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December 22, 1992



The opinion of the court was delivered by: DAVID N. EDELSTEIN


EDELSTEIN, District Judge:

 Rabbi Mendel Piasecki ("plaintiff") has brought this discriminatory discharge action under the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq., and under Section 296 of the New York State Human Rights Law. Defendant Daughters of Jacob Nursing Home, Inc. ("defendant" or "DOJ") has moved for summary judgment dismissing the complaint. For the reasons stated below, defendant's motion is denied.


 DOJ is a private, not-for-profit nursing home for the elderly located in Bronx, New York. Plaintiff, who was born on November 23, 1912, worked as a rabbi and a mashgiach for DOJ from June 1983 until his discharge on July 12, 1991. *fn1" At the time of his termination, plaintiff was 79 years old and earned $ 28,275 annually. His replacement, Rabbi Masod B. Edery, was hired in July 1991 at the age of 27.

 Plaintiff alleges that commencing in the fall of 1987 DOJ administrators began to inquire about his retirement plans. According to plaintiff, these administrators asked him repeatedly when he intended to retire, whether he intended to die on the job, and whether he wanted to live in Florida or Israel following his retirement. In addition, whenever plaintiff raised work-related issues with DOJ administrators, they allegedly responded by telling him to retire if he was displeased with conditions at DOJ. Defendant does not disavow these statements. *fn2"

 In May 1990, the parties altered the conditions of plaintiff's employment. While this is not disputed, the meaning ascribed to the altered conditions of employment is the subject of a schism between the parties. Prior to May 1990, plaintiff worked five days a week from 7 a.m. to 12 p.m. each day. In addition, plaintiff received extra money by substituting for DOJ's regular religious director once or twice a month for an entire weekend. DOJ asserts that plaintiff properly received $ 150 for each weekend he worked, but improperly requested overtime pay for weekend work.

 DOJ contends that to remedy this double billing, and to assure supervision past 12 p.m. until the end of lunch, it entered into an agreement with plaintiff dated May 21, 1990 (the "Agreement") that altered plaintiff's compensation and hours. Pursuant to the Agreement, Rabbi Piasecki would work Monday through Friday from 6 a.m. until 2 p.m., as well as one weekend each month for $ 150, without receiving overtime pay for weekend work. Mr. Malanka contends that plaintiff's reaction to the changed hours was to request not to work weekends. In response to this request, DOJ asserts that it added an amendment to the Agreement calling for its expiration upon finding plaintiff's replacement. Although plaintiff's slated hours amounted to forty hours per week, he was paid on the basis of a thirty-five hour week. The parties dispute whether the Agreement provided for a lunch hour.

 Plaintiff asserts that he signed the Agreement under duress, fearing that failure to sign would result in immediate termination. Moreover, plaintiff proffers that the Agreement reflects DOJ's attempt to force his retirement. In support of his contention, he cites the lack of lunch hour, the fact that he was to work forty hours each week but was only paid for thirty-five of those hours, *fn3" and his inability to collect overtime. Plaintiff states that he noted the unfairness of the Agreement to Mr. Malanka, who replied "Okay, if you will be a good boy, if you will come earlier, I will let you go earlier."

 In the months following the signing of the Agreement, it is undisputed that Rabbi Piasecki often left work before 2 p.m. or failed to punch out entirely. On August 1, 1990 and again on March 13, 1991, Mr. Malanka sent plaintiff a memorandum citing plaintiff's early departures and threatening plaintiff's discharge if plaintiff continued to leave work early. Rabbi Piasecki asserts that his early departures had been approved by Mr. Malanka. *fn4" In addition, plaintiff asserts his belief that during the seven month lag between the two memoranda, his early-arrival early-departure practice became an accepted routine.

 The next point of contention between the parties centers on the hiring of Rabbi Edery. DOJ avers that in order to assure supervision through dinner, it hired Rabbi Edery in July 1991 to supervise meals from 2 p.m. to 7 p.m. Plaintiff asserts that DOJ hired Rabbi Edery on July 3, 1991, not, as DOJ contends, on July 15, 1991. According to plaintiff, a July 3, 1991 hiring implies that DOJ decided to replace plaintiff eight days before it fired him. Plaintiff also contends that DOJ does not require Rabbi Edery to punch in and out, but rather allows him to submit time sheets. Mr. Malanka, on the other hand, contends that DOJ originally hired Rabbi Edery to work only from 2 p.m. until 7 p.m., which ensured the presence of a mashgiach through dinner. After firing plaintiff, however, Rabbi Edery offered to work both the morning and afternoon shifts.

 Evincing remarkable consistency, the parties also dispute the meaning attributable to the event that triggered plaintiff's discharge. On July 11, 1991, plaintiff left DOJ without punching out. Plaintiff contends that he developed a toothache that day and had to leave for the dentist immediately. He adds that although he sought to inform Mr. Malanka or Mr. Preira, another DOJ administrator, of his intended departure, he was unable to locate either one. On reporting to work the following day, Mr. Malanka informed plaintiff that he was discharged. *fn5" Mr. Malanka contends that upon discharging plaintiff, he told him that the termination resulted from plaintiff's failure to work the required hours and from his failure to punch out the preceding day. Plaintiff posits that his July 11 departure was irrelevant to DOJ's discharge decision, and that this stated reason was therefore merely a pretext given DOJ's earlier hiring of Rabbi Edery.


 A. Standards for Summary ...

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