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EPSTEIN v. KALVIN-MILLER INT'L

October 15, 1998

ALLEN EPSTEIN, Plaintiff, against KALVIN-MILLER INTERNATIONAL, INC., Defendant.


The opinion of the court was delivered by: LEISURE

OPINION AND ORDER

 LEISURE, District Judge :

 Plaintiff Allen Epstein brings this action against his former employer, Kalvin-Miller International, Inc. ("Kalvin-Miller"), alleging violations 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. §§ 623(a)(1)-(2), and the New York Human Rights Law ("NYHRL"), N.Y. Exec. Law §§ 290, et seq. Pursuant to Rule 56 of the Federal Rules of Civil Procedure, defendant moves for summary judgment in its favor as to all counts averred by plaintiff.

 For the reasons stated in this Opinion, defendant's motion for summary judgment is DENIED.

 I. Standard for Summary Judgment

 A moving party is entitled to summary judgment if the Court determines no genuine issue of material fact exists to be tried and the party is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56; see also Holt v. KMI-Continental, Inc., 95 F.3d 123, 128 (2d Cir. 1996), cert. denied, 137 L. Ed. 2d 1027, 117 S. Ct. 1819 (1997); Celotex Corp. v. Catrett, 477 U.S. 317, 322-323, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). The moving party bears the burden of showing no genuine issue of material fact exists. See Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 26 L. Ed. 2d 142, 90 S. Ct. 1598 (1970). "In moving for summary judgment against a party who will bear the ultimate burden of proof at trial, the movant's burden will be satisfied if he can point to an absence of evidence to support an essential element of the nonmoving party's claim." Goenaga v. March of Dimes Birth Defects Found., 51 F.3d 14, 18 (2d Cir. 1995) (citation omitted); see also Scottish Air Int'l, Inc. v. British Caledonian Group, PLC, 81 F.3d 1224, 1231 (2d Cir. 1996).

 The Court's function in adjudicating summary judgment motions is not to try issues of fact, but instead to determine whether there are such issues. See Sutera v. Schering Corp., 73 F.3d 13, 15-16 (2d Cir. 1995). In determining whether genuine issues of material fact exist, the Court must resolve all ambiguities and draw all justifiable inferences in favor of the non-moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986); see also Holt, 95 F.3d at 129.

 Because this case involves allegations of discriminatory discharge, an additional consideration applies. The Court "must be cautious about granting summary judgment to an employer when, as here, its intent is at issue." Gallo v. Prudential Residential Serv. Ltd. Partnership, 22 F.3d 1219, 1224 (2d Cir. 1994) (citations omitted); see also Maresco v. Evans Chemetics, 964 F.2d 106, 113 (2d Cir. 1992).

 II. Facts of the Case

 Applying the principles set forth above, the facts of the instant case are as follows.

 Plaintiff was born in June 1937. In 1984, he was diagnosed with coronary artery disease and hypertensive and atherosclerotic heart disease. Plaintiff's condition requires him to take nine different medications and limits his ability to walk and engage in strenuous physical activity.

 In August 1986, Kalvin-Miller, a commercial insurance broker, hired plaintiff as its Vice-President of Finance, responsible for the company's financial and accounting reporting and various supervisory duties relating to office management, including oversight of human resources and the office computer systems. Personnel at Kalvin-Miller were aware of plaintiff's heart condition at the time of his hiring.

 In 1987, Kalvin-Miller was acquired by Whitehall Financial Group. Soon after completion of the acquisition, plaintiff was promoted to Senior Vice-President of Finance, a position functionally equivalent to chief financial officer. In the new position, plaintiff became a member of Kalvin-Miller's executive committee, was regularly invited to Kalvin-Miller/Whitehall Financial Group board meetings and reported directly to Kalvin-Miller's chief executive officer, David Moross.

 In mid-1992, plaintiff suffered an angina attack, which forced him to miss a board meeting. Moross and the board became concerned plaintiff might die. Based on this concern and on a desire to have a chief financial officer with more mergers and acquisitions experience than plaintiff, the board authorized Moross to hire a new chief financial officer. Deposition of David Moross, dated July 29, 1997, at 20. Consequently, three to four months after plaintiff's cardiac incident, Moross contacted Michael Sabanos about the possibility of becoming chief financial officer. Sabanos was hired as chief financial officer in June 1993.

 Following the hiring of Sabanos, plaintiff reported to Sabanos instead of to Kalvin-Miller's CEO. In addition, Sabanos began to assume responsibilities previously held by plaintiff, including supervision of the company's financial reporting and administrative functions. As more time passed, Sabanos took on additional duties of plaintiff, including involvement in oversight of human resources and the company's computer systems. Sabanos also replaced plaintiff as an invitee to board meetings. Plaintiff retained direct supervisory duties over only two employees.

 In August 1995, Kalvin-Miller was sold to American Phoenix Corporation ("American Phoenix"), which had previously acquired numerous other insurance brokerages. A few months after the acquisition, Celia Walsh, Kalvin-Miller's financial reporting manager and a subordinate of plaintiff, resigned. Plaintiff agreed to assume many of the duties previously held by Walsh, in part because many of his other duties had been taken over by Sabanos. Plaintiff offered to renegotiate his salary to reflect his then-current responsibilities, but ...


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