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August 1, 2005.


The opinion of the court was delivered by: GERARD E. LYNCH, District Judge


Plaintiff, Theodore Brooks, sues his former employer, Leake & Watts Services, Inc. ("Leake & Watts"), for age discrimination pursuant to the Age Discrimination in Employment Act of 1967 ("ADEA"), 29 U.S.C. §§ 621-634. Plaintiff, who was 61 years old at the time of the events in question, alleges that Leake & Watts, a private nonprofit child care organization, fired him from his position as director of security, and then failed to hire him for a vacant position within the organization on account of his age. Defendant now moves for summary judgment dismissing plaintiff's complaint in its entirety.*fn1 The motion will be granted. BACKGROUND

  In opposing this motion, plaintiff has neither provided a counterstatement of material facts as required under Local Rule 56.1(b), nor contested any of those facts contained in defendant's Local Rule 56.1 Statement. Although Local Rule 56.1(c) provides that non-controverted material facts in the moving party's statement are to be deemed admitted, Second Circuit caselaw requires the district court to confirm that statements are adequately supported by citations to evidence in the record and to disregard those which are unsupported. Vermont Teddy Bear Co. v. 1-800 Beargram Co., 373 F.3d 241, 244 (2d Cir. 2004); Giannullo v. City of New York, 322 F.3d 139, 140-143 (2d Cir. 2003). Accordingly, a review of the record, guided by defendant's Local Rule 56.1 Statement, shows that the following facts are both undisputed and adequately supported. Citations to the record are provided for those facts most critical to the claims and defenses asserted here.

  Leake & Watts, a nonprofit organization, provides schooling and housing for troubled children on its main campus in Yonkers, New York and in group homes in the surrounding community. The organization is divided into five divisions — Congregate Care Division, Foster Boarding Home and Adoption Division, Administrative Division, Clinical Services Department, and Education Department — each of which performs a different function within the organization and has its own budget. (Hairston Aff. ¶ 21.) Funding for Leake & Watts's programs and services is derived from a variety of sources, including state agencies and the City of New York, and because certain of these funding agencies prohibit commingling of funds, each program is treated as a separate "cost center." (Castro Aff. ¶¶ 6-7.) So, for example, the Congregate Care Division, which is responsible for housing, after-school activities, and the general welfare of the children within Leake & Watts's care, is a separate cost center (with several constituent cost centers, id. ¶ 8), with a separate budget, from the Education Department, which employs teachers to provide instruction in the private schools it operates.

  In August 1998, Brooks was hired by Leake & Watts in the position of director of security to establish and staff a newly-created Security Department, located within the Congregate Care Division. Responding to community complaints of alleged disorderly and criminal conduct, the Security Department was established to monitor the children within Leake & Watts's care both on and off-campus. (Brooks Dep., Lubbe Aff. Ex. C, at 49, 67.) At the time he was hired, Brooks, who was born on June 14, 1938 (Complaint ¶ 7), was sixty years old and the decision to hire him was made by James Campbell, the then sixty-one year old executive director of Leake & Watts (Hairston Aff. ¶¶ 4, 23), on the recommendation of Paul Richer, the then sixty-four year old assistant executive director of Leake & Watts and head of the Congregate Care Division. (Id. ¶¶ 6, 23.) Under Brooks's supervision, nine security guards and a deputy director of security, John Rivera, were hired. (Brooks Dep. 62-63, 77.) A tenth position was advertised in the fall of 1999, and one security guard resigned in October of that year, leaving a total of two vacant security guard positions within the department at the end of 1999. (Lubbe Aff. Ex. G, at 1-2.) Brooks's responsibilities also included founding and running an "administrator-on-duty" program, which ensured that a liaison was available during off hours to answer inquiries (Brooks Dep. 71), and oversight of a "critical response team," which consisted of residential counselors who intervened in non-criminal crisis issues, including physical altercations between children. (Id. at 67-70.)

  Toward the end of 1999, the Finance Department at Leake & Watts predicted a deficit of close to $2 million for the 1999/2000 fiscal year. (Castro Aff. ¶ 19.) Richer, then head of the Congregate Care Division, was asked to suggest cost-cutting measures. (Id. ¶ 11.) When an initial round of cost-cutting proposals put forward by Richer in early December 1999 was rejected by senior management as insufficient, Richer subsequently proposed eliminating his position, that of Brooks, and all other positions within the security department. (Castro Aff. ¶¶ 12-15; Exs. A, B.) Additionally, Brooks decided not to fill the two vacant positions within his department as one such cost-savings measure (Brooks Dep. 87), and also provided a memorandum to Willis Kettrell, then acting assistant executive director of the Congregate Care Division, detailing "Proposed Contingency Budget Cuts" within the Security Department. (Lubbe Aff. Ex. G.) Ultimately, Leake & Watts decided to eliminate Brooks's position (as well as Richer's), but not any of the security guard positions, claiming that while it could have saved an equivalent amount of money by cutting either Brooks's position or two security guard positions, it chose to eliminate Brooks's position because there were already multiple levels of supervision within the department and the resources of the department were already overstretched vis-a-vis those functions performed by the security guards, i.e., patrolling and monitoring. (Id. ¶¶ 18-20; Hairston Aff. ¶¶ 26, 29-30); see also Brooks Dep. at 77-78 (noting that the resources of the Security Department were stretched even with a department of nine or ten).) Management of the security department was transferred without any pay adjustment to another, existing director, Peter Nesbitt, who was about fifty-eight years old at the time. (Hairston Aff. ¶¶ 31-32.) In all, twenty-seven positions were eliminated within the organization. (Id. ¶ 27.)

  The decision to cut those twenty-seven positions was announced to all employees on January 21, 2000. After being informed that his position would be among those terminated, Brooks was supplied with a list of vacant positions within the organization (including the two vacant security guard positions within his own department), and encouraged to apply for a position of "Recruitment Manager" within the Human Resources department. (Brooks Dep. 92-95.) Brooks did apply for that position, and that position alone, but Rivera, his former deputy director, then fifty-one years old, whose position had also been eliminated, was hired instead. (Hairston Aff. ¶ 20, 35.) Brooks's last day of employment with Leake & Watts was February 3, 2000.

  Brooks filed a charge of discrimination with the New York Division of Human Rights in June 7, 2000, but the complaint was dismissed after the agency found there was no probable cause to believe Brooks had been discriminated against. Brooks's EEOC complaint was also dismissed and a right to sue letter was issued on September 15, 2002. The instant lawsuit was filed on December 15, 2002. Leake & Watts now moves for summary judgment dismissing the complaint in its entirety.


  I. Legal Standards

  A. Summary Judgment

  Summary judgment is appropriate when "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). In turn, a "genuine issue as to any material fact" is established "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). "It is the movant's burden to show that no genuine factual dispute exists, and all reasonable inferences must be drawn in the non-movant's favor." Giannullo, 322 F.3d at 140 (2d Cir. 2003) (internal citations omitted); see United States v. Diebold, Inc., 369 U.S. 654, 655 (1962). A summary judgment motion will be defeated with respect to those claims that present such genuine issues of material fact.

  To defeat summary judgment, however, the nonmoving party "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). "[C]onclusory allegations or unsubstantiated speculation" will not suffice. Scotto v. Almenas, 143 F.3d 105, 114 (2d Cir. 1998). Rather, the nonmoving party must "set forth ...

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