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WALL v. NATIONAL BROADCASTING CO.

July 31, 1991

MARTIN WALL, PLAINTIFF,
v.
NATIONAL BROADCASTING COMPANY, INC., DEFENDANT.



The opinion of the court was delivered by: Leisure, District Judge.

This is an action for reinstatement and damages pursuant to the Age Discrimination in Employment Act of 1967 ("ADEA"), 29 U.S.C. § 621 et seq. Plaintiff, a former employee of defendant, was notified on October 7, 1988, that his position was to be eliminated. Plaintiff alleges that, instead of eliminating his position, defendant gave his job responsibilities to a younger person.

Defendant now moves the Court for summary judgment dismissing the complaint against it, pursuant to Federal Rule of Civil Procedure 56, on the ground that plaintiff's complaint is time-barred.

BACKGROUND

It is undisputed that plaintiff Martin Wall ("Wall") was employed by defendant National Broadcasting Company, Inc. ("NBC"), in the position of Manager of Security Operations at the time of his termination in late 1988. On October 7, 1988, Wall, then 52, was informed by his supervisor, John Bergersen ("Bergersen"), that his position was going to be eliminated because of a "downsizing" of the security department. Wall was told that his last day of work would be December 2, 1988.

Plaintiff alleges that after his termination, through "word of mouth," Memorandum of Law in Opposition to Defendant's Motion for Summary Judgment ("Plain. Mem.") at 2, he "discovered that his job responsibilities rather than being eliminated, remained largely unchanged and given to a younger individual." Complaint ¶ 11. The person allegedly given plaintiff's former responsibilities was Sam Ofshinsky, ("Ofshinsky"), then 35, who was also employed in NBC's security department.

Defendant asserts that the positions of both Wall and the other Manager of Security Operations were eliminated, leaving the security department with three employees. According to Bergersen, within a few days of their October 7 meeting, he and Wall had a meeting at which Wall told Bergersen that he believed Ofshinsky was taking his job. Bergersen states that he informed Wall that the responsibilities of the two positions eliminated would be absorbed by the remaining staff, as well as by outside contractors.

Wall filed claims of age discrimination under ADEA and the New York Human Rights Law with the New York State Division of Human Rights (the "Division") and the Equal Employment Opportunity Commission ("EEOC")*fn1 on September 29, 1989.*fn2

The date of the filing of the charge is 357 days after October 7, 1988. In his complaint, Wall asserts that the filing period should be calculated from December 2, 1988, his last day of work. That date is 301 days before the filing of the charge. In his papers filed in opposition to the instant motion, plaintiff asserts that the 300-day period did not begin to run until "sometime in late December of 1988," Plain. Mem. at 4, when he allegedly received notice that he had been replaced by a younger person.

DISCUSSION

I. Standard for Summary Judgment

Federal Rule of Civil Procedure 56(c) provides that summary judgment "shall be rendered forthwith 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 judgment as a matter of law." "Summary judgment is appropriate if, `after drawing all reasonable inferences in favor of the party against whom summary judgment is sought, no reasonable trier of fact could find in favor of the non-moving party.'" United States v. All Right, Title & Interest in Real Property, etc., 901 F.2d 288, 290 (2d Cir. 1990) (quoting Murray v. National Broadcasting Co., 844 F.2d 988, 992 (2d Cir.), cert. denied, 488 U.S. 955, 109 S.Ct. 391, 102 L.Ed.2d 380 (1988)). Summary judgment may be granted "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986).

The substantive law governing the case will identify the facts that are material, and "[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. . . . While the materiality determination rests on the substantive law, it is the substantive law's identification of which facts are crucial and which facts are irrelevant that governs." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). "[T]he judge's function is not himself to weigh the evidence and determine the truth of the matter but to determine whether there does indeed exist a genuine issue for trial." Id. at 249, 106 S.Ct. at 2510; see also R.C. Bigelow, Inc. v. Unilever N.V., 867 F.2d 102, 107 (2d Cir.), cert. denied, ___ U.S. ___, 110 S.Ct. 64, 107 L.Ed.2d 31 (1989). The party seeking summary judgment "always bears the initial responsibility of informing the district court of the basis for its motion" and identifying which materials it believes "demonstrate the absence of a genuine issue of material fact." Celotex, supra, 477 U.S. at 323, 106 S.Ct. at 2552; see also Trebor Sportswear Co. v. Limited Stores, Inc., 865 F.2d 506, 511 (2d Cir. 1989). "[T]he burden on the moving party may be discharged by `showing' — that is, pointing out to the district court — that there is an absence of evidence to support the nonmoving party's case." Celotex, supra, 477 U.S. at 325, 106 S.Ct. at 2554.

Once a motion for summary judgment is properly made, the burden then shifts to the nonmoving party, which "`must set forth facts showing that there is a genuine issue for trial.'" Anderson, supra, 477 U.S. at 250, 106 S.Ct. at 2511 (quoting Fed.R.Civ.P. 56(e)). "Conclusory allegations will not suffice to create a genuine issue. There must be more than a `scintilla of evidence,' and more than `some metaphysical doubt as to the material facts.'" Delaware & H. Ry. v. Consolidated Rail Co., 902 F.2d 174, 178 (2d Cir. 1990) (quoting Anderson, supra, 477 U.S. at ...


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