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PURICELLI v. CONTINENTAL CAS. CO.

November 17, 1999

DIANE M. PURICELLI AND CHARLES E. HUGHES, PLAINTIFFS,
v.
CONTINENTAL CASUALTY COMPANY, D/B/A CNA INSURANCE COMPANY, DEFENDANT.



The opinion of the court was delivered by: Kahn, District Judge.

MEMORANDUM-DECISION AND ORDER

In this case the Court addresses federal age discrimination claims, with supplemental state law claims, asserted by two individuals against their former employer, an insurance company. The events underlying these claims took place in the transition period when Plaintiffs' former employer was acquired by Defendant. The Court must assess the claims of age discrimination against a background of workplace restructuring, new supervisors, and apparently inconsistent management that was pressuring Plaintiffs to adapt to new methods, tools and goals. In particular, the Court must focus on whether Plaintiffs actually suffered work-related harm, whether certain critical or disparaging remarks by supervisors give rise to an inference of discrimination, whether other acts by management were discriminatory or merely unfair, and whether Defendant has set forth legitimate reasons for any adverse treatment Plaintiffs may have suffered.

Now before the Court are Defendant's motions for summary judgment against Plaintiff Diane M. Puricelli (26 May 1999, Doc. 30) and Plaintiff Charles E. Hughes (26 May 1999, Doc. 33), Defendant's Motion to Strike Plaintiffs' Affidavits (26 May 1999, Doc. 42), Defendant's Motion to Strike Paragraphs 14-16 of the Susan N. Forkey Affidavit (26 May 1999, Doc. 44), Defendant's Motion to Strike Affidavit of Paul E. Davenport (26 May 1999, Doc. 46), and Defendant's Motion to Strike Plaintiffs' Rule 7(f) [sic]*fn1 Statement (26 May 1999, Doc. 48).

I. BACKGROUND

Plaintiffs Diane M. Puricelli ("Puricelli") and Charles E. Hughes ("Hughes") worked for Continental Insurance Company, which was acquired by Defendant CNA in 1995. Following a transition period, in 1996, CNA demoted Puricelli to a position she had held previously, and reassigned Hughes. Later in 1996 each Plaintiff found new employment and left CNA. In 1998 they brought this action in the United States District Court for the Northern District of New York, pursuant to the Age Discrimination in Employment Act of 1967 as amended, 29 U.S.C. § 621-634 (1999), and the New York State Human Rights Law, N.Y. Exec. Law §§ 290-301 (McKinney 1999). They claimed that the Defendant unlawfully subjected them to harassment, adverse employment action, and constructive discharge because of their age. Plaintiffs seek back pay and benefits; front pay and benefits; liquidated damages; damages for emotional distress and mental anguish; punitive damages; costs, disbursements and attorneys' fees; and such other and further and different relief as the Court deems just and proper.

II. DISCUSSION

A. Standard of Review

Summary judgment must be granted when "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 a judgment as a matter of law." Fed.R.Civ.P. 56(c). A material fact is genuinely disputed only if, based on that fact, a reasonable jury could find in favor of the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). On a motion for summary judgment, all evidence must be viewed and all inferences must be drawn in the light most favorable to the nonmoving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (citing United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 8 L.Ed.2d 176 (1962) (per curiam); City of Yonkers v. Otis Elevator Co., 844 F.2d 42, 45 (2d Cir. 1988).

The party seeking summary judgment bears the initial burden of "informing the district court of the basis for its motion" and identifying the matter "it believes demonstrate[s] the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Upon the movant's satisfying that burden, the onus then shifts to the non-moving party to "set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e), Anderson, 477 U.S. at 250, 106 S.Ct. 2505. The non-moving party "must do more than simply show that there is some metaphysical doubt as to the material facts," Matsushita Elec. Indus. Co., 475 U.S. at 586, 106 S.Ct. 1348; it "must set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e); First Nat'l Bank of Az. v. Cities Serv. Co., 391 U.S. 253, 288, 88 S.Ct. 1575, 20 L.Ed.2d 569 (1968).

B. Northern District Motion Practice

Local Rule 7.1(a)3 (formerly 7.1(f)) requires that the party opposing a motion for summary judgment shall file a response to the moving party's Statement of Material Facts. That response

  shall mirror the movant's Statement . . . by
  admitting and/or denying each of the movant's
  assertions in matching numbered paragraphs. Each
  denial shall set forth a specific citation to the
  record where the factual issue arises. . . . Any
  facts set forth in the Statement of Material Facts
  shall be deemed admitted unless specifically
  controverted by the opposing party.

In its summary judgment motion Defendant submitted Rule 7.1(f) Statement of Undisputed Facts in Supp. of Def.'s Mot. for Summ. J. as to Pl., Diane M. Puricelli (26 May 1999, Doc. 32) (hereinafter 7.1(f) Statement as to Puricelli), and Rule 7.1(f) Statement of Undisputed Facts in Supp. of Def.'s Mot. for Summ. J. as to Pl., Charles E. Hughes (26 May 1999, Doc. 35) (hereinafter 7.1(f) Statement as to Hughes). In response, Plaintiffs submitted Rule 7(f) [sic] Statement (26 May 1999, Doc. 39). Plaintiffs' submission fails to comply with L.R. 7.1(a)3; it does not "mirror the movant's Statement of Material Facts by admitting and/or denying each of the movant's assertions in matching numbered paragraphs." Because Plaintiffs have not met this obligation to controvert with specificity the facts set forth in Defendant's Statements, the Court in accordance with L.R. 7.1(a)3 will deem admitted all the facts set forth in Defendant's Statements of Material Facts (Docs. 32 and 35).

Among these admitted facts are that "Puricelli did not hear any member of CNA management make a negative or derogatory about [sic]*fn2 her age" (7.1(f) Statement as to Puricelli at 13, ¶ 53); that "Hughes never heard a member of CNA management make a negative or derogatory remark about his age. He never heard a member of CNA management make a negative or derogatory remark about older employees. . . . or . . . about older people" (7.1(f) Statement as to Hughes at 11, ¶ 43); and that ...


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