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June 27, 2002


The opinion of the court was delivered by: VICTOR Marrero, Judge.


Plaintiff Christopher Douglas ("Douglas") brought this action against his former employer, District Council 37 Municipal Employees' Education Fund Trust (the "Fund"), alleging the Fund terminated his employment in violation of the Age Discrimination in Employment Act of 1967 (the "ADEA"), 29 U.S.C. § 621-34, the New York State Human Rights Law, N.Y. Exec. Law § 296 (2001), and the New York City Human Rights Law, N.Y.C. Admin. Code § 8-101 (the State and City statutes are herein collectively referred to as the "HRLs"). The Fund moved for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. For the reasons set forth below, the Fund's motion is granted.

I. FACTS*fn1

In late August or early September, 1998, Douglas replied to the Fund's advertisement for the managerial position of Associate Administrator. The job required, among other things, supervision of staff, administration of education benefits, preparation of grant applications and budget monitoring, and implementation and supervision of education programs. On September 8, 1998, Douglas filled out the Fund's employment application (the "Application"), which asked for information, such as the applicant's employment history, and specifically requested the identity of his last three employers and reasons for leaving their employ.

On the Application, Douglas stated that his sole reason for leaving his most recent employer, SUNY Health Science Center ("SUNY"), was that the grant that funded his program was not renewed. While there is some dispute as to whether or not Douglas's grant was renewed, there is no question that Douglas left SUNY at least in part because he was terminated for under-performance of his job duties. Douglas failed to disclose on the Application that SUNY had terminated him. Douglas also stated on the Application that he had been employed by SUNY from 1996 through 1998, when in fact he had only been with SUNY for six months during 1997. At the same time, Douglas submitted a resume containing the correct dates of his SUNY employment.

Douglas did not disclose on the Application that he was fired from another previous employer, Apple, Inc. ("Apple") Douglas argues that he did not purposely omit this information from the Application, but that he provided the requested information for his three previous employers in the space available. Furthermore, Apple was not one of Douglas's prior three employers.

Based in part on the information Douglas provided in the Application, Barbara Kairson ("Kairson"), Administrator of the Fund and Douglas's direct supervisor, hired him as Associate Administrator.

Douglas's first four months with the Fund were uneventful, as recorded in a January 8, 1999 memorandum (the "January Memorandum") of Douglas's job performance that Kairson prepared. Kairson commended Douglas in many respects and critiqued him in others.*fn2

During the remainder of Douglas's tenure with the Fund he experienced difficulties that culminated in his termination in October 2000. The Fund provided documentation of the following specific examples.

According to the Fund, in the Spring of 1999, Douglas engaged in a screaming match with another Fund employee, Chandler Henderson ("Henderson"). While Douglas denies this encounter ever happened, another Fund employee, Ken Sherman ("Sherman"), corroborating Henderson's statement that the event occurred, attested that he witnessed Douglas and Henderson involved in a "very intense argument."*fn3 (See Defendant's Reply Memorandum of Law in Support of its Motion for Summary Judgment ("Def.'s Reply"), at Ex. 3.)

In late Spring, 2000, a staff associate who reported directly to Douglas, Jacqueline Moses-Noble ("Noble"), began misappropriating funds from the Summer Activities Program (the "Summer Program"), which she administered. In administering the Summer Program, Noble was required to collect payments — in the form of money orders because cash payments were discouraged — from persons who wished to participate in the program. Noble embezzled $4,100.00 from the Summer Program by issuing false receipts, collecting cash payments, and altering money orders. Douglas, as Noble's supervisor, was responsible for reviewing, on a daily basis, her accounting forms and the money Noble collected for the Summer Program. After a coworker, Sherman, noticed a discrepancy between the money collected and the registration forms for the Summer Program, Kairson reviewed Noble's work and exposed her wrongdoing.*fn4 Noble was fired on July 3, 2000.

The Fund suspected that Douglas played a role in Noble's theft, although it had no clear evidence of Douglas's guilt. The Fund had noted that Noble had spent considerable time in Douglas's office, late into the night. During discovery, it was revealed that Noble had called Douglas's home 147 times between May 25, 2000 and June 20, 2000, oftentimes after midnight. This documentation contradicted Douglas's sworn deposition testimony that he and Noble never telephoned one another at home. Nevertheless, given the totality of the circumstances, the Fund takes the position that either Douglas was an incompetent manager who failed to uncover his direct subordinate's misdeeds, or that Douglas played a contributory role in Noble's embezzlement scheme.

Douglas contends that he was not part of Noble's impropriety and that he never noticed any discrepancy in her administration of the Summer Program. Moreover, Douglas argues that while Noble was his direct subordinate, she also had a personal and professional relationship with Kairson for whom she worked before Kairson was promoted to her current position. Thus, Douglas alleges that Kairson is equally responsible for Noble's misdeeds. Douglas provides no explanation for his failure to become aware of or expose Noble's misdealings even though she reported directly to him on a daily basis.

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