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July 20, 1995


The opinion of the court was delivered by: ROSEMARY S. POOLER


 In this age discrimination lawsuit, defendants Cornell University, Richard Costello and William Szabo (collectively, "Cornell") moved for summary judgment against plaintiffs Edward W. Austin and Henry L. McPeak, who previously held seasonal positions at Cornell's golf course. In the alternative, Cornell sought summary judgment dismissing the complaint against the individual defendants, Costello and Szabo. Finally, Cornell moved to strike Paragraph 24 of plaintiffs' complaint because it refers to settlement discussions. Because I find that Austin and McPeak raised genuine issues of material fact regarding Cornell's refusal to rehire them, Cornell's motion for summary judgment is denied. Additionally, I find as a matter of law that plaintiffs can maintain this action against the individual defendants. However, I grant defendants' motion to strike Paragraph 24 of the complaint.


 Cornell owns, operates, and maintains the Robert Trent Jones Golf Course in Ithaca. At all times relevant to this lawsuit, defendant Costello was the Head Golf Professional at the Ithaca course, and defendant Szabo was Cornell's Associate Director of Athletics for Operations and Facilities in charge of overseeing the course. Plaintiffs Austin and McPeak each worked at the golf course over several summer seasons. *fn1" McPeak, who formerly worked full time at Cornell, worked as a volunteer ranger from 1988 until 1990 and as a paid ranger in 1991 and 1992. Austin worked primarily in the golf course's pro shop from 1988 until 1991 and as a ranger in 1992. The duties of a golf course ranger include monitoring play on the course to ensure that members are complying with golf etiquette and playing fast enough to prevent bottlenecks and gaps in play on the course.

 Before the start of the 1993 golf season, Cornell decided not to rehire Austin and McPeak. Costello, Szabo, and Richard Deibert, the golf course superintendent, jointly made the decision. At the time of this action, McPeak was 67 years old and Austin was 73 years old. Costello told Austin and McPeak during separate telephone conversations that the golf course was undergoing a reorganization in which Cornell would not need their services and that plaintiffs should not take the decision personally. Costello did not tell plaintiffs that their prior service had been deficient in any way. Costello also did not ask plaintiffs whether they would have been willing to work increased hours.

 According to the deposition testimony of Costello, Szabo and Deibert, the reorganization stemmed from Cornell's decision to lower golf course fees and thus increase membership. To accommodate the anticipated increased use of the course, Cornell instituted a "double wave" system of play in which parties would tee off simultaneously on the first and tenth holes, play their nine holes, and then cross over to finish the remaining nine holes on the course. The double wave system required course rangers to work harder in monitoring the pace of play and in coordinating cross-overs. The golf course reorganization also included the consolidation of approximately 20 seasonal positions into about 16 or 17 jobs. Fewer people worked more hours to perform the same work. Szabo testified that he wanted to reduce the number of people on the Cornell payroll.

 Costello, Szabo and Deibert concluded in March 1993 that McPeak and Austin were not qualified for the ranger duties. Defendants claim that during the 1992 season, they received numerous complaints from members regarding the slow rate of play on the golf course. Deibert and Costello also claim to have observed problems on the course such as bottlenecks, and Deibert claims to have seen plaintiffs socializing or looking for lost golf balls instead of monitoring play on the course. Moreover, in early 1993, Cornell sent a questionnaire to golf course members to elicit their comments about different aspects of the course, including the facilities, the pro shop, the nearby restaurant/club house, and the staff. Cornell received 158 responses to approximately 200 survey questionnaires, and 48 of those responses contained complaints about the slow rate of play on the course or the performance of rangers. Defendants claim that these complaints established that Austin and McPeak could not perform their current ranger duties, let alone the increased responsibilities associated with the new double wave system of play. Although plaintiffs' poor performance was a factor in defendants' decision not to rehire Austin and McPeak, Cornell decided not to tell this reason to plaintiffs in an effort to spare their feelings.

 Defendants also contend that plaintiffs were not qualified to work as rangers under the reorganization plan because they did not want to work increased hours. Costello testified in his deposition that Austin "insisted that he work a limited number of hours a week because he had a cottage on the lake and wanted to spend time there." Pl. Decl. Ex. C, at 45. Costello stated in an affidavit that McPeak also worked limited hours and at times left work early to suit his personal plans even though heavy traffic on the golf course was expected. In 1992, each plaintiff worked about 10 hours per week, and they rarely worked at the same time.

 Both Austin and McPeak testified during their depositions that Cornell never criticized their performance as rangers. Rather, they claimed that their work was praised. *fn2" Because plaintiffs were seasonal workers, Cornell did not conduct formal evaluations of their performance. In his deposition, Costello, who served as plaintiffs' immediate supervisor, testified that he tried to manage his employees using positive reinforcement rather than criticism. Referring to McPeak, Costello stated that "I would emphasize something rather than de-emphasize it. In other words, I would refer to we've got a bottleneck on three, you gotta watch it. We've got a problem crossing over, you gotta watch it. . . . I didn't call him in and swear at him, that's not my style, I didn't do that. I did it in what I considered a diplomatic way and hoped it would be effective." Pl. Decl. Ex. C, at 42. Costello stated that he used a similar "positive" approach with respect to managing Austin. Id. at 45. Defendant Szabo testified that plaintiffs were aware or should have been aware that their performance was lacking, but Szabo did not know whether Deibert or Costello had so informed plaintiffs. Pl. Decl. Ex. F, at 44.

 On October 14, 1993, plaintiffs filed complaints with the Equal Employment Opportunity Commission and the New York State Division of Human Rights, alleging that Cornell discriminated against them because of their age. Cornell denied liability by letter dated December 13, 1993, and the state complaints remain pending. Plaintiffs subsequently filed a complaint in district court on May 4, 1994, alleging that defendants were liable for age discrimination pursuant to the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. §§ 621, et seq. Plaintiffs requested declaratory and injunctive relief as well as back pay, compensatory and punitive damages, and costs and attorney's fees. The parties completed discovery, and defendants now seek, among other things, summary judgment dismissing the complaint. Oral argument on the motions took place on June 5, 1995.


 I. Summary Judgment Standard

 Summary judgment shall enter if, when viewing the evidence in the light most favorable to the nonmovant, the court determines that there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); Eastman Kodak Co. v. Image Technical Servs., Inc., 504 U.S. 451, 456, 112 S. Ct. 2072, 119 L. Ed. 2d 265 (1992). A party seeking summary judgment must demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986). If the movant satisfies this initial burden, then the burden shifts to the nonmovant to proffer evidence demonstrating that a trial is required because a disputed issue of fact exists. Weg v. Macchiarola, 995 F.2d 15, 18 (2d Cir. 1993). The nonmovant must do more than present evidence that is merely colorable, conclusory, or speculative and must present "concrete evidence from which a reasonable juror could return a verdict in his favor. . . ." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). The nonmovant must do more than show "some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986).

 II. Age Discrimination Claim

 Defendants contend that they are entitled to summary judgment because Austin and McPeak failed to raise genuine issues of material fact with respect to their age discrimination claims. Specifically, Cornell argues that it did not rehire plaintiffs because they were not qualified to work as rangers at the reorganized golf course. ...

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