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.
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
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.