Dabney v. Shops

• Decision Date: 24 July 2013
• Docket Number: No. 10–CV–8734 (CS).,10–CV–8734 (CS).
• Citation: 958 F.Supp.2d 439
• Parties: Terri R. DABNEY, Plaintiff pro se, v. CHRISTMAS TREE SHOPS and Bed Bath & Beyond, Defendants.
• Court: U.S. District Court — Southern District of New York

958 F.Supp.2d 439

Terri R. DABNEY, Plaintiff pro se,

v.CHRISTMAS TREE SHOPS and Bed Bath & Beyond, Defendants.

No. 10–CV–8734 (CS).

United States District Court, S.D. New York.

July 24, 2013.

Terri R. Dabney, Buffalo, NY, pro se.

Greg Riolo, Michael L. Abitabilo, Jackson Lewis LLP, White Plains, NY, for Defendants.

DECISION AND ORDER

SEIBEL, District Judge.

Before the Court is the Motion for Summary Judgment of Defendants Christmas Tree Shops and Bed Bath & Beyond ¹ (collectively, the “Defendants”), (Doc. 40), seeking dismissal of Plaintiff's Amended Complaint (“AC”), (Doc. 19). For the reasons stated below, Defendants' Motion for Summary Judgment is GRANTED.

I. Background

The following facts are set forth based on Defendants' Local Civil Rule 56.1 statement and the parties' supporting materials, and are undisputed except as noted below.²

Plaintiff, an African–American woman,³ applied for Christmas Tree Shops' Office Coordinator position in or around November 2008. (Ds' 56.1 Statement ¶ 9.) ⁴ Ronald Baldes, Christmas Tree Shops' District Human Resources (“HR”) Manager, interviewedPlaintiff in or around April 2009 and recommended that she be hired. (Riolo Aff. Ex. C (“Baldes Aff.”), ¶¶ 26–27.) Allen Bartlett, Christmas Tree Shops' Operations Manager at the time, hired Plaintiff on April 24, 2009. (Ds' 56.1 Statement ¶ 10.)

As the Office Coordinator, Plaintiff was responsible for assisting management with new employee orientation and training, generating employee schedules, completing clerical tasks, and most importantly, monitoring and logging employee attendance issues. (Ds' 56.1 Statement ¶ 14.) Bartlett, Plaintiff's supervisor, reviewed and documented Plaintiff's own attendance. (Riolo Aff. Ex. D (“Bartlett Aff.”), ¶¶ 9, 13.)

Christmas Tree Shops uses an “occurrence system” to record attendance, whereby employees receive a half occurrence for arriving to work late, leaving early, or failing to clock in or out at the proper time, and a full occurrence when absent for a scheduled shift. ( Id. Ex. H, at 1.) If an employee receives three occurrences within a three-month rolling period, an employee will receive a written warning. ( Id. at 2.) A second written warning is given if the employee receives three more occurrences within a year of the receipt of the first written warning. ( Id.) If an employee receives an additional three occurrences in the same year, the employee is subject to termination. ( Id.)

Plaintiff testified that she was late one day during her first week of work, but Bartlett excused the half occurrence. ( Id. Ex. M (“Dabney Dep.”), at 80–81.) Plaintiff was also tardy and received half occurrences on June 17, 2009, August 11, 2009, and September 4, 6, 7, and 23, 2009. ( Id. Ex. I, at 1.) Bartlett issued Plaintiff her first written warning on September 23, 2009. (Ds' 56.1 Statement ¶ 18.) ⁵ Plaintiff signed the written warning. ( Id.)

After Plaintiff was employed for ninety days, she received a performance evaluation in accordance with company policy. (Baldes Aff. ¶ 28.) During her review, Baldes told Plaintiff that she needed to pay more attention to detail, prioritize her work assignments, and try to meet deadlines. ( Id. ¶ 29.) On October 9, 2009, after several informal discussions regarding her performance, Plaintiff received a Corrective Action Notice for Unsatisfactory Job Performance (the “Corrective Action Notice”). (Bartlett Aff. ¶ 11; Riolo Aff. Ex. J.) The Corrective Action Notice addressed Plaintiff's sense of urgency with respect to her assignments, inaccuracy in her work, and difficulty meeting deadlines for assigned tasks. (Bartlett Aff. ¶ 11; Riolo Aff. Ex. J.) Plaintiff met with Scott Phleger, the store manager, and Bartlett to discuss the Corrective Action Notice and how the three of them could work together to improve her performance. (Bartlett Aff. ¶ 12.)

On October 11, 2009, Plaintiff began keeping a journal of work-related events to document allegedly unfair practices and treatment. ( See Journal 2.) Plaintiff wrote multiple entries while at work, ( see id. at 3–4), and saved the Journal on a Christmas Tree Shops computer, (Ds' 56.1 Statement ¶ 32). She also printed out emails and checked out HR-related books from the library to help her document examples of alleged discrimination. (Journal 2.)

Plaintiff did not punch in at the scheduled time on October 4 and 6, 2009, was tardy on October 20 and 29, 2009, and was absent on November 3, 2009. (Ds' 56.1 Statement ¶ 20; Riolo Aff. Ex. I, at 1–2.) As she had accumulated three additional occurrences within one year from the first written warning on September 23, 2009, she received a second written warning.⁶ (Ds' 56.1 Statement ¶ 21.) Again, Plaintiff signed the warning. ( Id.) Seemingly undeterred, Plaintiff then failed to punch in or out for a proper meal break on November 21, 2009, arrived late on December 3, 2009, and left early on December 13, 2009. ( Id. ¶ 23).

In December 2009, Bartlett discovered Plaintiff's Journal and informed Baldes. (Baldes Aff. ¶ 45.) On December 14, 2009, Baldes and Phleger met with Plaintiff to address her concerns.⁷ ( Id. ¶ 48.) At the meeting, Plaintiff expressed her discontent with how Christmas Tree Shops enforced its attendance policy. (Baldes Aff. ¶ 49.) Plaintiff also mentioned that she believed Baldes had treated a disabled job applicant unfairly. ( Id. ¶ 50.) Plaintiff alleges that Baldes responded to her criticisms by saying that if she was not preoccupied documenting allegedly discriminatory practices, she would be better at her job. (Dabney Dep. 121.) Baldes informed Plaintiff of the various avenues she could use to express employment-related concerns, which included speaking to the store manager, Baldes, the District Manager, or someone at Christmas Tree Shops' toll-free employee relations hotline. (Ds' 56.1 Statement ¶ 35; Baldes Aff. ¶ 52.)

Following the meeting, Plaintiff was absent on December 26, 2009 and late on January 1, 2010. (Ds' 56.1 Statement ¶ 23.) Bartlett and Baldes excused the half occurrence on January 1, 2010. ( Id. at ¶ 24; Baldes Aff. ¶ 34). Plaintiff arrived late again on January 16, 2010, (Ds' 56.1 Statement ¶ 25), and after reviewing her attendance record and prior written warnings, Baldes concluded that Plaintiff had accumulated six more occurrences within one year of the first written warning and therefore termination was in accordance with the attendance policy, (Baldes Aff. ¶¶ 36–37).

Accordingly, Plaintiff was terminated on January 21, 2010. (Ds' 56.1 Statement ¶ 25.) Plaintiff called Baldes the following day because she believed she only had seven and a half occurrences at the time she was terminated,⁸ but Baldes assured Plaintiff that he had reviewed her attendance record and she had received nine. (Baldes Aff. ¶¶ 39–40.) Plaintiff mentioned nothing about discrimination or retaliation during this conversation. ( Id. ¶ 43.) Jacqueline Williams, a white female over the age of fifty, replaced Plaintiff as Office Coordinator. (Baldes Aff. ¶ 44; see Dabney Dep. 132.)

Plaintiff now brings claims for gender and race discrimination and retaliation under Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e et seq.; a claim for age discrimination and retaliation under the Age Discrimination in Employment Act of 1967 (“ADEA”), 29 U.S.C. § 621 et seq.; claims for disability discrimination under the Americans with Disabilities Act of 1990 (“ADA”), 42 U.S.C. § 12101 et seq., and Section 504 of the Rehabilitation Act of 1973 (“Section 504”), 29 U.S.C. § 701 et seq.; a claim for hostile work environment under Title VII; and claims for race, gender, and age discrimination and retaliation pursuant to the New York State Human Rights Law (“NYSHRL”), New York Executive Law § 296. ( See AC ¶ 6.D.)

II. DiscussionA. Summary Judgment Standard

Summary judgment is appropriate when “the movant shows that 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). “[T]he dispute about a material fact is ‘genuine’ ... if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A fact is “material” if it “might affect the outcome of the suit under the governing law.... Factual disputes that are irrelevant or unnecessary will not be counted.” Id. On a motion for summary judgment, “[t]he evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor.” Id. at 255, 106 S.Ct. 2505. The movant bears the initial burden of demonstrating “the absence of a genuine issue of material fact,” and, if satisfied, the burden then shifts to the non-movant to present “evidence sufficient to satisfy every element of the claim.” Holcomb v. Iona Coll., 521 F.3d 130, 137 (2d Cir.2008) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323–24, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)). “The mere existence of a scintilla of evidence in support of the [non-movant's] position will be insufficient; there must be evidence on which the jury could reasonably find for the [non-movant].” Anderson, 477 U.S. at 252, 106 S.Ct. 2505. Moreover, the non-movant “must do more than simply show that there is some metaphysical doubt as to the material facts,” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986), and he “may not rely on conclusory allegations or unsubstantiated speculation,” Fujitsu Ltd. v. Fed. Express Corp., 247 F.3d 423, 428 (2d Cir.2001) (internal quotation marks omitted).

“A party asserting that a fact cannot be or is genuinely disputed must support the assertion by ... citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion...