The opinion of the court was delivered by: MCAVOY
MEMORANDUM - DECISION AND ORDER
Plaintiff Patrick J. Phillips filed this action claiming discrimination based on sex, age, and military status, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2 ("Title VII"), the Age Discrimination in Employment Act, 29 U.S.C. § 621 ("ADEA"), the New York Human Rights Law, Executive Law § 296 ("HRL"), and the Vietnam Era Veterans' Readjustment Act, 38 U.S.C. § 4212 ("VEVRA"). Currently before the Court is Defendant's motion for summary judgment.
Plaintiff Patrick J. Phillips was employed by Defendant Merchants Insurance Group ("Merchants") from August of 1992 through March of 1994. Phillips was 40 years old at the time he was hired by Merchants as a Regional Manager. He was hired to operate a new branch office, known as the Hudson Valley Strategic Business Center, located in Kingston, New York, where he worked throughout the duration of his employment. At the time of Plaintiff's termination from employment with Merchants he was 41 years of age. Cheryl Meyer Mancuso, Phillips' direct supervisor, discharged him from employment on or about March 1, 1994.
Phillips alleges that Mancuso, the Senior Vice President of Merchants Insurance Group, discriminated against him on the basis of his age, gender, and military status through the use of abusive language and treatment, and by way of policies and conditions of employment established and implemented by Merchants Insurance Group.
Phillips claims the following as evidence of Mancuso's discrimination against him: (a) Mancuso stated that she did not care whether Phillips had to "dance naked in the snow" to get business; (b) she asked Phillips if he thought he was a "big man on campus"; (c) she directed profanity at him; and (d) she called him names such as "little boy", "tough son-of-a-bitch", and "dumb man".
Additionally, Phillips alleges the following: (a) he was asked to work without sufficient resources; (b) he was given limited information from the company; (c) he was geographically isolated from his customers who were located in Westchester and Albany; (d) he was asked to stay out of the office for a period of time; (e) his office was not equipped with electronic network capabilities despite repeated requests; (f) Merchants held unrealistic expectations; and (g) Merchants provided little guidance or assistance in operating a new branch office. Phillips claims that the foregoing prevented him from being as productive and successful as other Regional Managers.
Phillips was ultimately terminated from his position as Regional Manager of Merchants Insurance Group. He alleges that the reason for his dismissal was based solely on his age, sex and military status. Merchants claims that Phillips was terminated because of poor work performance.
After filing a charge with the Equal Employment Opportunity Commission ("EEOC") and receiving a right-to-sue letter, Plaintiff, appearing pro se, commenced the present action by filing, inter alia, a Complaint pursuant to Title VII. This matter was referred to United States Magistrate Judge Ralph W. Smith for an Order and Report-Recommendation pursuant to 28 U.S.C. section 636(b) and N.D.N.Y.L.R. 72.3(a).
In his May 30, 1995 Order and Report-Recommendation, Magistrate Judge Smith recommended that Plaintiff amend his Complaint in compliance with Rules 8 and 10 of the Federal Rules of Civil Procedure. Plaintiff filed an Amended Complaint on July 6, 1995. Defendant moved to dismiss the Amended Complaint for failure to timely file. This Court held that although the Complaint was filed timely, it must nonetheless be dismissed with prejudice because it failed to comply with Rules 8 and 10 of the Federal Rules of Civil Procedure. Plaintiff appealed.
The Second Circuit Court of Appeals held that it was within the discretion of this District Court to find equitable tolling of the statute of limitations regarding the timing of the right-to-sue letter and the filing of the Amended Complaint. The Second Circuit nonetheless modified this Court's decision and ordered that the Amended Complaint be dismissed without prejudice.
Plaintiff filed a Second Amended Complaint on November 26, 1996, alleging that Defendant wrongfully discharged him in violation of Title VII, the ADEA, the HRL, and VEVRA. Defendant filed a timely Answer. Thereafter, Defendant moved to dismiss Plaintiff's claim under VEVRA. Defendant's motion was granted.
The present motion before the Court is Defendant's motion for summary judgment pursuant to Rule 56 of the ...