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August 27, 1998

HAMDY MUSTAFA, Plaintiff, against PARK LANE HOTEL, INC., Defendant.

The opinion of the court was delivered by: PARKER




 Plaintiff Hamdy Mustafa brought suit against his former employer, defendant Park Lane Hotel, Inc. (the "Hotel"), alleging that he was discharged from his position as chief night auditor in violation of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et. seq.; the Age Discrimination in Employment Act of 1967 ("ADEA"), 29 U.S.C. § 621 et. seq.; and Article 15 of the Executive Law of the State of New York. *fn1" Defendant now moves for summary judgment. *fn2" For the reasons stated below, defendant's motion is granted.


 In December 1984, Mustafa was hired by the Hotel as a front officer cashier. At the time he was hired, Mustafa was 40 years old. In May 1987, Mustafa became head cashier, and in April 1988, he was promoted to chief night auditor. As chief night auditor, Mustafa was responsible for supervising other night auditors, ensuring that the staff complied with Hotel policy, balancing the Hotel's receipts from the previous day's operation, updating the computer system, closing out the data operation and handling the daily accounts. Mustafa's shift was from 11 p.m. to 7 a.m.

 Defendant contends that in the summer of 1996, Freeman W. Hill, Jr., the general manager of the Hotel, initiated a policy requiring that all night auditors, including Mustafa, work behind the front desk in the lobby of the Hotel. Previously, night auditors had worked in the accounting office in the Hotel's basement, and at other locations throughout the Hotel. Hill initiated this policy to improve supervision of the activities of the night auditors, and to prevent the night auditors from eating, drinking, and smoking in the accounting office, which, on occasion, was found in disarray in the morning. Mustafa denies that the night auditors ever ate or smoked in the accounting office.

 Defendant contends that, pursuant to Hill's instructions, Witoon Kumnderpun, the comptroller of the Hotel and the direct supervisor of all the night auditors, informed all night auditors, including Mustafa, of the new policy. Mustafa denies ever being informed of this policy by Hill, Kumnderpun, or any other member of the Hotel's staff.

 According to the defendant, during the early hours of September 11, 1997, Edward Reysen, the Hotel's security guard, accompanied Mina Lee, a night manager, downstairs to the accounting department. Reysen and Lee found Mustafa in the accounting department and Lee instructed him to return to the front desk in accordance with Hill's policy. Mustafa refused to leave.

 Defendant claims that later that shift, Hill learned that Mustafa was downstairs in the accounting department and instructed Reysen to tell Mustafa that Hill wanted him working behind the front desk. Following Hill's orders, Reysen approached Mustafa and relayed Hill's instructions. In response plaintiff replied "tell him to go fuck himself." At that point Reysen reiterated Hill's instructions and Mustafa told Reysen he just needed five minutes, as he was finishing up. When Mustafa failed to appear after twenty minutes, Reysen returned to the accounting department and reiterated his earlier instructions. Mustafa stated that he had spoken to his boss, who had granted him permission to remain downstairs. Mustafa denies that this event occurred.

 Defendant contends that between 7:00 and 7:30 a.m. Hill asked Reysen if Mustafa was still in the basement. Reysen responded that Mustafa was still downstairs and that Mustafa had said that Mustafa's boss had allowed him to remain downstairs in the accounting office. In response, Hill told Reysen that Hill was Mustafa's boss and that Mustafa had to listen to Hill. Later that morning, Hill directed Kumnderpun to terminate Mustafa for insubordination. At the time of Mustafa's termination, he was 52 years old. Mustafa was replaced by Nadeem Chaudry, his subordinate, who was 29, and who had considerably less experience than Mustafa.

 Although plaintiff disputes defendant's account of the events on the evening of his termination, plaintiff does concede that a security officer instructed him to exit the accounting office as per Hill's directions, and plaintiff failed to comply.

 Plaintiff claims that he was discharged because of his age, and that the alleged directions to work only behind the front desk in the lobby and not to use the accounting office were a subterfuge to mask his discriminatory discharge. In support of his claims, plaintiff contends that Hill's alleged new policy was implausible because compliance would have prevented the auditors from fully performing their jobs, as they were required to use computers and obtain information from several sources throughout the Hotel. Plaintiff's contention is supported by Mustafa's and Nadeem Chaudry's affidavits, which describe how Hill's policy was unwise, unworkable, and not followed due to the fact that auditors were required to utilize computers and printer stations throughout the Hotel. Defendant, on the other hand, submits the affidavit of Tove Luth, the current Hotel Comptroller, who states that night auditors are assigned a password, which allows them to access the "Night Audit Menu" from most computer terminals in the Hotel, including those behind the front desk. Luth contends that the only duties that cannot be performed from behind the front desk are the daily tape backup of the Computer Lodging System, and the production of food, beverage, and telephone reports. Performance of these duties would require an absence from the front desk of twenty minutes at most.

 Plaintiff claims that Chaudry's affidavit substantiates Mustafa's claim of discrimination by relating that Chaudry used the accounting office with Hill's knowledge and consent before Mustafa's discharge, and continued to do so after Mustafa's discharge as well. Plaintiff claims that in light of this fact it is clear ...

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