The opinion of the court was delivered by: Stein, District Judge.
Oswald Johnson, acting pro se, has commenced this action
alleging that the Eastchester Union Free School District
discriminated against him based on his age in violation of the
Age Discrimination in Employment Act of 1967 ("ADEA"),
29 U.S.C. § 621 et seq. when it changed the location and hours of his
job. The school district has now moved pursuant to Fed.R.Civ.P.
56 for summary judgment dismissing the complaint. Because
Johnson has failed to establish that the change constituted an
adverse employment action, Eastchester's motion is granted and
the complaint should be dismissed.
Oswald Johnson, age 69, is presently employed by the school
district as a cleaner who cleans classrooms, bathrooms, and
hallways. (Def.'s Statement of Facts ("DSOF") ¶ 1.) The school
district embraces five school buildings within a 3.5 mile radius
and employs 27 cleaners and custodians to clean, maintain, and
secure the buildings. (DSOF ¶ 2.) It employs individuals to work
both daytime and evening shifts. (DSOF ¶ 2.)
Custodial personnel, such as plaintiff, are members of a union
that has entered into a collective bargaining agreement with the
school district and provides, inter alia, that custodial
personnel must — at the school district's expense — undergo a
job related physical once every two years; it also gives the
school district the right to "direct and assign employees and to
regulate work schedules." (DSOF ¶ 11; Mills Decl. ¶ 6 and Ex. A
at 15, 16; Melnyk Reply Decl. ¶ 5.)
As a result of the required physical examination, (Melnyk
Reply Decl. ¶ 4; Johnson Aff. Opp'n ¶¶ 3, 10), it was discovered
in May of 2000 that Johnson had a "very dense cataract in the
right eye and a moderate cataract in the left." (Melnyk Reply
Decl. ¶ 8 and Ex. B.) Johnson subsequently had successful
cataract surgery on his right eye. (Melnyk Reply Decl. ¶ 10 and
On the same day as the eye surgery, Johnson was notified by
William Mills, age 54, the director of facilities, that his work
assignment was being changed from the Waverly Kindergarten
School to Eastchester High School and his hours were being
changed from 11:00 a.m. to 8:00 p.m. at the kindergarten school
to 3:00 p.m. to midnight at the high school. (Mills Decl. ¶¶ 11,
17 and Ex. B.) Johnson then requested — and was granted — a
shift change to 2:00 p.m. to 11:00 p.m. to enable him to use
public transportation. (Johnson Aff. Opp'n ¶ 8; DSOF ¶ 14.)
Johnson was one of seven employees whose job assignments or
shifts were changed that day. (DSOF ¶¶ 5, 8.) No one was hired to
replace Johnson but a part-time worker, Nick Zanzano, age 78,
was transferred to the Waverly Kindergarten School. (DSOF ¶¶
As noted above, Eastchester seeks summary judgment pursuant to
Rule 56 on the grounds that Johnson has failed to set forth a
prima facie case of discrimination in that he has failed to
demonstrate an adverse employment action. Eastchester also
asserts that Johnson has failed to demonstrate the existence of
any animus based on age by Eastchester that motivated the
decision to transfer Johnson and change his shift hours.
Summary judgment may be granted "only when the moving party
demonstrates that `there is no genuine issue as to any material
fact and that the moving party is entitled to a judgment as a
matter of law.'" Allen v. Coughlin, 64 F.3d 77, 79 (2d Cir.
1995) (quoting Fed.R.Civ.P. 56(c)); see also Celotex Corp. v.
Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265
(1986). The Court must "view the evidence in the light most
favorable to the nonmoving party and draw all reasonable
inferences in its favor, and may grant summary judgment only
when `no reasonable
trier of fact could find in favor of the nonmoving party.'"
Allen, 64 F.3d at 79 (citation omitted) (quoting Lund's, Inc.
v. Chemical Bank, 870 F.2d 840, 844 (2d Cir. 1989)).
Once the moving party meets its initial burden of
demonstrating the absence of a genuine issue of material fact,
the nonmoving party must come forward with specific facts to
show there is a factual question that must be resolved at trial.
Fed.R.Civ.P. 56(e); see also Legal Aid Soc'y v. City of New
York, 114 F. Supp.2d 204 (S.D.N.Y. 2000). A nonmoving party must
produce evidence in the record and "may not rely simply on
conclusory statements or on contentions that the affidavits
supporting the motion are not credible." Ying Jing Gan v. City
of New York, 996 F.2d 522, 532 (2d Cir. 1993). In short, a
nonmoving party must "do more than simply show there is some
metaphysical doubt as to the material facts." Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct.
1348, 89 L.Ed.2d 538 (1986). Summary judgment is inappropriate
where "the dispute about a material fact is `genuine,' that is,
if the evidence is such that a reasonable jury could return a
verdict for the nonmoving party." Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).
In addition, the pleadings of a pro se plaintiff must be read
liberally and interpreted "`to raise the strongest arguments
that they suggest.'" McPherson v. Coombe, 174 F.3d 276, 280
(2d Cir. 1999) (quoting Burgos v. Hopkins, 14 F.3d 787, 790
(2d Cir. 1994)).
Johnson alleges that Eastchester violated the ADEA, which
proscribes discrimination against an employee because of his or
her age. Galabya v. New York City Bd. of Ed., 202 F.3d 636,
639 (2d Cir. 2000). ADEA protection extends to employees who are
at least forty years old. 29 U.S.C. § 631(a). As previously
noted by this Court in an earlier opinion in this action,
Johnson's complaint can arguably be seen to also raise a claim
pursuant to the New York State Human Rights Law, N.Y. Exec. Law
§§ 290 et seq. See Johnson v. Eastchester Union Free Sch.
Dist., No. 01 Civ. 2835, 2002 WL 449584, at *2 (S.D.N.Y. Mar.