " [a]ny reason I was not given this opportunity?" ( Id.) In response, Narod asked Plaintiff if he had the experience necessary for the position. ( Id.) Plaintiff responded, " Yes [t]ry [m]e." ( Id.) Narod advised Plaintiff that he would have to go through the interview process, as the applicants had " high level" experience. ( Id.) Plaintiff responded, " If done with an open mind, I am all for it." ( Id.) Narod forwarded Plaintiff's inquiry to Lee. (Docket Entry No. 80-1 at 2.)
According to Lee, Plaintiff " requested an opportunity to apply for the [CTO] position." (Lee Dep. 57:17-19.) At that time, CWW was in the " final stage" of selecting a CTO, having posted the position on websites including CareerBuilder and Monster, vetted candidates and given a " soft response" to a candidate indicating that CWW was " leaning . . . that person's way" but was still discussing the position. ( Id. at 57:17-58:14.) CWW was looking for a candidate with a wide range of skill sets. ( Id. at 59:5-7.) After Plaintiff inquired about the CTO position, Lee emailed Plaintiff and told him that the top candidates had extensive programming experience and had taken projects from inception to execution on their own. (Docket Entry No. 80-1 at 2; Sethi Dep. 167:9-18.) She wrote that the candidates were willing to write code as well as manage CWW business practices, and that CWW had not approached Plaintiff about the position because CWW was " looking for candidates that have executed from a business process, software development side and had strong programming backgrounds." (Docket Entry No. 80-1 at 2.) Plaintiff does not recall if he responded to this email. (Sethi Dep. 168:19-168:8.) Defendants claim that Plaintiff never applied for the CTO position. (Lee Decl. ¶ 57.)
CWW hired Gerard Mott for the CTO position. (Def. 56.1 ¶ 56; Pl. Resp. 56.1 ¶ 56.) Mott had served as the CTO at a number of large organizations, including WebMD, and had acted as " lead management" before. (Lee Dep. 60:18-25.) According to Lee, Mott was brought on because of his years of experience in big business and his large corporate CTO experience. ( Id. at 61:16-23.) Mott also had experience in managing programmers and " taking projects from inception." ( Id. at 63:17-65:6.) Lee did not believe that Plaintiff could " tak[e] on the position of the CTO at the time" because of his then current position. ( Id. at 59:5-14.) Plaintiff admitted that he did not have the experience CWW was looking for, but asserts that Mott also lacked the required experience. ( See Sethi Dep. 167:9-171:7.)
f. Mott's assessment of Plaintiff
Mott met with Plaintiff after Mott was hired. (Def. 56.1 ¶ 58; Sethi Dep. 171:14-179:3.) Mott assessed Plaintiff's skills and experience and found Plaintiff's skillset to be " above a typical desktop technician but well below that of a competent network administrator." (Def. 56.1 ¶ 58.) According to Mott, Plaintiff had no knowledge regarding CWW's database and web servers, and he could not provide Mott with basic information about " the number of hard drives, processors, memory, or configuration for redundancy in case of failure." (Mott Decl. ¶ 8.) Mott assessed Plaintiff's knowledge as limited to knowing
" the backup drives (or 'tapes') in the servers needed to be removed every night and replaced." ( Id.) When questioned about his policies for " the configuration of the servers" that ran CWW's web services and online portals, Plaintiff had no knowledge. ( Id. ¶ 9.) Plaintiff disputes that this assessment occurred. (Pl. Resp. 56.1 ¶ 58.)
g. Plaintiff's allegedly hostile behavior
Defendants allege that Plaintiff exhibited hostile behavior during his time at CWW. According to Lee, Plaintiff " demonstrated a hostile attitude" toward other CWW employees, as well as employees of CWW's technology vendor, Proactive. (Lee Decl. ¶ 34, 40.) After Plaintiff wrote a January 12, 2010 email to Proactive that Lee found to be " unnecessarily hostile and combative" and Proactive employees " expressed frustration" to Lee regarding " Plaintiff's aggression and his combative attitude toward them," Lee arranged a meeting with Proactive and Plaintiff for January 15, 2010. ( Id. ¶ 37-41.) Lee felt that her " efforts to improve Plaintiffs behavior and cooperation with Proactive were not successful." ( Id. ¶ 42.) On or about February 1, 2010, Proactive employees removed some computer components from Plaintiff's office in order to install them on other employees' computers. ( Id.) When Plaintiff discovered this, he sent Lee an email stating that " [w]hoever opened my office this morning . . . can do so again at their own risk." ( Id.) Lee found the email disturbing and threatening. ( Id.) According to Lee, CWW employees reported other incidents to the human resources department where Plaintiff had belittled or behaved in a hostile manner toward other CWW employees. ( Id. ¶ 43.) Lee claims that by February 2010, Plaintiff's " inexplicable anger, belligerence and hostility towards his CWW colleagues and members of Proactive made it impossible for him to carry out his duties and responsibilities effectively." ( Id. ¶ 44.) Plaintiff disputes these allegations. He claims that when he wrote that others can open his office " at their own risk," he meant that " whoever opens my office is responsible for anything missing from my office. . . . [W]hoever opens it has the risk of that liability that goes along with entering into somebody's office without a courtesy call, without any monitoring, without any responsibility." (Sethi Dep. 209:7-18.) Plaintiff claims that Lee is " attempt[ing] to make something out of nothing," and that certain CWW colleagues were " pleased" with Plaintiff's treatment of them. (Sethi Decl. ¶ 21.)
h. Plaintiff's departure from CWW
Plaintiff did not appear for work on February 10, 2010, due to snow, and on February 11, 2010, he was absent for a half-day. (Def. 56.1 ¶ 59; Pl. Resp. 56.1 ¶ 59.) According to Defendants, Plaintiff subsequently requested clarification regarding the hours he was expected to be at CWW and how many days he had available for vacation and personal time. (Def. 56.1 ¶ 60.) Lee sent Plaintiff an email stating the hours CWW expected him to be at work. (Lee Decl. ¶ 63.) Lee asked a staff member from the human resources department to address Plaintiff's request about his available vacation and personal days. ( Id.) According to Lee, Plaintiff questioned Lee's authority to clarify his work hours. ( Id. ¶ 65.) The correspondence regarding Plaintiff's time prompted a meeting between Plaintiff, Lee, and others on February 12, 2010. ( See Def. 56.1 ¶ 61-62; Pl. Resp. 56.1 ¶ 61-62.)
The circumstances of the February 12, 2010 meeting and Plaintiff's subsequent departure from CWW are unclear. According to Defendants, the meeting was to discuss Plaintiff's time and attendance.
(Lee Decl. Ex. M.) Plaintiff became combative and refused to listen to the policies and procedures, and tried to change the subject of the meeting and discuss other issues. ( Id.) Plaintiff asked " what happens . . . if he doesn't obey the policies," and " challenge[d] and confront[ed] the authorities at the meeting." ( Id.) According to Lee, Plaintiff questioned her authority and CWW's policies. ( Id.) At the meeting, they also discussed Plaintiff's January 12, 2010 email that he sent after Proactive employees entered his office, which Lee construed as a threat to CWW employees and consultants. (Def. 56.1 ¶ 44.) Plaintiff informed Lee that he had spoken with Narod by telephone and that " Narod had instructed him to leave for the day (with pay)." (Lee Decl. ¶ 66.) After the meeting, Plaintiff asked CWW employee Michelle Trabucchi for access to his personnel file. (Lee Decl. Ex. M.) CWW Handbook Policy states that all employees may see their personnel file once each year and that a request to do so should be submitted in writing. ( Id.) Plaintiff was asked to follow the procedure. ( Id.) Plaintiff " fumed more harassment and stormed off." ( Id.) Plaintiff disputes Defendants' characterization of the meeting and asserts that he " was sent home immediately" on February 12, 2010, after requesting in writing to see his personnel file. (Sethi Decl. ¶ 30.)
Following the meeting on February 12, 2010, Plaintiff took a leave of absence with pay. (Def. 56.1 ¶ 65; Pl. Resp. 56.1 ¶ 50.) Narod told Plaintiff by telephone that he would personally address Plaintiff's concerns on February 16, 2010. (Def. 56.1 ¶ 63; Pl. Resp. 56.1 ¶ 63.) On February 16, 2010, Narod met with Plaintiff. (Def. 56.1 ¶ 64; Pl. Resp. 56.1 ¶ 64.) Lee attended a portion of the meeting with Narod and Plaintiff and heard them discuss possible resolutions of Plaintiff's concerns and complaints. (Lee Decl. ¶ 68.) After the meeting Narod decided not to terminate Plaintiff. ( Id. ¶ 69.) Instead, Narod decided to give Plaintiff a leave of absence but did not change any of the terms of Plaintiff's employment. ( Id.)
After Plaintiff was suspended he sent several emails to CWW employees accusing CWW and its employees of wrongdoing, and threatening to take action to injure CWW and its employees if they did not accede to his demands. ( Id. ¶ 70.) Plaintiff claims that the emails were " not designed to hurt CWW but to bring the company's attention to [his] concerns." (Pl. Resp. 56.1 ¶ ¶ 66-77.) In an email dated February 14, 2010, forwarding a note written by Plaintiff dated February 12, 2010, Plaintiff stated that he was being forced to resign for " voicing complaints against fraud and illegal activities" and stated that " this is very serious and might become very very ugly by Monday/Tuesday [February] 16th." (Lee Decl. Ex. R.) Plaintiff also stated that he " fear[ed] for [his] life," and might " file a criminal complaint." ( Id.) Plaintiff indicated that he would be sending the letter to various " State and Federal authorities" and asked that CWW " let me know if I am to report to work on Monday 15th or Tuesday Feb. 16 as usual so that this matter can be discussed and settled amicably for smooth running of the business." ( Id.)
In an email dated February 19, 2010, Plaintiff levied further accusations at CWW, including that CWW was " buying girls for immoral sexual acts and or prostitution." (Lee Decl. Ex. S.) Plaintiff also claimed that CWW was " transacting drugs," " commit[ting] fraud, harass[ing] employees, enslav[ing] employees," " collectively assault[ing] employees," and engaging in " scare tactics" and other " various illegal activities." ( Id.) Plaintiff wrote that he " was belittled, insulted, harassed, discriminated, enslaved, threatened and assaulted
on the threat of getting fired." ( Id.) He threatened to go to the media, as well as " have every call and every employee past and present subpoenaed . . . as I have had it with these threats." ( Id.)
On February 22, 2010, Plaintiff sent another email to Narod and others at CWW suggesting that " we can set aside all our ego's [sic] and circumstances and start all over again to work together towards any common business goals there by [sic] rectifying the situation and the issues in the quickest time possible trying to achieve normalcy with minimum damage." (Lee Decl. Ex. T.) Plaintiff wrote, " [L]et me know what you want to do, I am giving you three days to figure this out calmly and coolly along with your associates. All I want is to go back to my work as before as I do not believe that I have done anything to cause such circumstances." ( Id.) On March 5, 2010, Plaintiff emailed to Narod, " Its [sic] been a while now and I need to get back to work at Cambridge preferably by Monday March 8th." (Lee Decl. Ex. U.) On March 11, 2010, Plaintiff again wrote to Narod, " I am a patient and peaceful man you know that and I believe I have been patient enough but its [sic] high time I get back to work." (Lee Decl. Ex. V.) " Rectifying the wrong and letting me return to work is most probably the only way you can keep the attorney's [sic] out of this mess." ( Id.)
Plaintiff wrote to Morrissey, copying Narod and others, on April 30, 2010, requesting an " update . . . on my status of employment." (Lee Decl. Ex. W.) He asked if " any investigation [was] conducted by HR on my complaints," and requested that the findings be forwarded to him. ( Id.) He accused Morrissey of " continuing to harrass [sic]" him. ( Id.) Morrissey informed Plaintiff by email that Narod was not in that day but someone would contact him the following week to discuss the matter. (Lee Decl. Ex. X.) Plaintiff followed-up with another email on May 3, 2010, with further allegations of illegality, including accusing CWW of manipulating and falsifying his personnel file, and of " discriminatingly" and forcibly increasing Plaintiff's work hours. ( Id.) Plaintiff accused CWW of " fooling around" with his life and wrote, " Please be advised that if my health runs into any complications cardiac or otherwise I will hold each of you individually responsible[ ]and liable." ( Id.)
On May 6, 2010, Plaintiff wrote to Narod and Morrissey that they had " till Friday May 7th," after which point he would be " busy at [CWW's building] Cafeteria . . . meeting employees, Newsday, [p]ossibly Channel 12 News, Help me Howard and EEOC Attorneys," and would also be posting information on various websites including " Cambridgeregistryscam.com," " Cambridgewhoswhoscams.com," " Cambridgewhoswhoconnectscam.com," and " Worldwidewhoswhoscam.com." (Lee Decl. Ex. Y.) Plaintiff wrote that " involving attorney's [sic] and third parties might have a spiral effect which could get out of control but you are leaving me no choice I guess. This is your choice not mine." ( Id.) Plaintiff referenced various allegations including " threats to my life and assault," " VP HR illegally harassing me for my medical records," " discriminatory work hours," " defaming me for insubordination," and " HR trying to illegally and discriminatorily deduct my personal, sick and vacation hours." ( Id.) Plaintiff signed the email " Buddy Hershidoodle." ( Id.)
On May 8, 2010, Plaintiff emailed Morrissey and Narod regarding " www.worldwidewhoswhoscam.com," stating that he " would like to increase awareness by bringing it to peoples [sic] attention." (Lee Decl. Ex. Z.) The following day Plaintiff wrote to Narod, Morrissey and another CWW employee that " I guess we are now
moving towards point of no return very rapidly." (Lee Decl. Ex. AA.) In the email Plaintiff challenged Morrissey's qualifications and asserted that she was " not qualified to look into my grieviences [sic] relating to my complaints for which I was sent on a so called legal leave of absence." ( Id.)
Plaintiff was terminated by CWW on or about May 11, 2010. (Sethi Decl. ¶ 58.) CWW claims that based on Plaintiff's threats, it had no choice but to terminate him. (Lee Decl. ¶ 83.) Plaintiff commenced this action on May 25, 2011. (Docket Entry No. 1.)
i. Plaintiff's alleged unfair treatment
Plaintiff alleges that he was subjected to unfair treatment during his employment at CWW. In Plaintiff's submissions prior to the Court's Sept. 30, 2013 Decision, in support of his allegations of unfair treatment Plaintiff substantially relied upon documents not in the record before the Court. ( See Minute Entry dated Aug. 15, 2013 (striking from the record documents submitted by Plaintiff with his letter dated June 24, 2013 (Docket Entry No. 67), his letter dated July 3, 2013 (Docket Entry No. 70), and his cross-motion for summary judgment (Docket Entry No. 73)).) Plaintiff was represented by counsel from the filing of the Complaint through oral argument after which time he terminated counsel and proceeded pro se. In view of Plaintiff's pro se status and to ensure that the Court was properly reviewing all the relevant evidence that was disclosed during discovery, in the Sept. 30, 2013 Decision, the Court directed Plaintiff to file a list identifying the documents that he relies upon to support his discrimination claims, along with the supporting documents. Plaintiff alleges that he was subject to the following unfair treatment.
Plaintiff claims that Morrissey, Lee and others received overtime pay, while he did not. (Oral Arg. Tr. 7:5-7:14; Docket Entry No. 81 at 22-24; Docket Entry No. 84 at 3-4.) Defendants claim that managers including Morrissey and Lee did not generally receive overtime, but Morrissey admits that she received overtime pay once for working on a Saturday. (Morrissey Dep. 69:8-15; Pl. 56.1 ¶ 14.) According to Morrissey, she generally works " [o]ver 60 hours a week" and never received overtime pay other than that one occasion. (Morrissey Dep. 69:8-70:6.) Lee testified that she " never received overtime," (Lee Dep. 87:2), but according to Morrissey, Lee did receive overtime pay once, when she worked on Memorial Day in 2012. (Pl. 56.1 ¶ 15; Morrissey Dep. 70:7-15.)
Plaintiff claims that he was required to produce medical documentation for sick leave, while other employees were not subject
to this requirement. (Docket Entry No. 81 at 25.) Plaintiff claims that Morrissey demanded that Plaintiff produce a doctor's note whenever he was out of the office due to illness, regardless of how long he was absent, while other employees were only required to produce a doctor's note if they were out of the office more than two consecutive days due to illness. (Am. Compl. ¶ 33.) At oral argument, Plaintiff's counsel stated that " a letter was put into [Plaintiff's] file indicating that he was not providing a doctor's note when it was requested." (Oral Arg. Tr. 5:13-16.) Plaintiff alleges that CWW's policy was that medical documentation was only required when utilizing un-accrued time-off, and Plaintiff never took un-accrued time-off but was still required to submit medical documentation for his sick time. (Docket Entry No. 80 at 2-3.) According to Defendants, " CWW's standard policies and procedures required . . . medical documentation for any sick time for which an employee had no available accrued paid sick time." (Def. 56.1 ¶ 38.)
Plaintiff claims that he received only five vacation days while other employees received ten or more. (Docket Entry No. 81 at 30; Docket Entry No. 84 at 9.) Plaintiff also claims that he was only allowed to roll-over three vacation days each year, while other management employees were allowed to roll-over " infinite" vacation days, (Docket Entry No. 81 at 30), and that he was denied payment for vacation days ...