United States District Court, E.D. New York
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
OPINION AND ORDER
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.
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
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
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
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
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.
because plaintiff was not given any assurances that, if he took and
passed the requested medical tests, he would be allowed to return to
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
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 conclusory allegations of discrimination to defeat a motion for
summary judgment." Micari v. Trans-World Airlines, Inc., 43 F. Supp.2d 275,
278 (E.D.N.Y. 1999); Schwapp v. Town of Avon, 118 F.3d 106, 109 (2d Cir.
In McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 (1973), the
Supreme Court set forth the burden-shifting framework for discrimination
cases. See also Raskin v. Wyatt Co., 125 F.3d 55, 60 (2d Cir.
1997)(framework the same in Title VII and ADEA cases). First, a plaintiff
claiming unlawful termination must make a prima facie case showing of:
(1) membership in a protected class; (2) qualification for the position;
(3) that he was discharged; and (4) that the discharge occurred under
circumstances giving rise to an inference of discrimination. McLee v.
Chrysler Corp., 109 F.3d 130, 134 (2d Cir. 1997).
Once a plaintiff has established all four elements of the prima facie
case, the burden shifts to defendant to articulate a legitimate,
nondiscriminatory reason for the challenged termination. Once an employer
has done so, the presumption of discrimination drops from the case, St.
Mary's Honor Center v. Hicks, 509 U.S. 502 (1993), and the burden shifts
back to the plaintiff to prove "that the legitimate reasons offered by
the defendant . . . were a pretext for discrimination." Reeves v.
Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (2000). Proof of
pretext alone, however, is not necessarily sufficient to defeat a motion
for summary judgment. See St. Mary's, 509 U.S. at 524 ("proof that the
employer's proffered reason is unpersuasive does not necessarily
establish that plaintiff's proffered reason is correct"). "Once a minimal
prima facie case is proved and the
employer's nondiscriminatory explanation has been given, the McDonnell
Douglas presumptions disappear from the case and the governing standard
is simply whether the evidence, taken as a whole, is sufficient to
support a reasonable inference that prohibited discrimination occurred."
James v. New York Racing Assoc., 233 F.3d 149 (2nd Cir. 2000).
Plaintiff cannot demonstrate that he was qualified for his position or
that his discharge occurred under circumstances giving rise to an
inference of discrimination. To assess job qualifications for
establishing a prima facie case, the court must assess whether or not
plaintiff met the employer's performance standards. See Stein v. McGraw
Hill Inc., 782 F. Supp. 207, 212 (S.D.N.Y. 1992). Absent bad faith, an
employer may determine whether any employee's job performance is
satisfactory based on its own criteria, and the court will not review
whether the criteria are reasonable. Thornley v. Penton Publishing,
Inc., 104 F.3d 26, 29 (2d Cir. 1997).
Here, it is not disputed that S.N.A.P. had a company policy that, prior
to returning to work, an employee would be required to obtain medical
clearance from a doctor appointed by S.N.A.P. It is also undisputed that
plaintiff did not obtain the necessary clearance. Accordingly, plaintiff
was not qualified for the position. His testimony that he did not know
more testing was required until January 14, 1995, does not help him. At
no point was plaintiff foreclosed from taking the tests and providing Dr.
Benman with the requested information. Rather, it was plaintiff who
refused to undergo the additional medical examinations, thereby rendering
himself unqualified for his position. Moreover, plaintiff's assertions
that he was not promised that he could return to work if he passed
the tests do not eliminate his obligation to provide proof of his
qualifications, namely, that he took and passed the requested medical
Plaintiff has also failed to demonstrate that he was discharged under
circumstances giving rise to an inference of discrimination. Plaintiff
was 75 years old when he was hired by Dr. Leest, who knew he was in an
age-protected class at that time. Accordingly, when Dr. Leest refused to
allow him to return to his job nine years later, it is illogical to
assume that Dr. Leest was motivated by discriminatory animus. See Grady
v. Affiliated Cent., Inc., 130 F.3d 553, 560 (2d Cir. 1997)(when the
person who makes the decision to hire also makes the decision to fire, a
finding of invidious discrimination is unlikely). At the time plaintiff
was terminated, allegedly because of his age, S.N.A.P. employed six
drivers, all of whom were over the age of 65, five were older than 70,
and the person who was hired to replace plaintiff was also over the age
of 70. Moreover, there is no allegation that any S.N.A.P. employee who
was younger than plaintiff received different treatment from S.N.A.P.
The vague comments referred to by plaintiff, that Dr. Leest made
reference to "some people complaining about old men driving vehicles" do
not satisfy plaintiff's burden of overcoming defendant's neutral
explanation. Stray remarks in the workplace, by themselves, without a
demonstrated nexus to the complained-of personnel action, will not defeat
an otherwise well-founded motion for summary judgment. Morris v. N.Y.
City Dep't of Sanitation, 2003 WL 1739009 (S.D.N.Y. Apr. 2, 2003); See
Weber v. Perfums Givenchy, Inc., 49 F. Supp. 343, 362 (S.D.N.Y.
1999)("Stray remarks even if made by the decision maker, do not
constitute sufficient evidence to make [out] discrimination.") Here, the
record is devoid of discriminatory animus on the part of defendants. In
fact, the record as a whole suggests that S.N.A.P., and Dr. Leest in
plaintiff as an employee, enjoyed his company and were concerned about his
well-being. Plaintiff's statements during his deposition that he wanted
to "hurt Dr. Leest," and that he was "just getting started" in this
regard, illustrate his intentions in commencing this lawsuit, namely,
exacting a measure of revenge for a perceived slight. This testimony
suggests animus on his part, not discriminatory animus on the part of the
For these reasons, plaintiff has failed to make a prima facie showing
of discrimination. But, even assuming for the purposes of this motion
that plaintiff can meet the modest burden required of a prima facie
case, his claims cannot withstand this motion for summary judgment
because the evidence, taken as a whole, is insufficient for a reasonable
jury to conclude that plaintiff was terminated because of his age. Fisher
v. Vassar College, 114 F.3d 1332, 1339 (2d Cir. 1997) ("an employment
discrimination plaintiff may prevail only if an employer's proffered
reasons are shown to be a pretext for discrimination, either because the
pretext finding itself points to discrimination or because other evidence
in the record points in that direction-or both").
Plaintiff has offered no evidence that S.N.A.P. "departed from its
usual employment practices and procedures" in dealing with plaintiff.
Norville v. Staten Island Univ. Hosp., 196 F.3d 89, 97 (2d Cir. 1999)
(citing Stern v. Trustees of Columbia Univ., 131 F.3d 305, 313 (2d Cir.
1997), for definition of disparate treatment). Nor are the alleged
comments of Dr. Leest regarding plaintiff's age sufficient to support an
inference that age discrimination was a motivating factor in S.N.A.P.'s
decision to terminate plaintiff. See Gallo v. Prudential Residential
Servs., Ltd., 22 F.3d 1219, 1225 (2d Cir. 1994) (plaintiff must establish
a genuine issue of material fact as "to whether it is more likely that a
discriminatory reason motivated the employer to make the adverse
employment decision"); Sacay v. The Research Foundation of the City Univ.
of New York, 193 F. Supp.2d 611, 631
(E.D.N.Y.2002) (same). The record indicates that S.N.A.P. refused to
allow plaintiff to return to work because plaintiff refused to take
medical tests that would have allowed Dr. Benman to assess his ability to
perform. Plaintiff provides no explanation for this refusal beyond that he
believed he was fired and therefore not obligated to undergo the medical
testing. In sum, plaintiff complains that he was discharged from a
position to which defendant stated he could return., provided he passed
certain requested medical exams. Whether the position he would be
returning to was technically new or a continuation of his old position,
in the absence of his compliance with a reasonable and neutral
requirement, and without any evidence that the requirement was applied
differently to a younger person, plaintiff's claim must be dismissed.
For the foregoing reasons, this court finds that plaintiff has failed
to offer evidence sufficient for any reasonable jury to find that age was
the motivating factor in S.N.A.P.'s decision to replace him. On the
contrary, the evidence is overwhelming that, following plaintiff's
repeated assertions that he was unable to work and subsequent refusals to
submit to the requested medical examinations, S.N.A.P. replaced plaintiff
because he was not qualified to be a driver. Defendant's motion for
summary judgment on plaintiff's federal age discrimination claims is
therefore granted. Since "the standard of proof governing an employment
discrimination claim raised under the [NYSHRL] is the same as the
standard of proof for an ADEA claim," see Abdu-Brisson v. Delta Air
Lines, Inc., 239 F.3d 456, 466 (2d Cir. 2001); Gambello v. Time Warner
Communications, Inc., 186 F. Supp.2d 209, 220 (E.D.N.Y. 2002), summary
judgment is granted to defendant on plaintiff's age-related state law
discrimination claims as well.
Defendants' motion for summary judgment is granted. The Clerk of Court
is directed to enter judgment for defendant.