Sethi v. Narod (12 F. Supp. 3d 505, 2014)

MEMORANDUM & ORDER

MARGO K. BRODIE, District Judge.

Plaintiff Harsharan Sethi brought the above-captioned action against Defendants Randy Narod, Erica Lee, Deborah Morris-sey, Mitchel Robbins, Brian Wasserman, Stanley Pitkiewiez, Richard Someck, Israel Dorinbaum, Neil Schorr, Donald Trump, Jr., and Cambridge Who’s Who Publishing, Inc. (“CWW”) alleging race and national origin discrimination under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (“Title VH”), and the New York State Human Rights Law, N.Y. Exec. Law § 290 et seq. (“NYSHRL”). Plaintiff also brought claims against all Defendants under the Fair Labor Standards Act (“FLSA”) and the New York State Labor Law (“NYLL”), alleging failure to pay overtime compensation and violation of recordkeeping requirements. Defendants moved for summary judgment on all claims. At oral argument on May 9, 2013, the Court granted Defendants’ motion for summary judgment as to Plaintiffs FLSA claim against individual Defendants Mitchel Robbins, Brian Wasserman, Stanley Pitkiewiez, Richard Someck, Israel Dor-inbaum, Neil Schorr, and Donald Trump, Jr., and Plaintiffs claims for violation of the record-keeping provisions of the FLSA and the NYLL. After oral argument Plaintiff cross-moved for summary judgment on his remaining claims. By Memorandum and Order dated September 30, 2013, 974 F.Supp.2d 162 (E.D.N.Y.2013) (“Sept. 30, 2013 Decision”), the Court denied Defendants’ and Plaintiffs motions for summary judgment as to Plaintiffs FLSA and the NYLL claims for failure to pay overtime compensation. The Court deferred ruling on the parties’ motions for summary judgment as to Plaintiffs Title VII and NYSHRL claims, pending the submission of additional documentation as set forth in the Sept. 30, 2013 Decision. The Court has reviewed the additional submissions of the parties. For the reasons set forth below, the Court denies Plaintiffs motion for summary judgment as to his Title VII and NYSHRL claim and grants Defendants’ motion for summary judgment as to Plaintiffs Title VII and NYSHRL claim.

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 information systems for approximately seven years. (Id.) Plaintiff worked as the Director of Management Information Systems (“MIS Director”) at CWW from July 21, 2008 to May 10, 2010. (Am. Compl. ¶ 2; Answer ¶ 2.) Plaintiff reported to Lee. (Def. 56.1 ¶ 25; Sethi Decl. ¶ 15.)

c. May 2009 USA Honors Society email

In approximately May 2009, Plaintiff received an email from the “USA Honors Society” (“Honors Society”), a new company established at CWW. (Am. Compl. ¶¶ 27-28; Sethi Dep. 82:16-86:4.) The email indicated that Plaintiff had been selected for membership in the Honors Society for his contributions to the profession. (Am. Compl. ¶¶ 27-28; Sethi Dep. 82:16-86:4.) Plaintiff believed that the representations in the email were false, and reported his concerns to Lee. (Am. Compl. ¶¶ 27-28; Sethi Dep. 82:16-86:4.) According to Lee, “Plaintiff believed [the Honors Society] was a separate entity [from CWW] and that customers should be advised of this.” Although she explained otherwise, Plaintiff continued to believe that CWW was engaged in “wrongful business offerings.” (Lee 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. (Am. Compl. ¶ 31.)

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.)

e. Chief Technology Officer position

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 “the backup drives (or ‘tapes’) in the servers needed to be removed every night and replaced.” (Id.) When questioned about his policies for “the configuration of the servers” that ran CWW’s web services and online portals, Plaintiff had no knowledge. (Id. ¶ 9.) Plaintiff disputes that this assessment occurred. (PI. Resp. 56.1 ¶ 58.)

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. (Lee Decl. Ex. M.) Plaintiff became combative and refused to listen to the policies and procedures, and tried to change the subject of the meeting and discuss other issues. (Id.) Plaintiff asked “what happens ... if he doesn’t obey the policies,” and “challenge[d] and confronted] the authorities at the meeting.” (Id.) According to Lee, Plaintiff questioned her authority and CWW’s policies. (Id.) At the meeting, they also discussed Plaintiffs January 12, 2010 email that he sent after Proactive employees entered his office, which Lee construed as a threat to CWW employees and consultants. (Def. 56.1 ¶ 44.) Plaintiff informed Lee that he had spoken with Narod by telephone and that “Narod had instructed him to leave for the day (with pay).” (Lee Decl. ¶ 66.) After the meeting, Plaintiff asked CWW employee Michelle Trabucchi for access to his personnel file. (Lee Decl. Ex. M.) CWW Handbook Policy states that all employees may see their personnel file once each year and that a request to do so should be submitted in writing. (Id.) Plaintiff was asked to follow the procedure. (Id.) Plaintiff “fumed more harassment and stormed off.” (Id.) Plaintiff disputes Defendants’ characterization of the meeting and asserts that he “was sent home immediately” on February 12, 2010, after requesting in writing to see his personnel file. (Sethi Decl. ¶ 30.)

Following the meeting on February 12, 2010, Plaintiff took a leave of absence with pay. (Def. 56.1 ¶ 65; 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 assaulted on the threat of getting fired.” (Id.) He threatened to go to the media, as well as “have every call and every employee past and present subpoenaed ... as I have had it with these threats.” (Id.)

On February 22, 2010, Plaintiff sent another email to Narod and others at CWW suggesting that “we can set aside all our ego’s [sic] and circumstances and start all over again to work together towards any common business goals there by [sic] rectifying the situation and the issues in the quickest time possible trying to achieve normalcy with minimum damage.” (Lee Decl. Ex. T.) Plaintiff wrote, “[L]et me know what you want to do, I am giving you three days to figure this out calmly and coolly along with your associates. All I want is to go back to my work as before as I do not believe that I have done anything to cause such circumstances.” (Id.) On March 5, 2010, Plaintiff emailed to Narod, “Its [sic] been a while now and I need to get back to work at Cambridge preferably by Monday March 8th.” (Lee Decl. Ex. U.) On March 11, 2010, Plaintiff again wrote to Narod, “I am a patient and peaceful man you know that and I believe I have been patient enough but its [sic] high time I get back to work.” (Lee Decl. Ex. V.) “Rectifying the wrong and letting me return to work is most probably the only way you can keep the attorney’s [sic] out of this mess.” (Id.)

Plaintiff wrote to Morrissey, copying Narod and others, on April 30, 2010, requesting an “update ... on my status of employment.” (Lee Decl. Ex. W.) He asked if “any investigation [was] conducted by HR on my complaints,” and requested that the findings be forwarded to him. (Id.) He accused Morrissey of “continuing to harrass [sic]” him. (Id.) Morrissey informed Plaintiff by email that Narod was not in that day but someone would contact him the following week to discuss the matter. (Lee Decl. Ex. X.) Plaintiff followed-up with another email on May 3, 2010, with further allegations of illegality, including accusing CWW of manipulating and falsifying his personnel file, and of “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 moving towards point of no return very rapidly.” (Lee Decl. Ex. AA.) In the email Plaintiff challenged Morrissey’s qualifications and asserted that she was “not qualified to look into my grieviences [sic] relating to my complaints for which I was sent on a so called legal leave of absence.” (Id.)

Plaintiff was terminated by CWW on or about May 11, 2010. (Sethi Decl. ¶ 58.) CWW claims that based on 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 alleges that he was subject to the following unfair treatment.

Plaintiff claims that Morrissey, Lee and others received overtime pay, while he did not. (Oral Arg. Tr. 7:5-7:14; Docket Entry No. 81 at 22-24; Docket Entry No. 84 at 3-4.) Defendants claim that managers including Morrissey and Lee did not generally receive overtime, but Morrissey admits that she received overtime pay once for working on a Saturday. (Morrissey Dep. 69:8-15; 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 subject to this requirement. (Docket Entry No. 81 at 25.) Plaintiff claims that Mor-rissey demanded that Plaintiff produce a doctor’s note whenever he was out of the office due to illness, regardless of how long he was absent, while other employees were only required to produce a doctor’s note if they were out of the office more than two consecutive days due to illness. (Am. Compl. ¶ 33.) At oral argument, Plaintiffs counsel stated that “a letter was put into [Plaintiffs] file indicating that he was not providing a doctor’s note when it was requested.” (Oral Arg. Tr. 5:13-16.) Plaintiff alleges that CWW’s policy was that medical documentation was only required when utilizing un-accrued time-off, and Plaintiff never took un-accrued time-off but was still required to submit medical documentation for his sick time. (Docket Entry No. 80 at 2-3.) According to Defendants, “CWW’s standard policies and procedures required ... medical documentation for any sick time for which an employee had no available accrued paid sick time.” (Def. 56.1 ¶ 38.)

Plaintiff claims that he received only five vacation days while other employees received ten or more. (Docket Entry No. 81 at 30; Docket Entry No. 84 at 9.) Plaintiff also claims that he was only allowed to roll-over three vacation days each year, while other management employees were allowed to roll-over “infinite” vacation days, (Docket Entry No. 81 at 30), and that he was denied payment for vacation days 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 break time, unlike other employees, (Docket Entry No. 81 at 31; Docket Entry No. 84 at 11); he was not provided with business cards, unlike other employees, (Docket Entry No. 81 at 31; Docket Entry No. 84 at 12); he was not reviewed annually and given annual raises unlike other employees, (Docket Entry No. 81 at 31; Docket Entry No. 84 at 12); he was denied compensation for travel mileage, unlike other employees, (Docket Entry No. 81 at 29); and he was forced to use CWW’s hand-scanner attendance system for logging his arrivals and departures at CWW while other employees were not required to hand-scan their arrivals and departures, (id. at 30).

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., 558 Fed.Appx. 89, 89, 2014 WL 943933, at *1 (2d Cir. Mar. 12, 2014); Kwan v. Andalex Grp. LLC, 737 F.3d 834, 843 (2d Cir.2013); Kwong v. Bloomberg, 723 F.3d 160, 164-65 (2d Cir.2013); Redd v. N.Y. Div. of Parole, 678 F.3d 166, 174 (2d Cir.2012). The role of the court is not “to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial.” Cioffi v. Averill Park Cent. Sch. Dist. Bd. of Educ., 444 F.3d 158, 162 (2d Cir.2006) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). A genuine issue of fact exists when there is sufficient “evidence on which the jury could reasonably find for the plaintiff.” Anderson, 477 U.S. at 252, 106 S.Ct. 2505. The “mere existence of a scintilla of evidence” is not sufficient to defeat summary judgment; “there must be evidence on which the jury could reasonably find for the plaintiff.” Id. The court’s function is to decide “whether, after resolving all ambiguities and drawing all inferences in favor of the non-moving party, a rational juror could find in favor of that party.” Pinto v. Allstate Ins. Co., 221 F.3d 394, 398 (2d Cir.2000). The Second Circuit has “cautioned that [w]here an employer acted with discriminatory intent, direct evidence of that intent will only rarely be available, so affidavits and depositions must be carefully scrutinized for circumstantial proof which, if believed, would show discrimination.” Taddeo v. L.M. Berry & Co., 526 Fed.Appx. 121, 122 (2d Cir.2013) (quoting Gorzynski v. JetBlue Airways Corp., 596 F.3d 93, 101 (2d Cir.2010)).

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., 521 F.3d 130, 137 (2d Cir.2008) (quoting Feingold v. New York, 366 F.3d 138, 152 (2d Cir.2004)).

Title VII claims are assessed using the burden-shifting framework established by McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). See e.g., St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 506, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993); Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253-55, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981); United States v. City of New York, 717 F.3d 72, 83-84 (2d Cir.2013) (discussing application of McDonnell Douglas framework to race discrimination claim); Ruiz v. Cnty. of Rockland, 609 F.3d 486, 491-92 (2d Cir.2010) (national origin claims are subject to burden shifting). Under the framework, a plaintiff must first establish a prima facie case of discrimination. Hicks, 509 U.S. at 506, 113 S.Ct. 2742; see also Dowrich-Weeks v. Cooper Square Realty, Inc., 535 Fed.Appx. 9, 11 (2d Cir.2013); Ruiz, 609 F.3d at 491. The plaintiffs burden at this stage is “minimal.” Holcomb, 521 F.3d at 139 (quoting Hicks, 509 U.S. at 506, 113 S.Ct. 2742). If the plaintiff satisfies this initial burden, the burden then shifts to the defendant to articulate a legitimate, nondiscriminatory reason for its actions. Hicks, 509 U.S. at 506-07, 113 S.Ct. 2742; Ruiz, 609 F.3d at 492. The defendant’s burden “is not a particularly steep hurdle.” Hyek v. Field Support Servs., 702 F.Supp.2d 84, 93 (E.D.N.Y.2010). It “is one of production, not persuasion; it ‘can involve no credibility assessment.’” Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000) (quoting Hicks, 509 U.S. at 509, 113 S.Ct. 2742). “If the employer is able to satisfy that burden, the inquiry then returns to the plaintiff, to demonstrate that the proffered reason is a pretext for discrimination.” United States v. City of New York, 717 F.3d at 102. To defeat summary judgment at this stage, “a plaintiff need only show that the defendant was in fact motivated at least in part by the prohibited discriminatory animus.” Henry v. Wyeth Pharm., Inc., 616 F.3d 134, 156 (2d Cir.2010); see also Univ. of Texas Sw. Med. Ctr. v. Nassar, 570 U.S. -, -, 133 S.Ct. 2517, 2522-23, 186 L.Ed.2d 503 (2013) (“An employee who alleges status-based discrimination under Title VII ... [must] show that the motive to discriminate was one of the employer’s motives, even if the employer also had other, lawful motives that were causative in the employer’s decision.”).

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, 673 F.3d 141, 150 (2d Cir.2012); see also Mills v. S. Connecticut State Univ., 519 Fed.Appx. 73, 75 (2d Cir.2013); Ruiz, 609 F.3d at 491-92. Plaintiff was born and educated in India, (Sethi Dep. 9:21-10:19), and is therefore a member of a protected class for race and national origin. See Rajaravivarma v. Bd. of Trustees for Connecticut State Univ. Sys., 862 F.Supp.2d 127, 148 (D.Conn.2012) (finding it undisputed that Indian-born Plaintiff is a member of a protected class for purposes of race and national origin claim); Kureshy v. City Univ. of New York, 561 F.Supp. 1098, 1108 (E.D.N.Y.1988), aff'd, 742 F.2d 1431 (2d Cir.1984) (Indian-born Plaintiffs “national origin clearly placets] him within the class of people protected by Title VIL”). Defendants do not dispute that Plaintiff belongs to a protected class based on his national origin but asserted at oral argument that Plaintiff has not alleged that he belongs to a protected class based on his race. (Oral Arg. Tr. 3:23-4:3.) Plaintiff asserts that his race is Asian, {id. at 3:9-10), a protected class for purposes of a race discrimination claim. See Krishna-pillai v. Donahoe, No. 09-CV-1022, 2013 WL 5423724, at *9 (E.D.N.Y. Sept. 26, 2013) (“Plaintiff is a member of protected classes under Title VII due to his race (Asian) and national origin (Indian)_”); Abraham v. New York City Dep’t of Educ., No. 06-CV-1053, 2009 WL 1194164, at *6 (E.D.N.Y. Apr. 30, 2009) (“[P]laintiff is a member of a protected class based on his Indian national origin [and his] Asian race_”), aff'd in relevant part, 398 Fed.Appx. 633 (2d Cir.2010). Defendants do not dispute that Plaintiff was qualified for his position as MIS Director. (Oral Arg. Tr. 4:4-13.) Defendants assert, however, that Plaintiff cannot demonstrate that he suffered any adverse employment action or that he did so under circumstances giving rise to an inference of discriminatory intent.

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, 548 F.3d 70, 78 (2d Cir.2008). Such action must be “more disruptive than a mere inconvenience or an alteration of job responsibilities.” Brown, 673 F.3d at 150 (quoting Joseph v. Leavitt, 465 F.3d 87, 90 (2d Cir.2006)). “Examples of materially adverse employment actions include 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.” Fein-gold, 366 F.3d at 152 (alteration, citation and internal quotation marks omitted).

Plaintiff was terminated from his employment at CWW but is not claiming his termination as an adverse employment action. (See PI. Opp. Mem. of Law 2.) At oral argument, Plaintiff for the first time identified the following alleged material adverse employment actions: (1) Plaintiffs suspension with pay in February 2010, (Oral Arg. Tr. 15:14-15:24); (2) Defendants’ failure to promote Plaintiff to the CTO position given to Mott, (id. at 46:18-48:20); (3) the alleged physical assault by Narod at the November 2009 meeting, (id. at 8:14-8:20); (4) failure to pay Plaintiff overtime, (id. at 7:5-7:14); (5) requiring Plaintiff to provide medical documentation when he was absent from work due to illness, (id. at 4:22-7:3); (6) placing a memorandum in Plaintiffs personnel file that he gave insufficient notice when he left the office early or was going to be absent from the office, (id. at 7:17-8:1); and (7) placing an entry in PlaintifPs personnel file regarding chronic lateness, (id. at 8:3-8:13). In PlaintifPs subsequent cross-motion for summary judgment, he reasserts that he suffered an adverse employment action when he was not promoted to CTO. (See Docket Entry No. 77 at 5; Docket Entry No. 80 at 1.)

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, 673 F.3d at 150 (quoting Joseph, 465 F.3d at 91). The Court explained that “an employee does not suffer a materially adverse change in the terms and conditions of employment where the employer merely enforces its preexisting disciplinary policies in a reasonable manner.” Id. (quoting Joseph, 465 F.3d at 91). However, the Court recognized that “a suspension with pay may, in some circumstances, rise to the level of an adverse employment action.” Id. To determine if it does, the Second Circuit requires a determination of “whether the employer has simply applied reasonable disciplinary procedures to an employee or if the employer has exceeded those procedures and thereby changed the terms and conditions of employment.” Id. (quoting Joseph, 465 F.3d at 92 n. 1). The Court concluded that “[p]aid suspension during an investigation could thus potentially be adverse if the employer takes actions beyond an employee’s normal exposure to disciplinary policies.” Id. (quoting Joseph, 465 F.3d at 92 n. 1); see also Levitant v. City of New York Human Res. Admin., 914 F.Supp.2d 281, 299 (E.D.N.Y.2012) (“Based on the complete lack of any evidence that plaintiff’s suspension was without pay, otherwise changed the terms and conditions of his employment, or was unreasonable or procedurally flawed, a jury could not find that the suspension constituted a materially adverse employment action.”).

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, 673 F.3d at 150. For purposes of the motions for summary judgment, the Court will assume that Plaintiffs suspension with pay was an adverse employment action.

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, 519 Fed.Appx. at 75 (“failure to promote [plaintiff] constitutes an adverse employment action”); Treglia v. Town of Manlius, 313 F.3d 713, 720 (2d Cir.2002) (recognizing “discriminatory failure to promote falls within the core activities encompassed by the term ‘adverse actions’ ”).

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., 385 F.3d 210, 226-27 (2d Cir.2004) (“A specific application is required to ‘ensure[ ] that, at the very least, the plaintiff employee alleges a particular adverse employment action, an instance of alleged discrimination, by the employer.’ ” (quoting Brown v. Coach Stores, Inc., 163 F.3d 706, 710 (2d Cir.1998))). Merely expressing an interest in a position is insufficient to support a failure to promote claim. Id. (“[E]vidence that a plaintiff generally requested promotion consideration” is insufficient to state a claim for discriminatory failure to promote.); see also Moore v. Metro. Transp. Auth., 999 F.Supp.2d 482, 496, 2013 WL 7759749, at *10 (S.D.N.Y. Aug. 22, 2013) (stating that “merely asserting that on several occasions she or he generally requested promotion” is insufficient to meet the application requirement for a failure to promote claim); Ciulla-Noto v. Xerox Corp., No. 09-CV6451T, 2012 WL 6043882, at *7 (W.D.N.Y Dec. 5, 2012) (“Because plaintiff never applied for the positions she was allegedly prevented from obtaining, she cannot state a claim for retaliatory failure to hire.”); Billups v. Dent Wizard Int’l Corp., No. 05-CV-9356, 2010 WL 2541361, at *8 (S.D.N.Y June 14, 2010) (finding that a “[p]laintiff cannot meet the application requirement for stating a failure to promote claim merely with evidence that he generally requested promotion consideration,” and “[w]hile it is true that the facts of a particular case may sometimes make a specific application a quixotic requirement,” the “exception to the application rule is narrow” (citation and internal quotation marks omitted)); but see Arroyo v. N.Y. Downtown Hosp., No. 07-CV-4275, 2010 WL 3861071, at *4 (E.D.N.Y. Sept. 28, 2010) (noting that “[w]hile a specific application for a promotion is generally required, the rule is not inflexible” and finding that where a plaintiff “sent emails ... expressing his interest in the positions and ... had follow-up conversations ... about them ... a jury could find that by doing so [plaintiff] applied for the positions” (citation and internal quotation marks omitted)).

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 candidates being considered by CWW and what CWW was looking for in a candidate. Plaintiff never applied for the CTO position. (Lee Decl. ¶ 57.) Plaintiff does not recall if he ever responded to Lee’s email. (Sethi Dep. 168:19-168:8.) Plaintiff has failed to present any evidence that he applied for the CTO position after expressing an interest to Narod or ever responded to Lee’s email. The Court finds that Plaintiff has not established that he applied for and was denied the CTO position and as a result Plaintiff cannot show that he suffered a material adverse employment action when he was not promoted to the position.

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, 548 F.3d at 78. “An adverse employment action is ‘a materially adverse change in the terms and conditions of employment.’ ” Id. (quoting Sanders v. N.Y. City Human Res. Admin., 361 F.3d 749, 755 (2d Cir.2004)). “Only in limited circumstances does a single, acute incident of abuse qualify as an adverse employment action.... But we require that the incident constitute an intolerable alteration of the plaintiff’s working conditions, so as to substantially interfere with or impair his ability to do his job.” Id. at 78-79 (citation and internal quotation marks omitted). In Mathi-rampuzha, a supervisor grabbed the plaintiffs arm, punched him in the shoulder and the chest, spit in his face, poked him in the eye, and shouted at him. Id. at 73. The Second Circuit held that “[t]he physical encounter itself, while understandably upsetting, was not so severe as to alter materially the plaintiffs working conditions,” to qualify as an adverse employment action. Id. at 79.

The confrontation between Plaintiff and Narod is similar to the confrontation in Mathirampuzha that the Second Circuit found not to qualify as an adverse employment action. It did not constitute “an intolerable alteration of the [P]laintiff s working conditions, so as to substantially interfere with or impair his ability to do his job.” Mathirampuzha, 548 F.3d at 78-79. Indeed, Plaintiff continued working at CWW after the confrontation for approximately three months until his suspension in February 2010, (Def. 56.1 ¶ 65; PI. Resp. 56.1 ¶ 50), and even expressed interest in being promoted within the Company, (Def. 56.1 ¶ 54; PI. Resp. 56.1 ¶54). The November 2009 incident is not an adverse employment action.

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, 525 Fed.Appx. 28, 81 (2d Cir.2013) (“The loss of overtime hours or pay on the basis of race ... violates Title VII.”); Lawson v. City of New York, No. 10-CV-5238, 2013 WL 6157175, at *7 (E.D.N.Y. Nov. 22, 2013) (noting that the denial of overtime pay is an adverse employment action); Little v. Nat’l Broad. Co., Inc., 210 F.Supp.2d 330, 373 (S.D.N.Y.2002) (finding that the plaintiff satisfied the standard for adverse employment action where he produced evidence of actual loss in income due to lost overtime). Since this is a disputed issue of fact, for purposes of the motions for summary judgment, the Court will assume that Plaintiffs alleged denial of overtime pay is an adverse employment action.

E. Allotted vacation days

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., 123 Fed.Appx. 31, 32-33 (2d Cir.2005) (“An ‘adverse employment action is one that affects the terms, privileges, duration or conditions of employment.’ ” (quoting Yerdon v. Henry, 91 F.3d 370, 378 (2d Cir.1996))); Alfano v. Costello, 294 F.3d 365, 373 (2d Cir.2002) (noting that a materially adverse employment action must have an impact on “some tangible job benefits such as compensation, terms, conditions or privileges of employment.” (citation and internal quotation marks omitted)).

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 employees by being required to provide documentation that he was sick when he took a day off for illness and argues that this treatment constitutes an adverse employment action. (Docket Entry No. 80 at 2-3.) At oral argument Plaintiffs counsel stated that “a letter was put into [Plaintiffs] file indicating that he was not providing a doctor’s note when it was requested.” (Oral Arg. Tr 5:14-6:22.) Plaintiff has not submitted any evidence to support this allegation. At oral argument, Plaintiffs counsel admitted that he could not point to any adverse change in the terms of Plaintiffs employment related to the required medical documentation. (Id. at 19:7-20:7.)

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, 958 F.Supp.2d 461, 479 (S.D.N.Y.2013) (“requiring an employee to provide medical documentation is not a materially adverse action” (alteration and citations omitted)); Solomon v. Southampton Union Free Sch. Dist., No. 08-CV-4822, 2011 WL 3877078, at *8 (E.D.N.Y. Sept. 1, 2011) (requiring plaintiff to submit a doctor’s note for sick leave does not materially change the terms of her employment such that it constitutes an adverse employment action), aff'd, 504 Fed.Appx. 60 (2d Cir.2012); Blake v. Potter, No. 03-CV-7733, 2007 WL 2815637, at *6 (S.D.N.Y. Sept. 25, 2007) (“[N]o reasonable fact-finder could conclude that Plaintiff was subject to ‘adverse employment actions’ as a result of being asked to provide a doctor’s note in connection with a request for sick leave.... [C]ourts in this District have held that an employer’s request for documentation in connection with medical leave does not constitute such an ‘adverse employment action.’ ” (citation omitted)), aff'd, 330 Fed.Appx. 232 (2d Cir.2009).

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, 2012 WL 878306, at *10 (D.Conn. Mar. 14, 2012) (holding that “[a] disciplinary letter does not constitute adverse employment action in a Title VII discrimination claim without some tangible consequence” (collecting cases)); see also Cristofaro v. Lake Shore Central School District, No. 06-CV-0487S, 2011 WL 635263 at *10 (W.D.N.Y. Feb. 11, 2011) (noting that “[c]ourts have held that disciplinary write-ups, whether placed in a personnel file or not, which are not accompanied by any adverse change in the terms and conditions of her employment do not amount to an adverse employment action”); Ludwig v. Rochester Psychiatric Ctr., 550 F.Supp.2d 394, 398 (W.D.N.Y.2008) (holding that alleged disciplinary write-ups placed in the plaintiff’s personnel file did not constitute an adverse employment action where there was no evidence that the “write-ups were accompanied by any adverse changes in the terms and conditions of [the plaintiffs] employment”), aff'd, 347 Fed.Appx. 685 (2d Cir.2009); see also Farina v. Branford Bd. of Educ., 458 Fed.Appx. 13, 17 (2d Cir.2011) (“While negative employment evaluation letters[] or reprimands may be considered adverse employment actions,” that is not the case where there is “no proof that [the] evaluation had any effect on the terms and conditions of [the plaintiffs] employment.” (citations and internal quotation marks omitted)).

(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. (Docket Entry No. 84-3 at 33-42.) But even assuming this is true, Plaintiff has not shown that he was entitled to compensation for unused vacation days after his termination, that he had unused accrued vacation days at the time of his termination, or that he was in fact denied compensation for vacation days that he had accrued and did not use prior to his 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 his health benefits. (Id. (citing Docket Entry Nos. 84-8 at 43-46).) Plaintiff argues that the cost to him for his medical insurance contract exceeded $1,000 per month. (Id.) Plaintiff offers no evidence, apart from his unsworn statement, for his medical insurance costs. Plaintiff does not offer any admissible evidence that the cost of his medical insurance contract exceeded the $280 monthly stipend that CWW provided to him.

(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