EDGARDO RAMOS, District Judge.
Plaintiff David Cruz brings this action against Wyckoff Heights Medical Center ("Defendant" or "Wyckoff") and John Leisen, former Director of Radiology (together, "Defendants"), alleging ten counts of employment discrimination on the basis of his medical condition and retaliation. Plaintiff brings his claims pursuant to the Americans with Disabilities Act ("ADA"), Family and Medical Leave Act of 1993 ("FMLA"), New York State Human Rights Law ("NYSHRL"), and New York City Human Rights Law ("NYCHRL"). Before this Court is Defendants' motion for summary judgment. For the reasons discussed below, Defendants' motion is GRANTED.
In 2003, Wyckoff hired Plaintiff as an X-ray Technologist in the Radiology Department. Amended Complaint ("Compl.") (Doc. 27) ¶ 6. His responsibilities included taking x-rays, engaging with patients, and interacting with and assisting other Wyckoff staff. Def. 56.1 ¶ 5. Plaintiff suffers from ulcerative colitis, a serious medical condition that can cause loss of blood, weakness, and serious bodily pain. Compl. ¶ 8. As a result of this condition, Plaintiff found it difficult to perform his tasks and has requested intermittent FMLA
Wyckoff's Human Resources ("HR") department is responsible for determining whether employees are entitled to FMLA leave. Def. 56.1 ¶ 165. Employees must have an eligible medical condition and worked a minimum of 1,250 hours in the prior 12-month period to qualify for FMLA leave. See 29 U.S.C. § 2611(A)(ii). Wyckoff also requires that employees include with their request medical information regarding, among other things, the "general nature and duration of treatment," or the "estimated number of days he will need to be absent from work per month." Def. 56.1 ¶ 10. To aid in determining an employee's eligibility, Wyckoff uses a computerized time-keeping system to track employees' hours. Def. 56.1 ¶ 16. After an employee requests FMLA leave, Wyckoff sends the employee a letter informing him of its decision to grant or deny the request. See, e.g., Konkel Decl. Exs. MM, NN, PP, QQ.
If Wyckoff approves an employee's leave request, the letter includes the time period in which the employee is allowed to take leave. The employee is entitled to a total of twelve workweeks of leave during any 12-month period. 29 U.S.C. § 2612(a)(1). This leave can also be taken intermittently within the time frame allowed by Wyckoff. Employees who have been granted intermittent FMLA leave must call in to take an intermittent FMLA day and "alert [a] supervisor in a timely manner." Konkel Decl. Ex. MM. "Failure to follow the call in process will result in the day not being included for FMLA purposes" and subjects the employee to disciplinary action. Konkel Decl. Ex. WW. The approval letter may also indicate whether the employee can request to extend the allotted time frame for his FMLA leave and provides whether additional medical information, i.e. a recertification, will be required.
On December 3, 2004, Wyckoff granted Plaintiff's intermittent FMLA request
Plaintiff alleges that he requested FMLA leave shortly after his leave expired on February 28, 2011. Pl. Opp. 10.
By letter dated June 7, 2011, Defendant confirmed receipt of Plaintiff's intermittent FMLA request and denied his request because of missing medical information. Konkel Decl. Ex. QQ. On June 10, 2011, three days after Plaintiff was asked to provide more medical information, Defendant granted Plaintiff intermittent leave for the period June 8, 2011 through October 8, 2011. Konkel Decl. Ex. PP. Plaintiff's two subsequent requests for intermittent FMLA leave were also granted: from October 24, 2011 through February 25, 2012 and March 9, 2012 through July 10, 2012. Def. 56.1 ¶¶ 13-14.
On August 2, 2012, Defendant sent a letter to Plaintiff informing him that his intermittent FMLA request had been denied because he had not worked the requisite 1,250 hours in the preceding 12-month period and was thus ineligible for FMLA leave. Def. 56.1 ¶ 15. Using its computer time-keeping system, Defendant determined that during the previous twelve-month period, Plaintiff had only worked 1,120.75 hours. Def. 56.1 ¶¶ 16-17. In the letter, Defendant also suggested that Plaintiff contact his director "to discuss any reasonable accommodations and options available," including a "change of employment status from full-time to part time." Konkel Decl. Ex. K. Plaintiff acknowledged that Defendant's denial of his leave request was "legitimate" because he had not worked the requisite hours. Def. 56.1 ¶ 18.
After Plaintiff was denied FMLA leave, his Union, on his behalf, requested that his work schedule be changed to a part-time position to accommodate his medical condition. While in a meeting with Mr. Foti and his Union representative, Plaintiff also requested that he be reinstated to a full-time position immediately upon his request. Def. 56.1 ¶¶ 20-21; Foti Dep. Tr. 95:10-96:11. Both Plaintiff's Union representative and Defendant informed Plaintiff that his request violated the Union contract. Foti Dep. Tr. 95:10-96:11. Wyckoff explained that it could not assure him that he would be reinstated to full time upon his request. Def. 56.1 ¶ 21. Instead, Wyckoff proposed to change his status to part time and reinstate his full time status after one year, on the condition that Plaintiff no longer required the accommodation and a full-time position was available. Def. 56.1 ¶ 25. On October 23, 2012, Wyckoff sent Plaintiff a letter memorializing this proposal. Konkel Decl. Ex. YY. Neither Plaintiff nor the Union responded to Defendant's proposal. Id.
Wyckoff's attendance policy prohibits excessive absences, defined as "[t]wo or more absences in a one month period or five or more absences in a six month period." Def. 56.1 ¶¶ 50, 51. During Plaintiff's employment, Plaintiff was counseled and warned numerous times regarding his violation of Defendant's attendance policy:
On May 27, 2011, Plaintiff was suspended for five days without pay for taking more than fifteen days off within a three-month period. Konkel Decl. Ex. W. Plaintiff claimed that approximately two days before his suspension, he told Defendant Leisen that he would obtain the necessary recertification documents, but was suspended before he was able to submit the documents. Pl. Affidavit at 3. After his suspension, Plaintiff requested a grievance hearing to contest his suspension on the basis that he believed he was still entitled to intermittent FMLA leave during that time. However, Defendant denied the grievance because Plaintiff had received the November 29, 2010 letter granting him intermittent leave, was aware "that the leave would expire on March 1, 2011, and knew "the course of action necessary to request a new leave but failed to do so." Konkel Decl. OO.
All employees at Wyckoff are required to abide by the "Employee Service and Behavior guidelines." These guidelines were made available to Plaintiff at the outset of his employment and he acknowledged that he understood and agreed to obey them. Def. 56.1 ¶ 103. In addition to the guidelines, Plaintiff also received annual employee training, including training on Wyckoff's Code of Conduct. Def. 56.1 ¶ 103. Notwithstanding his knowledge of Wyckoff's policies, Plaintiff was repeatedly disciplined for engaging in inappropriate and disruptive behavior towards patients and his coworkers:
Although Plaintiff acted inappropriately towards several coworkers, he was disciplined on multiple occasions for his unprofessional behavior specifically towards two coworkers, Jason Cephas and Gina Antignani, including, for example:
Plaintiff alleges that Defendant Leisen did not make him aware of any of these statements and that he was never given an opportunity to rebut them. Pl. Opp. at 1. Defendants contend, however, that Wyckoff has no rule entitling Plaintiff to review complaints made against him. Plaintiff also claimed that Defendant Leisen targeted him for termination. Pl. Opp. at 12-13.
Defendant terminated Plaintiff's employment on November 27, 2012. Def. 56.1 ¶ 129. The final disciplinary notice, signed by Defendant Leisen, listed Plaintiff's behavior towards Ms. Antignani and Mr. Cephas as the reasons for termination. Konkel Decl. Ex. M. The notice made no mention of the number of times Plaintiff took FMLA leave or the number of warnings he received for violations of the attendance policy. Plaintiff, with the help of his Union representative, requested a grievance hearing to contest his November 13, 2012 Final Warning and his termination. On December 17, 2012, one of Plaintiff's supervisors received an email from the patient's mother explaining what had occurred on November 14, 2012. Declaration of Anthony Ofodile in Opposition Ex. 4 (Doc. 79). She stated that Plaintiff had recommended Ms. Antignani because she was "super talented with kids" and he had noticed that her child was afraid of the procedure. She thanked Plaintiff for his "rapid assessment of the situation" and expressed her regret that Plaintiff had been terminated. Id. On December 31, 2012, Defendant concluded that Plaintiff was "guilty of the charges contained in the disciplinary notices" and denied Plaintiff's grievance. Konkel Decl. Ex. J.
Plaintiff filed a complaint with the Equal Employment Opportunities Commission and received a right to sue letter on August 16, 2013. Plaintiff timely filed a pro se complaint on November 15, 2013. On June 6, 2014, after securing counsel, Plaintiff filed an Amended Complaint asserting ten claims stemming from his May 27, 2011 five-day suspension and his November 27, 2012 termination. Specifically, Plaintiff argued that by suspending him in May 2011 for violating the attendance policy, Defendants interfered with Plaintiff's right to leave under the FMLA (Count One); retaliated against him for exercising his rights pursuant to the FMLA (Count Two), ADA (Count Four), and NYSHRL and NYCHRL (Count Six); and denied Plaintiff reasonable accommodation in violation of the ADA (Count Three) and the NYSHRL and NYCHRL (Count Five). Additionally, Plaintiff claimed that by terminating him, Defendants interfered with Plaintiff's FMLA rights (Count Seven); retaliated against Plaintiff for exercising his rights pursuant to the FMLA (Count Eight) and ADA (Count Nine); and failed to accommodate Plaintiff's medical condition in violation of the ADA (Count Nine) and the NYSHRL and NYCHRL (Count Ten).
Summary judgment is appropriate where "the movant shows that there is no genuine dispute as to any material fact." Fed. R. Civ. P. 56(a). "An issue of fact is `genuine' if the evidence is such that a reasonable jury could return a verdict for the non-moving party." Senno v. Elmsford Union Free Sch. Dist., 812 F.Supp.2d 454, 467 (S.D.N.Y. 2011) (citing SCR Joint Venture L.P. v. Warshawsky, 559 F.3d 133, 137 (2d Cir. 2009)). A fact is "material" if it might "affect the outcome of the litigation under the governing law." Id. (quoting Miner v. Clinton Cty. N.Y., 541 F.3d 464, 471 (2d Cir. 2008)). The party moving for summary judgment is first responsible for demonstrating the absence of any genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the moving party meets its burden, "the nonmoving party must come forward with admissible evidence sufficient to raise a genuine issue of fact for trial in order to avoid summary judgment." Saenger v. Montefiore Med. Ctr., 706 F.Supp.2d 494, 504 (S.D.N.Y. 2010) (internal quotation marks omitted) (quoting Jaramillo v. Weyerhaeuser Co., 536 F.3d 140, 145 (2d Cir. 2008)).
In deciding a motion for summary judgment, the Court must "construe the facts in the light most favorable to the non-moving party and must resolve all ambiguities and draw all reasonable inferences against the movant." Brod v. Omya, Inc., 653 F.3d 156, 164 (2d Cir. 2011) (quoting Williams v. R.H. Donnelley, Corp., 368 F.3d 123, 126 (2d Cir. 2004)). However, in opposing a motion for summary judgment, the non-moving party may not rely on unsupported assertions, conjecture or surmise. Goenaga v. March of Dimes Birth Defects Found., 51 F.3d 14, 18 (2d Cir. 1995). The non-moving party must do more than show that there is "some metaphysical doubt as to the material facts." McClellan v. Smith, 439 F.3d 137, 144 (2d Cir. 2006) (internal quotation marks omitted) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986)). To defeat a motion for summary judgment, "the non-moving party must set forth significant, probative evidence on which a reasonable fact-finder could decide in its favor." Senno, 812 F. Supp. 2d at 467-68 (citing Anderson v. Liberty Lobby, 477 U.S. 242, 256-57 (1986)).
Nonetheless, "summary judgment may not be granted simply because the court believes that the plaintiff will be unable to meet his or her burden of persuasion at trial. There must either be a lack of evidence in support of the plaintiff's position or the evidence must be so overwhelmingly tilted in one direction that any contrary finding would constitute clear error." Danzer v. Norden Sys., Inc., 151 F.3d 50, 54 (2d Cir. 1998) (citations omitted). "[W]hen an employer provides convincing evidence to explain its conduct and the plaintiff's argument consists of purely conclusory allegations of discrimination, the Court may conclude that no material issue of fact exists and it may grant summary judgment to the employer." Walder v. White Plains Bd. of Educ., 738 F.Supp.2d 483, 493 (S.D.N.Y. 2010) (citing Budde v. H & K Distrib. Co., 216 F.3d 1071 (2d Cir. 2000)).
As an initial matter, Defendants ask the Court to find that Plaintiff has abandoned his ADA, NYSHRL, and NYCHRL claims by failing to address any of the arguments concerning those claims made in their summary judgment motion. Def. Reply at 2-3. Courts have regularly dismissed claims as abandoned where a plaintiff has failed to address them in opposing defendant's dispositive motions. See Adams v. N.Y. State Educ. Dep't, 752 F.Supp.2d 420, 452 n.32 (S.D.N.Y. 2010) (collecting cases in which courts deemed plaintiff's claims abandoned for failure to address defendant's arguments). Importantly, this decision is discretionary — not mandatory — allowing courts to proceed to the merits of defendant's arguments despite the lack of opposition. See, e.g., Sternkopf v. White Plains Hosp., No. 14-cv-4076 (CS), 2015 WL 5692183, at *8 (S.D.N.Y. Sept. 25, 2015) (addressing the merits of defendant's exhaustion defense even though plaintiff failed to address the argument in his opposition).
Here, Plaintiff's twenty-three page response brief is entirely devoid of any mention of Defendant's alleged violations of the ADA. The bulk of Plaintiff's arguments are related to the alleged FMLA violations. It is only on the penultimate page of Plaintiff's brief that he affirmatively asserts, and only in patently conclusory fashion, that the record shows evidence of "prextext and intentional discrimination." Plaintiff cites to no admissible evidence in the record in support of this assertion. Further, Plaintiff asserts his reasonable accommodation claim solely as a violation of the NYSHRL and NYCHRL. Thus, because Plaintiff addresses his FMLA claims, failure to accommodate claim pursuant to the NYSHRL and NYCHRL, and a general discrimination claim, the Court finds that Plaintiff has abandoned only his failure to accommodate (Count Three) and retaliation (Count Four) claims pursuant to the ADA, and his retaliation (Count Six) and discrimination (Count Ten) claims pursuant to the NYSHRL and NYCHRL.
The FMLA provides that "[i]t shall be unlawful for any employer to interfere with, restrain, or deny the exercise of or the attempt to exercise, any right" under the statute. 29 U.S.C. § 2615(a)(1). FMLA claims are subject to a two-year statute of limitations, unless the violation was "willful," in which case a three-year statute of limitations applies. 29 U.S.C. § 2617(c)(1)-(2). For an employer's violation to be willful, a plaintiff must demonstrate that the employer "knew or showed reckless disregard" for whether its conduct was prohibited by the FMLA. McLaughlin v. Richland Shoe Co., 486 U.S. 128, 133 (1988). If an employer acts reasonably, or in the alternative, unreasonably but not recklessly, in determining its legal obligation, the employer's action cannot be deemed willful. See Offor v. Mercy Med. Ctr., No. 15-cv-2219 (ADS) (SIL), 2016 WL 929350, at *21 (E.D.N.Y. Mar. 10, 2016) (citing McLaughlin, 486 U.S. at 135 n.13). Here, Plaintiff claims that the three-year statute of limitations applies because Defendants intentionally violated the FMLA when (1) in late May 2011, Defendant Leisen did not allow Plaintiff the requisite fifteen day extension to acquire a medical note for recertification before suspending him and (2) when Defendants did not timely inform Plaintiff of the result of his IME. Pl. Opp. at 18.
The Court disagrees. Plaintiff's fifteen day requirement claim is derived not from the FMLA itself, but rather from regulations that implement it. The particular regulation provides that "[t]he employee must provide the requested recertification to the employer within the time frame requested by the employer (which must allow at least fifteen calendar days after the employer's request). . . ." 29 C.F.R. § 825.308(d).
Plaintiff also points to no evidence in the record to indicate that Defendant Leisen unreasonably or recklessly requested an IME or delayed notifying him of the results. First, Defendant Leisen's request for the IME was entirely lawful. See 29 U.S.C. § 2613(a) (allowing employer to require that an employee's request for leave "be supported by a certification issued by a health care provider"). Second, although Plaintiff claimed that he spent three months asking his supervisors about the results of his IME, the record indicates that Defendant granted his FMLA leave request just three days after it notified Plaintiff that his paperwork was incomplete. See Offor, 2016 WL 929350, at *22 (holding that no willful violation had occurred because, among other things, Defendant ultimately granted Plaintiff's request and was thus not denied any benefits). Thus, Plaintiff's claim that he was improperly denied FMLA leave between March 1, 2011 and June 9, 2011 is both incorrect and unsupported by the record.
Because Plaintiff is unable to show that Defendants acted intentionally or willfully, the two-year statute of limitations applies to all of Plaintiff's FMLA claims and accordingly the claims relating to his May 2011 suspension (Counts One and Two) are time-barred.
Plaintiff also argues that Defendant interfered with his FMLA rights by requiring Plaintiff to recertify before approving an extension to his February 2011 FMLA leave and denying his August 2012 leave request in violation of 29 U.S.C. § 2615(a)(1). Pl. Opp. at 19-20. To prevail on a claim of interference, Plaintiff must establish that (1) he is an eligible employee under the FMLA; (2) the defendant is an employer as defined by the FMLA; (3) Plaintiff was entitled to take leave under the FMLA; (4) he gave notice to the Defendant of his intention to take leave; and (5) he was denied benefits to which he was entitled under the FMLA. Graziadio v. Culinary Inst. of Am., 817 F.3d 415, 424 (2d Cir. 2016). There is no question that Plaintiff was an eligible employee and was entitled to take FMLA leave. In fact, Defendant specifically notified Plaintiff that he was entitled to extend his FMLA leave past the February 28, 2011 end date. Konkel Decl. Ex. WW. At issue here is whether by requesting a recertification and additional medical records before approval of the extension, Defendant interfered with Plaintiff's FMLA benefits to which he was entitled.
The FMLA allows Defendant to request, on a reasonable basis, recertifications, including additional exams and medical records, before granting FMLA leave. See 29 U.S.C. § 2613. ("The employer may require that the eligible employee obtain subsequent recertifications on a reasonable basis."). Section 825.308(b) — on which Plaintiff relies — allows the employer to request recertification every thirty days unless the minimum duration of the condition is more than thirty days but less than six months. For a condition that lasts more than six months, an employer is allowed to seek recertification every six months. See 29 C.F.R 825.308(b). Here, Defendant gave Plaintiff three months' notice in its November 29, 2011 letter that he needed to recertify for any leave extending beyond February 28, 2012. Further, Plaintiff does not contend, and nothing in the record suggests, that he provided a medical certification stating that his condition left him "unable to work, whether continuously or on an intermittent basis" for at least six months, therefore entitling him to recertification in six month intervals. Id. Thus, Defendant's denial of Plaintiff's request for his failure to provide recertification paperwork did not deny Plaintiff a benefit to which he was entitled.
Plaintiff's interference claim based on his denial of FMLA leave in August 2012 is similarly deficient.
Plaintiff alleges that his November 2012 termination was in retaliation for Plaintiff's FMLA leave requests. Pl. Opp. at 20. Retaliation claims pursuant to the FMLA are analyzed under the burden-shifting analysis established by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See Potenza v. City of New York, 365 F.3d 165, 168 (2d Cir. 2004) (per curiam) (applying McDonnell Douglas to FMLA retaliation claim). Under the McDonnell Douglas framework, a plaintiff alleging retaliation must first establish a prima facie case of retaliation. McDonnell Douglas, 411 U.S. at 802. Though at this stage, a plaintiff's burden is de minimus, "a plaintiff must proffer some admissible evidence of circumstances that would be sufficient to permit an inference of [retaliatory] motive," Bennett v. Watson Wyatt & Co., 136 F.Supp.2d 236, 246 (S.D.N.Y. 2001), aff'd, 51 F. App'x 55 (2d Cir. 2002), and "cannot meet this burden through reliance on unsupported assertions." Goenaga, 51 F.3d at 18.
If a plaintiff successfully presents a prima facie case of retaliation, the defendant must then rebut the presumption by offering legitimate and non-discriminatory reasons for the adverse employment action demonstrated in plaintiff's prima facie case. Abdu-Brisson v. Delta Air Lines, Inc., 239 F.3d 456, 468 (2d Cir. 2001). To meet this burden, an "employer need not persuade the court that it was motivated by the reason it provides; rather, it must simply articulate an explanation that, if true, would connote lawful behavior." Greenway v. Buffalo Hilton Hotel, 143 F.3d 47, 52 (2d Cir. 1998) (emphasis in original). If the employer is able to do so, the burden then shifts back to the plaintiff to prove retaliation by a preponderance of the evidence. Fields v. N.Y. State Office of Mental Retardation & Developmental Disabilities, 115 F.3d 116, 121 (2d Cir. 1997).
To establish a prima facie case for retaliation, Plaintiff must show that (1) he exercised rights protected under the FMLA; (2) he was qualified for his position; (3) he suffered an adverse employment action; and (4) the adverse employment action occurred under circumstances giving rise to an inference of retaliatory intent. See Potenza, 365 F.3d at 168. The parties do not dispute that Plaintiff requested FMLA leave on multiple occasions, was qualified for his position as an X-ray technologist, and that he was ultimately terminated. See Chung v. City of New York, 605 F. App'x. 20, 22 (2d Cir. 2015) (noting that adverse employment actions include "termination of employment, a demotion evidenced by a decrease in wage or salary, a less distinguished title, or a material loss of benefits"). At issue here is whether Plaintiff's termination occurred under circumstances giving rise to an inference of retaliatory intent.
Retaliatory intent between the protected activity and the adverse employment action can be established (1) indirectly through a showing that the protected activity was followed closely by discriminatory treatment; (2) indirectly through other evidence such as disparate treatment of similarly-situated employees; or (3) directly through a showing of evidence of retaliatory animus toward plaintiff by defendant. Alexander v. Bd. of Educ. of City Sch. Dist. of City of New York, 107 F.Supp.3d 323, 328-29 (S.D.N.Y. 2015).
Here, Plaintiff attempts to show an inference of retaliatory intent by arguing that Defendant Leisen disciplined Plaintiff on numerous occasions for using his intermittent FMLA leave. Pl. Opp. at 20-21.
Additionally, Defendant's denial of Plaintiff's FMLA leave in August 2012 is too remote from Plaintiff's termination in November 2012 to establish an inference of retaliatory motive. See Galimore v. City Univ. of N.Y. Bronx Cmty. College, 641 F.Supp.2d 269, 288 (S.D.N.Y. 2009) (citing Murray v. Visiting Nurse Servs. of N.Y., 528 F.Supp.2d 257, 275 (S.D.N.Y. 2007) ("[D]istrict courts within the Second Circuit have consistently held that the passage of two to three months between the protected activity and the adverse employment action does not allow for an inference of causation.")).
Even assuming Plaintiff is able to establish a prima facie case, Plaintiff's claims would still fail because he is unable to show that Defendants stated reasons for terminating him were pretextual. Here, Defendants claim that Plaintiff was ultimately terminated due to his "extensive documented history of disciplinary issues." Def. Memo. at 16. Although Defendants' burden is light at this stage, Defendants provide no less than twenty-five examples of coworker complaints and statements, Wyckoff disciplinary notices, counseling sessions regarding Plaintiff's inappropriate and unprofessional behavior while at Wyckoff — more than twelve of which relate directly to his behavior towards Ms. Antignani and Mr. Cephas — and a "Final Warning" given two weeks prior to his termination, which was followed by three additional documented instances of misconduct.
In response, Plaintiff relies largely on conclusory statements about Wyckoff employees and Defendant Leisen keeping secret files on him to challenge Defendants' proffered reasons for his termination.
Plaintiff's claim of employment discrimination in violation of the ADA is also analyzed under the McDonell Douglas three step burden-shifting analysis. See Sista v. CDC Ixis N. Am., Inc., 445 F.3d 161, 169 (2d Cir. 2006) (applying McDonnell Douglas to ADA discrimination claim). However, case law makes clear that the court may assume that a plaintiff has established a prima facie case and "skip to the final step in the analysis, as long as the employer has articulated a legitimate nondiscriminatory reason for the adverse employment action." Sattar v. Johnson, 129 F.Supp.3d 123, 138 (S.D.N.Y. 2015) (declining to determine whether plaintiff established a prima facie case for Title VII and ADEA claims because defendant had provided a legitimate reason why plaintiff was not hired); see also Roge v. NYP Holdings, Inc., 257 F.3d 164, 168 (2d Cir. 2001) (declining to decide whether a prima facie case was made out because defendant "met its burden to put forth legitimate, nondiscriminatory reasons for [plaintiff's] termination, and [plaintiff] has failed as a matter of law to proffer evidence of pretext sufficient to go to a trier of fact").
Thus, even assuming that Plaintiff can establish a prima facie case of discrimination, as the Court already noted, Plaintiff's claim fails because Defendants have presented legitimate non-retaliatory reasons for his suspension and termination. Plaintiff's attempts to establish pretext by alleging that Defendant failed to notify Plaintiff of the complaints "put in his file," and that Plaintiff's supervisors did not seek to have Plaintiff disciplined for his harassing behavior prior to his termination, are simply unsupported by the record. Accordingly, Defendant's motion for summary judgment on Plaintiff's discrimination claim is GRANTED.
Defendants have also moved for summary judgment on Plaintiff's state and city law claims. Where, as here, all federal law claims are eliminated before trial, the "traditional `values of judicial economy, convenience, fairness, and comity'" weigh in favor of declining to exercise supplemental jurisdiction over any remaining state and city law claims. Kolari v. N. Y.-Presbyterian Hosp., 455 F.3d 118, 122 (2d Cir. 2006) (quoting Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 (1988)). Having dismissed Plaintiff's sole federal claims, the Court declines to exercise supplemental jurisdiction over Plaintiff's state and city law claims. See 28 U.S.C. § 1367(c)(3). Thus, they are likewise DISMISSED.
for the reasons set forth above, Defendants' motion for summary judgment is GRANTED. The Clerk of Court is respectfully directed to terminate thr motion, Doc. 59, and close the case.
it is SO ORDERED.
As evidence, Plaintiff compares himself to Mr. Cephas and notes that Mr. Cephas also had numerous infractions, including "excessive absenteeism," "calling out sick," "extending weekends," cellphone use, and "unnecessarily exposing a patient to lead [and] radiation," for which he received only counseling and warnings. Pl. Opp. at 4. In response, Defendants claim Mr. Cephas was not similarly situated, in that he was disciplined by supervisors different from those who supervised Plaintiff, and Plaintiff's "history of discipline" far exceeded Mr. Cephas's. Def. Reply at 8.
The Court agrees. Courts have regularly found that coworkers that report to different supervisors are not similarly situated. See, e.g., Conway v. Microsoft Corp., 414 F.Supp.2d 450, 466 (S.D.N.Y. 2006) (finding that plaintiff was not similarly situated to coworker because a "different decisionmaker was responsible for investigating and determining how to discipline" the coworker"); Gambrell v. Nat'l R.R. Passenger Corp., 2003 WL 282182, at *7 n.12 (S.D.N.Y. Feb. 3, 2003) (finding that when plaintiff reports to "wholly different supervisors" the strength of the inference different treatment raises is "greatly weaken [ed]"). Additionally, although the record indicates that Mr. Cephas did violate Wykcoff's attendance policy on multiple occasions (Leisen Deposition Transcript 29:22-42:08), the record does not reflect that Mr. Cephas was also disciplined for harassing or inappropriately treating his coworkers, the only cited reason for Plaintiff's termination. Because Mr. Cephas did not engage in behavior of comparable seriousness, Mr. Cephas is not similarly situated to Plaintiff in all material respects. See Graham, 230 F.3d at 40 (holding that to constitute "all material respects," a court must consider "(1) whether the plaintiff and those he maintains were similarly situated were subject to the same workplace standards and (2) whether the conduct for which the employer imposed discipline was of comparable seriousness") (emphasis added).
