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November 1, 2001


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


The instant action involves claims of employment discrimination on the basis of age, brought pursuant to the Age Discrimination in Employment Act of 1967 (ADEA), 29 U.S.C.A. § 621 et seq., the New York State Human Rights Law ("Executive Law"), N.Y. Exec. Law § 296 (McKinney 2001) and the New York City Human Rights Law ("Administrative Code"), N.Y. City Admin. Code § 8-107, as well as a common law claims of libel, and a claim for unpaid vacation benefits under N.Y. Labor Law § 198 (McKinney 1986). Defendants, Tri-Maintenance Inc., Kurt Stankus, Louis Stephens and L.F. Stephens Inc. (collectively "Defendants") move for summary judgment on all claims. For the reasons discussed below, Defendants' motion for summary judgment is denied as to claims one, two, three and four, and is granted as to claim five.


When considering a motion for summary judgment, this court does not engage in finding of facts or weighing of credibility, but determines if any material questions of fact are in dispute after resolving all ambiguities and drawing all justifiable inferences in favor of the nonmoving party. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Carlton v. Mystic Transportation Inc., 202 F.3d 129, 133 (2d Cir. 2000). Accordingly, the following discussion of facts is based upon the allegations and supporting evidence submitted by the parties, affording appropriate weight to those of Dunson, the nonmoving party.

For over thirty-five years, Willie E. Dunson ("Dunson") worked for MacClean Service Company in various capacities, including night supervisor and night operations manager at St. John's Queens campus. (Pl.'s Statement Pursuant to Local Rule 56.1 "Pl.'s 56.1 Statement" at 2.) On February 28, 1996, Defendant Tri-Maintenance Inc. ("Tri-Maintenance") entered into a contract with St. John's University to take over the provision of maintenance services on campus. Pursuant to this contract, Tri-Maintenance agreed to retain employees, including Dunson, who had been employed by MacClean. (Statement of Undisputed Material Facts on Behalf of Defs. ("Defs.' Statement of Facts") ¶ 3; Pl.'s 56.1 Statement at 3.) From March 1, 1996 until April 11, 1997, when Dunson received a termination letter dated April 10, 1997, Dunson was employed by Tri-Maintenance. (Pl.'s 56.1 Statement at 2.) Dunson turned 62 years old just after he began his employment with Tri-Maintenance and was 63 years old when he was fired. (Pl.'s 56.1 Statement at 8.)

As the night operations manager with MacClean, Dunson had been responsible for overseeing maintenance work at the St. John's Queens campus. (Id. at 5.) When Tri-Maintenance took over the contract, Dunson initially retained his position as the sole night operations manager of the Queens campus until some time between June and July of 1996. At that time, Tri-Maintenance hired Robert Williams, who was significantly younger than Dunson, to serve as co-manager with Dunson. (Defs.' Statement of Facts ¶¶ 4-5; Pl.'s 56.1 Statement at 6, Ex. PP.) Shortly after Mr. Williams became co-manager, Dunson was transferred to the smaller Staten Island campus and Williams continued as the sole night manager of the Queens campus. (Pl.'s 56.1 Statement at 6.) As night manager in Staten Island, Dunson maintained the same salary and title, however he was managing a significantly smaller crew of employees. Then in January 1997, Tri-Maintenance ended its service for the Staten Island campus and transferred Dunson back to the Queens campus, this time as a day foreman at the Law School. (Id. at 67.)

As Law School foreman, Dunson reported to Robert Griffenstein, the plant manager. In March 1997, two months before Dunson was fired, Griffenstein asked Dunson "what it would take for [Dunson] to retire." (Id. at 7.) Dunson replied that he would have to discuss it with his wife. Griffenstein then called Dunson at home during the evening, leaving a message that Dunson should call Griffenstein at home in New Jersey "as he had to have an answer." (Id.) The morning after receiving this call, Dunson informed Griffenstein that it would be at least a year before he considered retiring. (Id.) The contents of this conversation were relayed by Griffenstein to Defendant Kurt Stankus, Tri-Maintenance's Senior Vice President of Operations. (Pl.'s Ex. L, Stankus Tr. 10, 13-14.)

On April 9, 1997, Tri-Maintenance received an anonymous letter from "The Workers at Tri-Maintenance, St. Johns's University" alleging that Dunson and his subordinate, Fabio Corrales, had engaged in various acts of misconduct and illegal activities during the previous McClean administration. (Id. at 8.) Immediately after receiving this anonymous letter, and within the period of time between April 9th and April 11th, a series of phone calls, meetings, interviews and investigations were conducted in response to this letter. While the parties dispute the chronology of various of these activities, it is undisputed that the following occurred at some point between April 9th and April 11th: 1) In an attempt to obtain corroboration of the accusations, Al Zweifler, the assistant manager at the Queens Campus, met with and interviewed, through a Spanish-speaking interpreter, Mrs. Zambrano, a Tri-Maintenance employee supervised by Corrales and Dunson; 2) Tri-Maintenance retained the services of L.F. Stephens, Inc., a private investigative firm to investigate the allegations; 3) Phil Caprio, CEO of Tri-Maintenance met with St. John's representatives with respect to the letter and investigation; 4) Robert C. Stewart, an investigator with L.F. Stephens, Inc., met with Tri-Maintenance management to develop a plan for investigation and interviewed another Tri-Maintenance employee, Mr. Borbor; 5) Between 10:30 p.m. on April 10th and 2:30 a.m. on April 11th, five investigative teams conducted interviews of over 20 Tri-Maintenance employees; 6) Caprio spoke with Stewart about the investigations at some point between April 10th and April 11th; 7) Caprio called Stankus on April 10th and instructed him to write a letter of termination for Dunson; 8) the letter was written on April 10th and delivered to Dunson on April 11th. (Pl.'s 56.1 Statement at 8-10, 13-15; Defs.' Statement of Facts ¶¶ 12-27.)


A. Summary Judgment

Summary judgment is only appropriate when there is no genuine issue as to any material fact, so that the moving party is entitled to a judgment as a matter of law. FED.R.CIV.P. 56(c). In determining whether a genuine issue of material fact exists, the court should review all of the evidence in the record in the light most favorable to the non-movant, and in so doing "the court must draw all reasonable inferences in favor of the nonmoving party, and it may not make credibility determinations or weigh the evidence." Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000); Weinstock v. Columbia Univ., 224 F.3d 33, 41 (2d Cir. 2000) (quoting Delaware & Hudson Ry. Co. v. Consolidated Rail Corp., 902 F.2d 174, 177 (2d Cir. 1990)). Summary judgment "is properly granted only when no rational finder of fact could find in favor of the non-moving party." Carlton v. Mystic Transp., Inc., 202 F.3d 129, 134 (2d Cir.), cert. denied, (2000).

The moving party bears the initial burden of demonstrating the absence of any genuine issue of material fact. See Gallo v. Prudential Residential Servs., L.P., 22 F.3d 1219, 1223 (2d Cir. 1994). The burden then shifts to the nonmovant to "come forward with `specific facts showing that there is a genuine issue for trial.'" Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (quoting FED.R.CIV.P. 56(e)). "Conclusory allegations, conjecture, and speculation, however, are insufficient to create a genuine issue of fact." Kerzer v. Kingly Mfg., 156 F.3d 396, 400 (2d Cir. 1998); see also Weinstock, 224 F.3d at 41.

Although the Second Circuit has noted that "[s]ummary judgment is appropriate even in discrimination cases," Weinstock, 224 F.3d at 41, it has also recently cautioned with equal force that "where intent and state of mind are in dispute, summary judgment is ordinarily inappropriate. . . . Thus, a trial court should exercise caution when granting summary judgment to an employer, where as here, its intent is a genuine factual issue." Carlton, 202 F.3d at 134 (internal citations omitted).

B. Claims Against Defendant Tri-Maintenance: Age Discrimination Under the ADEA, New York State Executive Law and New York City Administrative Code

1. The Legal Standard

In Dunson's First Claim for Relief, he alleges that Tri-Maintenance acted in violation of the ADEA when it transferred, demoted and fired him on the basis of his age. (Pl.'s First Am. Compl. ¶¶ 40-45.) In addition, in his Second and Third Claims for Relief, Dunson alleges that these same acts are in violation of § 296(1) of the Executive Law and § 8-107(1)(a) of the Administrative Code. (Id. ¶¶ 49, 57.) As discussed below, each of these claims are subject to the same analysis.

ADEA claims are analyzed under the same burden-shifting paradigm used in Title VII employment discrimination cases, and as set out in McDonnell Douglas v. Green, 411 U.S. 792, 802-04, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). See Galabya v. New York City Bd. of Educ., 202 F.3d 636, 639 (2d Cir. 2000); see also McKennon v. Nashville Banner Pub'g Co., 513 U.S. 352, 357, 115 S.Ct. 879, 130 L.Ed.2d 852 (1995) ("The substantive, antidiscrimination provisions of the ADEA are modeled upon the prohibitions of Title VII."). A plaintiff alleging age discrimination "has the initial burden of `proving by the preponderance of the evidence a prima facie case of discrimination.'" Carlton v. Mystic Transp., Inc., 202 F.3d 129, 134 (2d Cir. 2000) (quoting Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 252-53, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981)). A prima facie case under the ADEA requires the plaintiff to show that he was (1) within the protected age group, (2) qualified for the position, (3) subject to an adverse employment action, and (4) that the action occurred under circumstances giving rise to an inference of discrimination on the basis of age. See Tarshis v. Riese Org., 211 F.3d 30, 35 (2d Cir. 2000); Carlton, 202 F.3d at 134. The burden of establishing a prima facie case is minimal. The plaintiff "need not prove that age was the only or even the principal factor in the adverse employment action" and "[d]irect evidence of discrimination is not necessary . . ." Carlton, 202 F.3d at 134.

Just as the McDonnell Douglas burden-shifting analysis and its progeny have been used to interpret the ADEA, these standards also apply to claims of age discrimination brought under the New York State Executive Law and the New York City Administrative Code. See Abdu-Brisson v. Delta Air Lines, Inc., 239 F.3d 456, 466 (2d Cir. 2001) ("Although there are differences between the State [Human Rights Law `HRL'], the City HRL and the . . . [ADEA], age discrimination suits brought under the State HRL and City HRL are subject to the same analysis as claims brought under the ADEA."); Tyler v. Bethlehem Steel Corp., 958 F.2d 1176, 1180 (2d Cir. 1992) (noting that "elements of proof of liability for a case commenced under [New York State Human Rights Law] have been the same as those required under the federal age discrimination in employment act"); Gerzog v. London Fog Corp., 907 F. Supp. 590, 597 (E.D.N.Y. 1995) (applying same prima facie standard for age discrimination claims under ADEA, New York State Executive Law and New York City Administrative Code); see also Miller Brewing Co. v. State Div. of Human Rights, 66 ...

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