of the evidence that DOJ's stated reason for the termination decision is merely a pretext that allows it to practice unlawful age discrmination. To sustain this burden, plaintiff offers: (1) the unfair aspects of the Agreement, which according to plaintiff forced him to work long hours without a lunch break and thus reveals a desire to force plaintiff's resignation; (2) the circumstances surrounding Rabbi Edery's hiring, which supposedly indicate that DOJ had decided to fire plaintiff before he left early on July 11; (3) the allegedly discriminatory statements made by DOJ administrators; and (4) the statement supposedly made by Mr. Malanka that plaintiff could leave early if he came in early.
Because plaintiff's assertions raise genuine issued of material fact, summary judgment is inappropriate. Further comment is warranted, however, due to inconsistencies in both parties' arguments. Plaintiff asserts in conclusory fashion that the Agreement did not provide him with a lunch hour and yet he received compensation on the basis of a thirty-five hour week. Absent evidence to the contrary, however, the most reasonable interpretation of the Agreement is that, like many contracts, it contemplated a forty-hour week with an unpaid lunch hour. Such an interpretation is supported by the fact that prior to the Agreement, plaintiff was paid for all hours worked. Thus construed, the Agreement was not so unfair as to have forced plaintiff's resignation. Plaintiff's sole basis for an alternate contractual construction is that a mashgiach must constantly supervise food preparation, which does not allow for a lunch. Nevertheless, it is undisputed that prior to and following the signing of the Agreement, plaintiff frequently left lunch unattended. It is also worth noting that the supposed need for "constant" supervision does not suggest that DOJ attempted to foster repressive working conditions. Thus, plaintiff's construction of the Agreement is belied by circumstantial evidence and unsupported by fact or law. While it is true that all inferences must be drawn in favor of the party opposing summary judgment, even this admonition has limits. The inferences must be reasonable. The non-movant "is not entitled to the benefit of unreasonable inferences, or inferences at war with undisputed facts." County of Suffolk v. Long Island Lighting Co., 907 F.2d 1295, 1318 (2d Cir. 1990) (quoting Lewis v. Nelson, 277 F.2d 207 (8th Cir. 1960)). At this stage in the proceedings, this Court is unwilling to find that no reasonable jury could credit plaintiff's interpretation. Plaintiff's interpretation, however, appears flawed.
Plaintiff next attempts to demonstrate pretext by citing the circumstances surrounding Rabbi Edery's hiring. Plaintiff's argument evinces a logical defect while defendant's rebuttal is marred by inconsistency. Plaintiff asserts that by hiring Rabbi Edery eight days before it discharged plaintiff, DOJ revealed an intent to fire plaintiff before the July 11 incident. While the need for "constant" supervision, as well as the meaning of the term "constant," is a matter of some dispute in this case, it is safe to say that a mashgiach's function involves attentiveness to food preparation. In hiring Rabbi Edery, DOJ obtained supervision of food preparation and service in the afternoon and early evening. That DOJ hired Rabbi Edery eight days before plaintiff's discharge, in order to provide supervision of food preparation during the hours plaintiff had no intention of working, hardly suggests some insidious intent on the part of DOJ. On the other hand, defendant's allegation that it hired Rabbi Edery only for the hours that plaintiff chose not to work is hardly unassailable. In deposing plaintiff, DOJ's counsel focused on plaintiff's inability to work a fourteen-hour day. If DOJ is to be believed, however, Rabbi Edery was hired not to work a fourteen-hour day, but only five hours in the afternoon. Counsel's questions reveal that. DOJ may indeed have hired Rabbi Edery with the intent that he work a full day, which means that they intended to fire plaintiff at this time. Of course, this does not negate plaintiff's early departures; it only casts doubt on DOJ's assertion that plaintiff's July 11 absence led in part to his discharge.
Finally, in order to demonstrate pretext, plaintiff notes the alleged statements of DOJ supervisors concerning his retirement, and Mr. Malanka's statement that he could leave early if he came in early. It is well settled that to show pretext, plaintiff has to prove only that age was a motivating or determinative factor in the decision to terminate an employee; plaintiff is not required to show that age was the sole factor that led to a plaintiff's termination. Levin, 960 F.2d at 317. Moreover, the Second Circuit has noted that the McDonnell/Burdine analysis is not inflexible, rigid or mechanized; instead, the "'central question is whether [the] plaintiff has presented sufficient evidence to permit a reasonable fact-finder to conclude that age was a determinative factor in the employer's decision.'" Montana, 869 F.2d at 104 (quoting Hagelthorn v. Kennecott Corp., 710 F.2d 76, 81 (2d Cir. 1983)). The Second Circuit also has indicated that summary judgment is generally inappropriate where questions of intent will ultimately be determinative. See Maresco v. Evans Chemetics, 964 F.2d 106, 113 (2d Cir. 1992); Rottersman v. CBS, Inc., 726 F. Supp. 484, 491 (S.D.N.Y. 1989); Littman v. Firestone Tire & Rubber Co., 709 F. Supp. 461, 465 (S.D.N.Y. 1989).
Even if plaintiff's prior arguments in support of pretext are unreasonable, these statements alone raise a genuine issue of material fact and render summary judgment unsuitable at this time. Indeed, the alleged statements were directed at plaintiff and unambiguous. This is significantly different from situations where courts have found that plaintiffs failed to rebut a proffered reason for the discharge by resorting to isolated or ambiguous statements. Moreover, DOJ's continued toleration of plaintiff's early departures may indeed indicate that it accepted such practices. See, e.g., Levin, 960 F.2d at 317 (plaintiff's poor attitude had been accepted by superiors, and thus, giving this as stated reason for discharge was suspect); Melnyk, 799 F. Supp. at 319 (one statement, not directed at plaintiff, that company wanted young and energetic salespeople, was insufficient to demonstrate that articulated reason for discharge was pretextual); Camillo, 776 F. Supp. at 665-66 (same principle).
Due to these statements and the procedural posture of the case, this Court is unable to determine whether age gas a determinative factor in the discharge decision. Thus, summary judgment on the ADEA claim, and by extension on plaintiff's cause of action under New York's Human Rights Law, is inappropriate.
For the reasons stated above, defendant's motion for summary judgment is DENIED. The parties are directed to file a joint pretrial order on or before January 27, 1993.
DATED: December 22, 1992
New York, New York
David N. Edelstein