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
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.
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,
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
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,
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.
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
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
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