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VERONE v. CATSKILL REGIONAL OFF-TRACK BETTING CORP

June 25, 1998

THOMAS A. VERONE, Plaintiff, against CATSKILL REGIONAL OFF-TRACK BETTING CORPORATION, Defendant.


The opinion of the court was delivered by: PARKER

MEMORANDUM DECISION AND ORDER

 BARRINGTON D. PARKER, JR., U.S.D.J.

 INTRODUCTION

 Plaintiff Thomas A. Verone, acting pro se, filed this action against his employer, the Catskill Regional Off-Track Betting Corporation ("Catskill"), alleging, in essence, that Catskill discriminated against him on the basis of age *fn1" by scheduling him for fewer work hours than younger employees, in violation of the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. ยง 621 et seq. Verone also contends that he was retaliated against for complaining about Catskill's discriminatory work schedule in 1996 and for instituting discrimination charges against Catskill. After filing a charge of discrimination with the Equal Employment Opportunity Commission in June 1996, Verone filed this action in April 1997. *fn2" Catskill has moved for summary judgment pursuant to Fed. R. Civ. P. 56. For the reasons stated below, defendant's motion is granted.

 BACKGROUND

 Verone, who is 72 years old, was hired by Catskill in 1990 to work as a part-time cashier at Catskill's Arlington, New York branch office. Of the 17 cashiers employed at Catskill's Arlington branch at the time Verone filed his EEOC charge of discrimination, 10 were over the age of 50, including 5 who were over age 70. Verone contends that Catskill since 1993 has violated the ADEA by assigning him fewer and less desirable working hours than other, younger cashiers. Verone bases his claim on a comparison of his hours to those worked by three other cashiers at Catskill's Arlington branch: Joyce Cestaro, age 51; Janice Farley, age 49; and Gianna Nannucci, age 19. Verone asserts that each of these employees were permitted to work more hours than he. Plaintiff also contends that Catskill has discriminated against him on the basis of age by not permitting him to work Sundays and holidays, for which employees receive one and one-half times their regular hourly rate. *fn3"

 Verone alleges that he was retaliated against for a March 1996 letter in which he complained to Catskill management about perceived inequities in the establishment of employees' work schedules. Verone contends that after he wrote the letter, his work schedule was reduced from five days a week to two.

 Finally, Verone contends that after the filing of this suit, Catskill retaliated against him by suspending him from work without the Court's permission in late September 1997. The suspension resulted from an altercation between Verone and his supervisor, Lucille Thitchner, with whom Verone admits he does "not get along." Verone became irritated that he did not have sufficient change in his drawer to service a client. Verone and Thitchner exchanged words, and eventually Verone was sent home and told that he would be suspended from work from September 30 until October 6 and could not return to work until he contacted Catskill and discussed the incident. After discussing the incident with Catskill's personnel manager on October 21, Verone returned to work on October 22, 1997.

 DISCUSSION

 A motion for summary judgment should only be granted if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c); Hayes v. New York City Department of Corrections, 84 F.3d 614, 619 (2d Cir. 1996); Bryant v. Maffucci, 923 F.2d 979, 982 (2d Cir. 1991). This Court's responsibility is to perform "the threshold inquiry of determining whether there is the need for a trial--whether, in other words, there are any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." McNeil v. Aguilos, 831 F. Supp. 1079, 1082 (S.D.N.Y. 1993) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986)); Hayes, 84 F.3d 614 at 619.

 In determining whether a genuine issue of material fact exists, a court must resolve all ambiguities in the light most favorable to, and draw all reasonable inferences in favor of, the party opposing the motion. Wernick v. Federal Reserve Bank of New York, 91 F.3d 379, 382 (2d Cir. 1996). Pro se litigants, in particular, are afforded special consideration. Shuster v. Olem, No. 96 Civ. 6708 (DC), 1996 WL 396152, *2 (S.D.N.Y. July 15, 1996). A pro se party's supporting papers are to be construed liberally and held to less stringent standards than pleadings submitted by attorneys. See Haines v. Kerner, 404 U.S. 519, 520-521, 30 L. Ed. 2d 652, 92 S. Ct. 594 (1972) (per curiam); Soto v. Walker, 44 F.3d 169, 173 (2d Cir. 1995); Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994). Notwithstanding the sympathetic reading accorded papers submitted by pro se litigants, in order to resist successfully summary judgment in an age discrimination case, a pro se litigant must produce "sufficient evidence to support a rational finding that the legitimate, nondiscriminatory reasons proffered by the employer were false, and that more likely than not the employee's age was the real reason" for the challenged employment action. Woroski v. Nashua Corp., 31 F.3d 105, 109-110 (2d Cir. 1994); Grady v. Affiliated Central, Inc., 130 F.3d 553, 559 (2d Cir. 1997). Proceeding pro se does not relieve a litigant from the usual requirements of summary judgment. Aziz Zarif Shabazz v. Pico, 994 F. Supp. 460, 467 (S.D.N.Y. 1998).

 Age Discrimination in Employment Act

 ADEA claims are analyzed "under the same framework as claims brought pursuant to Title VII." Woroski v. Nashua Corp., 31 F.3d at 108 (quoting Spence v. Maryland Casualty Co., 995 F.2d 1147, 1155 (2d Cir. 1993)). The plaintiff must first establish a prima facie case of age discrimination by producing evidence that, among other things, he was subjected to adverse employment action under circumstances that could support an inference of age discrimination. Grady v. Affiliated Central, Inc., 130 F.3d 553, 559 (2d Cir. 1997). Once the plaintiff establishes the prima facie case, the defendant must then offer a legitimate, nondiscriminatory reason for the challenged employment action. Grady, 130 F.3d at 559. The plaintiff must then present evidence sufficient to allow a reasonable factfinder to conclude that the challenged employment action was taken on the basis of age. St. Mary's Honor Center v. Hicks, 509 U.S. 502, 506-507, 125 L. Ed. 2d 407, 113 S. Ct. 2742 (1993).

 Verone has not adequately established his prima facie case. As the employee work schedules indicate, Verone was not assigned substantially less hours than the three other cashiers Verone has identified. In 1995, for example, three of these cashiers, including Verone, averaged either 36 or 37 hours of scheduled work every two weeks. *fn4" While it is likely that during any particular week, a cashier may have ...


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