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BRENNAN v. BAUSCH & LOMB

January 23, 1997

RICHARD J. BRENNAN, Plaintiff,
v.
BAUSCH & LOMB, INC. and PHARMAFAIR, INC., Defendants.



The opinion of the court was delivered by: SPATT

 SPATT, District Judge:

 This employment discrimination lawsuit arises from the claims of the plaintiff, Richard J. Brennan ("Brennan" or the "plaintiff"), that he was unlawfully discharged by the defendants Bausch & Lomb, Inc. ("B&L") and Pharmafair, Inc. ("Pharmafair," collectively the "defendants" or the "Company") based on his age, disability and gender in violation of the Age Discrimination in Employment Act, ("ADEA") 29 U.S.C. §§ 621 et seq., Americans with Disabilities Act ("ADA"), 42 U.S.C. §§ 12101 et seq., and Civil Rights Act of 1964 ("Title VII"), as amended, 42 U.S.C. §§ 2000e et seq. Originally, the Complaint also alleged several state law causes of action. These claims however, were withdrawn by stipulation dated August 6, 1996.

 Presently before the Court is the defendants' motion for summary judgment pursuant to Fed. R. Civ. P. 56 arguing that Brennan has failed to produce any evidence that their legitimate non-discriminatory reasons for the plaintiff's discharge were a pretext for unlawful discrimination. The plaintiff opposes the motion arguing that he has set forth sufficient evidence of pretext to create material issues of triable fact and defeat the defendants' motion.

 I. Background

 The plaintiff is a resident of Suffolk County. From 1968 through 1971, he served in the Army. According to the Complaint, he has a "military service-connected epilepsy/seizure disorder, a service-connected broken back, and service-connected gastric ulcer condition." Compl. P 9. At all times relevant to this litigation he was over 40 years old.

 The defendants are New York corporations, B&L with its principal place of business in Syracuse, New York and Pharmafair with its principal place of business in Hauppauge, New York. Pharmafair is subsidiary of B&L. The Company is a manufacturer of, among other things, pharmaceutical products.

 The plaintiff was originally hired on May 1, 1990 at age 43, through an employment agency as a leased employee, to work at the Company's Hauppauge plant as a Human Resources Manager. At that time, the operations in the Hauppauge facility were winding down and being transferred to the Company's new plant in Tampa, Florida. Brennan was hired by Timothy Irvin, Vice President of Human Resources in order to facilitate the closing. According to the defendants, at the time of hire, they knew that Brennan was disabled. In November 1990, the plaintiff was hired as a Company employee with the projected closing of the Hauppauge plant in six to eight months. Brennan concedes that when he was hired, he knew that the Hauppauge facility would close, but claims that he was advised that upon closing, he would be transferred to the Tampa facility.

 In any event, in July 1991 he was laid off and replaced by Elissa Tommasi. According the defendants' moving papers, which the plaintiff does not dispute, Tomassi was Brennan's predecessor as Human Resources Manager. She was transferred to Tampa to accommodate her husband's medical problems. In July 1991, Tommasi returned to Hauppauge after her husband died and she was given her old job, thereby displacing Brennan. At that time, the plaintiff was 44 years old and Tommasi was 40.

 In November 1991, the closing date for the Hauppauge facility was again postponed, this time to mid 1992, and Tommasi left the Human Resources Manager position, creating a vacancy. Irvin, along with Ted Borgel, the new Plant Manager, contacted Brennan to rehire him. They did so knowing of the plaintiff's age, and that he had certain medical needs.

 According to the plaintiff however, he was contemplating filing discrimination charges at this time pursuant to his initial layoff. He was advised that he would be rehired if he did not commence any proceedings.

 In March 1992, the Food and Drug Administration ("FDA") placed severe restrictions on drug manufacturing approvals thereby limiting the Company's ability to close the Hauppauge facility. Consequently, the target closing date was moved back from several months to several years. According to the defendants, Irvin and Borgel then decided they would need a more experienced Human Resources Manager "to manage what would be a more stable, long-term Human Resources function."

 According to Brennan however, the reasons alleged by the defendants for his discharge are nothing more than a pretext for unlawful discrimination. In support of his position he claims that he had been given a number of conflicting reasons for his discharge. For example, Brennan asserts that he was advised by Borgel, that Lakis would replace him for fear of "EEOC problems and trouble." To further bolster this argument, Brennan claims that a job posting notice for Lakis's former position was listed shortly after she began working at Pharmafair. The defendants dispute this contention, maintaining that this listing was for a different position.

 In a letter dated September 25, 1992, Lakis states that the plaintiff was laid off as the result of "staff considerations" related to the "impending relocation." Brennan Aff. P 28, Exh. N-a. Yet, Pharmafair advised the New York State Department of Labor, that the plaintiff was being terminated based on "lack of work." Id. Exh. O. After discrimination charges were filed with the New York State Division of Human Rights, the Company took a third position, namely that the plaintiff was a temporary employee. Id. Exh. Q. The defendants contest Brennan's interpretation of these reasons, arguing that they are all consistent with the plant closing.

 Further, Brennan claims that during discovery, the Company modified its position again, maintaining that it was attempting to recruit "good," "junior" people who would further their career with on-the-job training. Id. Exh. R. Nevertheless, alleges Brennan, in direct contradiction to this position he was advised that he was being discharged because of his insufficient experience in plant management. Id. Exh. S. Despite this, he stayed on for two weeks to help train Lakis.

 In addition, the plaintiff alleges that during the course of his employment with the defendants, his superiors would insult him because of his disability. In his deposition, the plaintiff testified as follows:

 
A: On several occasions Mr. Irvin made fun of the fact that I have a seizure disorder and asked me if that was in any way shape or form affecting the function of my brain because he didn't think I was making a very good decision on one thing or another.
 
On more than one occasion that was done.
 
Q: When was the first time that was done?
 
A: The first occasion was probably, if I recall correctly, it was during my first period of employment there before I was laid off with Elissa Tommasi coming back to New York.
 
Tim has a very favorite phrase, he calls it "no brainer," and he would apply the "no brainer" thing to me on if not a regular basis, an occasional basis, was my brain not functioning right, was it the army thing that you have there, ha, ha, he would laugh, is that affecting your way of thinking on this project or whatever? No, it was not.
 
Q: What does the phrase "no brainer" mean?
 
A: To me it means something that requires very little or no thought whatsoever, as a sort of mechanical response necessary to accomplish whatever the task is.
 
Q: So that term is not meant to describe your particular mentality, its ...

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