Opinion
01 Civ. 9279 (SHS)
December 5, 2002
OPINION AND ORDER
Jerry Molin brought this action against his former employer — defendant Permafiber Corp. — and Alan Shapiro, President of Permafiber, alleging employment discrimination based on age in violation of(i) the Age Discrimination in Employment Act of 1967 ("ADEA"), 29 U.S.C. § 621 et seq.; (ii) the New York State Human Rights Law, as amended, New York Executive Law § 296 et seq.; and (iii) the New York City Human Rights Law, as amended, New York City Administrative Code § 8-107 et seq. Permafiber and Shapiro have now moved for summary judgment in their favor pursuant to Fed.R.Civ.P. 56. For the reasons set forth below, defendants' motion is granted.
I. BACKGROUND
Molin joined Permafiber in January 1990, at age 55, as Controller/Chief Financial Officer and held that position until October 2000. (First Amended Complaint ("Complaint") at ¶ 9; Defendants' Rule 56.1 Statement of Facts ("Def. Stint.") at ¶ 2). While at Permafiber, Molin supervised, and was responsible for, a staff of 4-6 employees in functional areas such as accounts receivable, accounts payable, billing, inventory/costing and bookkeeping/payroll. (Def. Stint. at ¶¶ 17, 20; Molin's Rule 56.1 Statement of Facts ("Molin Stmt.") at ¶¶ 17, 20). Banking and the tracking of money were two of Molin's "major functional responsibilities." (Def. Stint. at ¶ 23; Molin Stmt. at ¶ 23). Molin reported "directly and exclusively" to the President, as did the other senior managers at Permafiber. (Def. Stint. at ¶¶ 15, 35; Molin Stmt. at ¶¶ 15, 35). The other senior managers were, at the time of Molin's termination, ages 36, 42, 52, 59 and 63. (Resnick Aff., Ex. B). Throughout his employment, Molin commuted two hours each way from his home outside Philadelphia to work in New York City. (Molin Aff. at ¶ 1; Molin Dep., annexed to the Resnick Aff. as Ex. A at 62-63).
Alan Shapiro assumed the position of President of Permafiber in 1995 after the retirement of his father, Ronald Shapiro. (Def. Stint. at ¶¶ 9, 10; Molin Stmt. at ¶¶ 9, 10). Molin alleges that, prior to 1995, he was never criticized, rebuked or warned about his job, nor was his "performance even under scrutiny," (Molin Aff. at ¶¶ 3), but Alan Shapiro began critiquing Molin in memos and e-mails in 1997. (Molin Aff. at ¶ 7; Shapiro Dep., annexed to the Resnick Aff. as Ex. H at 153 — 156). However, these memos and e-mails apparently did not impact upon his performance evaluations because, as late as January 1999, Shapiro thanked Molin for his "excellent performance" and informed him that he was raising his salary "consistent with high-end performance" and consistent with other senior managers. (Resnick Aff., Ex. F).
Molin's compensation consisted of a base salary plus a bonus determined by Shapiro. (Def. Stint. at ¶ 44; Molin Dep., annexed to the Resnick Aff. as Ex. A at 78). In early 1997, Shapiro informed Molin that the formula for determining his bonus would be changed because Molin "didn't contribute to sales" or influence gross profit or expenses. (Molin Dep., annexed to the Resnick Aff. as Ex. A at 77). Molin contends that the changed bonus formula impacted negatively on his bonus and was part of Shapiro's "campaign" of age discrimination. (Molin Aff. at ¶ 11). Although Molin's 1997 bonus was second highest among six senior managers, it dropped to fourth highest in 1998 and sixth, and last, in 1999. (Resnick Aff., Ex. B).
One of Molin's banking responsibilities was proper and timely maintenance of bank balances and reconciliations. (Def. Stmt. at ¶ 67; Molin Stmt. at ¶ 67). Molin concedes that, towards the end of 1999 and continuing through 2000, the reconciliation statements fell behind schedule and there were accounts receivable and accounts payable problems with several Permafiber customers and suppliers. (Def. Stint. at ¶¶ 68, 72; Molin Stmt. at ¶ 68, 72; Molin Dep., annexed to the Hartz Aff. as Ex. C at 187). Molin also concedes that he fell behind schedule in the preparation and submission of Permafiber's monthly financial statements. (Def. Stmt. at ¶ 78; Molin Stmt. at ¶ 78). Molin contends that the untimely reconciliation statements and financial statements and the problems with the accounts were due to a significantly greater workload on him resulting from the departure of a staffer due to Parkinson's disease in 1997, and the sudden death of another key employee in 2000. (Molin Aff. at ¶¶ 4, 5; Molin Dep., annexed to the Hartz Aff. as Ex. C at 148). Molin also contends that Shapiro was responsible for some of the account problems, and, regardless, he had successfully resolved many of the problems prior to his termination. (Molin Stmt. at ¶¶ 7 1-77; Molin Aff. at ¶ 7).
Molin's timely resolution of these problems was also allegedly hindered by Shapiro asking Molin to perform "menial clerical tasks," such as researching the returns of a major customer and explaining the company's benefits to new employees, that took valuable time away from Molin's efforts to provide timely reports. (Molin Dep., annexed to the Resnick Aff. as Ex. A at 290-293).
Molin concedes that his relationship with at least one other senior manager was "contentious" during 1999 and 2000, and that others "went out of their way to make conflict with me." (Molin Stmt. at ¶ 94; Molin Aff. at ¶ 6).
Beginning in 1999, Shapiro made several allegedly "ageist" comments towards Molin, including telling Molin in January 2000 that Shapiro "had to pay younger people more money because they were the future of the company and he wasn't." (Molin Dep., annexed to the Resnick Aff. as Ex. A at 140). On another occasion, Molin told Shapiro that he wanted to take notes at a meeting, to which Shapiro responded that "it's okay for you to take notes . . . because [you are] older now and . . . can't be expected to remember like [you] did before." (Id. at 198). Shapiro also asked Molin what his plans were for retirement and, on his final day of employment, told him that "it would be good for you to get a job less stressful, less demanding, closer to home." (Id. at 139, 200).
Molin felt obligated to attend and participate at "youth-oriented" activities after work, such as "making merry" at Yankees games, going bowling and watching basketball games. (Id. at 272-273; Molin Dep., annexed to the Hartz Aff. as Ex. C at 275). Molin's attendance at these activities was, he believed, a "condition of employment basically" and embarrassed him due to his age. (Molin Dep., annexed to the Resnick Aff. as Ex. A at 272). It was difficult for Molin to stay up late partaking in these activities due to his "long commute" and because, in his own words, "the older I get, the more sleep I find I need." (Molin Aff. at ¶ 9). Also, physical activities such as bowling caused him to "feel poorly" due, in part' to the fact that he was "not quite as agile or coordinated as [he] used to be." (Id.).
Molin also alleges that sales accounts were taken from certain older employees and given to younger employees based on their age differences, (Molin Dep., annexed to the Resnick Aff. as Ex. A at 257-259), and that many employees hired by Shapiro were substantially younger than Molin. (Complaint at ¶ 16; Resnick Aff., Ex. C).
On October 18, 2000, Shapiro informed Molin that he had been replaced, telling Molin that "you know why. I'm not going to get into the reasons again." (Molin Aff. at ¶ 19). Shapiro told Molin that he would inform other employees that Molin had retired in order for Molin to "avoid humiliation or embarrassment," but Molin did not consider "retired" a fair characterization of his departure and told people, when asked, that he was fired. (Id.)
Molin's replacement at Permafiber was a 57 year old male, 9 years younger than Molin at the time of his departure at age 66.
Following his termination, Molin filed a complaint with the EEOC, in which he alleged discrimination on the basis of his age. (Complaint at ¶ 4). He received a Right to Sue letter from the EEOC in June 2001, and commenced this action shortly thereafter, alleging that defendants discriminated against him on the basis of his age and that they had created a hostile work environment. As noted above, Permafiber has now moved for summary judgment pursuant to Fed.R.Civ.P. 56 on all claims.
II. DISCUSSION
Summary judgment may be granted "only when the moving party demonstrates 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.'"Allen v. Coughlin, 64 F.3d 77, 79 (2d Cir. 1995) (quoting Fed.R.Civ.P. 56(c)); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). The Court must "view the evidence in the light most favorable to the non-moving party and draw all reasonable inferences in its favor, and may grant summary judgment only when "no reasonable trier of fact could find in favor of the nonmoving party.'"Allen, 64 F.3d at 79 (citations omitted) (quoting Lund's. Inc. v. Chemical Bank, 870 F.2d 840, 844 (2d Cir. 1989)).
Molin alleges violations of the ADEA, which proscribes discrimination against an employee because of his or her age. See Galabya v. New York City Bd. of Educ., 202 F.3d 636, 639 (2d Cir. 2000). ADEA protection extends to employees who are at least forty years old. 29 U.S.C. § 631(a). Claims made pursuant to the New York State Human Rights Law and the New York City Human Rights Law are subject to the same analysis as claims brought pursuant to the ADEA. See Cruz v. Coach Stores. Inc., 202 F.3d 560, 565 n. 1 (2d Cir. 2000) ("Our consideration of claims brought under the state and city human rights laws parallels the analysis used in Title VII claims."); Leopold v. Baccarat. Inc., 174 F.3d 261, 264 n. 1 (2d Cir. 1999); Van Zant v. KILM Royal Dutch Airlines, 80 F.3d 708, 714-15 (2d Cir. 1996).
A. Discrimination Claim
The analytical framework for evaluating these claims is the three-step burden shifting analysis enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04, S.Ct. 1817, 1824-25, 36 L.Ed.2d 668 (1973). Initially, plaintiff must establish a prima facie case of discrimination by showing that (1) he was in the protected age group; (2) he was qualified for the position; (3) he suffered an adverse employment decision; and (4) the adverse employment decision occurred under circumstances giving rise to an inference of discrimination. See id.; see also, Norton v. Sam's Club, 145 F.3d 114, 118 (2d Cir. 1998). Once plaintiff has established a prima facie case, the burden then shifts to the defendant, who must articulate a "legitimate, nondiscriminatory reason" for its actions. McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. at 1824. If defendants satisfy this burden of production, plaintiff "shall have the ultimate burden to prove that the employer's reason was a mere pretext for discrimination" by setting forth "adequate evidence to support a rational finding that the legitimate non-discriminatory reasons proffered by the employer were false," and that "more likely than not" the employee's membership in a protected class was the real reason for the termination. Holt v. KMI-Continental, Inc., 95 F.3d 123, 129 (2d Cir. 1996); Viola v. Phillips Medical Systems of North America, 42 F.3d 712, 717 (2d Cir. 1994).
1. Prima Facie Case
As Permafiber and Shapiro concede, there is no dispute as to the first three prima facie elements. Molin is within the protected age group, he was qualified for his position and his employment was terminated. The remaining element is whether Molin's termination occurred under circumstances giving rise to an inference of discrimination.
Molin has established the "minimal" burden of asserting a prima facie case of age discrimination. See Roge v. NYP Holdings. Inc., 257 F.3d 164, 168 (2d Cir. 2001) (citing James v. New York Racing Ass'n, 233 F.3d 149, 153 (2d Cir. 2000). Molin's replacement was 57 years old — 9 years younger than he. Such an age difference, at least when the replacement worker is also a member of the protected class, may not by itself be sufficient to meet the prima facie burden, but it is of probative value and, in combination with other factors, can support an inference of age discrimination. See O'Connor v. Consolidated Coin Caterers Corp., 517 U.S. 308, 313, 116 S.Ct. 1307, 1310, 134 L.Ed.2d 433 (1996) (holding plaintiff need not be replaced by someone outside protected class to make case for age discrimination); Montana v. First Federal Sav. and Loan Ass'n of Rochester, 869 F.2d 100, 104-05 (2d Cir. 1989); Dedyo v. Baker Engineering New York, Inc., 1998 WL 9376, *5 n. 5 (S.D.N.Y. Mar. 11, 1998).
Here, Molin also alleges that younger workers were treated more favorably than similarly situated older workers, in that certain older workers had their sales accounts taken away and given to younger workers. Molin also alleges that he was assigned menial tasks and his bonus structure was adversely changed, while other senior managers maintained their bonus structure. In addition, defendants made several remarks that, when placed in context with Molin's other allegations, could be interpreted as being reflective of age discrimination. All these factors, in combination, are sufficient to support an inference of discrimination. Thus, Molin has met his "minimal" burden of establishing a prima facie case under the McDonnell Douglas framework. See Chertkova v. Connecticut Gen'l Life Ins. Co., 92 F.3d 81, 91 (2d Cir. 1996) (noting that the fourth element set forth in the McDonnell Douglas analysis is flexible and can be satisfied in a variety of ways).
2. Non-Discriminatory Reasons
As set forth above, the burden pursuant to McDonnell Douglas therefore shifts to Permafiber and Shapiro to present legitimate, non-discriminatory reasons for Molin's termination. "The employer need not persuade the court that it was motivated by the reason it provides; rather, it must simply articulate an explanation that, if true, would connote lawful behavior." Greenway v. Buffalo Hilton Hotel, 143 F.3d 47, 52 (2d Cir. 1998); Dister v. Continental Group. Inc., 859 F.2d 1108, 1115 (2d Cir. 1988). Specifically, as set forth above, defendants allege, and plaintiff admits, that during 1999 and 2000, he fell behind schedule in providing bank balances and reconciliations statements and monthly financial statements. There were also a number of problems with accounts receivable and accounts payable, functional areas that Molin was responsible for. Molin does not dispute that problems in his department led to delays in reporting and accounting issues. Therefore, Permafiber has set forth legitimate and non-discriminatory reasons for its decision to terminate plaintiff. Pursuant to McDonnell Douglas, the burden returns to Molin to raise a triable question of fact as to whether defendants' asserted reasons are a pretext for discrimination. See, e.g., McDonnell Douglas, 411 U.S. at 804, 93 S.Ct. at 1825; St. Mary's Honor Center v. Hicks, 509 U.S. 502, 510-11, 113 S.Ct. 2742, 2749, 125 L.Ed.2d 407 (1993); Maniatas v. New York Hospital-Cornell Medical Center, 58 F. Supp.2d 221, 226 (S.D.N.Y. 1999).
3. Pretext for Discrimination
Plaintiff asserts that defendants' reasons are pretextual. However, to survive summary judgment, "[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." Hicks, 509 U.S. at 515, 113 S.Ct. at 2752 (emphasis in original). In that regard, Molin has not produced adequate evidence to support a rational finding that defendants' articulated reason for his dismissal was false or "was merely a pretext for discrimination." "[A]lthough the presumption of discrimination 'drops out of the picture' once the defendant meets its burden of production, the trier of fact may still consider the evidence establishing the plaintiffs prima facie case "and inferences properly drawn therefrom . . . on the issue of whether the defendant's explanation is pretextual.'"Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143, 120 S.Ct. 2097, 2106, 147 L.Ed.2d 105 (2000) (citations omitted).
As set forth above, since 1999, Shapiro made several allegedly "ageist" comments to Molin. In addition, Molin alleges that his bonus formula adjustment was based on age discrimination and that sales accounts were taken from certain older employees and given to younger employees based on their age differences. Molin also contends that many employees hired by Shapiro since 1995 were substantially younger than Molin, that he was ordered to do menial tasks" and that his "mandatory" attendance at "youth oriented activities" was age discrimination.
However, this evidence is inadequate and does not support a rational finding that the legitimate non-discriminatory reasons proffered by defendants were false, and that "'more likely than not' the employee's membership in a protected class was the real reason for the termination." Hicks, 509 U.S. at 515, 131 S.Ct. at 2751 (citations omitted). Two of Shapiro's statements could rationally be considered ageist: He "had to pay younger people more money because they were the future of the company and [Molin] wasn't," (Molin Dep., annexed to the Resnick Aff. as Ex. A at 140), and "it's okay for you to take notes . . . because [Molin was] older now and . . . can't be expected to remember like [he] did before." (Id. at 198). With respect to Shapiro asking Molin about his retirement plans, "an employer may make reasonable inquires into the retirement plans of its employees." Cox v. Dubuque Bank Trust Co., 163 F.3d 492, 497 (8th Cir. 1998); Raskin v. Wyatt Co., 125 F.3d 55, 62-63 (2d Cir. 1997). Contrary to plaintiff's assertions, Shapiro asking Molin about his retirement plans after looking into a possible replacement was not unreasonable given that Shapiro was concerned about Molin's work performance. See Lorans v. Crew, 2000 WL 1196745, *4 (S.D.N.Y. Aug. 23, 2000) ("[a] discussion of possible retirement is in fact consistent with the idea that there had been difficulties with plaintiff and that the [employer] was seeking a way to resolve the situation.").
In addition, Shapiro's statement, made on the final day of Molin's employment, that "it would be good for you to get a job less stressful, less demanding, closer to home," (Molin Dep., annexed to the Resnick Aff. as Ex. A at 200), could not rationally, in context, be construed as an ageist statement. Molin had previously told Shapiro about his "relief' at being terminated due to all of the pressure that [Shapiro] was putting on me and all the problems I had," (Molin Dep., annexed to the Hartz Aff. as Ex. C at 2 18-19), and noted that Shapiro was aware of Molin's two hour commute and early morning arrival at work. (Molin Dep., annexed to the Hartz Aff. as Ex. C at 62-66; Shapiro Dep., annexed to the Resnick Aff. as Ex. H at 46). Merely acknowledging these non-age related factors could not rationally transform Shapiro's statement into age discrimination.
With respect to plaintiffs revised bonus formula, plaintiff in fact received higher bonuses than three senior managers in 1997 and two senior managers in 1998. (Resnick Aff., Ex. B). Even in 1999, Molin's bonus was only 3% less than the next highest bonus, that of an employee not in the protected class. Id. In addition, his bonuses in 1998 and 1999 were actually higher than in 1996, when he was not subject to the revised formula. Id.
In addition, the employee who replaced him was subject to the same bonus formula. (Def. Stint. at ¶ 114).
Molin claims that "almost all new hires after Shapiro's tenure as President began in 1995 consisted of young persons." (Complaint at ¶ 16). A plaintiff may support an inference of discrimination by demonstrating that similarly situated employees were treated more favorably. See Smith v. Xerox Corp., 196 F.3d 358, 370 (2d Cir. 1999);Slumway v. United Parcel Service. Inc., 118 F.3d 60, 64 (2d Cir. 1997). However, even if Molin's allegation is true, it does not support an inference of age discrimination because Molin makes no claim that these new hires were in his peer group of senior managers, or even managers generally. Rather, the only evidence supporting this claim is a list of all Permafiber employees with their corresponding birth dates and starting dates. (Resnick Aff., Ex. C). In fact, a review of the list reveals that all the senior managers, Molin's peer group, were hired before Shapiro became President in 1995. (Resnick Aff., Ex. B and Ex. C). See Slumway v. United Parcel Service, Inc., 118 F.3d 60, 64 (2d Cir. 1997); Norville v. Staten Island Univ. Hosp., 196 F.3d 89, 96 (2d Cir. 1999) ("for employees to be "similarly situated" . . . they must have been subject to the same standards governing performance evaluation and discipline, and must have engaged in conduct similar to the plaintiffs.") (citations omitted); Faldetta v. Lockheed Martin Corp., 2000 WL 1682759, * 10 (S.D.N.Y. Nov. 9, 2000) ("[Plaintiff's] attempt to compare himself to employees with different functions and titles is misplaced, because these employees were not similarly situated to [plaintiff] and do not provide a basis of comparison upon which he can now claim age discrimination.").
Similarly, Molin also alleges that certain sales accounts held by older employees were reassigned to younger employees. (Molin Dep., annexed to the Resnick Aff. as Ex. A at 257-259). However, even if true, these employees are not "similarly situated" to Molin such that any reassignment would constitute age discrimination against Molin.
Molin claims that he was assigned "menial clerical tasks" which impacted negatively on his ability to stay current in his job responsibilities. (Molin Aff. at ¶ 16; Molin Dep., annexed to Resnick Aff. at Ex. A at 290-293). The U.S. Court of Appeals for the Second Circuit has found that "prohibition against discrimination . . . includes discriminatorily-motivated diminution of duties." Preda v. Nissho Iwai Amer. Corp., 128 F.3d 789, 791 (2d Cir. 1997) (citing de la Cruz v. New York City Human Resources Admin. Dep't of Soc. Serv., 82 F.3d 16, 21 (2d Cir. 1996)). However, Molin concedes that Shapiro did not forbid the delegation of those tasks and that he had responsibility "to manage his department functions and personnel effectively and acceptably, including how they functioned and performed." (Molin Dep., annexed to the Resnick Aff. as Ex. A at 291; Def. Stmt. at ¶ 20; Molin Stmt. at ¶ 20). Even assuming that Shapiro assigned Molin two tasks not commensurate with Molin's position at Permafiber, Molin was nonetheless responsible for employing workers in his department capable of satisfactorily performing the tasks. Therefore, a rational trier of fact could not conclude that the assignment of "menial clerical tasks" constituted age discrimination in this context.
Molin also claims that defendants' insistence that older employees engage in "youth oriented social activities" constitutes age discrimination. (Molin Aff. at ¶ 9; Molin Dep., annexed to the Resnick Aff. at 271-273). Although attendance at these activities may have been "embarrassing" to Molin, (Molin Aff. at ¶ 9), his embarrassment does not constitute age discrimination when Molin presents no adequate evidence supporting his subjective view that defendants intended to discriminate against him on the basis of age by requiring his attendance at sporting events. See Smith v. American Express Co., 853 F.2d 151, 154-55 (2d Cir. 1988) (conclusory and unsupported allegations insufficient to show employer's justifications to be a pretext for discrimination).
The Court does not address the issue of whether activities such as bowling, or watching basketball and baseball, are in fact "youth oriented social activities."
In support of his claim of age discrimination, plaintiff submits an email from Shapiro that states "we had a fun time at the Yankee game last night. It was noted by a few that not a single representative from the acct group participated." (Resnick Aff., Ex. I). This "evidence" clearly fails to even remotely establish any intentional age discrimination against Molin by defendants.
Taking into consideration all reasonable inferences to which Molin is entitled, he has created no triable issue of fact as to whether defendants' reasons for terminating him were false, let alone that the real reason for his termination was age discrimination. "[i]t is not enough. . . to dis believe the employer, the factfinder must believe the plaintiff's explanation of intentional discrimination." Reeves, 530 U.S. at 147, 120 S. Ct at 2108 (italics in original) (citations omitted). Plaintiff's evidence, although sufficient to survive the lenient "prima facie" hurdle, does not, in the context of the entire record, support a claim of age discrimination. Whether defendants made a wise or competent decision to terminate Molin is not for this Court to consider, as federal courts do not have a "roving commission to review business judgments."Montana v. First Fed. Savings and Loan Ass'n, 869 F.2d 100, 106 (2d Cir. 1989). As a result, summary judgment should be granted in defendants' favor on this claim.
B. Hostile Work Environment Claim
In order to prevail on a hostile work environment claim against his employer, plaintiff must show "(1) [his] workplace was permeated with discriminatory intimidation that was sufficiently severe or pervasive to alter the conditions of [his] work environment, and (2) that a specific basis exists for imputing the conduct that created the hostile environment to the employer." Murray v. New York College of Dentistry, 57 F.3d 243, 249 (2d Cir. 1995) (citations omitted).
As mentioned previously, the analysis of the discrimination claims, specifically the hostile working environment theory of discrimination, is the same pursuant the ADEA as it is pursuant to Title VII and New York law. See Van Zant, 80 F.3d at 714-15.
"The first prong of this test requires that the environment "would reasonably be perceived, and is perceived, as hostile or abusive." Harris v. Forklift Systems, Inc., 510 U.S. 17, 22, 114 5. Ct. 367, 370 126 L.Ed.2d 295 (1993) (citations omitted). This determination "is not, and by its nature cannot be, a mathematically precise test"; rather, it requires an evaluation of all the relevant circumstances, including the frequency and severity of the conduct, whether the conduct was threatening or humiliating as opposed to merely being offensive, and whether it interfered unreasonably with the plaintiff's work performance. Id. Accordingly, "it is the sort of issue that is often not susceptible of summary judgment." DiLaurenzo v. Atlantic Paratrans. Inc., 926 F. Supp. 310, 314 (E.D.N.Y. 1996).
However, as discussed above, the Court finds that the bulk of defendants' statements and actions are not related to age discrimination. Those that could rationally be construed as ageist are "[i]solated, minor acts or occasional episodes [that] do not warrant relief." Brennan v. Metro. Opera Ass'n. Inc., 192 F.3d 310, 318 (2d Cir. 1999); see also Kotcher v. Rosa and Sullivan Appliance Center, Inc., 957 F.2d 59, 62 (2d Cir. 1992). Evaluating all the relevant circumstances, defendants' conduct was neither frequent, severe, threatening or humiliating, nor did it appear to interfere unreasonably with Molin's work performance.
Similarly, the second prong — whether a specific basis exists for imputing the conduct that created the hostile environment to the employer — is not satisfied. Accordingly, there are no genuine issues of fact that remain as to the existence of a "hostile work environment" or Shapiro's responsibility in the creation thereof.
III. CONCLUSION
For the reasons set forth above, defendants' motion for summary judgment pursuant to Fed.R.Civ.P. 56 is granted and the Clerk of Court is directed to enter judgment dismissing the complaint.