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April 22, 1993


The opinion of the court was delivered by: I. LEO GLASSER

 GLASSER, United States District Judge:

 Plaintiff brings this action under the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et seq., and the New York State Human Rights Law, Exec. L. § 296, against his former employer the Brooklyn Union Gas Company. Currently before this court is defendant's motion for summary judgment under Rule 56 of the Federal Rules of Civil Procedure. Defendant argues than plaintiff has neither proved a prima facie case of age discrimination nor shown that Brooklyn Union's legitimate reasons for terminating his employment were pretextual. Plaintiff cross-moves to amend his complaint to state claims for compensatory and punitive damages under the Civil Rights Act of 1991. For the reasons provided below, plaintiff's motion to amend is denied, and defendant's motion for summary judgment is granted in its entirety.


 Most of the facts of this case are not in dispute although the parties draw vastly different conclusions from those facts. Plaintiff Williams commenced his employment with the Brooklyn Union Gas Company ("Brooklyn Union" or the "Company") in 1958, as a clerk in the Company's mailroom. With the exception of two years of military service, Williams worked for Brooklyn Union continuously until March 4, 1986, the date on which he was discharged. After approximately one year in the mailroom, Williams was transferred to the reproduction section where he worked as a machine operator. In 1971, the "head operator" of reproduction died, and Williams was promoted to that managerial position; reproduction -- which consisted of three machine operators and a head operator -- was then part of Brooklyn Union's Construction Department. In 1974, Williams's title was changed at his request to "supervisor of reproduction," but his responsibilities and salary remained the same. (Williams Dep. at 18-20, 26-29)

 In April of 1984, Brooklyn Union transferred its reproduction section from the Construction Department to the Data Processing Operations Department ("Data Processing"). Data Processing was under the supervision of Michael J. Finnegan, Jr., director of data services. Finnegan also supervised the electronic accounting machines/microfilm ("EAM/microfilm") and the input/output control sections, both of which were run by supervisors over the age of 40. (Williams Aff. P 5; Finnegan Reply Aff. P 3) Finnegan reported directly to Stuart Sugarman, manager of Data Processing.

 In late 1984, Brooklyn Union -- in accordance with a suggestion from Finnegan and Sugarman -- decided to combine its EAM/microfilm and reproduction sections under a single supervisor, thereby eliminating one supervisory position. (Finnegan Aff. PP 3-4; DX J) *fn2" In January of 1985, at approximately the same time that this decision was made, Williams was on medical leave for a recurring back condition. (Williams Aff. P 11) Williams received a note from his doctor confirming his illness as the basis for his absence during this period. (PX 15) *fn3"

 On February 4, 1985, the day that Williams returned from sick leave, he was advised of the reorganization and informed that Vincent Mancuso had been appointed supervisor of the combined staff. (Finnegan Aff. P 5; Williams Aff. P 12) Williams also was told that he would not receive an expected and previously approved merit raise. (Williams Aff. PP 9-10, 12; Steiner Aff. P 11 & n.3) At the time, plaintiff was forty-eight (48) years of age and Mancuso was fifty-eight (58) years of age. (Finnegan Aff. P 4) As already mentioned, Finnegan and all the Data Processing supervisors who reported to him also were over the age of forty at this time. (Finnegan Aff. P 1; Finnegan Reply Aff. P 3)

 The Company's reasons for choosing Mancuso over Williams were "his technical experience coupled with a superior attitude towards providing service to users." (DX J) Brooklyn Union documents a series of occurrence prior to the reorganization that, they argue, demonstrate Williams's poor performance and attitude. As the discussion below makes clear, Williams does not deny that these events took place but rather asserts that the Company -- and especially his supervisor -- misrepresents the events' significance. This court summarizes these events and, where relevant, highlights any factual or interpretative disputes:

(1) For approximately five or six years -- during the time that reproduction was part of the Construction Department -- Williams received "good" performance ratings from his supervisor Thomas J. Iervolino, assistant manager of the Construction Department. Under the Company's rating system, "good" is the lowest rating in the range of acceptable performance. Williams complained to Iervolino about one of these ratings and his corresponding salary increase; when Iervolino refused to change the ratings, Williams complained to Iervolino's newly appointed supervisor Mr. Bill Ferrado. (Williams Dep. at 31-34, 50-54, 219-21; Finnegan Aff. PP 2, 6) Williams does not contest any of the above but submits letters, reports, and audits reflecting the generally positive feedback that he and the reproduction section received between the years 1971 and 1984. (Williams Aff. PP 6-7; Steiner Aff. PP 7-9; PX 2, 4-5; but see Finnegan Reply Aff. P 10)
(2) When reproduction was transferred to the Data Processing Department, Williams was given additional responsibility over eleven convenience copiers located throughout Brooklyn Union's corporate headquarters. Williams nevertheless did not receive a corresponding salary increase. When he complained of not receiving a raise, Finnegan explained that Williams's "hay points" had been increased. (Williams Dep. at 64-68; Williams Aff. P 5; Finnegan Aff. P 6). The hay points in a position affect the maximum salary level for that position.
(3) In June of 1984, soon after reproduction became part of Data Processing, Finnegan instructed Williams to give special priority to the above-mentioned convenience copiers and to check the convenience copiers daily. (Williams Dep. at 98-112) Williams already was in the practice of personally checking the copiers twice a week. Finnegan's reason for asking Williams to devote more personal attention to the copiers was so that Williams would be visible and accessible to people on the floor each day. (Williams Dep. at 102-05) Reluctant to follow Finnegan's request, Williams explained that in his opinion "it wasn't necessary for me to go five days." (Williams Dep. at 105) He complained to Sugarman, Finnegan's supervisor, who directed him to do as Finnegan asked. (Williams Dep. at 124-28) *fn4"
(4) Williams failed to comply with Finnegan's instructions that he personally pick up, fill out, and return an evaluation form for Jim McCafferty, one of his machine operators. Williams had McCafferty himself pick up the blank evaluation form. When Finnegan called and expressed his dismay, Williams responded "What's the big deal. . . . All he was doing was picking up a blank piece of paper." (Williams Dep. at 116) Williams then entrusted the completed form to Mr. Murray, another operator, explaining that he wanted Murray "actually to see that I gave Jim a good reference":
Q: You wanted Mr. Murray to see what you wrote in the evaluation of Mr. McCafferty?
A: Yes.
Q: Why didn't you just show it to him then?
A: Well, that is one way of putting it, but I chose the other way.
Q: You figured that Mr. Murray would look at it when he carried it to Mr. Finnegan?
A: Yes.
Q: Do you think it's appropriate for one employee to see an evaluation of another employee?
A: Yes, when they are leaving like that, I see nothing wrong with it especially if you are giving a good evaluation.
Q: Did you show Mr. Murray the evaluation?
A: I handed it to him.
A: No.

 (Williams Dep. at 115-28; see also Williams Dep. at 207-08; Finnegan Aff. P 8) Finnegan again called and asked Williams why he did not personally return the completed form. During both of Finnegan's calls, Williams inquired of his supervisor whether they would "have to see Sugarman on this." (Williams Dep. at 116, 120)

 (5) After a two-week absence from work, Williams gave the following response to Finnegan's request that Williams consult the Company doctor:

Q: What did Mr. Finnegan say to you?
A: To go and see the company doctor.
Q: What did you say to him?
A: What was the purpose of going to the company doctor?
Q: What did he say?
A: Company policy?
Q: What did you say?
A: I said it's not company policy, it's not a long term illness. He said it was. I said it's not. He said I want you to go see the doctor.

 Williams did consult the Company doctor who refused to examine him since the injury was one involving compensation claims. (Williams Dep. at 158-61)

 (6) When Finnegan asked Williams to attend a business meeting on Long Island, Williams complained about having to take the Railroad to the meeting, (Williams Dep. at 236-42; Finnegan Aff. P 10), explaining as follows:

A: I mentioned to Mr. Sugarman that Mr. Finnegan had me going all the way out to Long Island and I had to travel all the way from Flatbush to the L.I.E., which was taking me the long way around. I was riding on a train, I didn't even know where I was going. The salesman volunteers to pick me up, which would have been more convenient, but it was unacceptable to Mr. Finnegan, because that would be putting him at an inconvenience because he, I think to the best of my recollection, Mr. Finnegan didn't want to come into Brooklyn Union Gas Company. He wanted to stay close to his house.
Q: It became a question of who could be more inconvenienced you ...

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