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).
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.
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
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 ...