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July 6, 2004.


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 per year.

  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 project.

  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 fees.


  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 (1973):
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 discharge.
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 ...

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