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February 25, 1994



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

United States Magistrate Judge


 I. Introduction.

 Plaintiff brings the instant action seeking damages for the termination of his employment allegedly in violation of the Age Discrimination and Employment Act ("ADEA"), 29 U.S.C. ยง 621 et seq., and the due process clause of the Fourteenth Amendment. Now before the court is defendants' motion for summary judgment on the ground that plaintiff has failed to make a prima facie case of age discrimination; or in the alternative, that even if a prima facie case has been shown, defendants had a legitimate, nondiscriminatory reason for plaintiff's dismissal, and plaintiff can not prove that this reason was a pretext. Defendants have also moved to strike plaintiff's demand for compensatory and punitive damages, and to dismiss his Fourteenth Amendment due process claim.


 A motion for summary judgment may be granted only when the moving party carries its burden of showing the absence of a genuine issue of material fact. Fed. R. Civ. P. 56; Goldman, Antonetti, Ferraiuoli, Axtmayer & Hertell, Partnership v. Medfit Int'l, Inc., 982 F.2d 686, 689 (1st Cir. 1993); Thompson v. Gjivoje, 896 F.2d 716, 720 (2d Cir. 1990) (citations omitted). "Ambiguities or inferences to be drawn from the facts must be viewed in the light most favorable to the party opposing the summary judgment motion." Id. In other words, a motion for summary judgment pursuant to Fed. R. Civ. P. 56 shall be granted only when the pleadings, evidence obtained through discovery, and affidavits show that there is no genuine issue as to any material fact, and that the moving party is entitled to summary judgment as a matter of law. Lang v. Retirement Living Pub. Co., 949 F.2d 576, 580 (2d Cir. 1991). Therefore, "summary judgment will not lie if the dispute about a material fact is genuine, that is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986).

 Thus, if the nonmoving party can not produce sufficient evidence to support the jury verdict, summary judgment is proper. Id. at 249. "In determining how a reasonable jury would decide, the Court must resolve all ambiguities and draw all inferences against the moving party." Lang, 949 F.2d at 580. However, when the moving party has met the burden, the nonmoving party must do more than "simply show that there is some metaphysical doubt as to the material facts." Matsushita Electric industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 585-86, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986); see also Liberty Lobby, 477 U.S. at 247-48. At that point, the nonmoving party must come forward with specific facts showing that there is a genuine issue for trial. Id. "The judge's function is not to weigh the evidence and determine the truth of the matter," Liberty Lobby, at 248, "such is the prerogative of the finder of fact." Murphy v. Provident Mutual Life Ins. Co., 923 F.2d 923, 930 (2d Cir. 1990) (Kearse, J., dissenting), cert. denied, 116 L. Ed. 2d 40, U.S. , 112 S. Ct. 65 (1991). The judge's role, then, is "to determine whether there does indeed exist a genuine issue for trial." Liberty Lobby, 477 U.S. at 249. Moreover, where intent and state of mind are at issue, as they are here, "summary judgment is ordinarily inappropriate . . . ." Montana v. First Federal Sav. and Loan Assoc. of Rochester, 869 F.2d 100, 103 (2d Cir 1989).

 A careful examination of each party's submissions reveals more disputes than agreement. However, summary judgment will be appropriate if those disputes are immaterial to the ultimate issues before the court. Only those issues in dispute that raise genuine factual issues will be considered. Keeping this standard in mind, the court will examine the respective positions of each party.


 During the 1990-91 and 1991-92 fiscal years, the State of New York was experiencing a severe budgetary crisis - one which required massive state employment layoffs. Throughout the budgetary crisis, and mainly due to its severity, the Division of Budget ("DOB") attempted to keep a very tight rein on state agencies in the implementation of work force reductions. Of particular concern to the DOB was that the reductions affect employees at all salary levels, and not just new employees or those with lower salaries.

 Plaintiff was employed at the Division of Substance Abuse Services ("DSAS") in the fiscal year 1990-91, when it reduced its work force by seventy-seven positions through attrition, funding transfers, elimination of funded vacancies, and early retirement, *fn1" as directed by the DOB. At the time, plaintiff inquired of Paul Jayne at DSAS's Employee Relations Unit about his eligibility to participate in the early retirement incentive program, but decided not to take advantage of the program. The budget crisis only worsened in the fiscal year 1991-92. DSAS eventually laid off fifty-eight of its employees, including the plaintiff. Plaintiff's claim must be evaluated in light of this reduction in force.

 DSAS was a professional service agency *fn2" whose mission was to develop, fund, and regulate local provider, direct service agencies. DSAS was not itself a direct service agency, and therefore, did not operate any institutions. As a result, it employed mainly a professional staff which accounted for its average salary of over $ 40,000 - 21% of its work force earned more than $ 50,000. In January 1990, defendant Arthur Y. Webb ("Webb",) became director of DSAS, and two months later, Webb hired defendant Peter Pezzolla ("Pezzolla") as Deputy Director for Management and Administration, to assist in formulating a strategy to deal with a community development program for which the legislature had appropriated funds. Before coming to DSAS, Webb and Pezzolla were Commissioner, and Associate Commissioner, respectively, of the New York State Office of Mental Retardation and Developmental Disabilities ("OMRDD"). Plaintiff was officially the Assistant Director of the Management Information and Analysis Unit ("MIA") within DSAS from 1985 to 1991 until his dismissal. At the time of his dismissal on July 31, 1991, he had been employed by DSAS in various positions for nineteen years. In his position as Assistant Director MIA, plaintiff supervised the two MIA units - Management Analysis, and Management Information Services - which had operated independently before a project directorship position was established by DSAS to oversee these two units.

 A. Plaintiff's contentions.

 Plaintiff alleges that in or around January 1991, he met with Pezzolla, and was told that an individual by the name of Robert Quick ("Quick") would take over management of the MIA unit, and that he would be assigned to certain special projects. According to the plaintiff, he believed that he had no choice but to accept this reduced assignment. He was thereafter removed from his office, assigned a new secretary, and at no time thereafter did he perform the duties of Assistant Director MIA although he retained the job title. *fn3" In order to assign plaintiff's duties as Assistant Director MIA to Quick, DSAS requested and received the establishment of a project director position, and despite the fact that Quick was not eligible to be appointed as Assistant Director MIA under the Civil Service Law, he soon took over all of plaintiff's former duties. In fact, the organizational charts within DSAS listed Quick as being assigned to direct the MIA unit, and Quick had begun using the title "Assistant Director MIA" in DSAS documents.

 On July 3, 1991, soon after the budget was enacted, and the Governor had disapproved of an early retirement incentive program similar to the one in the previous year, plaintiff was notified that his position was being abolished and that he would be laid off effective July 31, 1991. It is plaintiff's contention that his former duties as Assistant Director MIA were not abolished, but in fact were transferred to Quick in his temporary position as project director, and that he was terminated because his age made him eligible for retirement.

 B. Defendants' Contentions.

 The defendants present a markedly different view of the events that gave rise to the firing of plaintiff. Not long after Pezzolla became DSAS Deputy Director, he learned that no one at DSAS was performing overall systems management and development. In fact, in late 1990, DOB imposed a three year requirement to implement a computer systems plan to keep pace with the programmatic expectations of DSAS. Apparently the previous director of DSAS was not interested in introducing new technology for updating existing computer systems at DSAS. It was the intention of both Webb and Pezzolla to bring the agency up to speed through computerization. With that in mind, Pezzolla approached plaintiff and asked him if he would develop a proposal for the new systems plan. According to Pezzolla, plaintiff was not interested in developing a systems plan, and instead expressed his intention to continue to work on two special projects, and agreed to relocate to another office. *fn4" It was then, only after plaintiff declined to develop a systems plan, that Pezzolla asked Quick, whom he knew from OMRDD, and had been hired to manage a federally funded project called Target Cities at DSAS, to provide overall management to MIA, and to direct development and expansion of computerization at DSAS. Defendants assert that plaintiff made himself expendable when he refused to carry out his duties as Assistant Director MIA, and was not interested in developing a systems plan.

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