United States District Court, N.D. New York
September 27, 2004.
SANTO PRINCE, Plaintiff,
THE GOLUB CORPORATION, Defendant.
The opinion of the court was delivered by: NEAL McCURN, Senior District Judge
MEMORANDUM, DECISION AND ORDER
Plaintiff, Santo Prince ("Prince"), filed this age
discrimination action against his former employer, defendant, the
Golub Corporation ("Golub"), on May 30, 2003.*fn1 Plaintiff's complaint ("the Complaint") sets
forth causes of action for age discrimination pursuant to the Age
Discrimination in Employment Act ("ADEA"), see 29 U.S.C. 621,
et seq., and the New York Human Rights Law ("NYHRL"), see N.Y.
Executive Law § 296(1). See Compl. ¶¶ 5-16. Presently before
the court is a motion for summary judgment by defendant. Oral
argument was heard regarding the present motion on September 23,
2004 in Syracuse, New York. Decision was reserved.
Defendant Golub is a privately held corporation that "operates
over 100 Price Chopper supermarkets in upstate New York,
Connecticut, Massachusetts, New Hampshire, northeastern
Pennsylvania and Vermont[.]" Mem. of Law in Supp. of Def.'s Mot.
for Summ. J. at 1, Dkt. No. 18. Plaintiff Prince was an at-will
employee of Defendant Golub who worked as a truck driver for
Price Chopper in Syracuse from 1992 until he was terminated on
March 7, 2002. Prince was 53 at the time he was hired, and 63 at
the time of his termination.
On January 29, 2002, Golub received a letter from D. Scott
Balok ("Balok"), a driver with Golub's Syracuse facility, in
which Balok made complaints against Prince for, among other
things, harassment and intimidation. Included in this letter were
allegations that, among other things, Prince displayed a
pocketknife to Balok with the blade exposed during an argument,
and that Prince had verbally threatened other drivers in
discussions with Balok. See App. to Aff. of Brian M. Culnan, July 30, 1994 at 145-148, Dkt. No. 18. Balok
also notified Golub that Prince urinated in a glass cleaner spray
bottle, which he left behind in the cab of his truck, intending
another driver to use it during that driver's shift. See id. at
According to Golub, Prior to 2002, Prince had been counseled
several times due to concerns with his work performance and/or
behavior. In support of this statement, Golub submitted
documentation of seven violations committed by Prince from 1993
through 2001, including three violations for working excess hours
in an 8-day period, one violation for a "minor preventable
accident" with damage, and one violation for a verbal altercation
with another driver. See App. to Culnan Aff. at 166, Dkt. No.
18. Prince admits he was disciplined in 1996,*fn3 but
contends that he was under no disciplinary actions at the time of
his termination, nor did Golub have any problems with his work
performance at that time. See Pl.'s Resp. to Def.'s Statement
of Material Facts at ¶ 3, Dkt. No. 23. Moreover, according to
Prince, he made his deliveries in a timely and safe manner. See
id. at ¶ 3A.
Upon receipt of the Balok letter, Wesley Holloway ("Holloway"),
Director of Associate Relations and Corporate Diversity
Initiatives for Golub, was assigned to investigate Balok's
allegations. As part of the investigation, Holloway interviewed
Balok, as well as five other personnel members who worked out of
Golub's Syracuse facility. One of the other personnel members,
Tom Chinault ("Chinault"), told Holloway that Prince possessed a "bayonet"
taped to the end of an umbrella. See App. to Culnan Aff. at
154, Dkt. No. 18. Chinault later testified that the incident
during which he saw the bayonet occurred in "[a]bout 98."
Dep. of Thomas M. Chinault, Sr., 28:4-13, App. 2 to Pl.'s Resp.
to Def.'s Statement of Material Facts, Dkt. No. 23.
While Golub states that Holloway conducted his investigation in
good faith, Prince disagrees, noting that he was not given an
opportunity to participate in the investigation until the day of
his termination. See Statement of Material Facts at ¶ 8, Dkt.
No. 18; Pl's Resp. to Def.'s Statement of Material Facts at ¶ 8,
Dkt. No. 23.
On March 7, 2002, Holloway and Prince met to discuss the
allegations of harassment and intimidation made against Prince by
his fellow Syracuse truck drivers. Prior to meeting with Prince,
Holloway and security officer Bob Wood observed Prince urinating
on a 55-gallon drum near a New York State Thruway EZ Pass
tollbooth. See Dep. of Wesley L. Holloway, June 30, 2004, at
15:23-17:1, App to Culnan Aff. at 122-124, Dkt. No. 18. Holloway
later testified that this incident, by itself, was not grounds
for Prince's termination. See id. at 17:2-3.
Holloway believed the allegations of threats and intimidation
to be credible, and informed Prince of his belief at the March 7
meeting. Specifically regarding the allegation that Prince
urinated in a spray bottle, although Holloway was not able to
definitively establish the contents of the bottle or Prince's
actions in relation thereto, see Holloway Dep., at 29:10-19,
App 4 to Pl.'s Resp. to Def.'s Statement of Material Facts, Dkt.
No. 23, he nonetheless found the allegation to be credible, see
id. at 30.
Golub has policies that prohibit its employees from engaging in
harassment or intimidation of co-workers. Thus, at the March 7
meeting, Holloway notified Prince that he was being terminated due to the results of the
investigation regarding the aforementioned allegations. Golub has
established an internal "appeal" process, of which Prince availed
himself. However, upon appeal, Golub affirmed its decision to
Prince contends that after he was terminated, Golub replaced
him with a 29-year-old individual. See Pl's Resp. to Def.'s
Statement of Material Facts at ¶ 2A, Dkt. No. 23. Golub does not
dispute this fact, but notes that at the time of Prince's
termination, there was a lack of interest from its employee truck
drivers in working on the "Syracuse run" in which Prince had been
employed. Therefore, it placed a newspaper announcement for that
position, and over five months after Prince's termination, a
29-year-old individual responded to the newspaper ad and was
hired. See Def.'s Reply Statement of Material Facts at ¶ 2,
Dkt. No. 25. Moreover, it is undisputed that no Golub official
ever made statements to Prince that suggested Golub had an animus
against older employees.
The present lawsuit followed. Defendant now moves for summary
judgment. Plaintiff opposes.
A. Summary Judgment Standard
A motion for summary judgment shall be granted "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). See also Celotex Corp. v. Catrett,
477 U.S. 317, 322, 106 S.Ct. 2548, 2552 (1986); Peck v. Public
Serv. Mut. Ins. Co., 326 F.3d 330, 337 (2d Cir. 2003), cert.
denied, 124 S.Ct. 540 (2003). When deciding whether to grant a
motion for summary judgment, "a court must construe the facts in the light
most favorable to the non-moving party and must resolve all
ambiguities and draw all reasonable inferences against the
movant." See Baisch v. Gallina, 346 F.3d 366, 372 (2d Cir.
2003), citing Anderson V. Liberty Lobby, Inc., 477 U.S. 242,
255, 106 S.Ct. 2505 (1986). While the initial burden of
demonstrating the absence of a genuine issue of material fact
falls upon the moving party, once that burden is met, the
non-moving party must "set forth specific facts showing that
there is a genuine issue for trial," see Koch v. Town of
Brattleboro, Vermont, 287 F.3d 162, 165 (2d Cir. 2002), citing
Fed.R. Civ. P. 56(c), by a showing sufficient to establish the
existence of every element essential to the party's case, and on
which that party will bear the burden of proof at trial. See
Peck, 326 F.3d at 337.
B. ADEA and NYHRL Claims
According to the Age Discrimination in Employment Act ("ADEA")
as well as the New York Human Rights Law ("NYHRL"), an employer
may not, among other things, terminate an employee because of his
or her age. See 29 U.S.C. § 623(a)(1) (2004); N.Y. Exec. L. §
296(3-a) (a) (McKinney 2004). Discrimination claims pursuant to
the NYHRL are subject to the same analysis as claims pursuant to
the ADEA. Abdu-Brisson v. Delta Air Lines, Inc., 239 F.3d 456,
466 (2d Cir. 2001).
In order to establish a prima facie case of age discrimination
under the ADEA, a plaintiff must show that (1) he is a member of
the protected class,*fn4 (2) he is qualified for the
position, (3) he suffered adverse employment action, and (4) the circumstances surrounding the action give rise to an
inference of age discrimination. Abrahamson v. Bd. of Educ.,
Wappingers Falls, 374 F.3d 66, 71 (2d Cir. 2004), citing
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802,
93 S.Ct. 1817 (1973); accord Abdu-Brisson, 239 F.3d at 466-67.
A finding of liability under the ADEA will depend on whether
the plaintiff's age "actually motivated the employer's decision."
Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 141,
120 S.Ct. 2097, 2105 (2000), quoting Hazen Paper Co. v.
Biggins, 507 U.S. 604, 610, 113 S.Ct. 1701 (1993). In other
words, "the plaintiff's age must have actually played a role in
[the employer's decisionmaking] process and had a determinative
influence on the outcome." Id. (internal quotations omitted).
Assuming, as both parties here do, that Prince can establish a
prima facie case of age discrimination, the burden shifts to
Golub to produce evidence which will show that Prince was
terminated for "a legitimate, non-discriminatory reason." St.
Mary's Honor Center v. Hicks, 509 U.S. 502, 506-507,
113 S.Ct. 2742, 2747 (1993), citing Texas Dept. of Community Affairs v.
Burdine, 450 U.S. 248, 254, 101 S.Ct. 1089, 1094 (1981). In
order to meet this burden, Golub must set forth evidence of its
reasons for terminating Prince "which, if believed by the trier
of fact, would support a finding that unlawful discrimination
was not the cause" of the termination. Id. at 504, citing
Burdine, at 254, 255 and n. 8, 101 S.Ct. at 1094-95, and n. 8.
Assuming Golub meets this burden, Prince is then left with the
burden of showing that Golub's proffered explanation for
terminating him was merely a pretext for age discrimination.
See Reeves, 530 U.S. at 143, 120 S.Ct. at 2106. See also
Schnabel v. Abramson, 232 F.3d 83, 88 (2d Cir. 2000); Spence
v. Maryland Casualty Co., 995 F.2d 1147, 1155 (2d Cir. 1993). Here, Golub argues that it had a legitimate, non-discriminatory
reason for terminating Prince because Holloway believed in good
faith that the allegations against Prince were credible. Prince
disagrees, arguing that the only conduct he admitted to was
urinating near the Thruway tollbooth and this, by itself, was not
grounds for his termination. Apparently, Prince assumes that the
truth of the allegations upon which his termination was based is
determinative of whether Golub had a legitimate,
non-discriminatory reason for terminating him. In fact, as Golub
correctly notes, "[a] reason cannot be proved to be `a pretext
for discrimination' unless it is shown both that the reason was
false and that discrimination was the real reason." See
Hicks, 509 U.S. at 515, 113 S.Ct. at 2752. In other words, the
falseness of Golub's reason for terminating Prince by itself is
not enough to show pretext, especially where, as here, Golub
argues, it reasonably believed its employees' allegations of
intimidation and harassment against Prince. See Agugliaro v.
Brooks Brothers, Inc., 927 F.Supp. 741, 747, n. 5 (S.D.N.Y.
1996), citing Waggoner v. City of Garland, Texas,
987 F.2d 1160, 1166 (5th Cir. 1993); Elrod v. Sears, Roebuck & Co.,
939 F.2d 1466, 1470 (11th Cir. 1991). See also Cerwinski v.
Insurance Servs. Office, No. 95 Civ. 1766, 1996 WL 562988, at *5
(S.D.N.Y. Oct. 3, 1996), aff'd, 112 F.3d 503 (2d Cir. 1997).
Moreover, whether Golub was wrong, or even unduly harsh in firing
Prince is not a factor in determining age discrimination. As the
Court of Appeals for the Second Circuit so eloquently stated,
"the ADEA does not make employers liable for doing stupid or even
wicked things; it makes them liable for discriminating, for
firing people on account of their age." Norton v. Sam's Club,
145 F.3d 114, 120 (2d Cir. 1998).
Here, Prince does not dispute that Holloway believed the
allegations of threats and intimidation to be credible, see Def.'s Statement
of Material Facts at ¶ 10, Dkt. No. 18; Pl.'s Resp. to Def.'s
Statement of Material Facts at ¶ 10, nor does he dispute that
Golub has policies which prohibit its employees from engaging in
harassment and/or intimidation of their co-workers, see ibid.
at ¶ 14. Because Golub has clearly established its reasonable
belief that Prince committed the alleged violations, the court
concludes as a matter of law that Golub had a legitimate non
discriminatory purpose in terminating Prince.
Nonetheless, Prince argues that this court can infer
discriminatory pretext because Golub has shifted its reasons for
terminating him. According to Prince, the initial reason Golub
provided, urinating at the Thruway tollbooth, was proven
ineffective. Thereafter, according to Prince, once this
litigation ensued, Golub set forth another reason, urinating in a
spray bottle, which was unfounded. In support of this argument,
Prince cites Schmitz v. St. Regis Paper Company, 811 F.2d 131
(2d Cir. 1987), wherein the court, in affirming a district court
judgment of sex discrimination against defendant employer, found
the employer's reasons for terminating plaintiff to be a pretext
for discrimination where its statements at trial were "elaborate
and sophisticated" in an obvious effort to amend previous,
clearly false statements made before trial. See id. Prince
also cites another case wherein the Court of Appeals for the
Second Circuit vacated a district court's award of a judgment as
a matter of law in favor of defendant employer, finding that
plaintiff EEOC introduced evidence that employer's reasons for
terminating the employee were inconsistent, and thus a reasonable
jury could find that said reasons were a pretext for age
discrimination. See EEOC v. Ethan Allen, Inc., 44 F.3d 116,
120 (2d Cir. 1994).
Based on the fact that Golub provided different examples of
Prince's improper behavior, both verified and alleged, Prince apparently
concludes that, like the employer in Schmitz, here Golub is
obviously attempting to amend previous, clearly false statements.
The court is not willing to reach this same conclusion. Nor can
the court find that Golub's statements have been inconsistent, as
were those of the employer in Ethan Allen. Here, it is
undisputed that at the time of Prince's termination, Holloway
informed Prince that he was being terminated for threats and
intimidation of co-workers, see Def.'s Statement of Material
Facts at ¶¶ 11-12, Dkt. No. 18; Pl's Resp. to Def.'s Statement of
Material Facts at ¶¶ 11-12, Dkt. No. 23, and that at Holloway's
deposition, he testified that Prince was terminated because of
"[h]arrassment, intimidation and threats[,]" see App. to Culnan
Aff. at 130-131, Holloway Dep. at 23:16-24:18, Dkt. No. 18. There
is nothing in the record here to indicate that Golub, like the
defendants in both Schmitz and Ethan Allen, shifted its
reasons for terminating Prince in an effort to cover a
Finally, in its reply papers, Golub cites a case where, on
facts similar to those presently before this court, the court
affirmed an award of summary judgment to the defendant employer.
See Rivera-Aponte v. Restaurant Metropol # 3, Inc.,
338 F.3d 9 (1st Cir. 2003). There, plaintiff was fired for being the
aggressor in a physical altercation with a co-worker. While the
defendant restaurant's manager did not observe the altercation,
she conducted an investigation and, after determining plaintiff
was the aggressor, terminated him. Although the plaintiff argued,
as Prince does here, that the pre-termination investigation was
cursory because he was not given an opportunity to provide "his
side of the story", the court in Rivera-Aponte found that
defendant's reason for terminating plaintiff was compelling, and
thus plaintiff lacked any evidence that it was a pretext for discrimination. See Rivera-Aponte,
338 F.3d at 11-12. Moreover, the court there found an absence of
discriminatory pretext because there was a lack of evidence
supporting age-based animus especially where, as here, at the
time plaintiff was hired he was already in the protected class.
Id. at 12.
Here, Prince does not dispute that he was 53 at the time he was
hired. See Statement of Material Facts at ¶ 1, Dkt. No. 18;
Pl's Resp. to Def.'s Statement of Material Facts at ¶ 1, Dkt. No.
23. Also undisputed is the fact that Prince is unable to identify
any statements of age-based animus made by defendant. See ibid.
at ¶ 15. It is true, as Prince notes, that his replacement was 29
years of age. However, Golub did not have this individual waiting
in the wings to assume Prince's position with the company
immediately upon Prince's termination. Instead, Prince's
replacement responded to Golub's job announcement in the
newspaper and was hired approximately five months after Prince's
termination, dispelling any inference that Golub's decision to
terminate Prince was a pretext for age discrimination.
Based on the foregoing, the court concludes that there are no
genuine issues of material fact remaining regarding either of the
claims set forth in the Complaint. Accordingly, defendant, Golub
Corporation's motion for summary judgment against plaintiff,
Santo Prince is hereby GRANTED and the complaint is dismissed in
its entirety against defendant. The Clerk of the Court is
directed to enter judgment in favor of the defendant against the
IT IS SO ORDERED.