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January 9, 2004.


The opinion of the court was delivered by: VICTOR MARRERO, District Judge


Plaintiff Gilberto Rodriguez ("Rodriguez"), proceeding pro See, alleges that his employers at the Pierre Hotel (the "Pierre") in Manhattan fired him because of his age, in violation of federal and state civil rights laws. The Pierre*fn1 moves for summary judgment. For the following reasons, the motion is granted.


  Rodriguez worked as a server at the Cafe Pierre Bar from December 1982 until his termination in November 2000. Rodriguez, then age 52, alleges his dismissal was the culmination of years of unlawful age discrimination and harassment. The Pierre contends that Rodriguez, who had a Page 2 spotty employment record at the hotel, was fired for stealing.

  Understanding this theft allegation requires some background on the Pierre's bar service procedures and its use of consultants to monitor employee integrity. Bar servers enter customer orders into a computer system, which then generates a printed check detailing the order. The server is supposed to give customers that check for each round of orders. Whether a customer pays in cash, by credit card, or by charging the order to a hotel room, the server is supposed to take the payment and the corresponding check to a cashier, who is located one floor below the bar. The cashier enters the transaction into the computer system, thereby "closing out" the check.

  The Pierre hires a consulting firm to monitor employee integrity. Without alerting any hotel employees (including management), the consulting firm's agents visit the hotel posing as guests, and then later submit a report of their activities. Two agents visited the Pierre on consecutive weekends in October 2000, and, based on their report, the Pierre fired two bar servers for stealing: Rodriguez, and a man named Derek Ma ("Ma"), then age 34. In Ma's case, the agents reported that they had paid Ma cash for their drinks, but never received a check or a receipt. The computer system never recorded the agents' order. Because the cash receipts Page 3 for that evening matched the cash checks, the Pierre concluded that, instead of simply forgetting to register the order, Ma had pocketed the money.

  The theft allegation against Rodriguez is slightly more elaborate. After 7:00 p.m., the Pierre requires customers to order a minimum of $20 in drinks or food per person. When a customer's order is under that minimum, the bar server enters the transaction in the computer as "1 wine/champ" (which is charged as $20) instead of the actual drink ordered. The agents ordered from Rodriguez a round of drinks totaling less than $20 per person, and then asked him for the check. Rodriguez gave them check number 14279, which stated "2 wine/champ," and they paid with $55 in cash. The Pierre later discovered that check number 14279 (the one upon which the agents paid) was charged to a separate hotel room guest, who had paid a total of $50.30. The computer system indicated that there were no checks for "2 wine/champ" which were paid in cash that night. The Pierre concluded that Rodriguez had "recycled" the check to another customer, and pocketed the agents' cash payment. That night, the cash receipts matched the cash checks, suggesting that Rodriguez had purposefully recycled the check. The Pierre fired Rodriguez.

  Rodriguez denies stealing the $55. He states that it was very busy that night, and that he may have been confused and Page 4 made a mistake. In an effort to demonstrate his integrity, Rodriguez directs the Court's attention to an incident in 1990 in which he returned a large paycheck which the Pierre had erroneously issued him.

  Rodriguez casts the alleged theft as pretext: for age discrimination. Although he concedes that nobody at the Pierre ever made disparaging age-related comments towards him, Rodriguez contends his age-related health problems led to harassment at work, culminating in unlawful discharge. The best the Court can articulate Rodriguez's elusive argument is as follows. Rodriguez worked nine-hour shifts without a break, and these shifts became harder as he got older. Rodriguez suffered hip problems, gained weight, and was generally unable to perform at his job as well as he could at a younger age. His superiors began ridiculing him by, for example, calling him a fat pig or commenting on his visible perspiration. According to Rodriguez, his superiors preferred to have a younger person in his position.

  Under a collective bargaining agreement with Rodriguez's union, the Pierre may discharge employees only for cause, and the union may challenge a discharge before an impartial arbitrator. Rodriguez, represented by a union attorney, challenged his discharge. The arbitrator concluded that Rodriguez had stolen from the Pierre and that his termination Page 5 was for just cause.

  Rodriguez then filed a complaint with the Equal Employment Opportunity Commission ("EEOC") alleging his termination was based upon unlawful age discrimination. The EEOC concluded it was unlikely that Rodriguez could establish a valid claim of age discrimination, and issued him a right-to-sue letter, after which he brought the present lawsuit.

  The Court may grant summary judgment only "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show 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." Fed.R.Civ.P. 56(c). The Court must first look to the substantive law of the action to determine which facts are material; "[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc.. 477 U.S. 242, 248 (1986). Even if the parties dispute material facts, summary judgment will be granted unless the dispute is "genuine." Id. at 249. "The mere existence of a scintilla of evidence in support of the [non-moving party's] position will be insufficient; there must be evidence on which the jury could reasonably find for the [non-moving Page 6 party]." Id. at 252.

  Throughout this inquiry, the Court must view the evidence in the light most favorable to the non-moving party and must draw all reasonable inferences in favor of that party. See Hanson v. McCaw ...

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