Item 83. Here, plaintiff is not entitled to back pay during the time he was on disability, and is not entitled to back pay up until his resignation, when he was earning the same salary that he would have earned had he been in the Team Leader position.
Finally, plaintiff argues that the grant of summary judgment should be reversed because defendants failed to reveal in discovery their reliance on plaintiff's disability as a defense to liability. This argument was not raised on the previous motion, and was not part of the February 14, 2002 order. Accordingly, on this point, there is nothing to reargue.*fn2
II. Defendants' Motion for Summary Judgment
A. The Team Leader Position
Defendants argue that plaintiff's age discrimination claim must fail with respect to the Team Leader position. As the court has found that plaintiff may not base his claim on the hiring of James Chavanne, the claim is based only upon the hiring of Callahan and Morano. Previously, in his Report and Recommendation on defendant's first motion for summary judgment, Magistrate Judge Scott considered the argument that Morano (age 61) was older than Townsend, and Callahan (age 46) was too close in age to plaintiff (age 53) to permit an inference of age discrimination. Item 26, pp. 7-8, n. 7. An inference of age discrimination cannot be drawn from the replacement of one worker with another who is not "substantially younger." O'Connor v. Consolidated Coin Caterers Corp., 517 U.S. 308, 313 (1996); see also Richter v. Hook-SupeRx, Inc., 142 F.3d 1024, 1029 (7th Cir. 1998) (seven-year age difference not sufficient to create inference of age discrimination); Hartley v. Wisconsin Bell, Inc., 124 F.3d 887, 893 (7th Cir. 1997) (age difference of less than ten years is presumptively insubstantial); McKeever v. New York Medical College, 1999 WL 179376 at *7 n. 8 (S.D.N.Y. Mar. 31, 1999) (citing Richter, supra, for principle that inference of discrimination not shown where 53-year-old employee replaced by 46-year-old employee).
Plaintiff does not vigorously argue against this prong of the motion, other than to assert that this motion is indistinguishable from defendants' first unsuccessful motion and should be denied outright.*fn3 This is not quite accurate, given the intervening order, Item 83, in which the court dismissed the ADEA and HRL claims with regard to the Chavanne hiring. As a result of this ruling, the court can certainly revisit the ADEA and HRL claims with respect to the Callahan and Morano hirings.
Plaintiff has the burden of establishing, by a preponderance of the evidence, a prima facie case of age discrimination. Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 252-53 (1981). In order to establish a prima facie case of age discrimination under the ADEA and HRL,*fn4 plaintiff must show that (1) he was a member of a protected class; (2) he was qualified for the position; (3) he suffered an adverse employment action; and (4) the adverse employment action occurred under circumstances giving rise to an inference of age discrimination. See Carlton v. Mystic Transp., Inc., 202 F.3d 129, 134 (2d Cir.), cert. denied, 530 U.S. 1261 (2000). The replacement of plaintiff by an employee only seven years younger, without more, does not establish that the employment action occurred under circumstances giving rise to an inference of age discrimination. Accordingly, plaintiff has not established a prima facie case, and the defendants' motion should be granted with respect to the Team Leader position.
B. The AMS Position
Defendants argue that plaintiff's claim with respect to the AMS position must also fail, because plaintiff was on disability leave when the positions were filled in September 1996, and he failed to apply for another AMS position when he returned to work in December 1996.*fn5 They argue that he has failed to make out a prima facie case of age discrimination as he was not available in September 1996, and thus not qualified, for the position. Additionally, defendants contend that according to the Selective disability policy, plaintiff's position could not be guaranteed for more than 12 weeks. Thus, even if plaintiff had been placed in the AMS position prior to his illness, the position would not have been available when he returned after 16 weeks of disability. Plaintiff was offered an underwriter position, at the same rate of pay as his previous position, in accordance with the disability policy. Accordingly, they argue that even if plaintiff could prove that he was discriminated against, he cannot prove that he was harmed by the alleged discrimination.
With regard to the AMS position, the court finds that plaintiff has established a prima facie case of age discrimination. In July 1996, at the time the hiring decisions were made, plaintiff was a member of the protected class, he was qualified for the AMS position, he was denied the position, and the positions were filled by persons substantially younger, giving rise to an inference of age discrimination. See Carlton, supra; Gallo v. Prudential Residential Servs., Ltd. Partnership, 22 F.3d 1219, 1224 (2d Cir. 1994). Plaintiff's subsequent disability in August 1996 is not relevant to the adverse employment action taken one month before. Defendants can no more speculate that had plaintiff been given an AMS position, it would not have been held for him during his period of disability, than plaintiff can speculate that he would have returned after 12 weeks of disability.
Once the plaintiff has established the prima facie case, the burden then shifts to the employer to show a legitimate, non-discriminatory reason for the hiring decision. Carlton, supra; Gallo, supra. Here, defendants have not argued that the decision was based on a non-discriminatory reason, but simply assert that plaintiff was not available, and thus not qualified, as a result of his disability. Accordingly, defendants have not sustained their burden on the motion for summary judgment with respect to the AMS position.
The court previously found that plaintiff did not seek an AMS position when he returned from disability leave, and thus has no claim for back pay with regard to the AMS position. Item 83, p. 17, n. 5. Accordingly, the only damages available to plaintiff, should he prevail in proving discrimination with regard to the AMS position, would be compensatory damages, including pain and suffering, available under the HRL. Item 83, p. 9, n. 3.
Defendants argue that given plaintiff's lengthy period of disability, he suffered no damages as a result of being placed in an underwriter position upon his return to work. This argument is based on defendant's speculation that had plaintiff been given an AMS position, it would not have been held for him beyond a 12-week period of disability. As stated above, this speculation is improper. Plaintiff was not placed in the AMS position, and argumentation based on such a supposed or expected scenario is unhelpful. Plaintiff can just as easily argue that had he been given an AMS position, he would have returned from his disability leave within the 12-week period. The court, however, recognizes that plaintiff, upon his return to work, passed up an opportunity to apply for an available AMS position. While plaintiff may be able to prove emotional distress damages as a result of defendants' alleged age discrimination, those damages may be minimized by his decision to forego applying for the available AMS position and resign.
Finally, defendants argue that a plaintiff who cannot prove damages is not entitled to an award of attorney fees. See Farrar v. Hobby, 506 U.S. 103, 109 (1992) (only "prevailing"parties entitled to award of attorney fees); Pino v. Locascio, 101 F.3d 235 (2d Cir. 1996) (plaintiff who recovers only nominal damages usually not entitled to an award of attorney fees). While this is true, the argument is premature. The defendants' motion with respect to the AMS position is denied.
The plaintiff's motion to reargue the order of February 14, 2002 is denied. The defendant's motion for summary judgment is granted with respect to the Team Leader position, and denied with respect to the AMS position. So ordered.