Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.


July 23, 2002


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.


A. Undisputed Facts*fn1

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 Ex. D.)

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 ¶¶ 9-10.)

B. Eastchester's Motion

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. 22, ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.