Opinion
00 CV 5520 (RCC)
October 2, 2003
OPINION ORDER
Stanislaw Akasmit ("Plaintiff") sued his former employers, 772 Park Avenue Corporation and Brown Harris Stevens, LLC, under the Age Discrimination in Employment Act, 29 U.S.C. § 623(a)(1), 631(a) ("ADEA") and the New York Human Rights Law, N.Y. Exec. Law § 296(1)(a). Plaintiff was an elevator operator in a coop building owned by 772 Park Avenue Corporation and managed by Brown Harris Stevens, LLC ("Defendants"), from 1983 until August 1999. Plaintiff was terminated at the age of sixty-four, and alleges that his age was the motivation for his discharge. Defendants respond that Plaintiff was fired for abusing the company's sick leave policy, excessive absences, and overall poor performance. Defendants bring this motion for summary judgment on the grounds that Plaintiff has failed to establish a prima facie case of age discrimination and that Plaintiff has not met his burden in rebutting Defendants' proffered nondiscriminatory explanation for their action. The Court hereby GRANTS the motion for summary judgment
I. Background
Defendants hired Plaintiff as a passenger elevator operator in 1983. According to his job description, Plaintiff's main duties were to assist the tenants and provide security for the building. (Defendants' Notice of Motion, Exh. U.) Plaintiff received a series of disciplinary letters from 1988 until August 1999, when he was terminated. The letters allege a variety of infractions by Plaintiff, including leaving work early without permission, smoking and reading the newspaper while on duty, failing to wear white gloves and a white shirt that were mandated parts of Plaintiff's uniform, ignoring the lobby telephone, and directing tenants and guests to the self-service elevator instead of taking them up himself. (See id., Exhs. J to O.) In April 1997, Defendants issued Plaintiff another warning notice. (Id., Exh. P.) In this letter, Plaintiff was disciplined for soliciting letters of recommendation from tenants while on the job, for being uncooperative, for telling tenants' children and housekeepers to take the self-service elevator, and for taking sick days proceeding and preceding his regular days off. (Id.)
Defendants' problems with Plaintiff's performance persisted. In January 1998, Defendants issued a warning notice based on Plaintiff's refusal, again, to take tenant's children and housekeepers to their floors in the elevator he was operating, and instead directing them to the self-service elevator. (Id., Exh. Q.) Then, in January 1999, Defendants sent Plaintiff another warning notice for what Defendants termed "a pattern of absenteeism." (Id., Exh. R.) The 1999 letter stated that Plaintiff had called in sick on ten days before or after a regular day off during the year 1998, and had called in sick on Christmas Day for the fifth consecutive year. (Id.) Plaintiff was suspended without pay for three days as a result. (Id.) The 1999 warning marked the third time that Plaintiff had been suspended for poor job performance; he was also suspended in February 1996 and April 1997. (See Id., Exhs. O, P.) Finally, Defendants terminated Plaintiff on August 5, 1999. (Id1, Exh. T.) The letter of termination stated that Plaintiff was fired because of his "continued patterned absences and abuse of sick leave policy." (Id.)
After his discharge, Plaintiff filed a claim with the Equal Employment Opportunity Commission ("the EEOC"), alleging that Defendants unlawfully discriminated against him on the basis of age. (See id., Exh. V.) He claimed that other, younger employees were not treated in the same manner (Id.) After an investigation, the EEOC gave Plaintiff a notice of right to sue. (Id., Exh. W.) Accordingly, Plaintiff filed suit against Defendants under the ADEA and the New York Human Rights Law. Defendants then filed this motion for summary judgment.
II. Summary Judgment Standard
Federal Rule of Civil Procedure 56(c) provides that 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). Summary judgment should only be granted "if after discovery, the nonmoving party has failed to make a sufficient showing on an essential element of its case with respect to which it has the burden of proof"Berger v. United States, 87 F.3d 60, 65 (2d Cir. 1996) (quotingCelotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). When viewing the evidence, the Court must "assess the record in the light most favorable to the nonmovant, resolve all ambiguities and draw all reasonable inferences in its favor." Delaware Hudson Rv. Co. v. Consolidated Rail Corp., 902 F.2d 174, 177 (2d Cir. 1990).
An issue of fact is genuine when "a reasonable jury could return a verdict for the nonmoving party," and such contested facts are material to the outcome of the particular litigation if the substantive law at issue so renders them. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). "If, as to the issue on which summary judgment is sought, there is any evidence in the record from any source from which a reasonable inference could be drawn in favor of the moving party, summary judgment is improper." Chambers v. TRM Copy Centers Corp., 43 F.3d 29, 37 (2d Cir 1994). Only when it is apparent that no rational trier of fact "could find in favor of the nonmoving party because the evidence to support its case is so slight" should a court grant summary judgment. Gallo v. Prudential Residential Services, LP. 22 F.3d 1219, 1223-24 (2d Cir. 1994).
III. Discussion
The ADEA prohibits discrimination in employment on the basis of age when the employee is over the age of forty. 29 U.S.C. § 623(a)(1), 631(a). The analysis of ADEA claims proceeds under the same framework as Title VII cases. Schnabel v. Abramson, 232 F.3d 83, 87 (2d Cir. 2000). Plaintiff first must establish a prima facie case; if Plaintiff does so, Defendants have the burden to produce evidence of a legitimate, nondiscriminatory reason for their action. Id. Plaintiff would then have the burden of proving that age, and not Defendants' offered rationale, was the true reason for his termination. Id. New York courts follow the same framework in evaluating claims under the New York State Human Rights Law. Song v. Ives Labs., Inc., 957 F.2d 1041, 1046 (2d Cir. 1992) (citing New York Court of Appeals cases).
A. Plaintiff's Prima Facie Case
Plaintiff's burden to establish a prima facie case is no Herculean task. See Texas Pep't of Comm. Affairs v. Burdine, 450 U.S. 248, 253 (1981); De La Cruz v. New York Human Resources Admin. Dep't, 82 F.3d 16, 20 (2d Cir. 1995). Under the rubric established by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), Plaintiff must demonstrate that he was (1) within the protected classification, that is, over the age of forty; (2) that he was qualified for the position of elevator operator; (3) that he was fired; and (4) that the termination occurred under circumstances giving rise to an inference of age discrimination. Id. Because the parties agree that Plaintiff was within the protected age group at the time of termination and that he was' in fact terminated, the Court need not dwell on these factors. The points of contention are whether Plaintiff has sufficiently shown that he was qualified for his position and whether circumstances existed giving rise to an inference that Defendants discriminated on the basis of age.
In cases of alleged discriminatory discharge, Plaintiff must show satisfactory job performance. Thornley v. Penton Publ'g, 104 F.3d 26, 29 (2dCir. 1997). However, "[t]he plaintiff need not show perfect performance or even average performance to satisfy this element. He need only show that his performance was of sufficient quality to merit continued employment, thereby raising an inference that some other factor was involved in the decision to discharge him.' Powell v. Syracuse Univ., 580 F.2d 1150, 1155 (2d Cir. 1978). "[T]he ultimate inquiry is whether an employer's performance meets his employer's legitimate expectations." Meiri v. Dacon, 759 F.2d 989, 995 (2d Cir. 1985) (internal quotation marks omitted).
Defendants maintain that Plaintiff's failure to refute their allegations of absenteeism means that Plaintiff has not established his qualifications for the job. (See Defendants' Memorandum of Law ("Defs. Mem.") at 3.) To support this argument, Defendants' submit a series of disciplinary letters dated between July 1988 and August 1999. (See Defs. Notice of Motion, Exhs. J to R, T.) In 1988, Plaintiff was given written warning for failure to appear at his afternoon shift on one occasion, and for leaving the job early on another. (Id., Exh. J.) In 1989, 1990, 1994, and twice in 1996, Plaintiff received warnings for violating employee regulations, (Id., Exhs. K to O.) Defendants issued Plaintiff a "final warning" notice in 1997, in which they suspended Plaintiff for three days for unsatisfactory performance. (Id., Exh. P.) Then, in January 1998, Plaintiff received a second "final warning" stating that he had refused to allow staff members and children to use the elevator. (Id., Exh. Q.) A third "final warning," coupled with another suspension, was issued in January 1999. (Id., Exh. R.) These warnings detail violations of the job description for Plaintiff's position, a job description Plaintiff had read. (See id., Exhs. U, A at 25 ¶¶ 9-10.) Finally, Defendants sent Plaintiff a letter, dated August 5, 1999, communicating his termination. (Id., Exh. T.)
Defendants have presented substantial evidence that Plaintiff's job performance was unsatisfactory. Plaintiff's rebuttal is that he had "numerous good periods mixed in with his unsatisfactory periods." (Plf Mem. of Law in Opposition to Motion for Summary Judgment ("Plf Mem.") at 8.) The Court notes, however, that in the sixteen years that Plaintiff worked for Defendants, Plaintiff was formally disciplined nine times, including three suspensions. (See Defs. Notice of Motion, Exhs. J to R, T.) Plaintiff has the burden, albeit slight, of showing that he was qualified for the job; Plaintiff's history of poor performance belies this notion. The only affirmative evidence that Plaintiff has brought forth regarding his qualifications for the job is a series of handwritten letters purportedly written by building residents. (See Plf. Affidavit in Opposition, Exh. G.) However, these letters are not affidavits within the meaning of Federal Rule of Civil Procedure 56(c).See Sarno v. Douglas Elliman-Gibbons Ives, Inc., 183 F.3d 155, 160 (2d Cir. 1999). Thus, the Court cannot consider them in opposition to Defendants' motion for summary judgment. See Fed.R.Civ.P. 56(e) ("Supporting and opposing affidavits shall . . . set fort such facts as would be admissible in evidence.").
Notwithstanding Plaintiff's lack of evidence demonstrating his qualification, the Second Circuit has warned district courts not to conflate plaintiffs' minimal burden at the prima facie stage with their burden to rebut defendants' legitimate nondiscriminatory explanations.See Powell v. Syracuse Univ., 580 F.2d 1150, 1155 (2d Cir. 1978). As other district courts have noted, there is a danger of confusing the analysis when the defendant cites a lack of qualifications and the plaintiff maintains that the defendant's job criteria are mere pretext. See, e.g., Feder v. Bristol-Myers Squibh Co., 33 F. Supp.2d 319, 327 (S.D.N.Y. 1999). To avoid this risk, the Court will consider the remaining steps in the ADEA analysis even though the Court is not satisfied that Plaintiff has established his qualifications for the job.
Plaintiff must also raise sufficient evidence that the circumstances of discharge give rise to an inference of impermissible discrimination. Defendants protest that he has not met this burden. However, "the mere fact that a plaintiff was replaced by someone outside the protected class will suffice for the required inference of discrimination at the prima facie stage." Zimmerman v. Assocs. First Capital Corp., 251 F.3d 376, 381 (2d Cir. 2001). It is undisputed that Defendants hired a person under the age of forty to replace Plaintiff Therefore, Plaintiff has met his burden on this fourth element.
B. Plaintiff's Evidence Showing Pretext
Defendants must produce evidence of some legitimate, nondiscriminatory reason for firing Plaintiff to rebut Plaintiff's prima facie case.See Schnabel, 232 F.3d at 87. Defendants have established substantial evidence that they terminated Plaintiff for excessive absences and poor work performance. First, there are the numerous disciplinary letters discussed above that detail Plaintiff's failure to adequately perform his duties, as well as deposition testimony regarding the poor performance. (See Defs. Notice of Motion, Exhs. B, J to U.) Second, Brian Flaherty, the building superintendent, testified at his deposition that Plaintiff had a pattern of taking sick days following his days off, leading Flaherty to believe that Plaintiff was not really sick on those days, (Id., Exh. B at 49, 64.) Mr. Flaherty knew this based on a calender he kept for each employee. (See id., Exh. E.) Third, Carl Boehmig, the building property manager, testified as to Plaintiff's deficient performance, including reading newspapers while on duty, failing to answer the lobby telephone, failing to assist residents into the elevator, and directing staff to use the self-service elevator. (Id., Exh. C at 23.) It was Mr. Boehmig who fired Plaintiff. (See id., Exh. T.) This evidence is more than sufficient to establish a legitimate, nondiscriminatory reason for terminating Plaintiff.
Plaintiff has two options in demonstrating that Defendants' stated reason for firing him was pretextual. Plaintiff may show direct evidence that "a discriminatory reason more likely motivated the employer" or he may indirectly satisfy his burden through evidence that Defendants' explanation is not credible." Burdine, 450 U.S. at 256. Plaintiff has chosen the second route. He submits that Defendants' records betray the claim that Plaintiff consistently called in sick on Christmas. (See Plf. Mem. at 13.) Furthermore, Plaintiff cites the lack of formal discipline regarding absenteeism as evidence of pretext. (Id.) He also states that Defendants concede Plaintiff was "not a consistently unsatisfactory employee," although Plaintiff provides no citation to where in the record Defendants make such concession. (Id. at 13.) Finally, Plaintiff contends that a decision of the New York State Unemployment Insurance Appeal Board aids his cause. (Id.) In the decision, an Administrative Law Judge concluded, as a matter of New York law, that Plaintiff was entitled to unemployment compensation. (See PLf. Affidavit in Opposition, Exh. I.)
Plaintiff's proof of pretext is weak. Reading the record in the light most favorable to Plaintiff, the only issue of fact that Plaintiff raises is whether he had a habit of calling in sick on Christmas Eve and Christmas Day. Plaintiff marshals no evidence to support the view that Defendants' dissatisfaction with Plaintiff's performance, illustrated by the nearly annual disciplinary letters, was mere pretext to cloak invidious age discrimination. Plaintiff can find no solace in the New York Unemployment Compensation Board's opinion to raise triable issues of fact because it is almost exclusively a legal conclusion devoid of facts that may be considered under Federal Rule of Civil Procedure 56. The Court must ignore conclusions of law submitted in support of or in opposition to a motion for summary judgment. See Flair Broad. Corp. v. Powers, 733 F. Supp. 179, 183 (S.D.N.Y. 1990):Chambliss v. Masters, Mates Pilots Pension Plan, 571 F. Supp. 1430, 1459 (S.D.N.Y. 1983).
It is difficult for the Court to be clear on the Plaintiff's view on what facts are in dispute because Plaintiff failed to submit a proper Rule 56.1 Statement. Neither of Plaintiff s two documents labeled as Rule 56.1 Statements aids the Court. Unfortunately, Plaintiff seems to have taken the Rule 56.1 Statement as an opportunity to supplement his memorandum in opposition to Defendants' motion. The Statement isnot another occasion for argument, but rather a "short, concise statement of the material facts as to which it is contended that there exists a genuine issue to be tried." Local Civ. R. 56.1.
Even if Plaintiff's evidence was sufficient to allow a reasonable jury to disbelieve that Defendants fired Plaintiff due to excessive absences and poor work performance, he is still unable to prove pretext. See St. Mary's Honor Center v. Hicks, 509 U.S. 502, 515 ("[A] reason cannot be proved to be a `pretext for discrimination' unless it is shown both that the reason was false, and that discrimination was the real reason.") Plaintiff must show evidence that would allow a reasonable trier of fact to draw an inference that Defendants' explanation is pretextual. See Meiri, 759 F.2d at 998. In Meiri, the Court granted summary judgment where the plaintiff did not offer evidence suggesting that employees not within her protected classification acted similarly but were not fired, or that her employer failed to follow its normal policies in terminating her. Id. Similarly, Plaintiff fails to explain how he was disparately treated as compared to those under the age of forty who worked for Defendants. Indeed, Defendants' evidence suggests that many of the building's employees fell within the ADEA's embrace, and employees much younger than Plaintiff were terminated for similar reasons. (See Defs. Notice of Motion, Exhs. B at 89-91, H.) In addition, Plaintiff does not challenge Mr. Flaherty's assertion that the progressive disciplinary approach Defendants employed with regard to Plaintiff was Defendants' normal procedure. (See id., Exh. B at 36.) Thus, Plaintiff has not produced sufficient evidence to suggest that Defendants' stated reasons for his termination were false. However, further analysis demonstrates that even if Plaintiff were successful in his rebuttal, summary judgment still would be appropriate.
C. Plaintiff's Ultimate Burden of Persuasion
Plaintiff has not produced sufficient evidence of discrimination to avoid summary judgment. The Second Circuit has instructed: "[I]n some circumstances the prima facie case and/or evidence of falsity might give powerful evidence of discrimination . . . but in others, the two together might fall short of providing evidence from which a reasonable inference of discrimination could be drawn." James v. New York Racing Assoc., 233 F.3d 149, 154 (2d Cir. 2000). Thus, a plaintiff's establishment of a prima facie case and rebuttal of a nondiscriminatory reason for the adverse action do not save the plaintiff from summary judgment when there is insufficient evidence of discrimination. See McCarthy v. New York Tech. College, 202 F.3d 161, 166 (2d Cir. 2000). The question is, "whether on the basis of that evidence, a factfinder could reasonably find the essential elements of a case of discrimination." Id. The Court holds that Plaintiff has not met the standard articulated inJames.
The Court undertakes this analysis assuming, arguendo, that Plaintiff has established that he was qualified for the position and adequately demonstrated pretext.
Searching the record in a manner favorable to Plaintiff yields nearly no evidence that Defendants considered Plaintiff's age when firing him. Defendants do admit that Plaintiff was replaced by an employee under the age of forty, but that is the only fact that supports Plaintiff's claim. Plaintiff devotes his entire Memorandum of Law to rebutting Defendants' allegations of absenteeism and abuse of the sick-leave policy. While the Court does not expect Plaintiff to appear before it with a "smoking gun," there must be enough evidence on which a rationale jury could base a finding of discrimination. Cf Rosen v. Thornburgh 928 F.2d 528, 533 (2d Cir. 1991) (stating that an employee is usually without a smoking gun, or direct evidence of discrimination, and therefore must rely on the cumulative weight of circumstantial evidence).
In contrast to Plaintiff, Defendants have produced affirmative evidence that they did not engage in invidious discrimination. Individuals over forty made up the majority of the workforce in Plaintiff's building. (See Defs. Notice of Motion, Exhs. B, H.) This fact cuts against Plaintiff's claim of discrimination. See Offutt v. Gannett Satellite Info. Network, Inc., 1998 WL 872443 at *3 (S.D.N. Y. Dec. 14, 1998) (holding the fact that more than one-third of the employees in plaintiff's department were black suggested no discrimination). Defendants also have produced evidence that they terminated employees under the age of forty for pattern absenteeism.(See Defs. Rule 56:1 Statement; Defs. Notice of Motion, Affidavit of Brian Flaherty at 3.) Plaintiff, on the other hand, introduces no instances of age-related comments by Defendants' agents nor any evidence that Flaherty and Boehmig discussed his age as a reason to fire Plaintiff. See Schnabel, 232 F.3d at 91 (concluding that such factors strongly suggest invidious discrimination). "In short, the several scraps of evidence on which the plaintiff's case depends do not sufficiently support the inference that the defendant[s] acted by reason of plaintiff s age." McCarthy, 202 F.3d at 166.
For the foregoing reasons, Defendants' motion for summary judgment is hereby GRANTED. The Clerk of the Court is directed to close this case and remove it from the Court's active docket.
SO ORDERED.