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
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 ¶¶
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, 2002). Those claims are subject to the same analysis as
claims brought pursuant to the ADEA. See Lightfoot v. Union
Carbide Corp., 110 F.3d 898, 913 (2d Cir. 1997).
To survive a motion for summary judgment at the conclusion of
discovery proceedings, Johnson must establish a prima facie
case of discrimination using the framework enunciated in
McDonnell Douglas. See Galabya, 202 F.3d at 639. See also
McDonnell Douglas v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817,
36 L.Ed.2d 668 (1973). Thus, Johnson must show (1) that he was
in the protected age group; (2) that he was qualified for the
position; (3) that he suffered an adverse employment decision;
and (4) that the adverse employment decision occurred under
circumstances giving rise to an inference of discrimination.
Norton v. Sam's Club, 145 F.3d 114, 118 (2nd Cir. 1998);
Courtney v. City of New York, 20 F. Supp.2d 655, 658 (S.D.N.Y.
There is no dispute as to the first two elements; Johnson is
within the protected age group and was qualified for the
position. It is the third element that Eastchester claims fails
as a matter of law on the grounds that Johnson did not suffer an
adverse employment action when he was transferred to another
location and his shift was changed.
A plaintiff does not suffer an adverse employment action
unless he endures a "materially adverse change in the terms and
conditions" of his employment. Galabya, 202 F.3d at 640
and citations omitted). The change must be "`more disruptive
than a mere inconvenience or an alteration of job
responsibilities'" to be materially adverse. Id. (quoting
Crady v. Liberty Nat'l Bank and Trust Co., 993 F.2d 132, 136
(7th Cir. 1993)). "`A materially adverse change might be
indicated by a termination of employment, a demotion evidenced
by a decrease in wage or salary, a less distinguished title, a
material loss of benefits, significantly diminished material
responsibilities, or other indices . . . unique to a particular
situation.'" Id. (quoting Crady, 993 F.2d at 136).
In cases such as this one, which involves an involuntary
transfer, the "key inquiry" is "whether the transfer constitutes
a negative employment action tantamount to a demotion."
Patrolmen's, Benevolent Ass'n v. City of New York,
74,F,Supp.2d 321, 335 (S.D.N.Y. 1999). There must be a
deprivation of opportunity or position. In the absence of
bright-line rules, courts must thoroughly examine the facts of
each case to assess whether the challenged employment action
rises to the level of "adverse." See Wanamaker v. Columbian
Rope Co., 108 F.3d 462, 466 (2d Cir. 1997).
Johnson identifies his new hours and job location to be "very
inconvenien[t]" for him. (Compl. ¶ 8.) Inconvenience by itself,
however, does not constitute an adverse job action. See
Galabya, 202 F.3d at 640. See also Sanchez v. Denver Public
Schs., 164 F.3d 527 (10th Cir. 1998) (transfer from one
elementary school to another despite added commute time does not
amount to an adverse employment action); Spring v. Sheboygan
Area Sch. Dist., 865 F.2d 883 (7th Cir. 1989) (same). Apart
from asserting the inconvenience of the change in location and
hours, plaintiff has failed to adduce any evidence that those
changes constituted a demotion. See Weeks v. New York State
(Division of Parole), 273 F.3d 76, 86 (2d Cir. 2001);
Patrolmen's Benevolent Ass'n, 74 F. Supp.2d. at 335.
Indeed, there is not even an allegation that Johnson suffered
a reduction in wages or that his job responsibilities were
altered in any way. Johnson offers no evidence to rebut the
school district's assertion — amply supported by the record —
that he suffered no diminution in compensation, employment
benefits, seniority status or any other emolument of his
employment. (DSOF ¶ 15; Mills Decl. ¶ 16.) A lateral transfer
does not rise to the level of a materially adverse job action
unless it "results in a change in responsibilities so
significant as to constitute a setback in plaintiffs career."
See Galabya, 202 F.3d at 641; accord Williams v.
Bristol-Myers Squibb Co., 85 F.3d 270, 274 (7th Cir. 1996).
There is not a shred of evidence in this record that that is the
Plaintiff's mere dissatisfaction with the transfer and his
preference for his former position at the Waverly Kindergarten
School are insufficient to constitute a materially adverse
employment action.*fn2 See Ticali v. Roman Catholic Diocese
of Brooklyn, 41 F. Supp.2d 249, 264 (E.D.N.Y. 1999); Harrison
v. New York City Off-Track Betting Corp., No. 99 Civ. 6075,
2001 WL 1154691, at *3 (S.D.N.Y. Sept. 28, 2001); Garber v. New
York City Police Dep't, No. 95 Civ. 2516, 1997 WL 525396, at *7
(S.D.N.Y. Aug. 22, 1997).
In sum, viewing the evidence in a light most favorable to
Johnson, there is no evidence that he suffered an adverse
employment action by a lateral transfer and change in hours and
defendant therefore must prevail.
Moreover, even if Johnson had established that his lateral
transfer and shift change constituted a materially adverse
employment action, he can point to no set of facts that give
rise to an inference of discrimination such that he could
establish that his age was a factor in the decision to transfer
him and in fact "had a determinative influence on the outcome."
Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 141,
120 S.Ct. 2097, 147 L.Ed.2d 105 (2000) (quoting Hazen Paper Co.
v. Biggins, 507 U.S. 604, 610, 113 S.Ct. 1701, 123 L.Ed.2d 338
(1993)). It is undisputed that on the same day Johnson was
transferred, the job assignments of seven other employees were
changed. Four of those individuals — including plaintiff — were
more than 40 years old and four others were under 40. In
addition, William Mills, who ordered the transfers, was himself
over forty. See Marlow v. Office of Court Administration,
820 F. Supp. 753, 758 (S.D.N.Y. 1993). In addition, the union
collective bargaining agreement gave Eastchester the authority
to "direct and assign employees and to regulate work schedules."
(Mills Decl. Ex. A., Art. XVI, at 16.) These facts demonstrate
that rather than a determinative factor, Johnson's age was a
neutral factor and thus there is no inference of discrimination.
Despite the fact that Johnson has failed to set forth a prima
facie case of discrimination and that the totality of the
evidence establishes that his transfer and concomitant shift
change were not motivated by his age, for the sake of
completeness, the Court will briefly address Johnson's claim
that he suffered age discrimination because he was forced to
undergo a physical examination. Both the American with
Disabilities Act 42 U.S.C. § 12112 et seq. ("ADA") and the
collective bargaining agreement permit job-related medical
examinations. See 29 C.F.R. § 1630.14(c); Mills Decl. Ex. A.,
Art. XIV, at 15.
An employer "may require a medical examination . . . of an
employee that is job-related and consistent with business
necessity." 29 C.F.R. § 1630.14(c). An employer "must
demonstrate some reasonable basis for concluding that the
inquiry was necessary." Fountain v. New York State Dep't of
Correctional Servs., 190 F. Supp.2d 335, 339 (N.D.N.Y. 2002).
The employer must have a genuine reason to doubt that an
employee can perform job-related functions. Id. Here,
Eastchester was concerned that Johnson had been experiencing
problems with his eyes which impaired his ability to read
directions for the use of cleaning supplies. (Melnyk Reply Decl.
¶ 4 and Ex. A.) This concern was apparently justified since the
examination revealed that Johnson had a dense cataract on one
eye and a moderate cataract on the other eye which impaired his
vision. (Melnyk Reply Decl. Ex. B.) Johnson ultimately chose to
have the dense cataract surgically removed. The evidence
establishes that Eastchester's decision requiring Johnson to
undergo a physical examination was reasonably based rather than
motivated by discriminatory animus.
Because Johnson has failed to establish that he suffered a
materially adverse change in the terms and conditions of his
employment, he has failed to set forth a prima facie case of
discrimination and accordingly, Eastchester's motion for summary
judgment pursuant to Fed.R.Civ.P. 56 is granted and the
complaint should be dismissed.