Full opinion text
MEMORANDUM AND ORDER ORENSTEIN, United States Magistrate Judge. Plaintiffs Kenneth C. Lumhoo (“Lum-hoo”) and Jemel Anderson (“Anderson”) (collectively “Plaintiffs”) bring this employment discrimination action against defendants The Home Depot USA, Inc. (“Home Depot”), James Duffy (“Duffy”), Jose Camacho (“Camacho”). Joseph Gervasi (“Gervasi”) and John Clougher (“Clougher”) alleging discrimination, retaliation, disparate treatment, a hostile work environment and the deprivation of overtime compensation on the basis of Plaintiffs’ race in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”) as amended, 42 U.S.C. §§ 2000e et seq.; 42 U.S.C. § 1981 and § 1981(a); the New York State Human Rights Law, N.Y. Exec. Law § 290 et seq. (McKinney 2001) (“NYSHRL”) and New York common law. Defendants move the Court for an order granting summary judgment pursuant to Fed.R.Civ.P. 56 and dismissing the amended complaint (hereinafter the “complaint”). For the reasons set forth below, the Court grants Defendants’ motion in part and denies Defendants’ motion in part. In addition, in light of this Court’s decision, the Court denies Defendants’ motion to strike portions of Plaintiffs’ Affidavits and Rule 56.1 Statements in Opposition to Defendants’ Motion for Summary Judgment as moot. FACTUAL BACKGROUND The following facts are presented in the light most favorable to the Plaintiffs. See Brennan v. Metropolitan Opera Ass’n Inc., 192 F.3d 310, 316 (2d Cir.1999); Ertman v. United States, 165 F.3d 204, 206 (2d Cir.1999). On April 15, 1999, Home Depot hired Anderson, an African-American male, to be an order puller in its Valley Stream Store. (PI. Anderson’s 56.1 Statement at ¶ 1). Home Depot hired Lumhoo, an African-American and Asian Pacific Islander male, to be a truck driver for its Brooklyn store on March 29, 1999. (Pl. Lum-hoo’s 56.1 Statement at ¶ 1). Thereafter, on July 5, 1999, Lumhoo, was transferred from Home Depot’s store in Brooklyn to the Valley Stream store where he continued to work as a .truck driver. (Pl. Lum-hoo’s 56.1 Statement at ¶ 2). On September • 19, 1999, Plaintiffs were transporting material to and from a delivery truck at the Valley Stream store. (Compl. ¶ 41). During the course of the various transfers, material and .equipment, including a certain forklift, blocked the lumber aisle in the-Valley Stream store. (Compl. ¶ 41; Pl. Anderson’s 56.1 Statement at ¶ 27; Pl. Lumhoo’s 56.1 Statement at ¶ 34). Anderson requested defendant James Duffy, Department Head of the Lumber Division of the Valley Stream store, to move the forklift and material that was blocking the aisle so that Plaintiffs could continue loading their truck. (Compl. ¶¶ 9, 42; Pl. Anderson’s 56.1 Statement at ¶ 27; Pl. Lumhoo’s 56.1 Statement at ¶ 34). Duffy ignored the request and walked away. (Compl. ¶ 42; Pl. Anderson’s 56.1 Statement at ¶ 27; Pl. Lumhoo’s 56.1 Statement at ¶ 34). Defendant John Clougher, an Assistant Manager of the Valley Stream store, got on the forklift and began to move it out of the way, (Compl. ¶¶ 12, 42; Pl. Andérson’s 56.1 Statement at ¶ 27; Pl. Lumhoo’s 56.1 Statement at ¶ 34), but Lumhoo told Clougher to forget it and that Plaintiffs would use the lumber aisle to load the trucks, (Morway Aff., Exh. M). As Anderson attempted to move the material through the lumber aisle with a forklift, Duffy ran down the store aisle and yelled at Plaintiffs for allegedly damaging his lumber. (Compl. ¶ 43; Pl. Anderson’s 56.1 Statement at ¶ 27; Pl. Lumhoo’s 56.1 Statement at ¶ 34; Morway Aff., Exh. M). Anderson asked Duffy if he could stop yelling, and Duffy admonished Anderson for allegedly not wearing a seatbelt while on the forklift. (Compl. ¶ 44; Pl. Anderson’s 56.1 Statement at ¶ 27; Pl. Lumhoo’s 56.1 Statement at ¶ 34). When Anderson showed Duffy that he was wearing a seatbelt, Duffy walked away and stated, “You worthless niggers ... We’ll deal with you later.” (Compl. ¶ 44; Pl. Anderson’s 56.1 Statement at ¶ 27; Pl. Lumhoo’s 56.1 Statement at ¶ 34). Anderson responded angrily to Duffy. (Pl. Anderson’s 56.1 Statement at ¶ 30). Plaintiffs then saw Duffy speaking with Clougher, and Plaintiffs approached Clougher to explain to him what had occurred between Duffy and Anderson. (Pl. Anderson’s 56.1 Statement at ¶ 31; Pl. Lumhoo’s 56.1 Statement at ¶ 34). However, defendant Joseph Gervasi, an Assistant Manager of the Valley Stream store, came over to the group and told Anderson, to “Shut the fuck up. What you say don’t mean nothing.' You are nobody. You don’t matter.” (Compl. ¶ 44; Pl. Anderson’s 56.1 Statement at ¶ 32; Pl. Lumhoo’s 56.1 Statement at ¶ 34). Gerva-si also told Anderson that Duffy was part of the management team and “what he says goes. You jump when [Duffy] says jump with no questions . asked.” (Compl.45). Gervasi called defendant Jose Camacho, the Manager of the Valley Stream store, at his home to apprise him of the situation and asked for permission to fire Anderson for insubordination and for failing to wear a seat belt in violation of Home Depot policy. (Pis. Memorandum of Law in Opp. at 6). After receiving permission, on that same day, Gervasi terminated Anderson’s employment. (Compl. ¶ 46; Pl. Anderson’s 56.1 Statement at ¶ 29; Pl. Lumhoo’s 56.1 Statement at ¶ 39). Lum-hoo asked Clougher to intervene in the situation, however Clougher declined, stating that while he knew what Duffy and Gervasi had done was wrong, he could not go against his co-workers. (Comply 46). The following day, Camacho reviewed Anderson’s termination notice and spoke to Gervasi about the previous day’s incident. (Pl. Anderson’s 56.1 Statement at ¶ 39). In addition, Plaintiffs met with Camacho in order to resolve the September 19, 1999 incident and requested that management discipline Duffy for his use of a racial epithet. (Compl. ¶47; Pl. Anderson’s 56.1 Statement at ¶ 40). Plaintiffs also reported to Sherma Nichols, Assistant Manager of the Valley Stream Store and the person designated to hear harassment and discrimination complaints, the events surrounding Anderson’s termination and Duffy’s use of the term “worthless niggers.” (Pl. Anderson’s 56.1 Statement at ¶ 45; Pl. Lumhoo’s 56.1 Statement at ¶40; Pis. Memorandum in Opp. at 5). Nichols directed Plaintiffs to reduce their complaints to writing, and she passed the written complaints on to Camacho. (Pl. Anderson’s 56.1 Statement at ¶ 46; Pl. Lumhoo’s 56.1 Statement at ¶ 41). Nichols also suggested that Anderson speak to Human Resources Manager A1 DeLuca concerning this complaint. (Pl. Anderson’s 56.1 Statement at ¶ 48; Pl. Lumhoo’s 56.1 Statement at f 43). Plaintiffs went together to speak with DeLuca and gave him written statements about the September 19, 1999 incident. (Pl. Anderson’s 56.1 Statement at ¶ 49; Pl. Lumhoo’s 56.1 Statement at ¶ 45). Three weeks later, on October 12, 1999, DeLuca reinstated Anderson’s employment to a position at the Home Depot’s Ozone Park Queens store, paid Anderson for the three week period of his termination and removed all documents concerning his termination from Company records. (Compl. ¶48; Pl. Anderson’s 56.1 Statement at ¶¶ 50, 53-54; Pl. Lumhoo’s 56.1 Statement at ¶ 46). DeLuca discussed the September 19, 1999 incident with Duffy and a memorandum referencing the incident and reiterating Home Depot’s policy regarding discrimination was placed in Duffy’s personnel file. (Pl. Anderson’s 56.1 Statement at ¶ 51; Pl. Lumhoo’s 56.1 Statement at ¶ 47; Morway Aff., Exh. J). On October 22, 1999, Lumhoo filed a charge of employment discrimination based on race against defendant Home Depot with the Equal Employment Opportunity Commission (“EEOC”) and the New York State Division of Human Rights (“NYSDHR”) alleging an unlawful discriminatory practice based on Home Depot’s failure to discipline an employee who made a racial comment in violation of Title VII and NYSHRL § 296. (Compl. ¶ 16; Mor-way Aff., Exh. M). On November 4, 1999, Anderson filed a charge of employment discrimination based on race against Home Depot with the EEOC and the NYSDHR alleging that a racial slur asserted against him, his termination and his reinstatement to part-time employment constituted unlawful discriminatory practices in violation of Title VII and NYSHRL § 296. (Compl. ¶ 16; Morway Aff., Exh. M). The NYSDHR dismissed the charges for administrative convenience on May 30, 2000, and on June 8, 2000, the Department of Justice issued right to sue letters to each Plaintiff against defendant Home Depot. (Compl.M 17-18, Exhs. A & B). On August 31, 2000, Plaintiffs commenced the instant action in the United States District Court for the Eastern District of New York alleging race discrimination arising from their employment at the Home Depot’s Valley Stream store in 1999. Specifically, in the complaint. Plaintiffs allege in Counts 1 through 5 that Anderson’s termination was discriminatory and/or retaliatory, in Counts 6 through 8 that both Anderson and Lumhoo were treated less favorably than white employees with respect to promotions, compensation, recognition and discipline, and in Counts 9 through 11 that both plaintiffs were subjected to a hostile work environment all in violation of Title VII, § 1981 and NYSHRL. Additionally, Plaintiffs allege in Count 12 that Defendants breached oral contracts with respect to overtime payment for hours worked in excess of eight hours per day. Defendants now move for summary judgment pursuant to Fed.R.Civ.P. 56. The underlying facts and applicable law surrounding each of Plaintiffs’ allegations will be presented in the relevant discussion section below. DISCUSSION Summary judgment is appropriate “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c); see also Celotex v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986); Chambers v. TRM Copy Centers Corp., 43 F.3d 29, 36 (2d Cir.1994). A dispute regarding 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, 247-48, 106 S.Ct. 2505, 2509-10, 91 L.Ed.2d 202 (1986). The nonmoving party “must do more than simply show that there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). Rule 56(e) “requires the nonmoving party to go beyond the pleadings and by [its] own affidavits, or by the ‘depositions, answers to interrogatories, and admissions on file,’ designate specific facts showing there is a genuine issue for trial.’ ” Celotex, 477 U.S. at 324, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (citing Fed.R.Civ.P. 56). In considering a motion for summary judgment, “the judge’s function is not himself to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial.” Id. at 249, 106 S.Ct. at 2511. In doing so, “[t]he district court must draw all reasonable inferences and resolve all ambiguities in favor of the nonmoving party and grant summary judgment only if no reasonable trier of fact could find in favor of the nonmoving party.” Sutera v. Schering Corp., 73 F.3d 13, 15 (2d Cir.1995) (citation omitted). While the Court is mindful that it must “[b]e especially cautious in deciding whether to grant this drastic provisional remedy in a discrimination case because the employer’s intent is often at issue and careful scrutiny may reveal circumstantial evidence supporting an inference of discrimination.” Belfi v. Prendergast, 191 F.3d 129, 135 (2d Cir.1999), it is clear that “summary judgment remains available to reject discrimination claims in cases lacking genuine issues of material fact.” Chambers v. TRM Copy Centers Corp., 43 F.3d 29, 40 (2d Cir.1994); see also Meiri v. Dacon, 759 F.2d 989, 998 (2d Cir.1985) (“The summary judgment rule would be rendered sterile ... if the mere incantation of intent or state of mind would operate as a talisman to defeat an otherwise valid motion.”); Miller v. Taco Bell Corp., 204 F.Supp.2d 456, 458 (E.D.N.Y.2002) (“where an employer provides convincing evidence explaining its conduct, and the plaintiffs case rests on conclusory 'allegations of discrimination, the court may properly conclude that there is no genuine issue of material fact and grant summary judgment to the employer”). I. Exhaustion of Administrative Remedies As a threshold matter, Defendants contend that the causes of action in the federal complaint sounding in disparate treatment, retaliation and a hostile work environment in violation of Title VII (Counts 3, 6 and 9) are not properly before this Court because Plaintiffs failed to raise these claims in the administrative charges Plaintiffs had previously filed with the NYSDHR and EEOC. According to Defendants, Plaintiffs’ administrative charges relate solely to the events of September 19, 1999, and Plaintiffs have raised for the first time in their federal complaint, additional Title VII discrimination claims of disparate treatment with respect to promotions, compensation, recognition and disciplinary measures. In addition, defendants contend that Plaintiffs claim for the first time in their federal complaint that they were subjected to a hostile work environment prior to September 19, 1999 and that Anderson’s termination was in retaliation for earlier alleged complaints of discrimination. Plaintiffs may commence a Title VII employment discrimination action in federal court only after they have filed a timely complaint with the EEOC, or with “a State local agency with authority to grant or seek relief from such practice,” and obtained a right-to-sue letter. 42 U.S.C. § 2000E-5(e) and (f); see Fitzgerald v. Henderson, 251 F.3d 345, 358-59 (2d Cir.2001) (“Title VII requires that an employment discrimination claimant pursue administrative procedures before commencing a lawsuit”); Briones v. Runyon, 101 F.3d 287, 289 (2d Cir.1996) (Plaintiffs raising claims under Title VII are required to “exhaust available administrative remedies in a timely fashion”). Exhaustion of administrative remedies is “an essential element of Title VII’s statutory scheme,” and is therefore a precondition to raising a Title VII claim in federal court. Francis v. City of New York, 235 F.3d 763, 768 (2d Cir.2000); see Holtz v. Rockefeller & Co., 258 F.3d 62, 83 (2d Cir.2001) (“Exhaustion of remedies is a precondition to suit”). “The purpose of this exhaustion requirement is to give the administrative agency the opportunity to investigate, mediate and take remedial action.” Brown v. Coach Stores Inc., 163 F.3d 706, 712 (2d Cir.1998) (internal quotation marks and citation omitted). Nonetheless, the Second Circuit has recognized that “claims that were not asserted before the EEOC may be pursued in a subsequent federal court action if they are ‘reasonably related’ to those that were filed with the agency.” Legnani v. Alitalia Linee Aeree Italiane, S.P.A., 274 F.3d 683, 686 (2d Cir.2001) (per curiam) (quoting Shah v. New York State Dep’t of Civil Service, 168 F.3d 610, 614 (2d Cir.1999); accord Holtz, 258 F.3d at 83). Claims that are raised for the first time in the district court may be considered reasonably related (1) “if the conduct complained of would fall within the scope of the EEOC investigation which can reasonably be expected to grow out of the charge[s] that w[ere] made,” Fitzgerald, 251 F.3d at 359-60 (internal quotation marks and citation omitted); (2) where the claims allege “retaliation by an employer against an employee for filing an underlying claim of discrimination,” see Shah, 168 F.3d at 614; and (3) where the claims allege subsequent acts that were “essentially the same as the allegedly wrongful conduct in the EEOC complaint,” Almendral v. N.Y.S. Office of Mental Health, 743 F.2d 963, 967 (2d Cir.1984). Of these three types of “reasonably related” claims, only the first has relevance in the instant matter, and Plaintiffs do not argue otherwise. Specifically, Plaintiffs’ contend that the disparate treatment, retaliation and hostile work environment claims are “reasonably related” to the allegations and specific incidents of discrimination contained in their administrative charges and should therefore be expected to fall within the scope of an investigation into the claims alleged in their NYSDHR and EEOC complaints. Plaintiffs’ contention is not completely without merit. “Reasonably related” in this circumstance “means that despite the claimant’s having failed to specify the precise charge, the EEOC likely would have investigated the conduct complained of anyway.” Pemrick v. Stracher, 67 F.Supp.2d 149, 170 (E.D.N.Y.1999). That being said, “the loose pleading allowance is not satisfied by vague, generalized statements. Specific factual allegations must be made in order for the EEOC to be able to investigate them reasonably.” Cooper v. Xerox Corp., 994 F.Supp. 429, 432 (W.D.N.Y.1998); see also Findlay v. Reynolds Metals Co., 82 F.Supp.2d 27, 34 (N.D.N.Y.2000) (“Were we to permit such vague, general allegations, quite incapable of inviting a meaningful EEOC response, to define the scope of the EEOC investigation and thereby predicate subsequent claims in the federal lawsuit, such allegations would become routine boilerplate and Title VII’s investigatory and mediation goals would be defeated.”) (internal quotation marks and citation omitted). In the case at hand, Plaintiffs’ NYSDHR & EEOC complaints unambiguously limit Plaintiffs’ claims to the events surrounding the September 19, 1999 incident. Thus, to the extent that Plaintiffs’ claims of disparate treatment, retaliation and a hostile work environment arise out of the September 19, 1999 incident and could be expected to grow out of the charges made in the foregoing complaints, they are deemed exhausted. For example, Lumhoo’s administrative charge states in pertinent part: 1.' I am Black. 2. On April 27, 1998[sic], I began working for the Respondent’s store located at 101 Green Acres Road, Valley Stream, New York as Truck Driver. I have performed my job in a satisfactory manner. 3. On September 19, 1999. I was loading a truck with material with Jemel Anderson (Black), Order Puller. Jim Duffy (Caucasian), Department Head, blocked our loading aisles with his material and equipment. Mr. Anderson asked Mr. Duffy to move the material from the aisle so that we could continue loading our truck. Mr. Duffy ignored Mr. Anderson’s request, and walked away. John “Doe” (Caucasian), Assistant Manager, began to remove the material by a forklift, but I told John to forget it and I would use the lumber aisle to load trucks. Mr. Anderson and I were moving the material through the lumber aisle when Mr. Duffy came running down the aisle screaming at us that we were damaging his lumber. Mr. Anderson told Mr. Duffy to stop yelling. Mr. Duffy then criticized Mr. Anderson for not wearing his seat belt. Mr. Anderson thereupon showed Mr. Duffy that he was wearing his seat belt. Mr. Duffy walked away mumbling the words “worthless Niggers.” Mr. Anderson became very upset although I told him it is not worth it, and to just let it go. Later there was an altercation with Mr. Duffy, John, the Assistant Manager, and Joe Vaci (Caucasian), Assistant Manager. Mr. Vaci supported Mr. Duffy and terminated Mr. Anderson. I told John that he should have gotten involved in the matter and not let the problem worsen. John responded by stating that he could not go against his coworkers. 4. On September 20, 1999, I went to see Jose Commacho [sic] (Hispanic Puerto Rican), Store Manager, who was uninterested in resolving the matter and disciplining Mr. Duffy. That same day, I spoke to Sherma Malcolm (Black), Assistant Manager of Deliveries about the matter and she told me to speak to A1 DeLuca (Caucasian), Human Resource Manager. I spoke to Mr. DeLuca and asked, and got, a transfer to the Ozone Park store. To date, Mr. Duffy has not been disciplined for his racial comment. 5. I am Black. Based on the foregoing, I charge the above-named Respondent with an unlawful discriminatory practice based on employment by not disciplining an employee, who made a racial comment because of my race and col- or. (Morway Aff., Exh. M). Similarly, Anderson’s administrative charge states in pertinent part: 1. I am Black. 2. In May 1999[sic], I began working for the Respondent’s store located at 101 Green Acres Road, Valley Stream, New York as a[sic] Order Puller. I have performed my job in a satisfactory manner. 3. On September 19, 1999, I was loading a truck with material with Kenneth Lumhoo (Black), Truck Driver. Jim Duffy (Caucasian), Department Head, blocked our loading aisles with his material and equipment. I asked Mr. Duffy to move the material from the aisle so that we could continue loading our truck. Mr. Duffy ignored my request, and walked away. John “Doe” (Caucasian), Assistant Manager, began to remove the material by a forklift, but Mr. Lumhoo told John to forget it and he would use the lumber aisle to load trucks. Mr. Lumhoo and I were moving the material through the lumber aisle when Mr. Duffy came running down the aisle screaming at us that we were damaging his lumber. I told Mr. Duffy to stop yelling. Mr. Duffy then criticized me for not wearing my seat belt. I showed Mr. Duffy that I was wearing my seatbelt. Mr. Duffy walked away mumbling the words “worthless Niggers.” I saw Mr. Duffy speaking [to] John, and I walked over to try to explain what had occurred between Mr. Duffy and me. Joe Vaci (Caucasian), Assistant Manager, walked over to our group and told me to “shut the hell up. What you say don’t mean shit around hear [sic].” I asked Mr. Vaci why it is all right for Mr. Duffy to call us “out our name” and to disrespect us and it is okay. Mr. Vaci responded Yes and added that if our supervisor tells us to jump, we have to jump. About an hour later, I was summoned to the manager’s office by Mr. Vaci. Mr. Vaci terminated me. 4. On October 12, 1999, I was telephoned by Al DeLuca (Caucasian), Human Resources Manager, and told that I could return to work at the Ozone Park, Queens, store. It should be noted that I was able to return to the Respondent as a part-time employee, and not as a full-time employee (I worked as a full-time employee at the Valley Stream store). 5. I am Black. Based on the foregoing, I charge the above-named Respondent with an unlawful discriminatory practice based on employment by being called a racial slur, being terminated, and then reinstated to part-time employment because of my race and col- or. (Morway Aff., Exh. M). Strikingly absent from both the NYSDHR & EEOC complaints are allegations that Plaintiffs were treated less favorably than similarly situated white employees with respect to promotions, compensation and recognition. Moreover, the alleged facts underlying Plaintiffs’ administrative charges are notably distinct from the facts contained in the disparate treatment, retaliation and hostile work environment claims set forth in Counts 3, 6 and 9 of Plaintiffs’ federal complaint. The administrative charges solely allege claims relating to the September 19, 1999 incident, the disciplinary measures surrounding that event and Anderson’s reinstatement to an alleged part-time position three weeks following that event. With the exception of Plaintiffs’ allegations of disparate treatment with respect to disciplinary measures and Anderson’s reinstatement to part-time employment, nothing in Plaintiffs’ administrative filings suggests that Defendants subjected Plaintiffs to disparate treatment with respect to promotions, wages or other work-related benefits, (see Compl. ¶ 75), or that Defendants terminated Anderson in retaliation for earlier alleged complaints of discrimination, (see Compl. ¶ 67), or that Defendants subjected Plaintiffs to a hostile work environment and pervasive racial harassment prior to September 19, 1999, (see Compl. ¶81). Rather, Plaintiffs’ administrative complaints consist of a recitation of the alleged discriminatory incident that occurred on September 19, 1999 and charge defendant Home Depot with an unlawful employment discriminatory practice based on (1) Home Depot’s failure to discipline an employee supervisor who made a racial comment because of Lumhoo’s race and color; and (2) a Home Depot supervisor using a racial slur against Anderson, thereafter resulting in Anderson’s termination and subsequent reinstatement to a part-time employment position because of Anderson’s race and color. Under these circumstances, an investigation into Plaintiffs’ administrative charges would not fall within the scope of, nor would be reasonably expected to grow into an investigation of Plaintiffs’ claims of retaliation for earlier complaints of discrimination or a hostile work environment prior to the September 19,1999 incident or of disparate treatment with respect to promotions, compensation and recognition. See, e.g., Ige v. Command Sec. Corp., 2002 WL 720944, at *6 (E.D.N.Y. Mar.12, 2002) (“An investigation into the underlying incidents of Plaintiffs disparate treatment claim would not lead an investigator to inquire about a claim of hostile work environment”); Crespo v. New York City Transit Auth., 2002 WL 398805, at *8 (E.D.N.Y. Jan.7, 2002) (rejecting as unexhausted Plaintiffs’ harassment and hostile environment claims because they “rely on differeñt facts and embody different legal theories than the discrimination claims raised in the EEOC Charge [and] would not reasonably prompt an investigation into the facts that underlie her claims”); Ghose v. Century 21, Inc., 108 F.Supp.2d 373, 376 (S.D.N.Y.2000) (holding Plaintiffs’ claims of discrimination based on his association with African-American co-workers, a hostile work environment and retaliation claims were not reasonably related to claims of racial and national origin discrimination that were alleged in Plaintiffs’ original filing with the EEOC); Findlay, 82 F.Supp.2d at 34 (precluding Plaintiff from asserting disparate treatment claim because Plaintiffs EEOC complaints solely allege incidents underlying Plaintiffs hostile work environment and retaliation claims); cf. Osier v. Broome County, 47 F.Supp.2d 311, 319-21 (N.D.N.Y.1999) (“Plaintiffs conclusory allegations of ‘sexual harassment’ are insufficient to give defendants notice of the many incidents of a hostile work environment that she is now asserting in this lawsuit”); Szarka v. Reynolds Metals Co., 17 F.Supp.2d 115, 124-26 (N.D.N.Y.1998) (holding a charge of retaliation cannot reasonably be expected to grow out of charges of sex and age discrimination) In short, that portion of Plaintiffs’ claims set forth in their federal complaint which charges disparate treatment with respect to promotions, compensation and recognition, or which claims a hostile work environment prior to September 19, 1999 or which alleges that Anderson’s termination was in retaliation for earlier complaints of discrimination is not reasonably related to the claims Plaintiffs filed with the EEOC and the NYSDHR. Conversely, that portion of Plaintiffs’ claims which arise out of the September 11, 1999 incident, including but not limited to Plaintiffs’ claims of disparate treatment with respect to disciplinary measures surrounding that event and Anderson’s reinstatement from an allegedly full-time position to a part-time position as well as Plaintiffs’ retaliation claim and hostile work environment claims which directly relate to the alleged discriminatory incident would fall within the scope of Plaintiffs’ administrative charges. Accordingly, because the Court finds that Plaintiffs’ Title VII claims of retaliation for earlier complaints of discrimination and a hostile work environment prior to the September 19, 1999 event and of disparate treatment with respect to promotions, compensation and recognition, set forth in Counts 3, 6 and 9 of the federal complaint fail to satisfy a condition precedent to suit, these claims are dismissed from Counts 3, 6 and 9 of the complaint as unexhausted. 11. Employment Discrimination Claims Title VII of the Civil Rights Act of 1964 provides, in pertinent part: It shall be an unlawful employment practice for an employer (!) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate 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); see James v. New York Racing Ass’n, 233 F.3d 149, 153-55 (2d Cir.2000). Section 1981 states in relevant part, that “[a]ll persons within the jurisdiction of the United States shall have the same right in every State ... to make and enforce contracts, ... and to the full and equal benefit of all the laws and proceedings for the security of persons and property as is enjoyed by white citizens.” 42 U.S.C. § 1981(a). In analyzing a § 1981 claim based on employment discrimination, courts employ the same standards as applied in Title VII. See St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 506, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993); Whidbee v. Garzarelli Food Specialties, Inc., 223 F.3d 62, 69 (2d Cir.2000). The New York State employment discrimination laws are likewise analyzed under the same framework as governs Title VII and 1981 claims. See Leopold v. Baccarat, Inc., 174 F.3d 261, 264 & n. 1 (2d Cir.1999); Van Zant v. K.L.M. Royal Dutch Airlines, 80 F.3d 708, 714-15 & n. 6 (2d Cir.1996). The Supreme Court has “established an allocation of the burden of production and an order for the presentation of proof on ... discriminatory treatment cases.” St. Mary’s Honor Ctr., 509 U.S. at 506, 113 S.Ct. at 2746. Accordingly, under the pretext framework outlined in McDonnell Douglas Corp v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973) and Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981), first, a plaintiff must prove by a preponderance of the evidence a prima facie case of discrimination. St. Mary’s Honor Ctr., 509 U.S. at 506, 113 S.Ct. at 2746. If the plaintiff meets this burden, the burden shifts to the defendant, and the defendant must produce evidence that the adverse employment actions were taken “for some legitimate, nondiscriminatory reason.” Id. at 509, 113 S.Ct. at 2742 (quoting Burdine, 450 U.S. at 252-54, 101 S.Ct. at 1093-94); see James, 233 F.3d at 153-54. Finally, if the defendant articulates a legitimate, nondiscriminatory reason for the employment actions, “the presumption raised by the prima facie case is rebutted, and drops from the case.” St. Mary’s Honor Ctr., 509 U.S. at 507, 113 S.Ct. at 2747. The plaintiff then has the burden to prove by a preponderance of the evidence that the employer’s stated reason was merely a pretext for discrimination. See Burdine, 450 U.S. at 252-53, 101 S.Ct. at 1093; James, 233 F.3d at 156 (“[Ojnce a minimal prima facie case is proved and the employer’s nondiscriminatory explanation has been given, the McDonnell Douglas presumptions disappear from the case, and the governing standard is simply whether evidence, taken as a whole, is sufficient to support a reasonable inference that prohibited discrimination occurred.”); Lanzo v. City of New York, 2000 WL 804628, at *6 (E.D.N.Y. May 18, 2000) (“The plaintiff must then show, without the benefit of any presumptions, that it is more likely than not that the employer’s decision was motivated at least in part by a discriminatory reason. Because the defendant has at this point offered a nondiscriminatory reason for its actions, the plaintiff must show that the proffered reason is in reality a pretext for unlawful discrimination.”). The Court must apply a case-by-case approach,- “examining the entire record to determine whether the plaintiff could satisfy his ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff.” Roge v. NYP Holdings, Inc., 257 F.3d 164, 167-68 (2d Cir.2001) (internal quotation marks and citation omitted). Notwithstanding these shifting burdens, “[tjhe ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff.” Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143, 120 S.Ct. 2097, 2106,147 L.Ed.2d 105 (2000) (quoting Burdine, 450 U.S. at 253-54; 101 S.Ct. 1089). The Court will apply these principles to Plaintiffs’ employment discrimination claims of (1) discriminatory discharge; (2) retaliation; (3) disparate treatment and (4) a hostile work environment. (1) Discriminatory Discharge In Counts 1, 2 and 4 of the complaint, Plaintiff Anderson alleges that Defendants terminated his employment on the basis of his race and color in violation of Title VII, § 1981 and the NYSHRL. In order to establish a prima facie case of discriminatory discharge, Anderson must demonstrate that (1) he is a member of a protected class; (2) he was qualified for the position; (3) he suffered an adverse employment action; and (4) the adverse employment action occurred under circumstances giving rise to an inference of discrimination. See Stern v. Trustees of Columbia Univ., 131 F.3d 305, 311-12 (2d Cir.1997) (citing Burdine, 450 U.S. at 253 & n. 6, 101 S.Ct. at 1094 n. 6); Chambers v. TRM Copy Centers Corp., 43 F.3d 29, 37 (2d Cir.1994). The plaintiffs burden of demonstrating a prima facie case is de minimus. See Kerzer v. Kingly Mfg., 156 F.3d 396, 401 (2d Cir.1998). “In determining whether the plaintiff has met the de minimus initial burden of showing circumstances giving rise to an inference of discrimination, the function of the court on a summary judgment motion is to determine whether the proffered admissible evidence shows circumstances that would be sufficient to permit' a rational finder of fact to infer a discriminatory motive. It is not the province of the summary judgment court itself to decide what inferences should be drawn.” Cronin v. Aetna Life Ins. Co., 46 F.3d 196, 204 (2d Cir.1995) (internal quotation marks and citation omitted). (a) First and Second Elements There is no dispute that Anderson is a member of a protected class and that he was qualified for his position. Accordingly, to determine whether Anderson has proved a 'prima facie case, the real issues in dispute are whether he suffered an adverse employment action and whether he was treated differently than similarly-situated non-minority employees for the same or similar conduct. The record in this case demonstrates that Anderson has failed to allege facts sufficient to establish a prima facie case of unlawful discrimination. (b) Third Element With respect to the third element, Anderson asserts that Home Depot’s termination of his employment at the Valley Stream store and reinstatement to a part-time employment position at the Ozone Park store constituted adverse employment actions. Under Title VII, an adverse employment action is actionable when it relates to an employee’s “compensation, terms, conditions, or privileges of employment,” or involves a classification which “[w]ould deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee.” 42 U.S.C. § 2000e-2(a); see Morris v. Lindan, 196 F.3d 102, 110 (2d Cir.1999) (“Adverse employment actions include discharge, refusal to hire, refusal to promote, demotion, reduction in pay, and reprimand”). As the Second Circuit explained, [a] plaintiff sustains an adverse employment action if he or she endures a materially adverse change in the terms and conditions of employment. To be materially adverse a change in working conditions must be more disruptive than a mere inconvenience or an alteration of job responsibilities. A materially adverse change might be indicated by a termination of employment, a demotion evidenced by a decrease in wage or salary, a less distinguished title, a material loss of benefits, significantly diminished material responsibilities, or other indices ... unique to a particular situation. Galabya v. New York City Bd. of Educ., 202 F.3d 636, 640 (2d Cir.2000) (internal quotation marks and citations omitted); see Campbell v. Grayline Air Shuttle, Inc., 930 F.Supp. 794, 802 (E.D.N.Y.1996) (holding a material adverse change is one that “has an attendant negative result, a deprivation of a position or an opportunity”) (internal quotation marks and citation omitted). In an action such as this one, which involves a transfer upon reinstatement to employment, “the key inquiry is whether the transfer constitutes a negative employment action tantamount to a demotion. There must be a deprivation of opportunity or position.” Johnson v. Eastchester Union Free School Dist., 2002 WL 1684762, *3 (S.D.N.Y. July 23, 2002) (internal quotation marks and citation omitted). “Because there are no bright-line rules as to which employment actions meet the threshold for ‘adverse,’ courts must make this determination on a case-by-case basis.” Wilburn v. Fleet Fin. Group, Inc., 170 F.Supp.2d 219, 237 (D.Conn.2001) (quoting Richardson v. New York State Dep’t of Corr. Serv., 180 F.3d 426, 446 (2d Cir.1999)). “The key ... is that the plaintiff must show that the [action] created a materially significant disadvantage.” Galabya, 202 F.3d at 641 (internal quotation marks and citation omitted). As an initial matter, Anderson’s assertion that he suffered an adverse employment action when Home Depot discharged his employment at the Valley Stream store fails as a matter of law because at the conclusion of defendants’ investigation into Anderson’s allegations concerning the September 19, 1999 incident, defendants offered and Anderson accepted, an .unconditional offer of reinstatement with full back pay, the same salary and benefits, and the same seniority status. Defendants investigation of plaintiffs’ discrimination claims rendered Anderson’s termination a mediate action that was ultimately reversed by Anderson’s reinstatement. Cf. Almonte v. Coca-Cola, Bottling Co., 959 F.Supp. 569, 572-73 (D.Conn.1997). Additionally, Home Depot removed all references to Anderson’s temporary termination from Company records. Inasmuch as Anderson “suffered no loss of wages, benefits, responsibilities, or anything else,” his temporary termination resulted in no legally cognizable adverse effect on his employment. Islamic Society of Fire Dep’t Personnel v. City of New York, 205 F.Supp.2d 75, 84 (E.D.N.Y.2002); see Ticali v. Roman Catholic Diocese of Brooklyn, 41 F.Supp.2d 249, 264-65 (E.D.N.Y.) (holding plaintiff could not rely on her termination to satisfy the adverse employment action element of her prima facie case where her termination was retracted), aff'd 201 F.3d 432 (2d Cir.1999); Wilson v. Consolidated Edison Co., 2000 WL 335733, at *8 n. 14 (S.D.N.Y. Mar.30, 2000) (holding reinstatement negates any adverse employment action); Almonte, 959 F.Supp. at 572-73 (finding no adverse employment action where following arbitration, employer reinstated employee with full back pay and seniority); see also Wanamaker v. Columbian Rope Co., 907 F.Supp. 522, 534 (N.D.N.Y.1995) (finding no adverse employment action where employer terminated employee but continued to give employee full salary and benefits because employee “did not lose any pay or other tangible benefits”), aff'd 108 F.3d 462; cf. Washington v. County of Rockland, 211 F.Supp.2d 507, 513-14 (S.D.N.Y.2002) (finding no adverse employment action where disciplinary charges against plaintiffs were dismissed after hearings, any loss of pay was reinstated and no further disciplinary actions were taken). Next, Anderson’s contention that he has suffered a change in working conditions at the Ozone Park store sufficiently disruptive to be materially adverse is belied by the record. Anderson does not contest the location of the transfer to Ozone Park. Rather, he argues that since being recalled to the Ozone Park store, (i) his employment hours have been reduced from full-time hours to part-time hours and (ii) he has been assigned a new position as a shopping cart pusher, which is a different position with different duties than the position he held as an order puller at the Valley Stream store. Contrary to Anderson’s argument, the record indicates that throughout Anderson’s tenure at the Valley Stream store, Anderson was a part-time, hourly employee who did not work a fixed number of hours each week, and whose schedule varied greatly from week to week. See Deluca Reply Aff., Exh. B (Analysis of Anderson’s Weekly Work Hours at Home Depot’s Valley Stream store indicates the number of hours worked varied from 11.25 hours to 36.25 hours per week; during his last week at the Valley Stream store, Anderson worked 16.75 hours). There is no evidence that had Anderson continued to work in the Valley Stream store, he would have worked any more hours than he worked in the Ozone Park store. In addition, the record is clear ■ that Anderson suffered no diminution in wages, employment benefits or seniority status. See Islamic Society of Fire Dep’t Personnel, 205 F.Supp.2d at 84 (“Typically, adverse employment actions are economic injuries such as dismissal, suspension, failure to promote, or diminution in pay”) (internal quotation marks and citation omitted). Finally, other than his conclusory statement that the Ozone Park position was a “different job with different duties,” (Pis. Memorandum of Law in Opposition at 19), Anderson has not proffered any evidence that a rational factfinder could infer that his position as a shopping cart pusher constituted a demotion from his position as an order puller. See Galabya, 202 F.3d at 641 (a lateral transfer does not constitute a materially adverse job action unless it “results in a change in responsibilities so significant as to constitute a setback in plaintiffs career”); Weeks, 273 F.3d at 86; see also Pimentel v. City of New York, 2002 WL 977535, *4 (S.D.N.Y. May 14, 2002) (“the mere fact than an employee has been transferred or that his job responsibilities have changed is not in itself sufficient to show an adverse change in working conditions”) (internal quotation marks and citation omitted); Ticali, 41 F.Supp.2d at 264 (same). In summary, viewing the evidence in the light most favorable to Anderson, the Court finds that Anderson failed to establish that the termination of his employment and reinstatement to a lateral position constituted a materially adverse change in the terms and conditions of his employment. (c) Fourth Element Notwithstanding the above, the only remaining question regarding Anderson’s prima facie case is whether the circumstances of his termination and/or reinstatement give rise to an inference of discrimination. In determining whether Plaintiff has supported such an inference, the proper inquiry is “[w]hether the evidence can reasonably and logically give rise to an inference of discrimination under all of the circumstances.” Bickerstaff v. Vassar College, 196 F.3d 435, 448 (2d Cir.1999). This “may be proven by showing that a similarly situated individual not in [plaintiffs] protected group ... was treated differently.” Tramble v. Columbia Univ., 1999 WL 61826, at *5 (S.D.N.Y. Feb.10, 1999); see also Hargett v. National Westminster Bank, 78 F.3d 836, 839 (2d Cir.1996). “Although the ultimate burden in making a prima facie case is slight, the issue of whether fellow employees are similarly situated is somewhat strict.” Brown v. Middaugh, 41 F.Supp.2d 172, 184 (N.D.N.Y.1999). “To be similarly situated, the individual with whom [a plaintiff] attempts to compare [himself] must be similarly situated in all material respects.” Shumway v. United Parcel Serv., Inc., 118 F.3d 60, 64 (2d Cir.1997); see Francis v. Runyon, 928 F.Supp. 195, 203 (E.D.N.Y.1996) (“Employees are not ‘similarly situated’ merely because their conduct might be analogized. Rather, in order to be similarly situated, other employees must have reported to the same supervisor as the plaintiff, must have been subject to the same standards governing performance, evaluation and discipline, and must have engaged in conduct similar to the plaintiffs, without such differentiating or mitigating circumstances that would distinguish their conduct or the appropriate discipline for it.”). With respect to Anderson’s wrongful discharge claim, an examination of all of the circumstances surrounding his termination and the other evidence in this case does not yield an inference of racial discrimination as an element in Anderson’s discharge. Anderson has not submitted any evidence to suggest that similarly situated non-minority employees were treated any more favorably than Anderson. See Rochester v. Blue Cross & Blue Shield, 2000 WL 1052064, at *6 (E.D.N.Y. June 27, 2000). To the contrary, there is evidence in the record that Home Depot’s stated reasons for terminating Anderson, namely a safety violation and insubordination, were also the stated reasons given for the termination of certain other white employees, two of whom were terminated within four days of Anderson’s termination for insubordination and for a safety violation respectively. See DeLuca Aff., Exh. A; see also Francis v. Chemical Banking Corp., 62 F.Supp.2d 948, 957-58 (E.D.N.Y.1999), aff'd 213 F.3d 626. Assuming as the Court must for purposes of this motion that Anderson’s account of the September 19, 1999 incident is accurate, it goes without saying that Department Head Duffy’s conduct was improper, his verbal use of the racial epithet, “worthless nigger” was reprehensible and Anderson’s termination may have been unwarranted. However, as discussed supra, the record indicates that Defendants conducted an investigation into the incident, addressed Duffy regarding his conduct and upon the conclusion of the investigation, reinstated Anderson with full back pay and benefits. Under such circumstances, the evidence fails to give rise to a reasonable inference of race discrimination in connection with Anderson’s discharge. See, e.g., Stembridge v. City of New York, 88 F.Supp.2d 276, 285-86 (S.D.N.Y.2000) (African-American employee’s suspension without pay resulting from an altercation with his supervisor did not occur in circumstances giving rise to inference of discrimination where employer scheduled disciplinary hearing to address employee’s allegations but plaintiff chose not to participate in the process). With respect to Anderson’s transfer upon reinstatement. Anderson has not presented any evidence that this alleged employment action was racially motivated. Anderson has not alleged that he was subjected to racially derogatory comments in connection with the transfer nor has he proffered any other evidence of racial animus in this regard. Under such circumstances, the evidence does not support a reasonable inference of discrimination as it relates to his reinstatement. See Ticali, 41 F.Supp.2d at 264-65. Hence, because Anderson cannot show that he has suffered an adverse employment action that was a product of discriminatory animus, this Court finds that Plaintiffs have failed to establish a prima facie case of discriminatory discharge. Accordingly, the Court grants summary judgment in favor of Defendants on the discriminatory discharge claim brought under Title VII, § 1981 and the NYSHRL and dismisses Counts 1, 2 and 4 of the complaint. (2) Retaliation In Counts 3 and 5 of the complaint, Plaintiffs allege that Defendants terminated Anderson’s employment in retaliation for his complaints of discrimination in violation of Title VII and the NYSHRL. Section 704(a) of the Civil Rights Act of 1964 provides that “[i]t shall be an unlawful employment practice for an employer to discriminate against any of his employees ... because he has opposed any practice made an unlawful employment practice by this subchapter.” 42 U.S.C. § 2000e-3(a). Thus, Title VII prohibits retaliatory adverse employment actions against an employee who opposes alleged discriminatory practices. See Galdieri-Ambrosini v. National Realty & Dev. Corp., 136 F.3d 276, 291-92 (2d Cir.1998) (“The objective of this section is obviously to forbid an employer from retaliating against an employee because of the latter’s opposition to an unlawful employment practice”); Cosgrove v. Sears, Roebuck & Co., 9 F.3d 1033, 1038 (2d Cir.1993). The Second Circuit has instructed courts to analyze Title VII retaliation claims under the framework established in McDonnell Douglas Corp., 411 U.S. at 802-05, 93 S.Ct. at 1824-26 and Burdine, 450 U.S. at 252-56, 101 S.Ct. at 1093. See Cosgrove, 9 F.3d at 1038; see also McMenemy v. City of Rochester, 241 F.3d 279, 282-83 (2d Cir.2001). Under this analysis, a plaintiff establishes a prima facie case of retaliation by showing: (1) participation in a protected activity known to the defendant; (2) an employment action adverse to the plaintiff and (3) a causal connection between the protected activity and the adverse employment action. See Torres, 116 F.3d at 639. The causal connection element of this test may be met by a proffer of either direct or circumstantial evidence. See Sumner v. United States Postal Serv., 899 F.2d 203, 209 (2d Cir.1990). In Plaintiffs’ Opposition Memorandum and Affidavit, Anderson alleges for the first time that he engaged in protected activity when he complained to Ger-vasi and Clougher about his confrontation with Duffy on September 19, 1999 and Duffy’s use of the racial epithet, “worthless niggers.” According to Anderson, Gervasi went to the store manager Camacho to seek permission to terminate Anderson based on this complaint and defendants retaliated against Anderson by terminating his employment shortly thereafter. (Pis. Memorandum of Law in Opposition, at 21-22; Anderson Aff. ¶ 3). A review of the record, however, indicates that this allegation is at odds with both Anderson’s deposition testimony and Anderson’s Rule 56.1 Statement submitted to this Court in opposition to Defendants’ summary judgment motion. Compare with Slavin Aff., Exh. C at 109-11 and PI. Anderson’s 56.1 Statement at ¶¶ 37, 39. In both his deposition testimony and Rule 56.1 Statement. Anderson maintains that Gervasi did not allow him to speak and would only listen to Duffy’s version of the incident. For example, in his deposition testimony, Anderson stated: .... We are coming back through the lumber aisle. That is when I see Jim Duffy talking to John Clougher. So I stopped the forklift, and I get off the forklift, and I go over there. And me and Lumhoo, that is when Jim Duffy is talking to John Clougher, talking about me. [sic] Talking about how I cursed him out and how I was fucking his lumber and stuff like that. I was trying to talk. Tell him about what you said to us, and all the shit that you just talking, [sic] That is when Joe Gervasi walked over there. Now Jim Duffy talking, [sic] Joe Gervasi told me not to say nothing and let Jim talk. Now Jim Duffy is talking. When he finished talking, I was about to say something, [sic] That is when Joe Gerva-si hopped in my face and said — put his finger in my face, on my nose, and was like — he was, You don’t fucking talk. Whatever he says goes. He is your fucking manager. When he says jump, you fucking jump, or whatever, like that. So that is when I was like — I am saying, you ain’t even hear what I have to say. [sic] Joe Gervasi say, It don’t matter what you say. You don’t mean nothing here. He is your supervisor. Whatever he say, goes. I was like, All right. After, we kept doing deliveries. About 15 minutes later, over the page system it said, Jemel, come to the back office. So I go back there. And it was John Clougher and Jim Gervasi in there.... And they said they had just finished talking to Jose Camacho on the telephone, or whatever, like that, and they said, I’m being terminated for not having a seat belt on.... So you know I’m beefing. I’m like, Why I’m being terminated? Let me talk to Jose Camacho, tell him the real story, because John didn’t let me talk. We can’t let you talk to him. He is at his house. Now we got to escort you out of the store. (Slavin Aff., Exh. C at 109-111). Likewise, in his 56.1 Statement, Anderson states, “Mr. Camacho was never informed of Plaintiff Anderson’s version, as Mr. Gervasi refused to question or listen to Plaintiff Anderson,” see PL Anderson’s 56.1 Statement at ¶37, and “Mr. Camacho spoke to Mr. Gervasi about the September 19, 1999 incident to the extent that he understood the situation.” Since Mr. Gervasi never questioned Plaintiff Anderson, Mr. Camacho never knew that he did not know both sides of the situation, see PL Anderson’s 56.1 Statement at ¶ 38. Thus, because the present affidavit and opposition memorandum unambiguously contradict Anderson’s previous sworn testimony, the Court declines to credit Anderson’s self-serving statements in his opposition papers or consider the new allegations therein to find a material issue of fact as to whether Home Depot’s Manager Camacho (or Assistant Manager Ger-vasi) had the requisite knowledge of Anderson’s objection to Duffy’s use of a racial epithet when Camacho authorized Anderson’s termination. Compare Bickerstaff v. Vassar College, 196 F.3d 435, 455 (2d Cir.1999) (“It is beyond cavil that a party may not create an issue of fact by submitting an affidavit in opposition to a summary judgment motion that ... contradicts the affiant’s previous deposition testimony.”) (internal quotation marks and citation omitted), and Trans-Orient Marine Corp. v. Star Trading & Marine, 925 F.2d 566, 572 (2d Cir.1991) (“The rule is well-settled in this circuit that a party may not, in order to defeat a summary judgment motion, create a material issue of fact by submitting an affidavit disputing his own prior sworn testimony.”), with Palazzo v. Corio, 232 F.3d 38, 43-44 (2d Cir.2000) (holding principle that party who has testified to a given fact in deposition cannot create triable issue on summary judgment by submitting affidavit denying fact “does not apply if the deposition and the later sworn statement are not actually contradictory ... [or] where the later sworn assertion addresses an issue that was not, or was not thoroughly or clearly, explored in the deposition ... [or] where the testimony is contradicted by evidence other than the deponent’s subsequent affidavit”), and Langman Fabrics v. Graff Californiawear, Inc., 160 F.3d 106, 112-13 (holding “[i]f there is a plausible explanation for discrepancies in a party’s testimony, the court considering a summary judgment motion should not disregard the later testimony because of an earlier account that was ambiguous, confusing, or simply incomplete”), as amended by 169 F.3d 782 (2d Cir.1998). Moreover, while filing administrative charges with the EEOC is clearly a protected activity, in the instant matter, Plaintiffs’ filings did not occur until after the allegedly improper conduct occurred. See Bliss v. Rochester City School Dist., 196 F.Supp.2d 314 (W.D.N.Y.2002) (plaintiffs failed to establish prima facie case of retaliation under Title VII, where protected activity of filing charge with EEOC occurred after employer’s alleged retaliation); Seils v. Rochester City School Dist., 192 F.Supp.2d 100, 119 (W.D.N.Y.2002) (same). Finally, as discussed previously, Plaintiffs have failed to allege an adverse employment action sufficient to a make out a prima facie case of retaliation. Viewing all admissible evidence in the light most favorable to Plaintiffs, the Court finds that the evidence fails to raise a genuine issue of material fact regarding whether Anderson’s termination was a result of his participation in a protected activity. Hence, the Court grants Defendants’ motion for summary judgment on the retaliation claims under Title VII and the NYSHRL and dismisses Counts 3 and 5 of the complaint. (3) Disparate Treatment In Counts 6, 7 and 8 of the complaint, Plaintiffs allege that Defendants violated Title VII, § 1981 and the NYSHRL by failing to provide Plaintiffs with the same benefits, terms and conditions of employment as those afforded to similarly situated Caucasion employees, including promotions, compensation, disciplinary measures and recognition, on the basis of Plaintiffs’ race and color. Title VII prohibits employment discrimination resulting from practices that are facially neutral but have a disparate impact “because they fall more harshly on a protected group than on other groups and cannot otherwise be justified.” Waisome v. Port Authority of N.Y. and N.J., 948 F.2d 1370, 1374 (2d Cir.1991). In order to establish a prima facie case of disparate treatment, a plaintiff “must show that a facially neutral employment policy or practice has a significant disparate impact.” Brown v. Coach Stores, Inc., 163 F.3d 706, 712 (2d Cir.1998) (internal quotation marks and citation omitted); see Wards Cove Packing Co. v. Atonio, 490 U.S. 642, 657, 109 S.Ct. 2115, 2125, 104 L.Ed.2d 733 (1989) (“a plaintiff must demonstrate that it is the application of a specific or particular employment practice that has created the disparate impact under attack”); Waisome, 948 F.2d at 1375 (plaintiff must “identify the specific employment practice he is alleging and then show that practice excluded him or her, as a member of a protected group, from a job or promotion opportunity”). “Allegations which contend only that there is a bottom line racial imbalance in the workforce are insufficient.” Brown, 163 F.3d at 712 (citation omitted). As a preliminary matter, as set forth previously, with the exception of Plaintiffs’ allegations of disparate treatment with respect to disciplinary measures in connection with the September 19, 1999 incident, Plaintiffs’ causes of action based upon disparate treatment under Title VII are barred because of the failure to’ exhaust administrative remedies. Notwithstanding, even on-the merits, Plaintiffs’ claims of disparate treatment with respect to promotions, compensation, recognition and disciplinary measures prior to the September 19, 1999 event must be dismissed because Plaintiffs fail to establish a prima facie case of disparate treatment. (a) Promotions Plaintiffs contend that Defendants failed to provide them with the same employment opportunities with regard to promotions and training opportunities afforded to similarly situated white employees. According to Plaintiffs, Defendants “disproportionately recruited and/or promoted Caucasion employees to thé upper level management ranks' despite the fact that African-American employees eomprise[d] approximately 50-75%' of the workforce at the store.” Compl. ¶ 30. “In order to establish a prima facie case for failure to promote, the plaintiff must allege that: l)[he] is a member of a protected class; 2)[his] job performance was satisfactory; 3)[he] applied for and was denied promotion to a position for which he was qualified; and 4) the position remained open and the employer continued to seek applicants.” Cruz v. Coach Stores, Inc., 202 F.3d 560, 565 (2d Cir.2000); Simmons v. New York City Health & Hosp. Corp., 2001 WL 483675, at *6 (E.D.N.Y. Mar.30, 2001). Here, Plaintiffs fail to allege that they ever applied for any specific position for which they were rejected. Rather, Plaintiffs allege generally that they were denied promotions and training opportunities. Such general allegations are insufficient to prove a failure to promote claim. See Brown, 163 F.3d at 710 ("We read McDonnell Douglas and Burdine generally to require a plaintiff to allege that she or he applied for a specific position or positions and was rejected therefrom, rather than merely asserting that