United States District Court, S.D. New York
November 1, 2004.
JOHN H. CRAVETTS, Plaintiff,
FEDERAL RESERVE BANK OF NEW YORK, Defendant.
The opinion of the court was delivered by: HAROLD BAER, JR., District Judge
OPINION & ORDER
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
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
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.
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,
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
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.
THIS CONSTITUTES THE OPINION AND ORDER OF THE COURT.