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April 2, 2001


The opinion of the court was delivered by: Constance Baker Motley, U.S. District Judge.



Plaintiff Fred Tarshis brings this action against defendant The Riese Organization, alleging violations of the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et seq., Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq., the New York State Human Rights Law ("NYSHRL"), N.Y. Exec. Law § 296, and Article I, section 11 of the New York State Constitution. Now before the court is defendant's motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. For the reasons stated in this opinion, defendant's motion will be granted.


Plaintiff commenced this action in October 1996 and the case was assigned to Judge Batts. In November 1996 defendant filed a motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. In October 1998 defendant's motion was granted and the case dismissed for failure to state a claim upon which relief could be granted. See Tarshis v. Riese Org., No. 96 Civ. 7513, 1998 WL 709817 (S.D.N.Y. Oct. 9, 1998). Plaintiff appealed pro se. In April 2000 the Second Circuit vacated the judgment of the district court and remanded the case for further proceedings. See Tarshis v. Riese Org., 211 F.3d 30 (2d Cir. 2000). After remand, the parties engaged in discovery which was completed in April 2001. In July 2001 the case was transferred to the undersigned, and in October 2001 defendant filed the instant motion for summaryjudgment. The court heard oral argument on defendant's motion on December 14, 2001.


The parties' Local Rule 56.1 Statements and other papers are replete with minute details, most of which have little relevance to the instant motion. The relevant facts are set forth below and, unless otherwise indicated, are not in dispute.

Plaintiff Fred Tarshis was hired by defendant The Riese Organization ("Riese") in January 1974 and laid-off on January 8, 1994. Mr. Tarshis, who is white, was born in 1927 and was sixty-six years old when he was laid-off Employment records maintained by Riese, however, indicate that Mr. Tarshis was born in 1937, which would have made him fifty-six years of age at the time he was laid-off Other Riese employees have indicated that Mr. Tarshis represented that he was in his mid-fifties at the time of his termination. During his twenty year tenure at Riese, Mr. Tarshis worked various jobs - including dishwasher, bartender, cashier, host, waiter, relief manager, and assistant manager - at several Riese-owned restaurants, E including Brew Burger, Lindy's, The Griddle Coffee Shop, Dunkin' Donuts, Childs, and London Derry Pub.

In October 1993 Mr. Tarshis was employed by Riese as a relief manager- i.e., a substitute night manager — at two locations, approximately half-time at the Brew Burger at 810 Seventh Avenue ("Brew Burger 810") and half-time at the Lindy's across the street at 825 Seventh Avenue ("Lindy's 825"). Mr. Tarshis's supervisor at both locations was Roberto "Tony" Rosado, who is Hispanic. Mr. Rosado was the night district manager for all Riese restaurants and he also directly supervised four Lindy's restaurants. The general manager of Brew Burger 810 was Mary Torres, and the assistant manager was Hugo Villavicencio, both of whom are Hispanic. The general manager of Lindy's 825 was Ebrahim Kardooni, who was of Indian descent, and the assistant manager was Fred Rosenblatt, who is white and Jewish.

In or about mid-1993, Riese changed its policy concerning vacations for managementlevel employees. Previously, managers were not required to take vacations if they chose not to do so. The new policy required each manager to take at least one week of actual vacation. Riese claims a memorandum detailing the policy was sent to all managers. Mr. Tarshis claims he never saw the memorandum, but he admits to having learned of the policy orally from Mr. Rosado sometime late in the summer of 1993. In September 1993 Mr. Tarshis told Mr. Rosado that he was going to take a four week vacation in October.

Mr. Tarshis states that he had heard rumors that the Brew Burger 810 might close down, since Riese was always closing restaurants, but he did not hear that it was going to close while he was on vacation. He did know, however, that every other Brew Burger had closed by this point and that Brew Burger 810 was going to close eventually (if not necessarily while he was on vacation).

While Mr. Tarshis was on vacation, Mr. Rosado assigned Mike Perez, a fifty-nine year old Hispanic male to Mr. Tarshis's part-time relief manager position at Lindy's 825. Mr. Perez had been working for Riese for three years and had previously been an assistant manager prior to being laid off in May 1993. He was rehired a month later and given the position of part-time relief manager at two other Lindy's. In Mr. Tarshis's absence, Mr. Perez was assigned the position at Lindy's 825 in addition to his positions at the two other Lindy's.

Also while Mr. Tarshis was on vacation, Mr. Rosado informed his supervisor, Tom Carpenter, that he did not have an opening or need for a full-time relief manager at Lindy's 825 and that he could not place Mr. Tarshis. Mr. Rosado and Mr. Carpenter never discussed Mr. Tarshis's age. When Mr. Tarshis returned from vacation he went to Lindy's 825 to go to work and the manager informed him that there was no job for him.

Approximately two weeks later, Mr. Tarshis spoke with Mr. Carpenter about losing his job. Mr. Carpenter then called Mr. Rosado, telling him that he did not want to lay off Mr. Tarshis during the holiday season. Mr. Carpenter told Mr Rosado to assign Mr. Tarshis to ajob as a host at the Lindy's across from Radio City Music Hall. Because of the Christmas Show at Radio City, that particular Lindy's was very busy and needed the extra help. In fact, Ms. Torres — the assistant manager who had also been laid off when Brew Burger 810 closed — was also rehired for temporary work over the holidays at the Radio City Lindy's. At the conclusion of the holiday season, Mr. Rosado informed Mr. Carpenter that he once again had no position for Mr. Tarshis. Mr. Carpenter directed Mr. Rosado to tell Mr. Tarshis that he was once again going to be laid off. Again, the issue of Mr. Tashis's age was never discussed between Mr. Rosado and Mr. Carpenter.

Mr. Rosado notified Mr. Tarshis that he would once again be laid off Mr. Rosado completed a personnel form called a "Notice of Separation/Termination." On the form, Mr. Rosado wrote that Mr. Tarshis had been laid off and that Mr. Tarshis was "ok to rehire for any small operation, low volume location. ok asst. ...

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