MEMORANDUM & ORDER
Plaintiff Harsharan Sethi brought the above-captioned action against Defendants Randy Narod, Erica Lee, Deborah Morris-sey, Mitchel Robbins, Brian Wasserman,
I. Background
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; PI. 56.1 ¶¶ 65-66.) Defendant Erica Lee is the Chief Operating Officer and Chief of Operations and Logistics for CWW. (Lee Decl. ¶ 1; PI. 56.1 ¶ 32.) Deborah Morrissey is the Vice President of Human Resources for CWW. (Morrissey Dep. 5:19-24; PI. 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; PI. 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. Plaintiffs 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
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 Deck ¶ 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. (PI. 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 Plaintiffs Indian heritage, including calling him “Harshidoodle” or “Harshipoodle” in front of other employees.
d. November 2009 confrontation with Narod
On November 10, 2009, Plaintiff attended a meeting with Narod, Lee and Morris-sey. (Sethi Deck ¶ 26; Sethi Dep. 130:19; Lee Deck ¶ 52.) According to Plaintiff, during this meeting Narod “physically] assaulted]” him. (Sethi Dep. 124:2; see also PI. 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.” (PI. 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 Plaintiffs allegations concerning what happened at the meeting. (Def. Cross-Mot. 56.1 ¶¶ 132-34.)
In January 2010, CWW created a Chief Technology Officer (“CTO”) position. (Def. 56.1 ¶ 52; PI. 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, ‘Tes [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 Plaintiffs 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 IT 56; PI. 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 Plaintiffs skills and experience and found Plaintiffs 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 Plaintiffs knowledge as limited to knowing
g. Plaintiffs 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 “Plaintiffs 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 Plaintiffs 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, Plaintiffs “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 “attempting] to make something out of nothing,” and that certain CWW colleagues were “pleased” with Plaintiffs treatment of them. (Sethi Decl. ¶ 21.)
h. Plaintiffs 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; PI. 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 Deck ¶ 63.) Lee asked a staff member from the human resources department to address Plaintiffs 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 Plaintiffs time prompted a meeting between Plaintiff, Lee, and others on February 12, 2010. (See Def. 56.1 ¶ 61-62; PI. Resp. 56.1 ¶ 61-62.)
The circumstances of the February 12, 2010 meeting and Plaintiffs subsequent departure from CWW are unclear. According to Defendants, the meeting was to discuss Plaintiffs time and attendance.
Following the meeting on February 12, 2010, Plaintiff took a leave of absence with pay. (Def. 56.1 ¶ 65; PI. Resp. 56.1 ¶ 50.) Narod told Plaintiff by telephone that he would personally address Plaintiffs concerns on February 16, 2010. (Def. 56.1 ¶ 63; PI. Resp. 56.1 ¶ 63.) On February 16, 2010, Narod met with Plaintiff. (Def. 56.1 ¶ 64; PI. Resp. 56.1 ¶ 64.) Lee attended a portion of the meeting with Nar-od and Plaintiff and heard them discuss possible resolutions of Plaintiffs 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 Plaintiffs 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.” (PI. 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 autho[ ]rities” 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,” “committing] fraud, harassing] employees, enslaving] employees,” “collectively assaulting] employees,” and engaging in “scare tactics” and other “various illegal activities.” (Id.) Plaintiff wrote that he “was belittled, insulted, harassed, discriminated, enslaved, threatened and as
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 “discriminat-ingly” 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 Nar-od 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]ossi-bly Channel 12 News, Help me Howard and EEOC Attorneys,” and would also be posting information on various websites including “Cambridgeregistryseam.com,” “Cambridgewhoswhoscams.com,” “Cam-bridgewhoswhoconnectscam.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 hom*s,” “defaming me for insubordination,” and “HR trying to illegally and discriminatorily deductf ] my personal, sick and vacation hours.” (Id.) Plaintiff signed the email “Buddy Hershidoodle.” (Id.)
On May 8, 2010, Plaintiff emailed Mor-rissey 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
Plaintiff was terminated by CWW on or about May 11, 2010. (Sethi Decl. ¶ 58.) CWW claims that based on Plaintiffs threats, it had no choice but to terminate him. (Lee Decl. ¶ 88.) Plaintiff commenced this action on May 25, 2011. (Docket Entry No. 1.)
i. Plaintiffs alleged unfair treatment
Plaintiff alleges that he was subjected to unfair treatment during his employment at CWW. In Plaintiffs 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 Plaintiffs 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 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; PI. 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. (Morris-sey 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. (PI. 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 sub
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 after his termination, unlike other employees, (Docket Entry No. 81 at 29; Docket Entry No. 84 at 10.)
Plaintiff also asserts that he was treated unfairly because he was required to give advance notice to use his vacation leave and required to submit paperwork while other employees “were not required to fill out anything.” (Docket Entry No. 80 at 4; Docket Entry No. 81 at 30; Docket Entry No. 84 at 13.) Defendants claim that “CWW’s standard policies and procedures required pre-approval of time taken for vacation and accrued personal time as well as same-day or prior notification of any sick time as practicable.” (Def. 56.1 ¶ 38.)
Plaintiff asserts that he was subjected to unfair treatment in a number of other ways. Plaintiff alleges that he was treated unfairly because his benefits did not begin on the first day of his employment but were instead subject to a 90-day probation period, while other employees were given benefits from their first day. (Docket Entry No. 80 at 4; Docket Entry No. 81 at 30-31; Docket Entry No. 84 at 10.) Plaintiff claims that he was denied free health insurance benefits while other employees were given free individual health benefits. (Docket Entry No. 80 at 4; Docket Entry No. 81 at 31; Docket Entry No. 84 at 10.) Plaintiff alleges that he was deprived of a raise in exchange for “not taking medical benefits from CWW,” while other employees “were given [a] raise in pay for not taking medical benefits from CWW.” (Docket Entry No. 80 at 4; Docket Entry No. 81 at 31; Docket Entry No. 84 at 11.) Plaintiff claims that he was denied an orientation and an initial introduction to the CWW employees, as well as “a welcoming email,” while other employees were “given very good introduction and emails were sent to the whole company welcoming” them “very cordially.” (Docket Entry No. 80 at 4-5; Docket Entry No. 81 at 31; Docket Entry No. 84 at 11.) Plaintiff claims that CWW did not follow the company’s “progressive discipline system” with regard to him, but did so with regard to other employees. (Docket Entry No. 80 at 3; Docket Entry No. 81 at 29; Docket Entry No. 84 at 12.) Plaintiff additionally asserts that he was not offered a prepaid legal services plan, unlike other employees, (Docket Entry No. 81 at 31; Docket Entry No. 84 at 11); he was not allowed daily
Defendants dispute that Plaintiff was treated unfairly. Defendants allege that Plaintiff did not always comply with CWW procedures, including providing sufficient notice when he was leaving early or planning to be absent, and he was often absent, tardy and insubordinate. (Morrissey Deck ¶¶ 17-28.)
II. Discussion
a. Standard of Review
Summary judgment is proper only when, construing the evidence in the light most favorable to the non-movant, “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R.Civ.P. 56(a); see also Bronzini v. Classic Sec., L.L.C.,
b. Title VII and NYSHRL Claims
Title VII prohibits an employer from discharging or discriminating “against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(l). Thus, “[a]n employment decision ... violates Title VII when it is ‘based in whole or in part on discrimination.’ ” Holcomb v. Iona Coll.,
Title VII claims are assessed using the burden-shifting framework estab
i. Prima Facie Case
To establish a prima facie case of race or national origin discrimination under Title VII, a plaintiff must show that: “(1) he belonged to a protected class; (2) he was qualified for the position he held; (3) he suffered an adverse employment action; and (4) that the adverse employment action occurred under circumstances giving rise to an inference of discriminatory intent.” Brown v. City of Syracuse,
1. Adverse Employment Action
The Second Circuit has made clear that an “[a]n adverse employment action is a materially adverse change in the terms and conditions of employment.” Mathirampuzha v. Potter,
Plaintiff was terminated from his employment at CWW but is not claiming his termination as an adverse employment action.
In PlaintifPs submissions following the Sept. 30, 2013 Decision, he describes allegedly discriminatory practices of Defendants (including actions identified in the above list) but does not identify which, if any, he believes are adverse employment actions. The Court examines the following actions identified by Plaintiff: (1) receiving five vacation days instead of ten, (Docket Entry No. 84 at 9); (2) lack of payment for unused vacation time after his termination, (id. at 10); (3) not receiving paid health benefits, (id.); (4) not receiving benefits from the first day of his employment, (id.); (5) not being offered a prepaid legal services plan, (id. at 11); (6) not receiving daily break time, (id.); (7) not being introduced to his coworkers via a welcome email when he commenced employment at CWW, (id.); (8) not receiving a raise in return for refusing company health benefits, (id.); (9) not being provided with business cards, (id. at 12); (10) not receiving annual reviews and raises, (id.); and (11) not being subject to progressive discipline, (id.).
For the reasons discussed below, the Court will consider Plaintiff’s suspension with pay, denial of overtime compensation and deprivation of entitled vacation days to be adverse employment actions for purposes of the motions for summary judgment, but finds that the other actions are not material adverse employment actions as required to establish a discrimination claim.
A. Suspension with pay
Plaintiff alleged for the first time at oral argument that his suspension with pay on or about February 12, 2010, constitutes a material adverse employment action. (Oral Arg. Tr. 15:14-15:24.) The Second Circuit has held that “administrative leave with pay during the pendency of an investigation does not, without more, constitute an adverse employment action.” Brown,
Plaintiff was suspended with pay. (Def. 56.1 ¶ 65; PL Resp. 56.1 ¶ 50.) However, the reasons for Plaintiffs February 2010 suspension are unclear. Plaintiff contends that he was sent home on February 12, 2010, immediately after he made a request in writing to see his personnel file, (Sethi Decl. 1130), and later claimed that he was suspended for “voicing complaints about fraud and illegal activities,” (Lee Decl. Ex. R). Lee states that on the day Plaintiff was suspended, he questioned her authority and CWW policies and she confronted him about a threatening email he sent to the office. (Lee Decl. ¶¶ 63, 65, 44.) Lee also states that by February 2010, Plaintiffs “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.) Lee further states that following Plaintiffs suspension, on February 16, 2010, Narod and Plaintiff discussed possible resolutions of Plaintiffs “concerns” and “complaints.” (Id. ¶ 68.) With regard to Plaintiffs request to see his personnel file, according to Defendants, Plaintiffs was instructed to follow CWW procedures for access to his file, which procedures provide that all employees may see their personnel file once each year and that a request to do so should be submitted in writing. (Lee Decl. Ex. M.)
Because of the factual dispute as to the reason for Plaintiffs suspension, the Court cannot determine whether Defendants applied reasonable disciplinary procedures to Plaintiff or whether CWW exceeded those procedures and subjected Plaintiff to an adverse employment action. Brown,
B. Failure to promote
Plaintiff argues that CWW’s failure to promote him to the CTO position in February 2010 was an adverse employment action. (Oral Arg. Tr. 46:18-48:20.) A failure to promote may constitute an adverse employment action. See Mills,
In order to state a failure to promote claim, a plaintiff must show that he applied for a position and was rejected. Petrosino v. Bell Atl.,
Plaintiff expressed an interest in the CTO position. (Def. 56.1 ¶ 54; PI. Resp. 56.1 ¶ 54.) After Plaintiff expressed an interest in the position in a series of email communications with Narod, (see Docket Entry No. 84-1 at 1), Narod forwarded the email conversation to Lee, (see Docket Entry No. 80-1 at 2). Lee responded to Plaintiff and provided information regarding the qualifications of the
C. Incident at November 2009 meeting
Plaintiff argues that Narod’s conduct and comments at the November 2009 meeting constitute an adverse employment action. (Oral Arg. Tr. 8:14-8:20.) Plaintiff alleges that at the November 2009 meeting, Narod charged, slapped and “chested” Plaintiff and said to him, “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 ¶ 138; Sethi Dep. 116:21-125:19.) The Second Circuit has held that “unprofessional and boorish” treatment does not amount to an adverse employment action. Mathirampuzha,
D. Failure to pay overtime
Plaintiff claims that he suffered an adverse employment action because Defendants failed to pay him for overtime hours worked. (Oral Arg. Tr. 7:5-7:14.) Defendants considered Plaintiff an exempt employee throughout his employment at CWW, and never paid Plaintiff overtime pay. (Sethi Dep. 48:19-21.) Plaintiff currently has a FLSA claim pending before this Court which challenges Plaintiffs exempt status. If Plaintiff was improperly categorized as exempt from the FLSA’s overtime compensation requirements and was denied proper compensation for overtime hours worked, he suffered an adverse employment action. See Robinson v. Goulet,
Plaintiff asserts that he received only five vacation days each year, when he was entitled to ten, and that the failure of CWW to award him ten vacation days is an adverse employment action. (Docket Entry No. 84 at 9.) The CWW handbook states that full-time employees are eligible for paid vacation at their one-year anniversary date. (Docket Entry No. 41-1 at 311.) After one year, employees are entitled to five days of paid vacation annually, which increases to seven days of vacation after five years at CWW, and increases to ten days of vacation after ten years at CWW. (Id.) Plaintiff was terminated prior to his second anniversary. (See Am. Compl. ¶ 2 and Answer ¶ 2.) Therefore, according to the handbook, Plaintiff was entitled to five days of paid vacation. Morrissey testified that Plaintiff was entitled to ten vacation days, (Docket Entry No. 84-3 at 13), however an email from Morrissey to Plaintiff dated January 7, 2010, suggests that Plaintiff received five vacation days each year, (Docket Entry No. 84-3 at 23). The evidence submitted by Plaintiff indicates that he was allotted five vacation days from approximately July 2009 through 2010, and that five vacation days would be “re-banked” in July 2010. (Docket Entry No. 84-3 at 23.) Thus, Plaintiff’s allotted vacation time is a disputed issue of fact.
if Plaintiff was deprived of five paid days of vacation each year to which he was entitled, then Plaintiff suffered a materially adverse impact in the terms and conditions of employment sufficient to establish an adverse employment action. See Lockhart v. Hofstra Univ.,
Because whether Plaintiff was deprived of vacation time to which he was entitled is a disputed issue of fact, for purposes of the motions for summary judgment, the Court will assume that Plaintiffs alleged deprivation of his entitled vacation days is an adverse employment action.
F. Other Claims
Plaintiffs numerous other claims are trivial inconveniences and do not amount to adverse employment actions.
(1) Medical documentation
Plaintiff claims that he was subject to more stringent requirements than other
Accepting Plaintiffs allegations as true, requiring Plaintiff to supply medical documentation for sick leave is not an adverse employment action where Plaintiff has not alleged that he was prevented from using his sick leave or that his terms of employment were altered because of the documentation requirement. See Pierre v. Napolitano,
To the extent that Plaintiff claims that any resulting note to his personnel file constituted an adverse employment action, such a note without “some present, tangible effect on the employee’s terms of employment” is insufficient to establish an adverse employment action. Adams-Martin v. Connecticut Dep’t of Developmental Servs., No. 10-CV-0099,
(2)Advance notice, lateness and personnel file
Similarly, Plaintiffs claim that he was required to provide advance notice before taking time off, (Docket Entry No. 84 at 13), that a memorandum was placed in his personnel file indicating that he gave inadequate notice when he left the office early or planned to be absent from work, (Oral Arg. Tr. 7:17-8:1), and that an entry was placed in his personnel file regarding chronic lateness, (id. at 8:3-8:13), are not adverse employment actions. As discussed above, Plaintiff cannot show that any adverse action was taken as a result of any alleged memorandum and entry in his personnel file.
(3)Unpaid vacation days following termination
Plaintiffs argument that he was denied compensation for unused vacation days following his termination on May 10, 2010, (Docket Entry No. 84 at 10), is not supported by any evidence in the record. Plaintiff argues that other employees were “generously paid vacation time compensation after termination.” (Id.) On February 23, 2011, Plaintiff asked Morrissey by email about his “vacation, personal time and sick time balance and the compensation for it.” (Docket Entry No. 84-3 at 30-31.) Addressing Plaintiffs request for compensation, Morrissey sent an email to Lee, Narod and others stating that CWW does “not have a policy that pays out vacation and/or PTO time upon employee departure with CWW.” (Id.) Morrissey did not address whether CWW would compensate Plaintiff even though there was no policy. (Id.) Plaintiff submits what appear to be print-outs from a Microsoft Access database with notes that appear to record time paid to others in support of his claim that others were paid for vacation time after termination.
(4)Paid health benefits
Plaintiffs claim that he did not receive paid health benefits, (Docket Entry No. 84 at 10), contrary to CWW’s policy which was to pay the full cost of a single individuals’ medical insurance contract, is not supported by the record. CWW paid Plaintiff a stipend of $280 per month for
(5) Delayed benefits
Plaintiffs challenge to his 90-day probationary period at the beginning of his employment is also not an adverse employment action. Plaintiff claims that when he was offered employment by CWW, his benefits were made subject to a 90-day probationary period, while other employees were provided with benefits from the first day of their employment and that this disparate treatment was an adverse employment action. (Docket Entry No. 84 at 10-11.) Plaintiff submits a copy of his offer letter, stating that he would have the “option to enroll” in medical, dental and vision insurance plans “[a]fter 90 days of employment.” (Docket Entry No. 84-4 at 2.) Plaintiff also submits a copy of what appears to be another employee’s offer letter from CWW, stating that that employee would “not need to wait the 90-day probationary period for Benefits,” (Docket Entry No. 84-3 at 47), and an email from an unidentified individual at CWW to another unidentified individual stating that “Deb ... will forgo the 90 day waiting period and allow you access to the medical coverage beginning October 1st (the next available period). This is something we do not make a habit of doing, so please keep this confidential,” (Docket Entry No. 84-4 at 1).
Excerpts from the CWW employee handbook submitted by Plaintiff state that medical, vision and dental insurance plans may be enrolled in after an employee “completes] their 90 day probationary period.” (Docket Entry Nos. 84-3 at 43, 84-4 at 3.) Plaintiff has not offered evidence that he was ever entitled to benefits from CWW without having to wait the 90-day probationary period. The fact that CWW may have waived this requirement for some employees does not support Plaintiffs claim that enforcement of the company’s policy as to him created an adverse employment action. Cf. Joseph,
(6) Legal services plan
CWW’s offer of employment to Plaintiff which did not include information about CWW’s prepaid legal services plan, as set forth in the employee handbook, is not an adverse employment action. The CWW handbook states that full-time employees are eligible to enroll in a PrePaid Legal Services Program, and if they do so, the employee will be responsible for the full cost of the insurance. (Docket Entry No. 84-4 at 3.) The handbook states that
(7)Break time
Plaintiffs claim that he did not receive two 15-minute breaks daily to which he was entitled is not supported by the record. Plaintiff submits a copy of a document titled “Administrative / Operational Employees Attendance Policies and Procedures,” which includes attendance policies for employees covered by the policy, including providing for two 15-minute breaks per day. (Docket Entry No. 84-4 at 5.) This policy covers administrative and operational employees only, (id.), and Plaintiff has offered no evidence that he was an administrative or operational employee, entitling him to breaks.
(8)Welcome email and business cards
Plaintiffs claim that CWW’s failure to send a company-wide introduction or “welcome email” when he started working at CWW, unlike for other employees, (Docket Entry No. 84 at 11), borders on being frivolous and this failure does not raise to the level of an adverse employment action. So too is his claim that denying him business cards is an adverse employment action. (Docket Entry No. 84 at 12.)
Plaintiff does not state that he requested business cards and was denied said cards, nor does Plaintiff present any evidence that he was provided with business cards and then later denied them. In addition, Plaintiff does not submit any evidence of CWW’s policies with regard to business cards, or any other evidence demonstrating that he was entitled to business cards. An adverse employment action must be “more than trivial, insubstantial, or petty,” and Plaintiffs lack of a welcome email and business cards are trivial matters that do not qualify as adverse employment actions. See Wright v. Monroe Cmty. Hosp.,
(9)Raise in exchange for refusing health benefits
Plaintiffs claim that other employees were given raises for “not taking
(10) Denial of annual reviews and raises
Plaintiffs claim that he was denied annual reviews and raises, (Docket Entry No. 84 at 12), is not supported by the record. Plaintiff submits an excerpt from the CWW employee handbook stating that new employees will be reviewed periodically, including annually on their anniversary date. (Docket Entry No. 84-4 at 14.) Plaintiff also submits an email from Morrissey to Narod stating that “Barb was at: $40k Jan. 2007[,] $55k June 2008[,] $60k Feb. 2009,” and asking if “Barb” should be “bump[ed] [by] $5k.” (Docket Entry No. 84-4 at 15.) In addition, Plaintiff submits what appear to be print-outs from a Microsoft Access database, the first page of which document references a “Kara Lee” and the third page indicates than an unidentified individual received a salary increase in July 2009 and January 2009. (Docket Entry No. 84-4 at 16-18.) Plaintiff appears to be asserting that while other employees received regular salary increases, he did not. Plaintiff has not shown that he was entitled to, and denied, annual raises. Moreover, to the extent that the CWW employee handbook provides for annual reviews, Plaintiff offers no evidence, apart from his unsworn statement, that he was ever denied an annual review, or that he suffered an adverse change in work conditions as a result of his alleged denial of an annual review.
(11) Failure to apply progressive discipline
Plaintiffs claim that CWW has a company policy of progressive step discipline that was not followed as to him, and that Defendants fabricated reprimands in his file without his knowledge, (Docket Entry No. 84 at 12), is not supported by the record. As evidence of CWW’s policy of progressive step discipline Plaintiff submits two documents, including an excerpt from the CWW handbook addressing tardiness of sales representatives, which provides for a verbal warning the first time late to work, a written warning to be placed in the personnel file after the second occurrence, after the third time a “reduction of one commission bracket,” and possibly termination for excessive lateness. (Docket Entry No. 84-4 at 19-20.) Plaintiff also submits a document titled “Operational & Administrative Employees, October 2009, Departmental Confidentiality” directed to “[a]dministrative and [operational [p]ersonnel” and directing them to follow the listed guidelines on confidentiality. (Id. at 21.) It provides for violations to be disciplined by means of verbal warning, warning letter, possible demotion, reduction of salary, suspension and/or possible termination.
Plaintiff argues that the foregoing evidence demonstrates that CWW had a “company policy of progressive step disciplinary system ... for tardiness,” that this policy was not followed with regard to Plaintiff, and that the warning letter addressed to Plaintiff was “frivolously fabricated” as evidenced by the lack of a signature and the fact that Plaintiff was not on CWW premises at 2:58 p.m. on November 24, 2008. (Docket Entry No. 84 at 12-13.) However, the documents submitted by Plaintiff demonstrate only that CWW policy provides for progressive discipline when addressing the tardiness of sales representatives, a position Plaintiff did not hold, and when addressing confidentiality guideline compliance by operational and administrative employees, a guideline Plaintiff does not suggest that he was accused of violating, and a job title that Plaintiff has not shown applies to him. Even if CWW utilized such a policy to address tardiness by all employees, and even if, as Plaintiff claims, he was not verbally warned regarding his tardiness by Lee on November 24, 2008, the warning letter to Plaintiff does not establish that Plaintiff did not receive any verbal warnings prior to CWW issuing the written letter, nor does the lack of a signature from Plaintiff establish that the letter was fabricated.
In sum, the Court will assume Plaintiffs suspension with pay, denial of overtime compensation and deprivation of entitled vacation days to be adverse employment
2. Inference of Discrimination
Inference of discrimination “is a ‘flexible [standard] that can be satisfied differently in differing factual scenarios.’ ” Howard v. MTA Metro-N. Commuter R.R.,
However, a plaintiffs “mere subjective belief that he was discriminated against ... does not sustain a ... discrimination claim.” Moore,
Assuming Plaintiffs suspension, denial of overtime compensation and deprivation of entitled vacation days were adverse employment actions, Plaintiff cannot establish a prima facie case of race or national origin discrimination because as discussed below, the circumstances surrounding the adverse employment actions do not evidence discriminatory animus, the remarks Plaintiff relies on are not probative of discrimination, and Plaintiff has not presented any evidence that he was treated less favorably than similarly situated employees outside his protected groups. Plaintiff has failed to provide any evidence from which a reasonable jury could conclude that race or national origin discriminatory animus motivated Plaintiffs suspension, denial of overtime compensation and deprivation of entitled vacation days.
A. Surrounding circumstances
(1) Suspension
None of the descriptions of the events surrounding Plaintiffs suspension on Feb
The circumstances surrounding Plaintiffs denial of overtime compensation and deprivation of vacation days do not raise an inference of race or national origin discrimination. According to Plaintiff, he was denied overtime compensation and five annual vacation days throughout his employment at CWW. The terms of Plaintiffs employment were established when he was hired in July 2008, and Plaintiff has not argued or provided any evidence demonstrating that his exempt status and vacation allotment were changed at any time during his employment. The Court accordingly looks to the circumstances of Plaintiffs employment offer and hiring for evidence that would raise an inference of race or national origin discrimination. Plaintiff has provided no such evidence. Nothing about the circumstances of Plaintiffs employment offer and hiring demonstrates racial or national origin animus.
B. Discriminatory remarks
Plaintiff argues that Narod made remarks allegedly based on national origin which raise an inference of discrimination sufficient to sustain a prima facie case. Plaintiff claims that Narod called Plaintiff “Harshidoodle,” (Sethi Dep. 103:22-113:4), and at a meeting on November 10, 2009, Narod told Plaintiff, “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.) Although Defendants deny that these statements were made, the Court will assume the remarks were made for purposes of analyzing whether the remarks raise an inference of discrimination. See Crump v. NBTY, Inc.,
When assessing whether remarks are probative of discriminatory intent, the Second Circuit has held that “[t]he more a remark evinces a discriminatory state of mind, and the closer the remark’s relation to the allegedly discriminatory behavior, the more probative that
(1) Source of the remarks
The alleged discriminatory statements were made by Narod, CEO and majority owner of CWW.
(2) Timing of the remarks
Narod allegedly made these remarks to Plaintiff at a meeting on November 10, 2009.
There is no bright line rule regarding the length of time that renders an allegedly discriminatory remark too attenuated to constitute evidence of discrimination. District courts in this Circuit have found that a three-month lapse between alleged discriminatory statements and an adverse employment action is too long a gap to find the remark probative of discrimination. See, e.g., Callistro v. Cabo, No. 11-CV-2897,
(3) The content of the remarks
Narod allegedly said to Plaintiff, ‘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.” Plaintiff also alleges that Narod referred to him as Harshidoodle.
(4) The context of the remarks
The Court must also consider the context in which the remarks were made, “whether it was related to the decision-making process.” See Henry,
Where remarks are unrelated to a decision taken with respect to a plaintiff, they are not probative of discriminatory intent. See Del Franco,
(5) Indication of discrimination
When assessing whether remarks are probative of discriminatory intent, none of the four factors is dispositive of the issue. See Henry,
C. Similarly situated individuals
Plaintiff argues that he was treated less favorably than similarly situated employees outside his protected group in numerous ways, and that his less favorable treatment raises an inference of discrimination. An inference of discrimination can be raised by “showing that an employer treated [an employee] less favorably than a similarly situated employee outside his protected group.” Abdul-Hakeem,
“An employee is similarly situated to co-employees if they were (1) subject to the same performance evaluation and discipline standards and (2) engaged in comparable conduct.” Abdul-Hakeem,
Plaintiff argues that he was treated less favorably than similarly situated employees outside his protected group in a variety of ways, including: not receiving overtime, unlike other employees, (Docket Entry No. 81 at 22-24; Docket Entry No. 84 at 3-4); requiring him to produce medical documentation for sick leave, while other employees were not subject to this requirement, (Docket Entry No. 81 at 25); receiving five vacation days while others received ten or more, (Id. at 30; Docket Entry No. 84 at 9); requiring him to give advance notice before using vacation time and to fill out forms while other employees were not required to do either, (Docket Entry No. 81 at 30; Docket Entry No. 84 at 13); allowing him to only 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); denying him benefits from the first day of his employment, unlike other employees, (Id. at 30-31; Docket Entry No. 84 at 10); denying him free health insurance, while other employees were given free individual health benefits, (Docket Entry No. 81 at 31; Docket Entry No. 84 at 10); denying him a raise in return for him refusing company health benefits, (Docket Entry No. 81 at 31; Docket Entry No. 84 at 11); denying him orientation and an initial introduction to the CWW employees, as well as “a welcoming email,” while other employees were “given very good introduction and emails were sent to the whole company welcoming” them “very cordially,” (Docket Entry No. 81 at 31; Docket Entry No. 84 at 11); not allowing him progressive discipline, unlike other employees, (Docket Entry No. 81 at 29; Docket Entry No. 84 at 12); denying him payment for vacation days after his termination, unlike other employees, (Docket Entry No. 81 at 29; Docket Entry No. 84 at 10); not offering him a prepaid legal services plan, unlike other employees, (Docket Entry No. 81 at 31; Docket Entry No. 84 at 11); not allowing him daily break time, unlike other employees, (Docket Entry No. 84 at 11); not providing him with business cards, unlike other employees, (Docket Entry No. 81 at 31; Docket Entry No. 84 at 12); not reviewing him annually and giving him raises unlike other employees, (Docket Entry No. 81 at 31; Docket Entry No. 84 at 12); denying him compensation for travel mileage, unlike other employees, (Docket Entry No. 81 at 29); and forcing him to use CWW’s hand-scanner attendance system for logging arrivals and departures at CWW while other employees were not
Plaintiff’s allegations of unfair treatment fail to raise an inference of discrimination because Plaintiff has failed to establish that CWW treated him less favorably than a similarly situated employee outside of his protected group. Plaintiff has compared his treatment at CWW to that of more than 50 other individuals. Plaintiff must show that these comparators are outside of his protected group and “similarly situated to the plaintiff in all material respects.” Abdul-Hakeem,
In addition, although Plaintiff has provided copies of emails and other documents that suggest that other employees did on occasion receive many of the benefits or concessions that he contends that he was denied, Plaintiff has failed to demonstrate how he is similarly situated to these individuals. For example, Plaintiff has provided copies of emails and other documents which reference the titles of some individuals, such as in email signature blocks, but these documents fails to provide any specificity concerning the nature of those employees’ job duties or responsibilities, nor do they establish that these employees who were directors and employees from CWW groups like sales, editorial, copyediting, publishing, “book reps,” “new mem reps,” and “proof’ and a computer programmer were subject to the same performance evaluation and discipline standards as Plaintiff, who was the Director of Management Information Systems. (See Docket Entry Nos. 84-1, 84-2, 84-3, 84-4.) See also Abdul-Hakeem,
In sum, Plaintiff cannot establish that his suspension, denial of overtime compensation and deprivation of entitled vacation days “occurred under circumstances giving rise to an inference of discriminatory intent.” See Gue,
ii. Defendants’ Non-Discriminatory Reasons
Even assuming that Plaintiff could establish a prima facie case, Plaintiff cannot meet his burden of establishing pretext and his claim would nevertheless fail for this reason. Defendants presented evidence that they did not pay Plaintiff overtime because they classified him as an exempt employee under the FLSA, (see Lee Deck ¶¶ 18, 45), that Plaintiff was allotted five days of paid vacation pursuant to CWW’s policy as set forth in the handbook, (see Docket Entry No. 88 at 14; Docket Entry No. 41-1 at 311), and that they suspended Plaintiff because 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,” (Lee Deck ¶ 44). Defendants have met their burden. These are legitimate reasons for Plaintiff’s treatment, even if Defendants were erroneous in reaching any of these conclusions. See Miller v. Nat’l Assoc, of Sec. Dealers, Inc.,
iii. Pretext
Once a defendant has proffered a nondiscriminatory reason for its adverse action, the burden shifts back to the plaintiff to show that this reason is pretextual. Holcomb,
At the pretext stage, “[a] court may re-consider evidence presented to find an inference of discrimination at the prima facie stage.” Ingenito v. Riri USA, Inc., No. 11-CV-2569,
Plaintiff has not established that CWWs legitimate and non-diseriminatory reasons for suspending him and denying him overtime and additional vacation days were motivated in part by race or national origin discrimination. Plaintiff relies on the same evidence he presented at the prima facie stage. Construing all of the evidence in the light most favorable to Plaintiff, a reasonable jury could not find that racial or national origin discrimination played a role in the adverse action taken by Defendant. Plaintiffs motion for summary judgment as to his discrimination claim is denied, and Defendants motion for summary judgment as to Plaintiffs race and national origin discrimination claim is granted.
For the foregoing reasons, the Court grants Defendants’ motion for summary judgment and denies Plaintiffs motion for summary judgment as to Plaintiffs Title VII and NYSHRL claims for race and national origin discrimination. Plaintiffs FLSA and NYLL claims, as to which the Court previously denied summary judgment, will proceed to trial.
SO ORDERED.
Notes
. Plaintiff recalls that he was first called "Harshidoodle” by Narod, (Sethi Dep. 103:22-104:3), but does not recall how many times Narod referred to him as "Harshidoo-dle,'' (id. at 105:23-106:5). Plaintiff also did not identify any other individual who called him "Harshidoodle.” (Id. at 106:6-107:16.) Plaintiff stated that he had "no clue” where the nickname came from. (Id. at 108:3-5.) Plaintiff believes that Narod intended the word "Harshidoodle” to refer to Plaintiff’s Indian heritage because "Narod had very poor look towards Indians in the sense he thought he could hire as many Indians for double the job and half the pay.” (Id. at 112:21-113:4.)
. Plaintiff was instructed that he should only submit documents that were exchanged by the parties during discovery in this proceeding, and that he may not rely upon documents produced in other actions unless those documents were also produced in discovery in the action before this Court.
Plaintiff filed his submissions with the Court on October 16, 2013. (Docket Entry No. 84.) Defendants responded with objections on October 25, 2013, and requested leave to file a response to the legal and factual arguments contained in Plaintiff’s submission. (Docket Entry No. 85.) Plaintiff responded to Defendants’ objections and request by letter dated October 28, 2013 and filed October 31, 2013. (Docket Entry No. 86.) By order dated November 3, 2013, the Court granted Defendants’ application to file a response. Plaintiff submitted additional arguments and evidence by letter dated November 5, 2013 and filed November 14, 2013. (Docket Entry No. 87.) Defendants filed their response to Plaintiff’s initial submission on November 19, 2013. (Docket Entry No. 88.) Plaintiff subsequently submitted additional arguments and evidence by letter dated November 26, 2013 and filed December 6, 2013. (Docket Entry No. 91.)
. The burden of proof and production for employment discrimination claims under Title VII and the NYSHRL are identical. Hyek v. Field Support Servs., Inc.,
. Plaintiff has repeatedly told the Court that he is not claiming his termination as an adverse employment action. (See PI. Opp. Mem. of Law 2 ("This is not a lawsuit about [Plaintiff's termination on May 11, 2010. The allegations of wrongdoing only cover the period July 21, 2008 to February 12, 2010,” the date of Plaintiff’s suspension.); Sethi Decl. ¶ 58 ("This lawsuit has nothing to do with my termination on May 11, 2010. It only covers the period July 21, 2008 to February 12, 2010. What happened after February 12, 2010 is irrelevant.”); Oral Arg. Tr. 16:18-18:2 (Counsel reiterated that Plaintiff was not claiming wrongful termination as an adverse employment action, initially stating that it was "an oversight.” When questioned further by the Court, counsel made clear that Plaintiff did not believe he was terminated for discriminatory reasons, and admitted that there was "not ... any evidence that the termination decision was based on [Plaintiff’s] national origin or his race”).)
. "[T]o be excused from the specific application requirement, an employee must demonstrate that (1) the vacancy at issue was not posted, and (2) the employee either had (a) no knowledge of the vacancy before it was filled or (b) attempted to apply for it through informal procedures endorsed by the employer.” Petrosino v. Bell Atl.,
. Plaintiff argues that he was subjected to unnecessary and irrelevant requirements for the promotion to CTO, (Docket Entry No. 81 at 20), and "was discriminatorily required to appear for a formal interview[] as a deterrent, while no other employee was ever required to appear for a formal interview for an internal promotion,” (Docket Entry No. 67 at 3). There is no evidence in the record concerning the procedures for internal promotions at CWW and Plaintiff's claim is therefore unsupported. Furthermore, to the extent Plaintiff is alleging that he attempted to apply for the position through informal procedures endorsed by CWW, there is no evidence in the record to support the contention that CWW endorsed any informal procedure that Plaintiff utilized. To the extent Plaintiff is arguing that Defendants discouraged him from applying for the position, Plaintiff cannot maintain such a claim. The Second Circuit has held that an employee is barred from bringing a claim for discriminatory failure to promote where the employee did not specifically apply for the position, because a plaintiff cannot avoid this requirement by generally requesting to be considered for the position or by alleging an "aura of discrimination” that "somehow discouraged [him] from filing a formal application.” Petrosino,
. At oral argument, Plaintiffs counsel argued that in Plaintiff’s state court claim against Narod, Lee, Morrissey, CWW and others, Judge Stephen Bucaria of the Supreme Court of the State of New York concluded that the assault on the plaintiff was an adverse employment action. (Oral Arg. Tr. 8:18-20.) Plaintiff appears to argue that issue preclusion bars this Court from concluding that the alleged assault by Narod in November 2009 was not an adverse employment action. Plaintiff's claim is unavailing. In Plaintiffs state court action for retaliatory discharge, when deciding a motion to dismiss Plaintiff's claim, Judge Bucaria stated that although “Defendants argue that plaintiff has not alleged an actual violation of Labor Law § 740 ... plaintiff alleges that he was harassed and ultimately fired in May 2010. Discharge is expressly included within the definition of ‘retaliatory personnel action.' The harassment presumably includes the November 2009 assault, which would constitute adverse action ‘in the terms and conditions of employment.' " Sethi v. Narod, Index No. 002499/11, Slip Op. at 4,
. The Court notes that Plaintiff was treated as an exempt employee and denied overtime pay for the duration of his employment, and he therefore never suffered any change in the terms and conditions of his employment. The Court recognizes that the Second Circuit has defined an "adverse employment action” as a "materially adverse change,” Sanders v. New York City Human Res. Admin.,
. Plaintiff has not argued that his February 12, 2010 suspension resulted from the above-described actions. Plaintiff has asserted that his suspension resulted from his request to view his personnel file, and as discussed infra, in his correspondence with CWW immediately following his suspension Plaintiff claimed that his suspension was retaliatory based on his complaints that CWW was engaged in illegal business activities. Drawing all inferences in favor of Plaintiff, Plaintiff’s suspension did not result from his failure to comply with time and attendance requirements.
. These documents contain fields labeled “HR Notes” and "Payroll Info,” and unidentified individuals have the following entries in those fields referencing compensation for vacation: "EE termed over phone_Per Randy Narod: 2 week's severance + 1 week’s [p]aid vacation,” (Docket Entry No. 84-3 at 34); " ‘Laid off’.... One week’s paid vacation per Randy,” (id. at 36); "EE LAID OFF due to [d]ownsizing. 2 week[’]s severance + 1 week vacation ... per Randy,” (id. at 38); "EE ... [l]aid [o]ff — [P]er Randy Narod ... 3 week[’]s severance + 1 week vacation, (id. at 40); “2 week[’]s severance and 3 vacation days paid out, per Randy Narod,” (id. at 42).
. Plaintiff also submits an October 29, 2009 document titled "Employee Warning” addressed to “Employee” as evidence of what the "actual form” for a warning letter should include. (Id. at 23.) The document addresses an employee with a “base + commission
. The note does not indicate if the date and time refers to when the verbal warning was issued or when it was recorded by the note writer. (Docket Entry No. 84-4 at 22.)
. Nor is a verbal or written warning an adverse employment action in and of itself. See Glover v. Dondhoe, No. 12-CV-189,
. Plaintiff accused CWW of illegal activities including "buying girls for immoral sexual acts and or prostitution,” "transacting drugs,” "committing] fraud, harassing] employees, enslaving] employees,” "collectively assaulting] employees,” engaging in "scare tactics” and other "various illegal activities.” (Lee Decl. Ex. S.)
. Plaintiff, in his post-oral argument submissions, asserted that when he started at CWW, the "American person/entity” Plaintiff replaced was paid more per hour than Plaintiff, (Docket Entry No. 67 at 3; Docket Entry No. 81 at 23), and that after he was suspended, his position was filled by a “white American, Mr. Bryan Daly,” (Docket Entry No. 81 at 32). Defendants deny this allegation. (Docket Entry No. 82 at 31, 37.) There is no evidence in the record concerning the race or national origin of the person or entity that Plaintiff allegedly replaced, nor is there any evidence concerning who replaced Plaintiff, if anyone, or that person’s race or national origin. Plaintiff has elsewhere claimed that "CWW never hired any Director of MIS prior to hiring the Plaintiff nor did it hire any Director
. In Plaintiff’s cross-motion for summary judgment he asserts additional "discriminating factors in relation to Plaintiff’s origin” (as discussed supra), and describes other "degrading language” that was used to refer to him in addition to the comments made at the November 10, 2009 meeting. (See Docket Entry No. 81 at 33-35.) Other than the statements made at the November 10, 2009 meeting, there is no evidence in the record about these additional statements. Plaintiff's un-sworn and unsupported allegations do not raise an inference of discrimination. See Cas-ciani,
. Although Plaintiff alleged in the Amended Complaint that CWW executives and managers also called him Harshidoodle, Plaintiff has only identified one occasion on which he was referred to as Harshidoodle by Narod. Thus, Plaintiff has not presented any evidence from which the Court can find that Plaintiff was referred to as Harshidoodle by anyone other than Narod, or that he was referred to by this name on more than one occasion. See Hicks v. Baines,
. Plaintiff claims that Narod and others began calling him “Harshidoodle” in approximately September 2009, but Plaintiff has not identified the timing of any specific instances of the remark being made. (See Am. Compl. ¶31; Sethi Dep. 103:22-113:4.) The remaining allegedly discriminatory remarks were made by Narod at the November 10, 2009 meeting. Even if the Court were to assume that such a remark was made sometime in September 2009, the extended duration between the remark and Plaintiff's hiring in July 2008 and suspension in February 2010 does not change the Court’s conclusion concerning the probative value of the timing of Narod’s remarks.
. Neither Dupree v. UHAB-Sterling St. Hous. Dev. Fund Corp., No. 10-CV-1894,
. Moreover, Narod played a role in Plaintiff's hiring at CWW, further undermining Plaintiff's claim of racial and national origin animus. Plaintiff was interviewed for his position at CWW by Narod and Lee, (Def. 56.1 ¶ 11; PI. 56.1 ¶ 115; Sethi Dep. 39:25-40:2), though it is disputed who ultimately made the decision to hire Plaintiff, (see Narod Dep. 38:5-21, 52:12-53:2; PL 56.1 ¶94; Lee Decl. ¶ 17). According to Lee, on the day of Plaintiff’s suspension Plaintiff informed Lee that he had spoken with Narod by telephone and that “Narod had instructed [Plaintiff] to leave for the day (with pay).” (Lee Decl. ¶ 66.) Narod later "decided ... not to terminate Plaintiff, but rather to give him a leave of absence with no changes to any of the terms of his employment, including title, salary, and benefits.” (Id.. ¶ 69.) See Filozof v. Monroe Cmty. Coll.,
. Plaintiff also asserts that the changes in his hours raise an inference of discrimination. (PI. Opp. Mem. of Law 16.) However, Plaintiff has not shown that those changes were motivated by discriminatory animus, and Plaintiff himself testified that his hours were changed in retaliation for questioning management about things such as the Honors Society, when he would receive overtime pay, and why he must provide technical support to Narod’s personal businesses outside of CWW. (PI. 56.1 ¶¶ 127-30; Sethi Dep. 88:22-89:21.) Plaintiffs unsupported allegation does not raise an inference of discrimination. See Cas-ciani,
. In response to Plaintiff's supplemental submissions, Defendants raise a number of objections to Plaintiff's arguments and evidence and contend that Plaintiff’s submissions offer new theories of disparate treatment that were not pled in his EEOC charge or in his Amended Complaint and should therefore be disregarded. (Docket Entry No. 88.) Because the