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United States District Court, S.D. New York

November 1, 2004.

JOHN H. CRAVETTS, Plaintiff,

The opinion of the court was delivered by: HAROLD BAER, JR., District Judge


Defendant Federal Reserve Bank of New York ("the FRBNY") moves for summary judgment on plaintiff John F. Cravetts' ("Cravetts") Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et seq., claim. For the reasons set forth below, the FRBNY's motion is granted.


  From April 12, 1993 to December 2, 2002, Cravetts worked as an electrician in the FRBNY's East Rutherford Operations Center ("EROC") in East Rutherford, New Jersey. Among its many functions, the Federal Reserve provides services, including "financial services to the U.S. government, to the public, to financial institutions, and to foreign official institutions [and] playing a major role in operating the nation's payments systems." Federal Reserve System, Frequently Asked Questions.*fn1 The EROC plays a vital role in these services. As the financial-services arm of the FRBNY, the EROC processes an average of 3.2 million checks each day, which are valued at approximately $4 billion. The "EROC also maintains the largest cash vault in the world and handles over $1 billion in U.S. currency, thousands of pounds of coin, and millions of food coupons each day." Def. 56.1 Statement ¶ 5 (citing Hall Aff. ¶ 3). Finally, the EROC houses one of three Federal Reserve Information Technology ("FRIT") sites in the Federal Reserve system. The FRIT system "provides the national information-technology infrastructure for the Federal Reserve" and operates the computers that process over $2.5 trillion in funds and electronic payments each day. Id. Suffice to say, the EROC plays a vital role in the functioning of the Federal Reserve.

  The EROC facilities are operated, maintained, and repaired by EROC Property Management Division ("EROC PMD"). One of the critical functions of EROC PMD is to provide uninterrupted electrical support for FRIT and the cash and check processing operations at the EROC. The maintenance staff of EROC PMD is comprised of electricians, heating, ventilation, and air conditioning mechanics, carpenters, a plumber, and a painter. During his employ, Cravetts, was one of four electricians on EROC PMD's staff.*fn2 Cravetts was 50 years old when he was hired and 60 years old when he was terminated. The three other electricians, Arthur Denny ("Denny"), George Dingler ("Dingler"), and James Tierney ("Tierney"), were all over 50 years of age during Cravetts' employment with the FRBNY. Many other maintenance staff members were in their 50's or 60's. In fact, the oldest member of the maintenance staff, Howard Wartel, was in his mid-70s during this time.

  The EROC PMD electricians are responsible for, inter alia, the installation, maintenance, and repair of the EROC electrical systems, including those that supply power to FRIT. The EROC computer systems are powered by two Uninterruptible Power Sources ("UPSs). The UPSs are designed to avoid any power fluctuations, which can disrupt the computer systems. The continuity of power is aided by twenty-one Static Transfer Switches ("STSs"), which automatically switch power from one UPS to the other should there be an interruption of service.

  On November 2, 2002, personnel at FRIT informed the EROC Building Operations Director, John. J. O'Neill ("O'Neill"), that circuits previously installed by Tierney had not been properly identified and labeled. O'Neill assigned Cravetts and Denny to fix the problem and they began work on November 17, 2002. Two days later, the employee responsible for the maintenance of the STSs, discovered that ten of the STSs had gone into emergency response on the same day Cravetts and Denny worked on the circuit identification and re-labeling project, and as a result, several of the STSs switched power over to a single UPS. This resulted in a sudden strain on the electrical system. On November 22, 2002, Brian Henry ("Henry"), Chief Engineer,*fn3 met with Cravetts and Denny separately to discuss the events of November 17, 2002. Following these discussions, Henry remained suspicious and therefore obtained surveillance footage of the FRIT data center where Cravetts and Denny worked on the date in question. The video revealed that Cravetts was using an unknown device rather than the professional current tracer, a professionally tested device that is issued to EROC PMD electricians to identify circuits. On November 24, 2002, Henry dropped in on Cravetts and Denny as they completed the circuit project and saw the device depicted in the surveillance video. The device used by Cravetts was a homemade power switch connected by two wires to an electrical plug. Two other similar devices were found in Cravetts' locker. After an investigation and based on the findings of the EROC PMD supervisors, Edward Hall ("Hall"), the person in charge of overseeing EROC facilities, concluded that by using these home-made devices, Cravetts had disregarded safety considerations and exposed vital EROC systems to undue risk. This conclusion was based on the fact that Cravetts' actions could have resulted in an unexpected shut down of important EROC computer systems, thus impairing important FRBNY functions. On December 2, 2002, Hall recommended that the FRBNY terminate Cravetts' employment. Thereafter, pursuant to company policy, two FRBNY human resources employees approved the termination.

  On May 29, 2003, Cravetts filed a charge with the Equal Employment Opportunity Commission ("EEOC"), in which he complained that his termination was based on impermissible age-related discrimination. Specifically, Cravetts averred that it was a result of his "point[ing] out that a steel railing was a violation of code and posed an electrical hazard [that he] was fired." Def. Ex. 9 at 2. The EEOC dismissed the charge on September 12, 2003 because it was unable to establish a violation and issued a right to sue letter on September 16, 2003. Cravetts instituted the instant lawsuit on December 9, 2003.


  A. Standard of Review

  Pursuant to Federal Rule of Civil Procedure ("Fed.R. Civ. P.") 56(c), a district court must grant summary judgment if the evidence demonstrates that "there is no genuine issue as to any material fact and [that] the moving party is entitled to judgment as a matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). "Summary judgment is properly regarded not as a disfavored procedural shortcut, but rather as an integral part of the Federal Rules as a whole, which are designed to `secure the just, speedy and inexpensive determination of every action.'" Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986) (quoting Fed.R. Civ. P. 1).

  To determine whether there is a genuine issue of material fact, the Court must resolve all ambiguities and draw all inferences against the moving party. United States v. Diebold, Inc., 369 U.S. 654, 655 (1962) (per curiam); Donahue v. Windsor Locks Bd. of Fire Comm'rs, 834 F.2d 54, 57 (2d Cir. 1987). However, the mere existence of disputed factual issues is insufficient to defeat a motion for summary judgment. Knight v. U.S. Fire Ins. Co., 804 F.2d 9, 11-12 (2d Cir. 1986). The disputed issues of fact must be "material to the outcome of the litigation," id. at 11, and must be backed by evidence that would allow "a rational trier of fact to find for the non-moving party," Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). The non-movant "must do more than simply show that there is some metaphysical doubt as to the material facts." Id. With respect to materiality, "substantive law will identify which facts are material. Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted." Anderson, 477 U.S. at 248.

  As in other areas of litigation, summary judgment is available in the context of discrimination suits. Weinstock v. Columbia Univ., 224 F.3d 33, 41 (2d Cir. 2000). The Second Circuit has, however, urged courts to exercise caution in the grant of summary judgment where intent is an issue, such as in discrimination cases. Gallo v. Prudential Residential Svcs., Ltd., 22 F.3d 1219, 1224 (2d Cir. 1994). Nevertheless, summary judgment is appropriate "when an employer provides convincing evidence to explain its conduct and the plaintiff's argument consists of purely conclusory allegations of discrimination," thereby eliminating any material issue of fact. Diaz v. Weill Med. Ctr. of Cornell Univ., No. 02 Civ. 7380, 2004 WL 285947, at *14 (S.D.N.Y. Feb. 13, 2004).

  To determine whether plaintiff's employment discrimination claims will survive summary judgment, the Court applies the burden-shifting scheme set out in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-4 (1973). See Terry v. Ashcroft, 336 F.3d 128, 138 (2d Cir. 2003). Under this scheme, plaintiff must first make out a prima facie case of discrimination. Id. at 137. If plaintiff makes such a showing, the burden shifts to defendant to offer a nondiscriminatory rationale for its actions. Id. at 138. In the final step, plaintiff must adduce sufficient admissible evidence to establish that defendant was more likely than not motivated by discrimination in its actions. Id. "Although intermediate evidentiary burdens shift back and forth under this framework, `[t]he ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff.'" Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (2000) (quoting Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981)). Thus, "[t]hrough all steps of this assessment, the evidence the plaintiff presents in opposing summary judgment must be sufficient to demonstrate the discriminatory intent underlying defendant's action." Ghirardelli v. McAvey Sales & Serv., 287 F.Supp.2d 379, 385 (S.D.N.Y. 2003).

  B. Cravetts' ADEA Claim

  The ADEA makes it unlawful for an employer to, inter alia, "to discharge any individual . . . because of such individual's age. . . ." 29 U.S.C. § 623(a)(1). The ADEA protects individuals who are at least forty years old. 29 U.S.C. § 631(a). "It is not unlawful, however, for an employer to discharge an employee based on reasonable factors other than age." Maresco v. Evans Chemetics, 964 F.2d 106, 110 (2d Cir. 1992) (citing 28 U.S.C. § 623(f)(1)). To state a prima facie case under the ADEA, a plaintiff must demonstrate that: (1) he belonged to the protected class; (2) he was qualified for the employment position; (3) he suffered an adverse employment action; and (4) the circumstances surrounding the adverse employment action give rise to an inference of discrimination. Terry, 336 F.3d at 137-38. The plaintiff's burden at the prima facie stage is "minimal." Mandell v. County of Suffolk, 316 F.3d 368, 378 (2d Cir. 2003). The parties do not dispute the first three prongs of this inquiry. Instead, their dispute centers on whether Cravetts has established the fourth prong, i.e., whether his termination was motivated by discriminatory animus.

  Cravetts' EEOC charge does not mention age as a motivating factor for his termination. Instead, he alleged that he was discharged because he pointed out a condition that violated code and posed an electrical hazard. Somewhat differently, his complaint alleges that he was fired because the FRBNY found his age, knowledge, experience, and pay rate inconvenient.*fn4 The only support offered for his ADEA claim is his birth date, August 14, 1942. Cravetts' age alone does not satisfy his burden. E.g., Hou v. N.Y.C. Dep't of Envtl. Prot., No. 98 Civ. 9569, 1998 WL 531829, at *4 (S.D.N.Y. Aug. 24, 1998) ("A mere assertion of being a member of the protected age group without factual allegations to support asserted age discrimination is insufficient."). Instead, "[a]n ADEA claimant must inform the court and the defendant why []he believes age discrimination existed," id., and in so doing, as I have repeatedly held, he cannot rely solely on conclusory allegations or unsupported inferences of discrimination, e.g., Klier v. Snow, No. 03 Civ. 4508 (HB), 2004 WL 1375259, at *3 (S.D.N.Y. June 17, 2004); Lalla v. Consolidated Edison Co. of N.Y., Inc., No. 00 Civ. 6260 (HB), 2001 WL 456248, at *4 (S.D.N.Y. Apr 30, 2001), aff'd, 91 Fed. Appx. 701, 2002 WL 530586 (2d Cir. April 10, 2002).

  In opposition to the FRBNY's motion for summary judgment, Cravetts now contends that the mere fact that FRBNY terminated another older employee, Tierney, who was 56 years old at the time, three weeks prior to Cravetts' termination gives rise to an inference of discrimination. I disagree. Cravetts overlooks the fact that the two other electricians employed by FRBNY were also over 50 years old and that, as he conceded at deposition, many other maintenance employees were in their 50s and 60s. Indeed, Cravetts himself was hired when he was 50 years old. The fact that another employee within the same protected class was fired within relatively close temporal proximity does not establish a prima facie case of discrimination. See Norton v. Sam's Club, 145 F.3d 114, 119 (2d Cir. 1998) (concluding that the plaintiff had failed to produce sufficient evidence of discrimination where he alleged that he was over forty, the person who fired him was under forty, and another employee, also over forty, was fired around the same time as plaintiff).

  Even if I were to conclude that for summary judgment purposes, Cravetts had made out a prima facie case, he failed to demonstrate that the FRBNY's stated reason for his termination was pretextual. The FRBNY presented evidence that Cravetts was terminated due to his use of unauthorized equipment, which placed the vitally important electrical systems he was charged with maintaining in jeopardy and caused an unnecessary risk to the FRBNY computer systems. Cravetts attacks this rationale on several fronts, all of which must fail. First, Cravetts tells us that the investigation into the events of November 17, 2002 was not thorough and the FRBNY's conclusion that Cravetts' conduct precipitated the STS malfunction was not well founded. Second, Cravetts contends that EROC PMD management knew of Cravetts' use of the homemade device for at least a year and a half prior to the November 17, 2002 incident.*fn5 Third, Cravetts argues that the FRBNY ought to have engaged in progressive discipline, instead of outright termination.

  These arguments fail, for neither do they establish the purported pretextual nature of the FRBNY's stated rationale for Cravetts' termination or the rationale is unworthy of credence. Reeves, 530 U.S. at 143. The FRBNY has supported its non-discriminatory reason for Cravetts' termination with credible evidence that it was understandably concerned with the well being of the computer systems that support an extraordinarily large volume of financial transactions, something its investigation indicated Cravetts put in jeopardy by using a non-authorized homemade device. The record further reflects that Cravetts' co-workers, supervisors, and his own expert, believed that this device posed unacceptable risks and, under certain circumstances, could damage the electrical systems and cause a fire. Indeed, Cravetts' own expert opined that if one if his employees used such a device under the circumstances of this case, "that employee would not be with me very long." Becker Dep. at 251:13-21. Finally, the FRBNY does have a progressive discipline policy, but that policy provides for the immediate termination of an employee if there is a violation of the standard for acceptable work behavior that warrants such action. The FRBNY asserts that it viewed Cravetts' conduct on November 17, 2002 as warranting immediate termination.

  While Cravetts takes issue with the investigative and decision-making process of the FRBNY, which may, for all this Court knows, be well founded, the fact is that, as the FRBNY points out, I do not sit as a "super-personnel department" to re-evaluate the personnel decisions of employers. E.g., Ascione v. Pfizer, 312 F. Supp.2d 572, 578 (S.D.N.Y. 2004). As the Second Circuit has cautioned, "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, 145 F.3d at 120 (emphasis in original). Here, Cravetts has proffered nothing of substance to support his claim of age discrimination — either to make out a prima facie case or to "demonstrate[] that the asserted pretextual reasons were intended to mask age discrimination," Schnabel v. Abramson, 232 F.3d 83, 88 (2d Cir. 2000) — and his ADEA claim therefore fails.


  For the foregoing reasons, defendant's motion for summary judgment is granted. The Clerk of the Court is instructed to close this motion and any other open motions and remove this case from my docket.


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