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February 23, 2004.

BERNARD MARS, Plaintiff, -against- SERVICE NOW FOR ADULT PERSONS (S.N.A.P.), Defendant

The opinion of the court was delivered by: NINA GERSHON, District Judge


Plaintiff, Bernard Mars, commenced this action pro se, alleging that defendant, S.N.A.P., violated the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 623 et seq., and the New York State Human Rights Law ("NYSHRL"), N.Y. Exec. Law §§ 290 et seq., when it terminated his employment. On December 14, 1998, plaintiff's request for the appointment of counsel from the Pro Bono Panel was granted. Via letter dated August 6, 1999, plaintiff's counsel withdrew because of time constraints, and on August 18, 1999, new pro bono counsel was appointed. Defendant now moves pursuant to Federal Rule of Civil Procedure 56, for summary judgment on both of plaintiff's claims.


  Unless otherwise indicated, the following facts are undisputed.

  Plaintiff, a retired Lieutenant Colonel, and a World War II veteran, was hired by S.N.A.P., an organization that provides services for the aged, in 1987. At that time plaintiff was seventy-five years old. Initially, plaintiff served as an escort and then as a van driver, transporting stroke victims. Page 2 In addition to plaintiff, defendant employed five other drivers, all of whom were over the age of 65. From 1987 to 1994 plaintiff performed exceptionally in his responsibilities at S.N.A.P., as evidenced by his annual reviews. During this time plaintiff developed a strong relationship with his supervisor, Dr. Linda Leest, who testified that not only was plaintiff the "most active person on the staff," but that he filled a void in her life created by the death of her father in 1988.

  In July of 1994, plaintiff was involved in an automobile accident while on the job, as a result of which he was taken to the hospital and received medical attention.*fn1 During his deposition, plaintiff indicated that Dr. Leest, who holds a doctorate in social work, and Ruth Kamins, who also worked for S.N.A.P., met with him following the accident and indicated to him that they did not want him to stop working. Plaintiff also testified that he was unsteady and could not move fast enough to drive for a period of time following the accident, but felt he was ready to drive by September of that year. However, when plaintiff met with Dr. Leest on November 4, 1994, he told her that he was not ready to return to work because his blood pressure was elevated and he was experiencing dizzy spells. During this meeting, plaintiff claims, Dr. Leest made some references to age. Dr. Leest testified that during this meeting she observed that plaintiff's physical capacity was "tremendously diminished . . . and that he could not walk without holding onto the wall."

  Plaintiff then was reexamined by his doctor, who told him that his blood pressure had returned to normal. Plaintiff met again with Dr. Leest on November 14, 1994, and discussed returning to work. Plaintiff states that Dr. Leest again made reference to his age and told him that, in accordance with defendant's written policy, he would not be allowed to return to work until he Page 3 was examined by a physician chosen by defendant. Beyond Dr. Leest's alleged comments about age, plaintiff testified that no one else at S.N.A.P. discriminated against him because of his age or any other reason.

  Plaintiff agreed to meet with S.N.A.P.'s physician, and on December 15, 1994 he was examined by Dr. Benman. Following the examination, Dr. Benman informed Dr. Leest that he needed "more cardiac and neurological evaluations before he [could] make a recommendation" regarding plaintiff's ability to return to work. Dr. Benman indicated in a letter dated December 19, 1994, that neither complete cardiac or neurological evaluations had been provided and that both were necessary for his evaluation. On December 22, 1994, plaintiff provided Dr. Benman with the report of an opthalomologist and a neurologist which indicated that plaintiff was not suffering from any visual or auditory limitations. Dr. Leest testified that Dr. Benman told her that he was getting plaintiff the necessary tests and that she did not communicate further with anyone regarding the requested testing until plaintiff came to see her on January 31, 1995 and told her he did not want to take any more tests.

  On January 21, 1995, plaintiff wrote a letter to Dr. Leest requesting a meeting. In that letter plaintiff indicated that he believed Dr. Benman had all of the necessary medical reports. In response to this request Dr. Leest met with plaintiff ten days later. During that meeting Dr. Leest discussed the possibility of retirement with plaintiff and told plaintiff that Dr. Benman needed additional reports. Plaintiff asked Dr. Leest if he would be allowed to return to work if he took the tests requested by Dr. Benman. Plaintiff testified that Dr. Leest was non-committal to this question, which plaintiff interpreted to mean that he would not be allowed to return to work. Dr. Leest testified that she would not answer plaintiff because it was not her decision, but that she Page 4 unequivocally wanted him to return if he was healthy enough to do so. Plaintiff also indicated that Dr. Leest told him that, if he agreed to retire, she would extend his health benefits, help him obtain unemployment benefits and throw him a party. Dr. Leest testified that, while she was concerned that plaintiff might lose his health coverage, and that she wanted to have a party for plaintiff, neither offer was an attempt to procure his resignation. Rather, Dr. Leest testified, she wanted to ensure plaintiff's continued heath coverage as he had complained of testicular pain and that she wanted to throw him a party because of his extended absence. Dr. Leest also testified that, during this meeting, "plaintiff had difficulty getting out of his chair" and that, because of this, she had concerns about his ability to assist S.N.A.P.'s clients, most of whom suffer from physical limitations themselves. Plaintiff does not contest that he had difficulty getting out of his chair, but instead argues that he was not experiencing "dizzy spells" or "wobbling" and that, in any event, Dr. Leest could not determine his ability to drive by observing him getting up from a chair.

  Plaintiff returned to S.N.A.P. the following day, rejected Dr. Leest's offer, refused to sign a document indicating that he had resigned, and requested a document that would allow him to receive unemployment benefits and continued health insurance. On February 2, 1995, Dr. Leest sent plaintiff a letter stating that there had been a misunderstanding, that plaintiff was not terminated and that, if he took and passed the required tests, he would be allowed to return to work. Plaintiff responded by letter dated February 6, 1995, refuting that he had not been fired. On February 8, 1995, the Chairman of the Board of S.N.A.P., Abraham Siemens, wrote plaintiff indicating that, if he received medical clearance, he could "reapply" for the position he had previously held.

  Plaintiff applied for and received unemployment insurance. As part of its findings, the New York State Unemployment Insurance Board found that plaintiff did not voluntarily leave S.N.A.P. Page 5 because plaintiff was not given any assurances that, if he took and passed the requested medical tests, he would be allowed to return to work.


  A motion for summary judgment is properly granted where there is no genuine issue as to any material fact, and the moving party is entitled to judgment as a matter of law. Fed.R. Civ. Proc, 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Lipton v. Nature Co., 71 F.3d 464, 469 (2d Cir. 1995). The burden is on the moving party to demonstrate that there are no material facts genuinely in dispute. See Weinstock v. Columbia Univ., 224 F.3d 33, 41 (2d Cir. 2000). In deciding a motion for summary judgment, the court must view the inferences to be drawn from the facts in the light most favorable to the party opposing the motion. Howley v. Town of Stratford, 217 F.3d 141, 150-151 (2d Cir. 2000); Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). The non-moving party must produce specific facts sufficient to establish that there is a genuine factual issue for trial. Celotex Corp., 477 U.S. at 322-23. A motion for summary judgment cannot therefore be defeated by "mere speculation or conjecture." Giordano v. City of New York, 274 F.3d 740, 749-50 (2d Cir. 2001).

  In employment discrimination actions, courts are particularly cautious about granting summary judgment where intent is at issue. This is because "a victim . . . [is] seldom able to prove his or her claim by direct evidence and is usually constrained to rely on the cumulative weight of circumstantial evidence." Rosen v. Thornburgh, 928 F.2d 528, 533 (2d Cir. 1991). Consequently, where a defendant's intent and state of mind are placed at issue, summary judgment is ordinarily inappropriate." Id. On the other hand, "the summary judgment rule would be rendered sterile . . . if Page 6 the mere incantation of intent or state of mind would operate as a talisman to defeat an otherwise valid motion." Meiri v. Dacon, 759 F.2d 989, 998 (2d Cir. 1985), cert. denied, 474 U.S. 829 (1985). Therefore, in the discrimination context, a plaintiff "must provide more than ...

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