of Brew Burger 810,
was informed of the closing approximately two weeks before it was to
occur by her supervisor, Mr. Marlon Muentes. Ms. Torres was told that she
would be laid-off. Mr Villavecencio, the assistant manager, was
transferred to a Tad's Restaurant, where he had worked previously for
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. manager." The form was dated
January 8, 1994, and initialed with "tc" for Tom Carpenter.
During his entire time with Riese, Mr. Tarshis never heard any
supervisors make disparaging remarks concerning his race or his age.
Ms. Torres, after the holiday work at Lindy's Radio City, was hired by
Mr. Rosado to fill a vacant general manager position at another Lindy's
(Lindy's 1525). Ms. Torres was replacing a white woman, Ms. Gladys
Roman, who had been transferred to another Riese restaurant. Ms. Torres,
who is now sixty years old, remains the general manager of Lindy's 1525.
Sometime in 1994, Riese subsumed the job title of "relief manager" into
"assistant manager." Mr. Perez, who was relief manager at Lindy's
825, was reassigned to work under Ms. Torres as an assistant manager at
Lindy's 1525. Mr. Perez held that position until his retirement in
In May 1994 Mr. Rosado lost his position as night district manager in a
restructuring of Riese's mid-level management. His supervisory duties
over the four Lindy's restaurants were transferred to Al Knapp, a white
male. As a result, Mr. Rosado was told he would be laid off. At about
that time, the general manager position at Lindy's 825 became vacant due
to the death of the employee. Mr. Rosado asked to be considered for that
position and accepted an offer for it, despite a reduction in salary
— from $52,000 to $37,000.
The Brew Burger 810 where Mr. Tarshis worked was reopened at some point
in 1994 as a Martini's Restaurant. The person hired as general manager
was a white woman who had worked previously for Reise, and the person
hired as assistant manager was a white woman who had worked previously
with Martini's new chef, a white male. None of the managers who had
worked at Brew Burger 810 was rehired to work at Martini's.
In March 1994 Mr. Tarshis went to ajob fair for Riese's Fast Food
Division and gave his resume to a Riese representative. Mr. Tarshis was
subsequently called and offered a job with one of Riese's Dunkin'
Donuts. Riese claims it was an assistant manager position, but Mr.
Tarshis states that it was more of a "porter" or "utility person"
position. The position required a six-day work week and the salary was
$360 per week, $75 per week less than what Mr. Tarshis was earning
previously with Riese. Mr. Tarshis advised a friend of his (and fellow
Riese employee), Spencer Robinson, that he had been offered the Dunkin'
Donuts position. Mr. Robinson encouraged Mr. Tarshis to take it. Mr.
Tarshis decided to decline the offer because it was, in his mind, an
inferior position for less pay. Mr. Tarshis opted to continue drawing
In the May 22, 1994, edition of the New York Times, Riese placed an
advertisement looking for assistant and general managers. On May 24,
1994, Mr. Tarshis wrote Steven Gaber, Riese Director of Human Resources
Training, seeking employment as mentioned in the advertisement. Mr.
Tarshis was not rehired.
IV. STANDARD FOR SUMMARY JUDGMENT
Summary judgment is appropriate only if "there is no genuine issue as
to material fact" and "the moving party is entitled to judgment as a
matter of law." Fed. R. Civ. P. 56(c). The burden is on the movant to
demonstrate that no genuine issue exists respecting any material fact.
See Gallo v. Prudential Residential Servs., Ltd. P'ship, 22 F.3d 1219,
1223 (2d Cir. 1994). "In assessing the record to determine if such issues
exist, all ambiguities must be resolved and all inferences drawn in favor
of the party against whom summary judgment is sought." Carlton v. Mystic
Transp., Inc., 202 F.3d 129, 133 (2d Cir. 2000) (citing Anderson v.
Liberty Lobby. Inc., 477 U.S. 242, 255 (1986)). That is to say, the
parties' Local Rule 56.1 Statements, deposition testimony, affidavits, and
documentary evidence must be viewed in the light most favorable to the
plaintiff. Roge v. NYP Holdings. Inc., 257 F.3d 164, 165 (2d Cir. 2001);
Bedova v. Coughlin, 91 F.3d 349, 351 (2d Cir. 1996).
The Second Circuit has repeatedly indicated that trial courts should be
wary of granting summary judgment in discrimination cases since intent
and state of mind are typically at issue and direct evidence of
discriminatory intent is rare. See, e.g., Holz. v. Rockefeller & Co.,
Inc., 258 F.3d 62, 69 (2d Cir. 2001); Schwapp v. Town of Avon,
118 F.3d 106, 110 (2d Cir. 1997); Gallo, 22 F.3d at 1224. However, a
plaintiff must nevertheless "offer concrete evidence from which a
reasonable juror could return a verdict in his favor." Dister v. Cont'l
Group. Inc., 859 F.2d 1108, 1114 (2d Cir. 1988) (quoting Anderson, 477
U.S. at 256); see also Weinstock v. Columbia Univ., 224 F.3d 33, 41-42
(2d Cir. 2000) (noting that "impression that summary judgment is
unavailable to defendants in discrimination cases is unsupportable").
Plaintiff cannot simply "rely upon "mere speculation or conjecture as to
the true nature of the facts to overcome a motion for summaryjudgment."'
Leichter v. St. Vincent's Hosp., No. 94 Civ. 7537, 2001 WL 1160748
(S.D.N.Y. Sept. 28, 2001) (quoting Knight v. U.S. Fire Ins. Co.,
804 F.2d 9, 12 (2d Cir. 1986)); see also Matsushita Elec. indus. Co. v.
Zenith Radio Corp., 475 U.S. 574, 586 (1986) (holding that nonmoving
party must do more than merely show "some metaphysical doubt" as to
material facts to avoid summary judgment).
V. ANALYSIS OF PLAINTIFF'S INDIVIDUAL CLAIMS
A. Plaintiffs Federal Claims
Title VII of the Civil Rights Act of 1964 provides, in pertinent part:
It shall be an unlawful employment practice for an employer - (1)
to... discriminate against any individual with respect to his
compensation, terms, conditions, or privileges of employment, because
of such individual's race, color, religion, sex, or national origin.
42 U.S.C. § 2000e-2 (a)(1). Plaintiff alleges that defendant
"willfully discriminated against [him] based upon his race (Caucasian or
white) or his national origin or ethnicity (of European descent) in
violation of [Title VII]." 2d Am. Compl. ¶ 65.*fn1
The language of the ADEA mirrors that of Title VII:
It shall be unlawful for an employer-(1) to... discriminate against any
individual with respect to his compensation, terms, conditions, or
privileges of employment, because of such individual's age.
29 U.S.C. § 623 (a)(1). Plaintiff alleges that defendant "willfully
discriminated against [him] based upon his age in violation of the
[ADEA]." 2d Am. Compl. ¶ 59.
In the absence of direct evidence of discrimination, courts analyze
claims brought under Title VII and the ADEA under the familiar
burden-shifting framework first articulated by the Supreme Court in
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See,e.g.,
Zimmermann v. Assocs. First Capital Corp., 251 F.3d 376 (2d Cir. 2001)
(Title VII); Schnabel v. Abramson, 232 F.3d 83 (2d Cir. 2000) (ADEA).
Under the McDonnell Douglas analysis, plaintiff "has the initial burden
of "proving by the preponderance of the evidence a prima facie case of
discrimination."' Carlton, 202 F.3d at 134 (quoting Tex. Dep't of Cmtv.
Affairs v. Burdine, 450 U.S. 248, 252-53 (1981)). To establish a prima
facie case of discrimination under either Title VII or the ADEA, a
plaintiff must show (1) that he or she was a member of a protected group,
(2) that he or she was qualified for the position in question, (3)
that he or she was discharged from that position, and (4) that the
discharge occurred under circumstances giving rise to an inference of
discrimination. See Windham v. Time Warner. Inc., 275 F.3d 179, 187 (2d
Cir. 2001) (Title VII); Schnabel, 232 F.3d at 87 (ADEA). For purposes of
this summary judgment motion, defendants concede (and the court assumes)
that plaintiff has met his burden in making out prima facie cases.
Once a plaintiff has established his or her prima facie case, the
burden then shifts to the defendant to "articulat[e] a legitimate,
non-discriminatory reason for the employment action." Weinstock, 224 F.3d
at 42. This burden is merely "one of production, not persuasion; it can
involve no credibility assessment." Reeves v. Sanderson Plumbing Prods..
Inc., 530 U.S. 133, 142 (2000). Defendant's proffered reason for
plaintiffs termination is that "there was no full time relief manager's
position at Lindy's for him when he returned from vacation in November,
1993." DeL's Loc. R. 36.1 Stmt. ¶ 97; see Rosado 10/05/01 Aff ¶
7; Torres 10/03/01 Aff ¶ 7. Plaintiff, however, seems to believe that
this explanation fails to satisfy the requirements of the second strand
of the McDonnell Douglas analysis. See Pl.'s Mem. of Law at 16 ("Riese
has not presented non-discriminatory, legitimate business reasons for the
adverse employment actions it impermissibly took against Tarshis.").
Plaintiff is mistaken. At this stage, defendant need only articulate a
"clear and specific" reason for plaintiffs termination, and defendant has
done so. See Schnabel, 232 F.3d at 88. As the Second Circuit has noted in
this very case, "[w]e recognize that a reduction-in-force or
restructuring that results in an elimination ofjobs often is a legitimate
reason for dismissing an employee." Tarshis, 211 F.3d at 37 (citing
Woroski v. Nashua Corp., 31 F.3d 105, 109 (1994), Gallo, 22 F.3d at
1226, and Dister, 859 F.2d at 1116). The court therefore concludes that
defendant has met its burden under the second strand of the McDonnell
Since defendant has articulated a legitimate, nondiscriminatory reason
for terminating plaintiff, the burden now shifts back to plaintiff to
present sufficient evidence whereby a reasonable jury could conclude that
defendant unlawfully discriminated against him. See Schnabel, 232 F.3d at
88. A plaintiff can accomplish this by showing that a defendant's stated
reasons for discharging him were pretextual, but such evidence of pretext
is "simply one form of circumstantial evidence that is probative of
intentional discrimination, " and — when combined with a prima facie case
— may not be enough to withstand a defendant's motion for summary
judgment. Reeves, 530 U.S. at 147; Schnabel, 232 F.3d at 89-90. The
pivotal inquiry at this stage of the summary judgment analysis is "whether
there is sufficient evidence in the record from which a reasonable trier
of fact could find in favor of plaintiff on the ultimate issue, that is,
whether the record contains sufficient evidence to support an inference
of discrimination." Minton v. Lenox Hill Hosp., 160 F. Supp.2d 687,
693-94 (S.D.N.Y. 2001) (citing James v. N Y Racing Ass'n,