The opinion of the court was delivered by: DAVID LARIMER, Chief Judge, District
Plaintiff, Bahjat Beshty, brings this action against his former
employer, General Motors Corporation ("GM"), alleging various
discrimination and other claims in connection with his
termination from employment in October 2000. GM has moved for
summary judgment dismissing the complaint, and plaintiff has
cross-moved for summary judgment on one claim under New York
Labor Law § 193.
Plaintiff is a male United States citizen, born in 1938, of
Arab descent, Libyan national origin, and Muslim religion. During
most of the 1990s, plaintiff was employed in various capacities
at Merck & Company ("Merck") in New Jersey. He alleges that in
May 1999, at the express direction of GM, a recruiter contacted plaintiff to seek his
employment at GM's Global Alternative Propulsion Center ("GAPC")
in Honeoye Falls, New York. At that time plaintiff was a senior
project engineer at Merck, with a base salary of about $92,000
The recruiter informed plaintiff that Gerald Voecks, whom
plaintiff knew from a previous job, was involved in a fuel cell
research project ("the project") at GAPC, and that Voecks wanted
to know if plaintiff was interested in taking a position with
GAPC. Plaintiff agreed to speak to Voecks about it.
After some negotiating with GM, plaintiff agreed to take a
position at GAPC as a staff research engineer. Plaintiff's salary
was $116,400, and he was given a signing bonus of $15,000.
Patrick J. Solomon Affirmation (Docket #28) Ex. 6. Plaintiff
alleges that before accepting GM's offer, he was also given oral
assurances that: he would not be fired without just cause; the
project would not be terminated, and if it were, plaintiff would
be placed into a different job; and he would report directly to
Voecks. Plaintiff states that it was important to him that Voecks
be his supervisor "[b]ecause of his experience and because of his
background and his technical job." Beshty Depo. Tr. (Solomon Aff.
Ex. A) at 70. Neither GM's offer letter nor its letter confirming
plaintiff's acceptance of that offer set forth any of these
alleged assurances, however. See Solomon Aff. Exs. 5, 6.
Plaintiff began working at GAPC on December 20, 1999. Beshty
Dep. Tr. at 73. On January 7, 2000, GM announced that Voecks was
being reassigned to a different project, and that his position
with the fuel processor team would be filled by Daniel O'Connell.
O'Connell was 42 years old at that time, Voecks was allegedly around age 60.*fn1 See
O'Connell Depo. Tr. (Solomon Aff. Ex. G) at 7; Complaint ¶ 14.
Plaintiff alleges that very soon after O'Connell replaced
Voecks, it became evident to plaintiff that O'Connell was not
interested in working with him. O'Connell rarely spoke to
plaintiff, and showed little interest in his input on the
In July 2000, O'Connell gave plaintiff his six-month
performance review. The review contained some positive
assessments, stating, for example, that plaintiff "has done some
very good analysis work" and that he was "extremely competent in
theoretical analysis and specific modeling areas." Solomon Aff.
Ex. 16. It also contained some criticisms, however. For instance,
O'Connell stated that plaintiff: "has difficulty accepting
opinions that differ from his own and has expressed this in an
inappropriate manner"; "has been slow to offer design input";
"has had difficulty adjusting to the GAPC/GM culture"; "has not
yet demonstrated the leadership skills required to make his group
a high performance team"; "has not . . . done well delegating
assignments to the members of his team"; and "has not developed
close relationships with other members of GAPC." Id. Plaintiff
(who at that time was supervising a group of about four
employees) alleges that O'Connell also orally told him that
plaintiff needed to "understand that most of these people [in
plaintiff's group] are young people that are straight from school
and they are very sensitive to criticism." Beshty Depo. Tr. at
131. O'Connell also allegedly stated that "people like you and I
will be less sensitive to criticism, but younger people are
[sensitive] . . . they don't take it well." Id. Plaintiff prepared a written rebuttal to his evaluation, which
he submitted to O'Connell. Solomon Aff. Ex. 17. He alleges that
he asked O'Connell to provide him with specific examples of
O'Connell's criticisms of plaintiff, and to give him guidance on
how to correct the perceived deficiencies in plaintiff's
performance, but that O'Connell never did so.
On October 31, 2000, plaintiff was called to a meeting with
some of his supervisors, including O'Connell. O'Connell told
plaintiff that his performance had not improved since the
six-month review, and that plaintiff was not a good fit at GAPC.
Plaintiff was informed that his employment was being terminated,
and he was escorted out of the building.
Following plaintiff's termination, GAPC stopped payment on his
final paycheck, in the amount of $3216.78. In response to an
inquiry from plaintiff, GAPC's human resource manager informed
plaintiff by letter dated December 13, 2000, that the "paycheck
reflected hours worked for a two-week period minus vacation time
taken during the 2000 calendar year. Employees that are released
from GM are not eligible for vacation and any time taken prior to
the release is to be repaid." Michael J. Lingle Affirmation
(Docket #24) Ex. D.
At some point, plaintiff retained an attorney, who took some
steps seeking the moneys allegedly owed to plaintiff. By letter
dated June 25, 2001, GAPC sent plaintiff a check for $3216.78.
Lingle Aff. Ex. E.
Plaintiff commenced this action on April 16, 2002, alleging
that GM discriminated against him on account of his age, race,
national origin and religion. The complaint asserts three federal
causes of action, under: (1) the Age Discrimination in Employment
Act ("ADEA"), 29 U.S.C. § 621 et seq.; (2) Title VII of the
Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et
seq.; and (3) 42 U.S.C. § 1981. Plaintiff also asserts claims under the New
York State Human Rights Law ("HRL"), N.Y. Exec. L. § 296, Labor
Law § 193, and New York common law theories of breach of contract
and fraudulent inducement. Plaintiff seeks back pay, front pay or
reinstatement, compensatory and punitive damages, and attorney's
I. Defendant's Motion for Summary Judgment
A. Race/National Origin/Religion Discrimination Claims
In his claims under Title VII and § 1981, plaintiff alleges
that GM discriminated against him on account of his race,
national origin and religion. These claims must be dismissed.
All of these claims are analyzed under the burden-shifting
analysis set forth in McDonnell Douglas Corp. v. Green,
411 U.S. 792
First, a plaintiff must establish a prima facie
case of . . . discrimination [based on his membership
in a protected category]. Once the plaintiff has made
out a prima facie case, the employer is required to
offer a legitimate, nondiscriminatory business
rationale for its actions. If the employer
articulates such a reason, the plaintiff has the
burden of proving that his [membership in the
protected category] was the real reason for his
Schnabel v. Abramson, 232 F.3d 83
, 87 (2d Cir. 2000) (internal
citations omitted); accord Terry v. Ashcroft, 336 F.3d 128
137-38 (2d Cir. 2003).*fn2
In the case at bar, defendant concedes, for purposes of its
summary judgment motion, that plaintiff has satisfied the first
three prongs of his prima facie case. Defendant contends,
however, that plaintiff cannot satisfy the fourth: that the circumstances
of his discharge give rise to an inference of unlawful
discrimination.*fn3 Since defendant has proffered a
legitimate, nondiscriminatory reason for its actions, however
that plaintiff's performance was unsatisfactory I will proceed
to the ultimate issue of whether plaintiff has presented
sufficient evidence of pretext to give rise to a genuine issue of
material fact. See United States Postal Service Bd. of Governors
v. Aikens, 460 U.S. 711, 715 (1983) ("Where the defendant has
done everything that would be required of him if the plaintiff
had properly made out a prima facie case, whether the plaintiff
really did so is no longer relevant"); Wado v. Xerox Corp.,
991 F. Supp. 174, 187 (W.D.N.Y. 1998) (where defendant proffered
legitimate, nondiscriminatory reasons for plaintiffs'
terminations, court would "assume that [each plaintiff] ha[d]
made out a prima facie case, and proceed to consider whether the
plaintiff ha[d] presented sufficient evidence to create a triable issue of fact
about whether Xerox's proffered reason [wa]s a pretext for
discrimination"), aff'd, 196 F.3d 358 (2d Cir. 1999).
In so doing, I must "examin[e] the entire record to determine
whether the plaintiff could satisfy his `ultimate burden of
persuading the trier of fact that the defendant intentionally
discriminated against the plaintiff.'" Schnabel, 232 F.3d at 90
(quoting Reeves, 530 U.S. at 143). The court must "analyze the
particular evidence to determine whether it reasonably supports
an inference of the facts plaintiff must prove particularly
discrimination." Evidence of pretext may be probative of
discrimination, see Reeves, 530 U.S. at 147. At the same time,
however, evidence satisfying McDonnell Douglas's minimal
requirements of a prima facie case plus evidence from which a
factfinder could find that the employer's explanation was false
does not necessarily require submission to the jury. James v.
New York Racing Ass'n, 233 F.3d 149, 157 (2d Cir. 2000). The
"bottom line" is simply whether, viewing the entire record, it
can fairly be said that "the plaintiff can point to evidence that
reasonably supports a finding of prohibited discrimination."
James, 233 F.3d at 154.
Plaintiff's evidence of discrimination based on his race,
national origin, or religion can generously be described as
scant. Virtually the only evidence he has is his testimony that
on one occasion a coworker, Hacin Sennoun (who was also an Arab,
see Beshty Depo. Tr. at 167), told plaintiff that another
employee, John Salvador, had said to ...