Opinion
5:03-CV-0672 (NPM).
September 27, 2004
George S. Mehallow, Esq., Office of George S. Mehallow, Syracuse, New York, Attorney for Plaintiff.
Brian M. Culnan, Esq., Iseman, Cunningham, Riester Hyde, LLP, Albany, New York, Attorneys for Defendants.
MEMORANDUM, DECISION AND ORDER
I. INTRODUCTION
Plaintiff, Santo Prince ("Prince"), filed this age discrimination action against his former employer, defendant, the Golub Corporation ("Golub"), on May 30, 2003. Plaintiff's complaint ("the Complaint") sets forth causes of action for age discrimination pursuant to the Age Discrimination in Employment Act ("ADEA"), see 29 U.S.C. 621, et seq., and the New York Human Rights Law ("NYHRL"), see N.Y. Executive Law § 296(1). See Compl. ¶¶ 5-16. Presently before the court is a motion for summary judgment by defendant. Oral argument was heard regarding the present motion on September 23, 2004 in Syracuse, New York. Decision was reserved.
In accordance with 42 U.S.C. § 2000e, a "right to sue" letter from the Equal Employment Opportunity Commission ("EEOC"), issued to Prince within 90 days of the commencement of this action, is attached to his complaint. See Compl. Ex. A.
Unless otherwise indicated, the stated facts are not in dispute.
Defendant Golub is a privately held corporation that "operates over 100 Price Chopper supermarkets in upstate New York, Connecticut, Massachusetts, New Hampshire, northeastern Pennsylvania and Vermont[.]" Mem. of Law in Supp. of Def.'s Mot. for Summ. J. at 1, Dkt. No. 18. Plaintiff Prince was an at-will employee of Defendant Golub who worked as a truck driver for Price Chopper in Syracuse from 1992 until he was terminated on March 7, 2002. Prince was 53 at the time he was hired, and 63 at the time of his termination.
On January 29, 2002, Golub received a letter from D. Scott Balok ("Balok"), a driver with Golub's Syracuse facility, in which Balok made complaints against Prince for, among other things, harassment and intimidation. Included in this letter were allegations that, among other things, Prince displayed a pocketknife to Balok with the blade exposed during an argument, and that Prince had verbally threatened other drivers in discussions with Balok. See App. to Aff. of Brian M. Culnan, July 30, 1994 at 145-148, Dkt. No. 18. Balok also notified Golub that Prince urinated in a glass cleaner spray bottle, which he left behind in the cab of his truck, intending another driver to use it during that driver's shift. See id. at 146.
According to Golub, Prior to 2002, Prince had been counseled several times due to concerns with his work performance and/or behavior. In support of this statement, Golub submitted documentation of seven violations committed by Prince from 1993 through 2001, including three violations for working excess hours in an 8-day period, one violation for a "minor preventable accident" with damage, and one violation for a verbal altercation with another driver. See App. to Culnan Aff. at 166, Dkt. No. 18. Prince admits he was disciplined in 1996, but contends that he was under no disciplinary actions at the time of his termination, nor did Golub have any problems with his work performance at that time. See Pl.'s Resp. to Def.'s Statement of Material Facts at ¶ 3, Dkt. No. 23. Moreover, according to Prince, he made his deliveries in a timely and safe manner. See id. at ¶ 3A.
Ostensibly Prince is referring to an incident in 1996 when he was fired for writing "loser" in one of the squares on a gambling board in the coffee break room of a Price Chopper Store.See Dep. of Santo J. Prince, June 11, 2004 at 19:13-20:12, App. to Culnan Aff. at 12-13, Dkt. No. 18. Prince testified that after this incident, he hired a lawyer and was reinstated with a warning. See id.
Upon receipt of the Balok letter, Wesley Holloway ("Holloway"), Director of Associate Relations and Corporate Diversity Initiatives for Golub, was assigned to investigate Balok's allegations. As part of the investigation, Holloway interviewed Balok, as well as five other personnel members who worked out of Golub's Syracuse facility. One of the other personnel members, Tom Chinault ("Chinault"), told Holloway that Prince possessed a "bayonet" taped to the end of an umbrella. See App. to Culnan Aff. at 154, Dkt. No. 18. Chinault later testified that the incident during which he saw the bayonet occurred in "[a]bout [19]98." Dep. of Thomas M. Chinault, Sr., 28:4-13, App. 2 to Pl.'s Resp. to Def.'s Statement of Material Facts, Dkt. No. 23.
While Golub states that Holloway conducted his investigation in good faith, Prince disagrees, noting that he was not given an opportunity to participate in the investigation until the day of his termination. See Statement of Material Facts at ¶ 8, Dkt. No. 18; Pl's Resp. to Def.'s Statement of Material Facts at ¶ 8, Dkt. No. 23.
On March 7, 2002, Holloway and Prince met to discuss the allegations of harassment and intimidation made against Prince by his fellow Syracuse truck drivers. Prior to meeting with Prince, Holloway and security officer Bob Wood observed Prince urinating on a 55-gallon drum near a New York State Thruway EZ Pass tollbooth. See Dep. of Wesley L. Holloway, June 30, 2004, at 15:23-17:1, App to Culnan Aff. at 122-124, Dkt. No. 18. Holloway later testified that this incident, by itself, was not grounds for Prince's termination. See id. at 17:2-3.
Holloway believed the allegations of threats and intimidation to be credible, and informed Prince of his belief at the March 7 meeting. Specifically regarding the allegation that Prince urinated in a spray bottle, although Holloway was not able to definitively establish the contents of the bottle or Prince's actions in relation thereto, see Holloway Dep., at 29:10-19, App 4 to Pl.'s Resp. to Def.'s Statement of Material Facts, Dkt. No. 23, he nonetheless found the allegation to be credible, see id. at 30.
Golub has policies that prohibit its employees from engaging in harassment or intimidation of co-workers. Thus, at the March 7 meeting, Holloway notified Prince that he was being terminated due to the results of the investigation regarding the aforementioned allegations. Golub has established an internal "appeal" process, of which Prince availed himself. However, upon appeal, Golub affirmed its decision to terminate Prince.
Prince contends that after he was terminated, Golub replaced him with a 29-year-old individual. See Pl's Resp. to Def.'s Statement of Material Facts at ¶ 2A, Dkt. No. 23. Golub does not dispute this fact, but notes that at the time of Prince's termination, there was a lack of interest from its employee truck drivers in working on the "Syracuse run" in which Prince had been employed. Therefore, it placed a newspaper announcement for that position, and over five months after Prince's termination, a 29-year-old individual responded to the newspaper ad and was hired. See Def.'s Reply Statement of Material Facts at ¶ 2, Dkt. No. 25. Moreover, it is undisputed that no Golub official ever made statements to Prince that suggested Golub had an animus against older employees.
The present lawsuit followed. Defendant now moves for summary judgment. Plaintiff opposes.
III. DISCUSSION
A. Summary Judgment Standard
A motion for summary judgment shall be granted "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). See also Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552 (1986); Peck v. Public Serv. Mut. Ins. Co., 326 F.3d 330, 337 (2d Cir. 2003), cert. denied, 124 S.Ct. 540 (2003). When deciding whether to grant a motion for summary judgment, "a court must construe the facts in the light most favorable to the non-moving party and must resolve all ambiguities and draw all reasonable inferences against the movant." See Baisch v. Gallina, 346 F.3d 366, 372 (2d Cir. 2003), citing Anderson V. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505 (1986). While the initial burden of demonstrating the absence of a genuine issue of material fact falls upon the moving party, once that burden is met, the non-moving party must "set forth specific facts showing that there is a genuine issue for trial," see Koch v. Town of Brattleboro, Vermont, 287 F.3d 162, 165 (2d Cir. 2002), citing Fed.R.Civ.P. 56(c), by a showing sufficient to establish the existence of every element essential to the party's case, and on which that party will bear the burden of proof at trial. See Peck, 326 F.3d at 337.
B. ADEA and NYHRL Claims
According to the Age Discrimination in Employment Act ("ADEA") as well as the New York Human Rights Law ("NYHRL"), an employer may not, among other things, terminate an employee because of his or her age. See 29 U.S.C. § 623(a)(1) (2004); N.Y. Exec. L. § 296(3-a) (a) (McKinney 2004). Discrimination claims pursuant to the NYHRL are subject to the same analysis as claims pursuant to the ADEA. Abdu-Brisson v. Delta Air Lines, Inc., 239 F.3d 456, 466 (2d Cir. 2001).
In order to establish a prima facie case of age discrimination under the ADEA, a plaintiff must show that (1) he is a member of the protected class, (2) he is qualified for the position, (3) he suffered adverse employment action, and (4) the circumstances surrounding the action give rise to an inference of age discrimination. Abrahamson v. Bd. of Educ., Wappingers Falls, 374 F.3d 66, 71 (2d Cir. 2004), citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817 (1973); accord Abdu-Brisson, 239 F.3d at 466-67.
The class of persons protected under the ADEA is those individuals over 40 years of age. 29 U.S.C. § 631(a). NYHRL protects persons over the age of 18. N.Y. Exec. L. § 296 (3a) (a). See Abdu-Brisson, 239 F.3d at 466 n. 3.
A finding of liability under the ADEA will depend on whether the plaintiff's age "actually motivated the employer's decision."Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 141, 120 S.Ct. 2097, 2105 (2000), quoting Hazen Paper Co. v. Biggins, 507 U.S. 604, 610, 113 S.Ct. 1701 (1993). In other words, "the plaintiff's age must have actually played a role in [the employer's decisionmaking] process and had a determinative influence on the outcome." Id. (internal quotations omitted).
Assuming, as both parties here do, that Prince can establish a prima facie case of age discrimination, the burden shifts to Golub to produce evidence which will show that Prince was terminated for "a legitimate, non-discriminatory reason." St. Mary's Honor Center v. Hicks, 509 U.S. 502, 506-507, 113 S.Ct. 2742, 2747 (1993), citing Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 254, 101 S.Ct. 1089, 1094 (1981). In order to meet this burden, Golub must set forth evidence of its reasons for terminating Prince "which, if believed by the trier of fact, would support a finding that unlawful discrimination was not the cause" of the termination. Id. at 504, citing Burdine, at 254, 255 and n. 8, 101 S.Ct. at 1094-95, and n. 8. Assuming Golub meets this burden, Prince is then left with the burden of showing that Golub's proffered explanation for terminating him was merely a pretext for age discrimination.See Reeves, 530 U.S. at 143, 120 S.Ct. at 2106. See also Schnabel v. Abramson, 232 F.3d 83, 88 (2d Cir. 2000); Spence v. Maryland Casualty Co., 995 F.2d 1147, 1155 (2d Cir. 1993).
Here, Golub argues that it had a legitimate, non-discriminatory reason for terminating Prince because Holloway believed in good faith that the allegations against Prince were credible. Prince disagrees, arguing that the only conduct he admitted to was urinating near the Thruway tollbooth and this, by itself, was not grounds for his termination. Apparently, Prince assumes that the truth of the allegations upon which his termination was based is determinative of whether Golub had a legitimate, non-discriminatory reason for terminating him. In fact, as Golub correctly notes, "[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." See Hicks, 509 U.S. at 515, 113 S.Ct. at 2752. In other words, the falseness of Golub's reason for terminating Prince by itself is not enough to show pretext, especially where, as here, Golub argues, it reasonably believed its employees' allegations of intimidation and harassment against Prince. See Agugliaro v. Brooks Brothers, Inc., 927 F.Supp. 741, 747, n. 5 (S.D.N.Y. 1996), citing Waggoner v. City of Garland, Texas, 987 F.2d 1160, 1166 (5th Cir. 1993); Elrod v. Sears, Roebuck Co., 939 F.2d 1466, 1470 (11th Cir. 1991). See also Cerwinski v. Insurance Servs. Office, No. 95 Civ. 1766, 1996 WL 562988, at *5 (S.D.N.Y. Oct. 3, 1996), aff'd, 112 F.3d 503 (2d Cir. 1997). Moreover, whether Golub was wrong, or even unduly harsh in firing Prince is not a factor in determining age discrimination. As the Court of Appeals for the Second Circuit so eloquently stated, "the ADEA does not make employers liable for doing stupid or even wicked things; it makes them liable for discriminating, for firing people on account of their age." Norton v. Sam's Club, 145 F.3d 114, 120 (2d Cir. 1998).
Here, Prince does not dispute that Holloway believed the allegations of threats and intimidation to be credible, see Def.'s Statement of Material Facts at ¶ 10, Dkt. No. 18; Pl.'s Resp. to Def.'s Statement of Material Facts at ¶ 10, nor does he dispute that Golub has policies which prohibit its employees from engaging in harassment and/or intimidation of their co-workers, see ibid. at ¶ 14. Because Golub has clearly established its reasonable belief that Prince committed the alleged violations, the court concludes as a matter of law that Golub had a legitimate non discriminatory purpose in terminating Prince.
Nonetheless, Prince argues that this court can infer discriminatory pretext because Golub has shifted its reasons for terminating him. According to Prince, the initial reason Golub provided, urinating at the Thruway tollbooth, was proven ineffective. Thereafter, according to Prince, once this litigation ensued, Golub set forth another reason, urinating in a spray bottle, which was unfounded. In support of this argument, Prince cites Schmitz v. St. Regis Paper Company, 811 F.2d 131 (2d Cir. 1987), wherein the court, in affirming a district court judgment of sex discrimination against defendant employer, found the employer's reasons for terminating plaintiff to be a pretext for discrimination where its statements at trial were "elaborate and sophisticated" in an obvious effort to amend previous, clearly false statements made before trial. See id. Prince also cites another case wherein the Court of Appeals for the Second Circuit vacated a district court's award of a judgment as a matter of law in favor of defendant employer, finding that plaintiff EEOC introduced evidence that employer's reasons for terminating the employee were inconsistent, and thus a reasonable jury could find that said reasons were a pretext for age discrimination. See EEOC v. Ethan Allen, Inc., 44 F.3d 116, 120 (2d Cir. 1994).
Based on the fact that Golub provided different examples of Prince's improper behavior, both verified and alleged, Prince apparently concludes that, like the employer in Schmitz, here Golub is obviously attempting to amend previous, clearly false statements. The court is not willing to reach this same conclusion. Nor can the court find that Golub's statements have been inconsistent, as were those of the employer in Ethan Allen. Here, it is undisputed that at the time of Prince's termination, Holloway informed Prince that he was being terminated for threats and intimidation of co-workers, see Def.'s Statement of Material Facts at ¶¶ 11-12, Dkt. No. 18; Pl's Resp. to Def.'s Statement of Material Facts at ¶¶ 11-12, Dkt. No. 23, and that at Holloway's deposition, he testified that Prince was terminated because of "[h]arrassment, intimidation and threats[,]" see App. to Culnan Aff. at 130-131, Holloway Dep. at 23:16-24:18, Dkt. No. 18. There is nothing in the record here to indicate that Golub, like the defendants in both Schmitz and Ethan Allen, shifted its reasons for terminating Prince in an effort to cover a discriminatory intent.
Finally, in its reply papers, Golub cites a case where, on facts similar to those presently before this court, the court affirmed an award of summary judgment to the defendant employer.See Rivera-Aponte v. Restaurant Metropol # 3, Inc., 338 F.3d 9 (1st Cir. 2003). There, plaintiff was fired for being the aggressor in a physical altercation with a co-worker. While the defendant restaurant's manager did not observe the altercation, she conducted an investigation and, after determining plaintiff was the aggressor, terminated him. Although the plaintiff argued, as Prince does here, that the pre-termination investigation was cursory because he was not given an opportunity to provide "his side of the story", the court in Rivera-Aponte found that defendant's reason for terminating plaintiff was compelling, and thus plaintiff lacked any evidence that it was a pretext for discrimination. See Rivera-Aponte, 338 F.3d at 11-12. Moreover, the court there found an absence of discriminatory pretext because there was a lack of evidence supporting age-based animus especially where, as here, at the time plaintiff was hired he was already in the protected class.Id. at 12.
Here, Prince does not dispute that he was 53 at the time he was hired. See Statement of Material Facts at ¶ 1, Dkt. No. 18; Pl's Resp. to Def.'s Statement of Material Facts at ¶ 1, Dkt. No. 23. Also undisputed is the fact that Prince is unable to identify any statements of age-based animus made by defendant. See ibid. at ¶ 15. It is true, as Prince notes, that his replacement was 29 years of age. However, Golub did not have this individual waiting in the wings to assume Prince's position with the company immediately upon Prince's termination. Instead, Prince's replacement responded to Golub's job announcement in the newspaper and was hired approximately five months after Prince's termination, dispelling any inference that Golub's decision to terminate Prince was a pretext for age discrimination.
IV. CONCLUSION
Based on the foregoing, the court concludes that there are no genuine issues of material fact remaining regarding either of the claims set forth in the Complaint. Accordingly, defendant, Golub Corporation's motion for summary judgment against plaintiff, Santo Prince is hereby GRANTED and the complaint is dismissed in its entirety against defendant. The Clerk of the Court is directed to enter judgment in favor of the defendant against the plaintiff.
IT IS SO ORDERED.