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 ...