This action arises out of plaintiff Joseph Casablanca's claims that his employer, defendant The New York Times Company (the NY Times), discriminated against him based on his age and disability, by issuing him disciplinary warnings and suspensions, in violation of the New York State Human Rights Law (NYSHRL) and the New York City Human Rights Law (NYCHRL). The NY Times moves, pursuant to CPLR 3212, for summary judgment dismissing the amended complaint. It also seeks sanctions, including costs and attorneys' fees, pursuant to 22 NYCRR § 130-1.1, and seeks costs, including attorneys' fees, pursuant to Administrative Code § 8-502 (f).

Plaintiff has been working as a pressman for the NY Times since 1978 and is still currently employed there. Pressmen are responsible for "running and maintaining" the equipment that prints the newspaper. Aff of Defendant's Former Director of Labor Relations (Baker) at 1, ¶ 4.

In June 2010, plaintiff filed a complaint with the New York State Division of Human Rights and the Equal Employment Opportunity Commission (EEOC) alleging that he was discriminated against, based on his age and disability. The EEOC was "unable to conclude that the information obtained establishes violations of the statutes." Affirmation in Support of [*2]Defendant's Counsel, Exh. I at 21 (D000344). Plaintiff also filed a federal lawsuit, which he subsequently voluntarily withdrew.

In his amended complaint herein, plaintiff alleges that he was discriminated against, and subject to disparate treatment and a hostile work environment based on his disability, perceived disability, age and retaliation. Affirmation in Support of Defendant's Counsel, Exh. A, Amended Complaint. The amended complaint refers to plaintiff as having a "record of impairment." Id. at 2, ¶ 6.

Plaintiff describes his disability as the following:

In response to the NY Times's motion, counsel for plaintiff attaches medical records demonstrating that plaintiff suffers from various disc diseases and herniations and eye "abnormalities." Affirmation in Opposition of Plaintiff's Counsel, ¶ 9.

Plaintiff's amended complaint provides the following examples as to how he was subject to disparate treatment and retaliated against for filing his claim with the EEOC:

In his amended complaint, plaintiff describes the issuance of false "craft action" or disciplinary letters, which he contends are discriminatory. Id. at 3-4, ¶ 9. Plaintiff also included these allegations in his EEOC complaint. For example, [*3]plaintiff alleges that, on April 20, 2010, he was suspended for two days without pay when Neroda falsely accused him of reading a NY Post. Affirmation in Opposition of Plaintiff's Counsel, Exh. A, Aff of Plaintiff at 4, ¶¶ 15-17; see Affirmation in Support of Defendant's Counsel, Exh. N, April 20, 2010 Craft Action Letter. Plaintiff further maintains that he was subject to verbal abuse when he was unjustly suspended for seven days without pay when he walked away from the printing press. The latter incident is described as follows:

Due to his alleged eye problems, plaintiff contends that he misread the schedule and did not show up to work at his scheduled time. Id. As a result of not showing up to work, plaintiff was suspended for two days without pay. Id. Plaintiff states, without other explanation, that "other suspensions," such as the ones which occurred on November 4, 2010, March 13, 2010 and in January 2010, were also discriminatory and unjust. Id.

According to plaintiff, there was no legitimate reason for the above listed suspensions. Furthermore, plaintiff maintains that no other employees were subject to the same standards. In his affidavit, plaintiff summarizes, "[t]he discrimination occurred during the period of January, 2010 through 2011, and consisted of verbal abuse and punishment, suspensions from my pressman position and the loss of substantial income, as I was unjustly accused of poor job performance in various Craft Action Letters." Affirmation in Opposition of Plaintiff's Counsel, Exh. A, Aff of Plaintiff at 2, ¶ 4. As a result of the unfair suspensions, plaintiff alleges to have suffered financial losses and emotional harm.

In its motion for summary judgment, the NY Times provides the court with a history of plaintiff's disciplinary actions. Affirmation in Support of Defendant's Counsel, Exh. A, Amended complaint. On January 26, 2010, plaintiff was disciplined for putting the wrong plate on the press. This action violated the "Pressroom Office Rules." Affirmation in Support of Defendant's Counsel, Exh. K. Moreover, plaintiff attempted to deceive the foreman about his mistake. Id.

In February 2010, as referenced by plaintiff above, he failed to show up for work on two dates and did not give his [*4]office any advance notice of this absence. He was given a warning for one absence and a one-shift suspension for the second.^[FN2]

The NY Times claims that, on April 18, 2010, plaintiff was reading the newspaper instead of checking it and making adjustments, like he was supposed to do. As a result, the NY Times newspaper was delayed. Foreman Neroda had to tell plaintiff several times not to read the paper. On April 20, 2010, the shift foreman, John McCabe (John McCabe)^[FN3] wrote a craft action letter explaining what occurred. Plaintiff was given a two-shift suspension for not doing his job and violating pressroom office rules, among other rules.

As referenced by plaintiff, he received a seven-shift suspension when, on April 22, 2010, he was talking and walked away from the printing press without receiving permission first from the appropriate person. Brian McCabe discovered that plaintiff had left his work area and issued a craft action letter, which was signed by the general foreman, Ray Walsh (Walsh).

On November 1, 2010, plaintiff received a ten-shift suspension as a result of two incidents. Plaintiff did not affix the printing plates to their proper positions and also failed to tighten a bolt. This failure resulted in an "unnecessary delay in production of approximately 78 minutes." Affirmation in Support of Defendant's Counsel, Exh. P.

Plaintiff received a fifteen-shift suspension on November 24, 2010, when he failed to affix the plates to their proper positions.

On August 23, 2011, plaintiff again affixed the wrong plate on the press and received a twenty-shift suspension. His mistake allegedly resulted in the production and sale of "24,300" defective copies of the newspaper. Affirmation in Support of Defendant's Counsel, Exh. R.

During his deposition, plaintiff conceded that there was no basis for his claims relating to age discrimination and retaliation. Plaintiff subsequently withdrew all of his claims except the ones relating to discrimination based on his disabilities. He also conceded that he was not monitored by Neroda, nor was he harassed to retire by Baker. Plaintiff testified that there was nothing "physically or mentally interfering with [his] ability to testify truthfully." [*5]Affirmation in Support of Defendant's Counsel, Exh. C, Plaintiff's tr at 7, lines 16-19.

Plaintiff testified that he never "informed" anyone at the "Times" that he had any musculoskeletal problems. Id. at 23, lines 19-24. He testified that he felt like his body just "slowed down a little bit." Id. at 22, lines 24-25. In addition, plaintiff testified that he never asked the NY Times for "any changes or assistance" in his job due to his alleged disability. Id. at 40, lines 21-24.

After receiving a suspension due to "misreading" the schedule, plaintiff got his eyes checked. The eye doctor told plaintiff that he had an "astigmatism" in his eyes. Id. at 24, lines 9-12. Plaintiff testified that he notified management of this alleged disability by "toss[ing]" the prescription under the foreman's office door. Id. at 25, lines 18-22. However, he testified that "the people who gave [him] those craft action warnings" did not know that he had a "problem" with this eyes. Id. at 39, lines 22-25; at 40, lines 2-4. He also testified that, although he put his prescription under the supervisor's door, it never went to the medical department. Id. at 40, lines 6-8.

Plaintiff testified that he never took a disability leave or filed a disability benefits claim. Id. at 75, lines 7-12. Moreover, plaintiff testified that he did not hear any comments related to his asserted disability. Id. at 75, lines 13-15. During a meeting held with management in October 2010, plaintiff told the NY Times that there was no reason that he could not perform his job. Id. at 115, lines 6-9.

During his testimony, plaintiff conceded that none of the disciplinary actions issued against him were due to his alleged disability. Furthermore, plaintiff primarily admitted that he was responsible for all of the negligent actions and that the craft action letters were accurate. When questioned about the craft action letters, he testified that they were all accurate, except for the one dated April 20, 2010. As previously mentioned, in the April 20, 2010 letter, plaintiff was suspended for reading a newspaper, instead of checking the newspaper and making adjustments, causing a print delay. Plaintiff first testified that the incident, for which he was written up by Neroda, did in fact happen. Id. at 99, lines 16-25; at 100, lines 2-4. However he later testified that the incident was actually inaccurate since he did not believe that he caused any delay and that Neroda could not see from so far away what he was doing. When questioned why Neroda would have a craft action letter issued, plaintiff answered, "Maybe he had a bad night. I don't know. . . . I think his father was very sick, . . . ." Id. at 106, lines 11-12, 15-16.

With respect to the craft action letter dated April 27, [*6]2010, which was described in the amended complaint, plaintiff admitted that he left the work area without getting permission from the appropriate person. Contrary to his complaint, plaintiff stated that Brian McCabe, who reported the incident, had temperament problems, which were not just unique to plaintiff. Id. at 109, lines 11-25; at 110, lines 2-22.

When questioned about alleged verbal harassment, plaintiff testified that Neroda never singled plaintiff out. Id. at 110, lines 21-22. According to plaintiff, Neroda yelled at all of the employees in the pressroom and that the room itself was extremely noisy. Id. at 110, lines 14-22; at 135, lines 12-14.

Plaintiff testified that, since he changed shifts approximately 14 months ago, he has not experienced any kind of harassment or discrimination. By harassment, plaintiff testified that he was referring to the issuance of craft action letters. Plaintiff further acknowledged that not just plaintiff, but a number of people, were disciplined when they did not show up for their shifts.

In support of its motion for summary judgment, the NY Times provides an affidavit from Baker, its former Director of Labor Relations. Baker states that he, together with the plant manager, general foreman, and others, participated collectively in disciplinary actions. Plaintiff was suspended eight times between January 26, 2010 and August 23, 2011. Aff of Baker at 2, ¶ 11. According to Baker, in each situation, plaintiff violated one or more of the NY Times pressroom policies, "as determined after investigation by the Labor Relations Department." Aff of Baker at 3, ¶ 12. The punishment was progressively given, starting with warnings and continuing with suspensions of increased duration for additional violations. Id.

According to Baker, at the time the disciplinary letters were given, Baker had no knowledge of plaintiff's alleged disability, nor did he perceive plaintiff to have a disability. Id. at 3, ¶ 13.

In its motion for summary judgment, the NY Times also seeks an imposition of sanctions on plaintiff and his counsel for their alleged frivolous conduct. The NY Times contends that, after plaintiff testified, it requested that plaintiff withdraw his complaint. This request was based on plaintiff's glaring contradictory statements and withdrawal of claims. Since plaintiff refused to withdraw his complaint, the NY Times seeks sanctions, including attorneys' fees and costs, pursuant to 22 NYCRR § 130-1.1 (a). Citing Administrative Code § 8-502 (f), the NY Times maintains that it is also entitled to attorneys' fees and costs under the NYCHRL.

Plaintiff does not provide any support for his claims in his opposition papers. He attempts to refute the testimony given during his deposition by stating that the craft action letters [*7]were false and that he was "unjustly accused of poor job performance." Affirmation in Opposition of Plaintiff's Counsel, Exh. A, Aff of Plaintiff at 2, ¶ 4. He further alleges, contrary to his testimony, that the NY Times knew of his musculosketelal pain syndromes and eye ailments. Id. at 2-3, ¶ 8. His affidavit explains that he realized that he was not correct in his deposition when he stated that he did not inform the NY Times of his disabilities. Id. at 5, ¶ 24.

Counsel for plaintiff alleges in a conclusory manner that there is a clear prima facie case of discrimination. Counsel describes plaintiff as having severe, cognitive impairments and serious physical ailments, which were known to the NY Times. Counsel then provides just one example of this alleged discrimination by attaching an email correspondence between Neroda to Walsh, the general foreman of the pressroom. Counsel describes this email as a "smoking gun," because defendant allegedly refers to plaintiff as a cancer, who should be removed from his position. The email is also cc'd to other foremen. Neroda's email is as follows:

In response to this email, Walsh responded, "I think a [c]raft [a]ction is deserving here. Blatant disregard in following orders. Thanks." Id. Baker responded with the following email:

"The proponent of a motion for summary judgment must demonstrate that there are no material issues of fact in dispute, and that it is entitled to judgment as a matter of law." Dallas-Stephenson v Waisman, 39 AD3d 303, 306 (1st Dept 2007), citing Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 (1985). Upon proffer of evidence establishing a prima face case by the movant, "the party opposing a motion for summary judgment bears the burden of produc[ing] evidentiary proof in admissible form sufficient to require a trial of material questions of fact.'" People v Grasso, 50 AD3d 535, 545 (1st Dept 2008), quoting Zuckerman v City of New York, 49 NY2d 557, 562 (1980). "[M]ere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient." Zuckerman v City of New York, 49 NY2d at 562.

On a motion for summary judgment of dismissal in a discrimination case, a defendant bears the initial burden of producing "evidence that justifies its adverse action against the plaintiff on non-discriminatory grounds." Bennett v Health Mgt. Sys., Inc., 92 AD3d 29, 39 (1st Dept 2011). If the defendant provides evidence of legitimate, nondiscriminatory reasons for its adverse action against plaintiff, the burden shifts to the plaintiff to "to raise a triable issue as to whether these reasons were pretextual by producing evidence tending to show both that the stated reasons were false and that discrimination was the real reason" Melman v Montefiore Med. Ctr., 98 AD3d 107, 120 (1st Dept 2012) (internal quotation marks and citation omitted).

Applying these principles to the case at hand, the NY Times is entitled to summary judgment. Plaintiff's only remaining [*8]claim is one for discrimination based on alleged disabilities, however, the record is devoid of any evidence which supports a claim of disability discrimination. Defendant submitted undisputed evidence of nondiscriminatory motivations for its actions, specifically, credible evidence that plaintiff had repeatedly violated one or more of its pressroom policies, including: putting the wrong plate on the press and denying having done so when questioned about the misplate; improperly setting the registration; repeated absences without any notice; reading a newspaper while on duty instead of checking the newspaper and making adjustments; talking on the job instead of working; leaving the work area without obtaining permission first; repeatedly affixing the wrong plate on the press; failing to tighten a bolt on the press; and failing to affix plates to their proper position on the press. Moreover, plaintiff himself admitted at his deposition that all of the disciplinary actions taken against him were either warranted or were taken for some reason other than his alleged disability, as he admittedly never communicated his alleged disabilities to anyone in management at the NY Times. Affirmation in Support of Defendant's Counsel, Exh. C, Plaintiff's tr at 22, lines 18-25; at 23, lines 2-5, 19-24; at 143, lines 10-15.

Indeed, plaintiff's deposition testimony corroborates the affidavit of defendant's former Director of Labor Relations, Baker, who attests that he had no knowledge of plaintiff's alleged disability, nor did he perceive plaintiff to have a disability, at the time the disciplinary letters were given. Aff of Baker at 3, ¶ 13. Even after multiple warnings and suspensions of gradually increasing duration for subsequent violations, plaintiff's work performance continued to be below expectations, in repeated violation of defendant's pressroom policies. This evidence is sufficient to prove that plaintiff was not a victim of disability discrimination. Furthermore, plaintiff did not present any evidence that defendant's explanations were pretextual, nor offer any evidence that at least one of the reasons proffered by defendant is false, misleading, or incomplete. Bennett v Health Mgt. Sys., Inc., 92 AD3d at 45.

In response to the NY Times's motion, plaintiff provides merely a self-serving affidavit in which he contradicts, in conclusory fashion, his prior statements. However, as the NY Times argues, "[a]ffidavit testimony that is obviously prepared in support of litigation that directly contradicts deposition testimony previously given is insufficient to defeat the motion for summary judgment." Beahn v New York Yankees Partnership, 89 AD3d 589, 590 (1st Dept 2011). It is evident that plaintiff is attempting to create triable issues of fact, and, thus, his affidavit must be disregarded under these circumstances.

Moreover, plaintiff's testimony and the record indicate that plaintiff cannot demonstrate a prima face case of disability discrimination. Pursuant to the NYSHRL and NYCHRL, as stated in Executive Law § 296 (1) (a) and Administrative Code § 8-107 (1) (a), it is an unlawful discriminatory practice for an employer to: refuse to hire or employ, fire, or discriminate against an individual in the terms, conditions or privileges of employment because of the individual's disability. Disability is defined in the NYSHRL as a "physical, mental or medical impairment . . . which prevents the exercise of a normal bodily function . . . [and] which, upon the provision of reasonable accommodations, do[es] not prevent the complainant from performing in a reasonable manner the activities involved in the job or occupation sought or held." Executive Law § 292 (21). Under the NYCHRL, disability is more broadly defined as "any physical, medical, mental or psychological impairment, or a history or record of such impairment." Administrative Code § 8-102 (16) (a).

To establish a case of disability discrimination under both the NYSHRL and NYCHRL, the plaintiff "must demonstrate that he or she suffered from a disability and that the disability caused the behavior for which he or she was terminated." Pimentel v Citibank, N.A., 29 AD3d 141, 145 (1st Dept 2006). Under both the NYSHRL and the NYCHRL, the court applies the burden shifting analysis developed in McDonnell Douglas Corp. v Green (411 US 792 [1973]), where the plaintiff has the initial burden to establish a prima facie case of discrimination. Forrest v Jewish Guild for the Blind, 3 NY3d 295, 305 (2004). This analysis requires plaintiff to set forth that he is a member of a protected class, was qualified for the position, was actively or constructively discharged, and that the discharge occurred under circumstances giving rise to an inference of discrimination. Ferrante v American Lung Assn., 90 NY2d at 629.

If the plaintiff is able to set forth a prima facie case of discrimination, then the burden shifts to the defendants to rebut the presumption by demonstrating that disciplinary action was taken against the plaintiff for a nondiscriminatory reason. Id. If the employer meets this burden, the plaintiff "is still entitled to prove that the legitimate reasons proffered by defendant were merely a pretext for discrimination." Id. at 629-630.

In addition, when analyzing cases brought under NYCHRL, the Appellate Division, First Department, has reaffirmed the applicability of the burden shifting analysis, in addition to the mixed-motive analysis. See Melman v Montefiore Med. Ctr., 98 AD3d 107, 113 (1st Dept 2012) ("an action brought under the NYCHRL must, on a motion for summary judgment, be analyzed both under the McDonnell Douglas framework and the somewhat different [*9] mixed-motive' framework recognized in certain federal cases"). However, on a motion for summary judgment under the NYCHRL, when a defendant has put forth its nondiscriminatory reason for its actions, the court should then refrain from then going back to the question of whether a prima facie case has been made, but proceed to see whether "no jury could find defendant liable under any of the evidentiary routes - - McDonnell Douglas, mixed motive, direct' evidence, or some combination thereof." Bennett v Health Mgt. Sys., Inc., 92 AD3d 29, 45 (1st Dept 2011).

Here, plaintiff testified that no one knew or perceived him to have a disability and that he never requested any accommodations based on his alleged disability of an astigmatism or musculoskeletal problems. As such, even under the broadest of terms, he cannot establish any history of disability. See e.g. Matter of Flores v Doherty, 71 AD3d 405, 406 (1st Dept 2010) (no evidence that employer knew of employee's disability prior to termination); see also Canales-Jacob v New York State Office of Ct. Admin., 640 F Supp 2d 482, 500 (SD NY 2009)("the employer here did not have notice of plaintiff's condition, so there could be no causal connection between her psychiatric condition and the decision to bring her up on charges leading to her termination").Moreover, even if plaintiff could establish that he suffered from a disability, he has not raised a triable issues of fact that the NY Times discriminated against him based on any disability. Plaintiff testified that almost all of the incidents reported were accurate, warranted and not discriminatory but based on his violation of company rules. These violations were documented and collective decisions by management determined plaintiff's progressive discipline. His testimony further concedes that some of the other allegations in the complaint, including being told to whom he could speak, were false.

Plaintiff's one allegation of an inaccurate craft action letter is based solely on a purported factual mistake. Plaintiff does not claim that he was discriminated against by the foreman but that the foreman may have issued the craft action as a result of having a "bad night" with his sick father. Plaintiff testified that this foreman yelled at everyone in the pressroom, not just plaintiff, and that the pressroom was a noisy area.

By referencing an email, plaintiff attempts to use a mixed- motive analysis to claim that there was an inference of discrimination against him. Counsel suggests that plaintiff was referred to as a cancer that should be eliminated from his position. However, a look at the email, which was set forth in the facts, confirms that this email had nothing to do with plaintiff's alleged disability but, rather, was referring to plaintiff's blatant disregard of his supervisor's instructions. The email was presented by counsel out of context and does not reference any medical conditions. In actuality, the email [*10]reaffirms the reasons plaintiff was disciplined; poor job performance and insubordination. The court also notes that plaintiff continues to work for the NY Times.

With respect to that portion of defendant's motion that seeks sanctions, including costs and attorneys' fees, in its discretion, the court will not impose sanctions, albeit somewhat reluctantly, given the circumstances. The NY Times has also requested, as the prevailing party, attorneys' fees and costs, pursuant to Administrative Code § 8-502 (g).^[FN4] However, this request for fees is also denied. Courts, in their discretion, have declined to award fees to a prevailing defendant, despite plaintiff's frivolous Title VII claims. See e.g. Franchitti v Bloomberg, L.P., 411 F Supp 2d 466, 468 (SD NY 2006); see also Christianburg Garment Co. v EEOC, 434 US 412, 422 (1978) (Court discussed potential chill to plaintiffs who believe they are discriminated against and who wish to bring claims, if defendant employer were to be awarded fees). The court, however, will grant defendant the costs on this motion pursuant to CPLR 8106.

Accordingly, it is