United States District Court, S.D. New York
August 24, 2005.
ANATOLY PRONIN, Plaintiff,
RAFFI CUSTOM PHOTO LAB, INC., VAN CHROMES LABORATORY, INC., and ESTATE OF RAFFI ATAMIAN, Defendants.
The opinion of the court was delivered by: DENNY CHIN, District Judge
In this employment discrimination case, plaintiff Anatoly
Pronin sues defendants Raffi Custom Photo Lab, Inc. ("Raffi
Custom Photo"), Van Chromes Laboratory, Inc., and the estate of
Raffi Atamian*fn1 alleging age discrimination and
retaliation in violation of federal, state, and city law.
Defendants move for summary judgment dismissing all claims. For
the reasons set forth below, the motion is granted in part and
denied in part. BACKGROUND
A. The Facts
Construed in the light most favorable to plaintiff, the
non-moving party, the facts are as follows:
At all times relevant to the instant action, Atamian was the
president of Raffi Custom Photo, a company involved in processing
and printing photography. During the 1990s, Raffi Custom Photo
employed more than 40 people. Currently, it employs less than 20
individuals. (Hartman Aff. ¶ 13). Atamian hired plaintiff in June
2001 as a black and white custom photo printer. (Def. 56.1
Statement ¶ 6; Pl. 56.1 Statement ¶ 6). At the time Pronin was 61
years old (Def. 56.1 Statement ¶ 6; Pl. 56.1 Statement ¶ 6) and
Atamian was 60 years old. (Hartman Aff. ¶ 20). Pronin is an
accomplished photographer, having received numerous prestigious
awards for his work, and has worked as a custom photo printer for
twenty years. (Pronin Aff. ¶¶ 3-7). Among Pronin's co-workers at
Raffi Custom Photo were Renate Flakowicz and Larry Williams, with
whom Pronin worked in the black and white photo custom printing
department. (Id. ¶ 13).
1. Alleged Discriminatory and Abusive Conduct by Williams
During his employment with Raffi Custom Photo, Pronin was
subjected to insulting nicknames by Williams, who referred to
Pronin as "Ayatollah Khomeni" and "bum." (Id. ¶ 15). Williams
also "told [plaintiff] to `take [his] bag and go home,' implying
that [plaintiff] was worthless and/or sub-par." (Id.). The nicknames and statements by Williams caused plaintiff "tremendous
stress and depression." (Id. ¶ 17; Sirota Aff. Ex. B, Dr.
Berger Initial Evaluation Report). Pronin felt constant tension
and apprehension over Williams's abusive talk. Eventually he
begged Williams to leave him alone, showing him the scar on his
chest from heart surgery, in the hopes that Williams would take
pity and stop harassing him. (Id. ¶ 19).
Sometime around November 2001, Pronin complained to a manager,
Jean Hartman, about Williams's verbal abuse of him. He told
Hartman "that Williams called [him] insulting nicknames, berated
[him] and denigrated [his] work in front of the entire
workgroup[,] causing [him] great humiliation and stress, and . . .
asked her to intervene and remediate Williams'[s] conduct."
(Id. ¶ 33). After the conversation, Williams called Pronin a
"mother fucker" in front of their entire work group. (Id. ¶
34). The comment made Pronin fear for his physical safety.
"Some weeks later," Pronin again spoke with Hartman, telling
her he was extremely upset and physically affected by Wiliams's
abuse. (Id. ¶ 35). Hartman responded: "maybe you are too old to
be working here." (Id.). Pronin complained to Atamian about
Williams's treatment of him, although he does not recall when or
on how many occasions. (Pronin Dep. at 90, 93-97).
2. Williams's Assault on Flakowicz and Defendants'
Williams's anger and abuse in the workplace was directed at
other employees as well, including Flakowicz. (Pronin Aff. ¶ 16). In November 2001, Flakowicz and Williams had
a fight at work. Pronin heard shouting from both and entered the
darkroom to see Renate on the floor crying, covering her face
with her hands; Williams was standing over her, fists clenched
and body stiff in an apparent rage. (Id. ¶¶ 20-21). Flakowicz
claimed that during the incident Williams yelled at her, pushed
her against a wall, and choked her. See Flakowicz v. Raffi
Custom Photo Lab, Inc., 2004 WL 2049220, at *3-4 (S.D.N.Y. Sept.
13, 2004). While Pronin did not witness the fight itself, he has
"absolutely no doubt that [Williams] did, in fact, assault
[Flakowicz] as she said." (Pronin Aff. ¶ 23).
Some time after the November 2001 incident, in or around early
2002, Atamian and his attorney met with plaintiff and questioned
him about the incident. (Id. ¶ 24). Pronin told them that he
would "not [be a] good witness for" them and that he had
"problems with . . . Larry." (Pronin Dep. at 90). He told them
that Williams harassed and insulted him, and criticized his work,
and that he could not "work like this." (Id. at 90, 93).
In June 2002, Pronin again met with Atamian and his lawyer,
soon after Flakowicz filed and served her EEOC complaint on
defendants.*fn2 (Pronin Dep. at 102-03). See Flakowicz,
2004 WL 2049220, at *4. The lawyer asked Pronin to sign a
prepared affidavit, describing what Pronin witnessed of the fight
between Flakowicz and Williams. The affidavit concluded with the typewritten sentence "I have no opinion on who started the fight
or who was responsible." Pronin told Atamian and his lawyer that
"the written statement did not accurately reflect what [he had]
said," and that he "did not want to state any opinion as to who
started the fight between Williams and Renate." (Pronin Aff. ¶
27). According to Pronin, the lawyer told Pronin not to worry,
and that the statement meant "the same thing" as not stating any
opinion. Pronin "felt pressured to sign the statement since
[Atamian] was [his] boss and [he] wanted to please him and . . .
wanted to keep [his] job." (Id. ¶ 27).
During a third meeting with Atamian and his lawyer in December
2002, Pronin told them that he supported Renate's claims and
would not be a witness for defendants. (Pronin Aff. ¶ 38). That
was Pronin's last conversation with Atamian on the subject.
Flakowicz filed a complaint, alleging, inter alia, hostile
work environment and discrimination based on her gender, in this
Court on December 13, 2002. Flakowicz, 2004 WL 2049220 at *4.
3. Termination of Plaintiff's Employment
In the fall of 2002, Chuck Zoeller, a representative from the
Associated Press (the "AP"), one of Raffi Custom Photo's major
customers, called Jean Hartman at Raffi Custom Photo to complain
that the AP's negatives had been placed into the wrong sleeves.
(Zoeller Aff. ¶ 8). Zoeller told Hartman that "this kind of error
was simply intolerable and seriously jeopardized AP's relationship with Raffi Custom Photo."*fn3 (Id.).
Defendants claim they "strongly suspected that [p]laintiff was
responsible for the mishap, because most (although not all) of
the black and white printing work done at Raffi Custom Photo for
the AP at that time was being done by [p]laintiff." (Hartman Aff.
¶ 33). Hartman states that she spoke with the black and white
printers, all of whom expressed an understanding of the
seriousness of the situation, except for Pronin who "cast blame
on the customer." (Id. ¶ 35). Hartman expressed her "concerns
about [p]laintiff and this situation [to] Raffi Atamian in the
fall of 2002, who responded by indicating that he would take care
of the situation." (Id.).
In January 2003, Atamian fired Pronin. (Pronin Aff. ¶ 38).
Atamian never told Pronin why he fired him, nor did anyone at
Raffi Custom Photo ever criticize Pronin's work or blame him for
any mistakes. (Id. ¶ 40).
4. Alteration of Plaintiff's Statement
During discovery defendants produced a copy of the statement
Pronin signed during one of his meetings with Atamian and his
lawyer. At the end of paragraph five ("I have no opinion on who
started the fight or who was responsible") is the following
hand-written addition: "but I do not think Larry beat her up or
would start the fight." (Sirota Aff. Ex. C). Pronin did not add the hand-written statement, nor was the statement on
the document at the time Pronin signed it. (Pronin Dep. at 109;
Pronin Aff. ¶¶ 28-30).
B. Procedural History
Plaintiff filed a charge of discrimination against defendants
with the EEOC and obtained a Right to Sue letter dated November
24, 2003. (Sirota Aff. Ex. H). The instant action was filed on
December 2, 2003, alleging violations of the Age Discrimination
in Employment Act, 29 U.S.C. § 621 et seq. (the "ADEA");
Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et
seq., as amended ("Title VII"); the New York State Human Rights
Law, New York Executive Law § 296 et seq.; and the New York
City Human Rights Law, New York Administrative Code § 8-101 et
Specifically, the complaint asserts three claims: (1) hostile
work environment, (2) termination based on plaintiff's age, and
(3) retaliation. (Compl. at 8-11). The parties engaged in
discovery and the instant motion for summary judgment followed.
For the reasons set forth below, defendants' motion is granted
with respect to plaintiff's hostile work environment and age
discrimination claims and denied with respect to plaintiff's
A. Summary Judgment Standard
The standards governing motions for summary judgment are
well-settled. A court may grant summary judgment only where there is no genuine issue of material fact and the moving party
is therefore entitled to judgment as a matter of law. See
Fed.R.Civ.P. 56(c); Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 585-87 (1986). Accordingly, the court's
task is not to "weigh the evidence and determine the truth of the
matter but to determine whether there is a genuine issue for
trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249
(1986). There must be sufficient evidence in the record to
support a jury verdict in the nonmoving party's favor to create
an issue for trial. See id.
To defeat a motion for summary judgment, the nonmoving party
"must do more than simply show that there is some metaphysical
doubt as to the material facts." Matsushita, 475 U.S. at 586.
As the Supreme Court stated in Anderson, "[i]f the evidence is
merely colorable, or is not significantly probative, summary
judgment may be granted." Anderson, 477 U.S. at 249-50
(citations omitted). The nonmoving party may not rest upon mere
conclusory allegations or denials, but must set forth "concrete
particulars" showing that a trial is needed. Nat'l Union Fire
Ins. Co. v. Deloach, 708 F. Supp. 1371, 1379 (S.D.N.Y. 1989)
(quoting R.G. Group, Inc. v. Horn & Hardart Co., 751 F.2d 69,
77 (2d Cir. 1984) (internal quotations omitted)). Accordingly, it
is insufficient for a party opposing summary judgment "merely to
assert a conclusion without supplying supporting arguments or
facts." BellSouth Telecomms., Inc. v. W.R. Grace & Co.,
77 F.3d 603, 615 (2d Cir. 1996) (internal quotations omitted). B. Hostile Work Environment*fn4
1. Applicable Law
To prevail on a hostile work environment claim under Title VII
"a plaintiff must first show that the harassment was sufficiently
severe or pervasive to alter the conditions of the victim's
employment and create an abusive working environment." Feingold
v. New York, 366 F.3d 138, 149 (2d Cir. 2004) (internal
quotations and citations omitted); see also Cruz v. Coach
Stores, Inc., 202 F.3d 560, 570 (2d Cir. 2000) (to defeat a
summary judgment motion on a claim of racially hostile work
environment, "a plaintiff must produce evidence that the
workplace was permeated with discriminatory intimidation,
ridicule, and insult, that was sufficiently severe or pervasive
to alter the conditions of the victim's employment") (internal
quotation marks omitted). The analysis of a hostile work
environment claim under Title VII or the ADEA is the same.
Brennan v. Metro. Opera Ass'n, 192 F.3d 310, 318 (2d Cir.
The misconduct must be sufficiently severe or pervasive to
create an objectively hostile or abusive work environment, and
the victim must also subjectively perceive the environment to be
abusive. Faragher v. City of Boca Raton, 524 U.S. 775, 787 (1998) (citing Harris v. Forklift Sys., Inc., 510 U.S. 17, 21
(1993)). Additionally, the plaintiff must demonstrate that a
specific basis exists for imputing the conduct that created the
hostile environment to the employer. Van Zant v. KLM Royal Dutch
Airlines, 80 F.3d 708, 715 (2d Cir. 1996).
With respect to the objective showing, a single incident will
not suffice unless "extraordinarily severe." Cruz,
202 F.3d at 570 (quotation omitted). Further, as the Second Circuit stated in
Patterson v. County of Oneida, 375 F.3d 206 (2d Cir. 2004):
The matter of whether the conduct alleged was so
"severe or pervasive" as to create "an objectively
hostile or abusive work environment," is to be
decided based on the totality of the circumstances,
in light of such factors as the "frequency of the
discriminatory conduct; its severity; whether it is
physically threatening or humiliating, or a mere
offensive utterance; and whether it unreasonably
interferes with an employee's work performance."
Id. at 227 (quoting Harris, 510 U.S. at 21, 23).
Additionally, "where reasonable jurors could disagree as to
whether alleged incidents of . . . harassment would have
adversely altered the working conditions of a reasonable
employee, the issue of whether a hostile work environment existed
may not properly be decided as a matter of law." Id. at 227.
Finally, a hostile work environment claim under Title VII or
the ADEA requires a showing that the conduct occurred because of
plaintiff's membership in a protected class. See Brennan v.
Metro. Opera Ass'n, 192 F.3d 310, 318 (2d Cir. 1999). Abusive conduct in the workplace, if not based on a protected
class, is not actionable under Title VII or the ADEA. These
statutes prohibit discrimination and are not civility codes.
See Oncale v. Sundowner Offshore Servs., 523 U.S. 75, 81
Here, although plaintiff alleges abusive conduct, he fails to
present evidence from which a jury could reasonably find that the
conduct was based on his age. In his affidavit, plaintiff states
his belief that "Larry picked on me because I was older, and he
thought he could get away with such conduct, since, if I
complained and lost my job at Raffi Photo, I would not be able to
find another job." (Pronin Aff. ¶ 19). In his Memorandum of Law,
however, plaintiff makes no mention of his age as the basis of
the hostile work environment; rather, plaintiff focuses on the
sex-based hostile work environment allegedly suffered by his
co-worker, Flakowicz, as the basis for his hostile work
environment claim. (See Pl. Mem. at 18-20).
First, to the extent that plaintiff is making a hostile work
environment claim based on his age, this claim fails. Williams
insulted Pronin, calling him "Ayatollah Khomeini" and a "bum,"
and told him to "take [his] bag and go home," "incessantly
belittl[ing] [Pronin], both personally and professionally." (Pl.
Mem. at 19.). Plaintiff offers no evidence linking the conduct to
plaintiff's age. While "facially neutral incidents may be
included, of course, among the `totality of the circumstances'
that courts consider in any hostile work environment claim," plaintiff nevertheless must offer some evidence from which a
reasonable jury could infer that the facially-neutral incidents
were in fact discriminatory. Alfano v. Costello, 294 F.3d 365,
378 (2d Cir. 2002). Beyond Pronin's own speculation that
Williams's treatment of him was based on his age, plaintiff
offers nothing to show that Williams's treatment of him was
age-based. "Hostility or unfairness in the workplace that is not
the result of discrimination against a protected characteristic
is simply not actionable" under Title VII or the ADEA. Nakis v.
Potter, 01 Civ. 10047, 2004 WL 2903718, at *20 (S.D.N.Y. Dec.
15, 2004) (citing Brennan, 192 F.3d at 318 (2d Cir. 1999) ("A
plaintiff must also demonstrate that she was subjected to the
hostility because of her membership in a protected class.")).
Moreover, plaintiff's attempt to rely on Flakowicz's sex-based
hostile work environment claim fails.*fn5 Pronin relies on
Cruz v. Coach Stores, Inc., 202 F.3d 560, 570 (2d Cir. 2000),
in arguing that evidence of harassment of his co-worker supports
his own claim of hostile work environment. See Cruz,
202 F.3d at 570 ("Because the crucial inquiry focuses on the nature of the
workplace environment as a whole, a plaintiff who herself
experiences discriminatory harassment need not be the target of
other instances of hostility in order for those incidents to support her claim."). Even assuming that evidence of a hostile
work environment against women could serve as some evidence of a
hostile work environment based on Pronin's age, there still must
be enough evidence to conclude that a hostile work environment
existed based on Pronin's age. Here, there simply is none.
Second, to the extent that Pronin is alleging a hostile work
environment based on any protected class other than his age, this
claim fails. Plaintiff argues that "[w]hile [he] did not
experience verbal abuse which was sex-based directly, [he] was
subject to the overall abuse which Flakowicz experienced in the
workplace and was therefore, [sic] subject to the same hostile
environment. Plaintiff's claims of hostile work environment are,
therefore, properly stated under Title VII." (Pl. Mem. at 22).
Apparently Pronin is arguing that, in addition to his hostile
work environment claim under the ADEA based on his age, he states
a claim of hostile work environment under Title VII by virtue of
the gender-based discrimination allegedly suffered by his female
co-worker. Even assuming Pronin could maintain such a
claim,*fn6 there is no factual basis for it. Pronin has made no showing that
the terms and conditions of his employment were affected by
Williams's harassment of Flakowicz; merely working in the same
area as Flakowicz and witnessing the conclusion of one incident
between Williams and Flakowicz, without more, is insufficient.
Plaintiff has failed to put forth sufficient evidence to
sustain a hostile work environment claim, under either the ADEA
or Title VII; accordingly, defendants' motion for summary
judgment on this claim is granted.
C. Age Discrimination
1. Applicable Law
The "ultimate issue" in any employment discrimination case is
whether the plaintiff has met his burden of proving that the
adverse employment decision was motivated at least in part by an
"impermissible reason," i.e., that there was discriminatory
intent. See Reeves v. Sanderson Plumbing Prods., Inc.,
530 U.S. 133, 146 (2000); Fields v. N.Y. State Office of Mental
Retardation & Developmental Disabilities, 115 F.3d 116, 119 (2d
Cir. 1997). a. McDonnell Douglas Framework
In the absence of direct evidence of discrimination, a
plaintiff in an employment discrimination case usually relies on
the three-step McDonnell Douglas test. First, a plaintiff must
establish a prima facie case of unlawful discrimination by
showing that (1) he is a member of a protected class (2) who
performed his job satisfactorily (3) who suffered an adverse
employment action (4) under circumstances giving rise to an
inference of discrimination. See McDonnell Douglas Corp. v.
Green, 411 U.S. 792, 802 (1973) (Title VII); Stratton v. Dep't
for the Aging, 132 F.3d 869, 879 (2d Cir. 1997) (ADEA).
Second, if the plaintiff establishes a prima facie case, a
rebuttable presumption of discrimination arises, and the burden
then shifts to the defendant to articulate a legitimate,
nondiscriminatory reason for the employment decision. See
Reeves, 530 U.S. at 143; Stratton, 132 F.3d at 879.
Third, if the employer articulates a nondiscriminatory reason
for its actions, the presumption of discrimination is rebutted
and it "simply drops out of the picture." St. Mary's Honor Ctr.
v. Hicks, 509 U.S. 502, 511 (1993) (citation omitted); see
James v. N.Y. Racing Ass'n, 233 F.3d 149, 154 (2d Cir. 2000).
The burden then shifts back to the plaintiff to show, without the
benefit of any presumptions, that more likely than not the
employer's decision was motivated, at least in part, by a
discriminatory reason. See Fields, 115 F.3d at 120-21;
Connell v. Consol. Edison Co., 109 F. Supp. 2d 202, 207
(S.D.N.Y. 2000). To meet this burden, the plaintiff may rely on evidence
presented to establish his prima facie case as well as
additional evidence. Such additional evidence may include direct
or circumstantial evidence of discrimination. Desert Palace,
Inc. v. Costa, 539 U.S. 90, 99-101 (2003); Harris v. City of
New York, No. 03 Civ. 6167, 2004 WL 2943101 at *6 (S.D.N.Y. Dec.
21, 2004). It is not sufficient, however, for a plaintiff merely
to show that she satisfies "McDonnell Douglas's minimal
requirements of a prima facie case" and to put forward
"evidence from which a factfinder could find that the employer's
explanation . . . was false." James, 233 F.3d at 153. Instead,
the key is whether there is sufficient evidence in the record
from which a reasonable trier of fact could find in favor of
plaintiff on the ultimate issue, that is, whether the record
contains sufficient evidence to support an inference of
discrimination. See id. at 157; Connell,
109 F. Supp. 2d at 207-08.
As the Second Circuit observed in James, "the way to tell
whether a plaintiff's case is sufficient to sustain a verdict is
to analyze the particular evidence to determine whether it
reasonably supports an inference of the facts plaintiff must
prove particularly discrimination." 233 F.3d at 157; see
Lapsley v. Columbia Univ., 999 F. Supp. 506, 513-16 (S.D.N.Y.
1998) (advocating elimination of McDonnell Douglas test in
favor of simplified approach focusing on ultimate issue of
whether sufficient evidence exists to permit jury to find
discrimination); see also Norton v. Sam's Club, 145 F.3d 114,
118 (2d Cir. 1998) ("The thick accretion of cases interpreting this
burden-shifting framework should not obscure the simple principle
that lies at the core of anti-discrimination cases. In these, as
in most other cases, the plaintiff has the ultimate burden of
b. Verbal Comments and Stray Remarks
Verbal comments constitute evidence of discriminatory
motivation when a plaintiff demonstrates that a nexus exists
between the allegedly discriminatory statements and a defendant's
decision to discharge the plaintiff. See Schreiber v. Worldco,
LLC., 324 F. Supp. 2d 512, 518-19 (S.D.N.Y. 2004); Zhang v.
Barr Labs., Inc., No. 98 Civ. 5717, 2000 WL 565185, at *4
(S.D.N.Y. May 8, 2000) (citing cases). Often, however, an
employer will argue that a purportedly discriminatory comment is
a mere "stray remark" that does not constitute evidence of
discrimination. See, e.g., Danzer v. Norden Sys., Inc.,
151 F.3d 50, 56 (2d Cir. 1998) ("Stray remarks, even if made by a
decision maker, do not constitute sufficient evidence [to
support] a case of employment discrimination."); Campbell v.
Alliance Nat'l Inc., 107 F. Supp. 2d 234, 247 (S.D.N.Y. 2000)
("`Stray remarks by non-decision-makers or by decision-makers
unrelated to the decision process are rarely given great weight,
particularly if they were made temporally remote from the date of
the decision.'") (quoting Ezold v. Wolf, Block, Schorr &
Solis-Cohen, 983 F.2d 509, 545 (3d Cir. 1992)).
In determining whether a comment is a probative statement that evidences an intent to discriminate or whether it
is a non-probative "stray remark," a court should consider the
following factors: (1) who made the remark, i.e., a
decision-maker, a supervisor, or a low-level co-worker; (2) when
the remark was made in relation to the employment decision at
issue; (3) the content of the remark, i.e., whether a
reasonable juror could view the remark as discriminatory; and (4)
the context in which the remark was made, i.e., whether it was
related to the decision-making process. See Minton v. Lenox
Hill Hosp., 160 F. Supp. 2d 687, 694 (S.D.N.Y. 2004); Rizzo v.
Amerada Hess Corp., No. 99 Civ. 0168, 2000 WL 1887533, at *5
(N.D.N.Y. Dec. 29, 2000) ("An employer's discriminatory
statements will rise above the level of stray remarks . . . when
the statements are: (1) made by the decision maker or one whose
recommendation is sought by the decision maker; (2) related to
the specific employment decision challenged; and (3) made close
in time to the decision."); Ruane v. Continental Cas. Co., No.
96 Civ. 7153, 1998 WL 292103, at *8 (S.D.N.Y. June 3, 1998);
Mosberger v. CPG Nutrients, Civ. No. 01-100, 2002 WL 31477292,
at *7 (W.D. Pa. Sept. 6, 2002) ("Discriminatory stray remarks are
generally considered in one of three categories those made (1)
by a non-decisionmaker; (2) by a decisionmaker but unrelated to
the decision process; or (3) by a decisionmaker but temporally
remote from the adverse employment decision.") (internal
quotations and citations omitted).
Additionally, the Second Circuit has emphasized that
"[a]lthough evidence of one stray comment by itself is usually not sufficient proof to show age discrimination, that stray
comment may `bear a more ominous significance' when considered
within the totality of the evidence." Carlton v. Mystic Transp.,
Inc., 202 F.3d 129, 136 (2d Cir. 2000) (quoting Danzer,
151 F.3d at 56); see also Schreiber, 324 F. Supp. 2d at 522-23.
"Even `stray remarks in the workplace by persons who are not
involved in the pertinent decision making process . . . may
suffice to present a prima facie case,' provided those
remarks evidence invidious discrimination." Belgrave v. City of
New York, No. 95 Civ. 1507, 1999 WL 692034, at *29 (E.D.N.Y.
Aug. 31, 1999) (quoting Ostrowski, 968 F.2d at 182); see also
Malarkey v. Texaco, Inc., 983 F.2d 1204, 1210 (2d Cir. 1993)
(holding that statements made by non-decisionmakers were properly
received "because they showed the pervasive corporate hostility
towards [plaintiff] and supported her claim that she did not
receive a promotion due to her employer's retaliatory animus");
Warren v. Halstead Indus., Inc., 802 F.2d 746, 753 (4th Cir.
1986) (holding that evidence of a "general atmosphere of
discrimination," harassment, or threats is "relevant to the
determinations of intent and pretext).
At the outset, I assume that plaintiff has made out the prima
facie case required by McDonnell Douglas. Defendants have
articulated a legitimate, nondiscriminatory reason for
plaintiff's termination: Pronin's "lack of productivity relative
to the other black and white printers"; a significant diminution of business, particularly from the AP, for whose jobs Pronin was
hired; an "egregious mistake" attributed to Pronin involving the
AP; and Pronin's "position as the junior printer in terms of
years of service." (Def. Mem. at 14).
Plaintiff argues that "defendants have failed, entirely, to set
forth any legitimate non-discriminatory reason for their
termination of plaintiff," for defendants admit they only
"suspected," but did not have actual knowledge, that Pronin
committed the error with the AP negatives; defendants never
criticized plaintiff's work; and defendants never told plaintiff
why he was being fired. (Pl. Mem. at 23-24). This argument fails.
The burden on the defendants to articulate a non-discriminatory
reason for plaintiff's termination "is one of production, not
persuasion; it `can involve no credibility assessment.'" Reeves
v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142 (2000)
(quoting St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 509
(1993)). Defendants have offered sufficient admissible evidence,
including affidavits from the AP and defendants' employee, from
which a jury could conclude that Pronin was fired for, inter
alia, possibly committing an egregious error with AP's
negatives. See Reeves, 530 U.S. at 142 (defendant meets
burden by "offering admissible evidence sufficient for the trier
of fact to conclude that" plaintiff was fired for the
Because defendants have met their burden of production in
articulating a legitimate, non-discriminatory reason for dismissing plaintiff, I proceed directly to the ultimate question
of whether plaintiff has presented sufficient evidence from which
a reasonable jury could find discrimination. I do so by
evaluating first plaintiff's evidence, then defendants' evidence,
and finally the record as a whole, keeping in mind the
elusiveness of proof of discrimination and the principle that the
jury is "entitled to view the evidence as a whole." Stern v.
Trustees of Columbia Univ., 131 F.3d 305, 314 (2d Cir. 1997);
see also Siano v. Haber, 40 F. Supp. 2d 516, 520
(S.D.N.Y.), aff'd mem., 201 F.3d 432 (2d Cir. 1999).
a. Plaintiff's Evidence
Plaintiff offers the following evidence in support of his
discriminatory termination claim:
First, Pronin was sixty-three years old when Atamian fired him.
(Def. 56.1 Statement ¶ 45).
Second, Hartman told Pronin: "maybe you are too old to be
working here." This comment, however, was a classic stray remark.
The statement was made six to eight weeks before Pronin was
fired. (Hartman Dep. at 40; Pronin Dep. at 152; Pronin Aff. ¶¶
35, 37). Hartman was not a decision-maker, nor was the comment
made in the context of the decision-making process. In light of
the context here, i.e., a virtual absence of evidence of
discrimination on the basis of age, the comment was a
non-probative stray remark.
Third, the black and white photo work that Pronin had done was
taken over by Cesar Gill, a twenty-seven year old employee. (Marmara Dep. at 8-9; Gill Aff. ¶ 2). Plaintiff's own
evidence, however, undermines this assertion and supports
defendants' contention that Gill who was already an employee of
Raffi Custom Photo merely picked up extra work in the black and
white department, consistent with defendants' practice even
before Pronin was fired. (Pronin Aff. Ex. E, Gill Aff. ¶ 5;
Marmara Dep. at 9-10). Merely because a younger employee assumed
some of Pronin's responsibilities does not mean that he was
"replaced" by a younger employee. See, e.g., Emanuel v.
Oliver, Wyman & Co., 85 F. Supp. 2d. 321, 330 (S.D.N.Y. 2000);
Brennan v. Metro. Opera Ass'n, No. 95 Civ. 2926, 1998 WL
193204, at *9 (S.D.N.Y. Apr. 22, 1998), aff'd, 192 F.3d 310 (2d
Cir. 1999) (citing Wado v. Xerox Corp., 991 F.Supp. 174, 205
(W.D.N.Y. 1998) ("Merely because [plaintiff's] duties continued
to be performed by a younger person does not support an inference
of age discrimination.")).
In sum, plaintiff's only probative, admissible evidence of age
discrimination is that he was 63 years old when he was
b. Plaintiff's Evidence
First, plaintiff was 61 years old when he was hired.
Second, plaintiff was hired and fired by Atamian, who was more
than 60 years old.
Third, a majority of defendants' employees were over forty
years old at the time plaintiff was fired.
Fourth, plaintiff was fired because defendants suspected plaintiff of committing an egregious mistake that
threatened a relationship with a client; plaintiff was less
productive than other employees; business was diminished after
9/11; and plaintiff was the most junior in terms of service.
c. The Record as a Whole
Considering the evidence as a whole, and resolving all
conflicts in the evidence and drawing all reasonable inferences
in plaintiff's favor, I conclude that no reasonable jury could
find that plaintiff's age was a factor in his dismissal.
The only admissible, probative evidence of age discrimination
is the bare fact that plaintiff was 63 years old when he was
discharged. By itself, this evidence is not enough to defeat
summary judgment. See St. Mary's Honor Ctr. v. Hicks,
509 U.S. 502, 517 (1993) (holding that in a discrimination case,
plaintiff must prove that firing was a result of intentional
discrimination); James v. N.Y. Racing Ass'n, 233 F.3d 149, 157
(2d Cir. 2000); Pullin v. Potter, No. 01 Civ. 2641, 2003 WL
1907203, at *4 (S.D.N.Y. Apr. 18, 2003) (granting summary
judgment when plaintiff's only evidence in support of age
discrimination was "the mere fact that he was in the protected
Further, the "same actor" inference undermines plaintiff's
claim. The Second Circuit has noted that "when the person who
made the decision to fire was the same person who made the
decision to hire, it is difficult to impute to her an invidious
motivation that would be inconsistent with the decision to hire." Grady v. Affiliated Cent. Inc., 130 F.3d 553, 560 (2d
Cir. 1997). Atamian was the individual who both hired and fired
Pronin, and Pronin was already 61 years old when he was hired.
Atamian was himself older than 60 years at the time he hired and
fired Pronin. Further, the hiring and firing decisions were made
within two years of each other. See id. (same actor inference
is even stronger "when the firing has occurred only a short time
after the hiring"); see also Carlton v. Mystic Trans., Inc.,
202 F.3d 129, 138 (2d Cir. 2000) (where an individual is
discharged within a relatively short time after his or her
hiring, "there is a strong inference that discrimination was not
a motivating factor in the employment decision"); Emanuel v.
Oliver, Wyman Co., 85 F. Supp. 2d 321, 334 (S.D.N.Y. 2000) ("no
reasonable juror could conclude that defendant fired plaintiff
because he was a mere eleven months older than when he was
hired"); Coleman v. Prudential Relocation, 975 F. Supp. 234,
241 (W.D.N.Y. 1997) (no age discrimination where plaintiff was
hired at age 51 and discharged 14 months later).
In sum, sufficient evidence does not exist for a reasonable
jury to find that defendant terminated plaintiff's employment on
the basis of age. Defendant's motion for summary judgment on this
claim is granted.
1. Applicable Law
Title VII prohibits an employer from firing an employee
"because he has opposed any practice made an unlawful employment practice . . . or because he has made a charge, testified,
assisted, or participated in any manner in an investigation,
proceeding, or hearing under this subchapter."
42 U.S.C. § 2000e-3(a); see also N.Y. Exec. Law § 296(1)(e); N.Y.C. Admin.
Code § 8-107(7). Thus, Title VII has two different clauses that
each protects a different type of activity; the "opposition
clause" protects an employee's opposition to an unlawful
employment practice, while the "participation clause" protects
participation in a proceeding under Title VII. See Deravin v.
Kerik, 335 F.3d 195, 203 n. 6 (2d Cir. 2003). Further, "Title
VII is violated when `a retaliatory motive plays a part in
adverse employment actions toward an employee, whether or not it
was the sole cause.'" Terry v. Ashcroft, 336 F.3d 128, 140-41
(2d Cir. 2003) (internal citations omitted).
To establish a prima facie case of retaliatory discharge,
Pronin must show (1) he was engaged in protected activity
(i.e., "participation" or "opposition"); (2) defendants were
aware of that activity; (3) he was discharged; and (4) there was
a causal connection between the protected activity and the
termination or suspension. Distasio v. Perkin Elmer Corp.,
157 F.3d 55, 66 (2d Cir. 1998); see Terry, 336 F.3d at 141 (2d
Cir. 2003); Sumner v. United States Postal Serv., 899 F.2d 203,
208-9 (2d Cir. 1990). A plaintiff may present proof of causation
either "(1) indirectly, by showing that the protected activity
was followed closely by discriminatory treatment, or . . . (2)
directly, through evidence of retaliatory animus directed against the plaintiff by the defendant." Gordon v. N.Y. City Bd. of
Educ., 232 F.3d 111, 117 (2d Cir. 2000); see also Cosgrove v.
Sears, Roebuck & Co., 9 F.3d 1033, 1039 (2d Cir. 1993).
Although the burden that a plaintiff must meet at the prima
facie stage is de minimis, the plaintiff must at least
proffer competent evidence of circumstances that would be
sufficient to permit a rational finder of fact to infer a
discriminatory motive. See Cronin v. Aetna Life Ins.,
46 F.3d 196, 204 (2d Cir. 1995).
Retaliation claims are similarly governed by the
burden-shifting framework set out by the Supreme Court in
McDonnell Douglas. Terry, 336 F.3d at 141. Again, I assume
that plaintiff has made out the prima facie case required by
McDonnell Douglas.*fn7 As discussed above, defendants have
articulated a legitimate, nondiscriminatory reason for
plaintiff's dismissal. Thus, I proceed directly to the ultimate
question of whether plaintiff has presented sufficient evidence from which a
reasonable jury could find retaliation.
Plaintiff has presented sufficient evidence from which a
reasonable jury could find that a retaliatory motive played a
part in defendants' dismissal of him. Pronin has presented
evidence that defendants were displeased with his position and
participation in the investigation. Pronin maintained his support
of Flakowicz throughout his employment, from the first interview
of him (soon after the assault) to the last (weeks before his
termination). During the third and final interview session,
Pronin again stated his support for Flakowicz and told defendants
that he would not be a witness for them. Defendants fired Pronin
the next month.
Defendants' displeasure with Pronin's position on the assault
is further evidenced by the following: soon after Flakowicz filed
her EEOC complaint, defendants pressured Pronin to sign an
affidavit that did not accurately state his position on the
assault (i.e., stating that he "had no opinion" when in fact he
stated that he did not want to give an opinion), telling him,
inaccurately, that the statement was "the same thing."*fn8
At some point later the document was altered to include a
handwritten addition stating that he did not believe Larry would have hit Renate or started a fight;*fn9 a reasonable jury
certainly could deduce that this self-serving statement, added
without Pronin's knowledge, could have been added by defendants.
On these facts, a reasonable jury could conclude that defendants
fired Pronin, at least in part, out of a retaliatory motive.
Defendants argue that plaintiff fails to produce sufficient
evidence in support of his retaliation claim because the length
of time between plaintiff's expressed support for Flakowicz's
claims and his dismissal is too great to serve as circumstantial
evidence of retaliation. See Clark County Sch. Dist. v.
Breeden, 532 U.S. 268, 273-74 (2001) ("Mere temporal proximity
between an employer's knowledge of protected activity and an
adverse employment action [can be accepted as] sufficient
evidence of causality . . . [but] the temporal proximity must be
very close."). Defendants base this argument on the fact that
Pronin first expressed his support for Flakowicz in early 2002
but he was not fired until January 2003. This argument fails.
Pronin engaged in protected activities on three occasions: (1)
during the first internal investigatory interview, after the
November 2001 assault, when Pronin expressed support for
Flakowicz; (2) during the second investigatory interview in June 2002, following Flakowicz's filing of her EEOC complaint; and (3)
during the third investigatory interview around the time
Flakowicz filed her federal complaint. That defendants did not
fire Pronin immediately after the first interview, but rather
waited until the third interview after Flakowicz had filed her
federal complaint and, arguably, things had come to a head does
not undermine the inference of a retaliatory motive created by
Pronin's dismissal closely following the third interview.
Finally, although the record does contain evidence that
defendants fired Pronin for legitimate, non-discriminatory
reasons the complaint from the AP and defendants' apparent
belief that the error was committed by Pronin a reasonable jury
still could conclude that retaliation was a motivating factor.
Defendants' motion for summary judgment on plaintiff's claim of
retaliation is denied.
For the reasons set forth above, defendants' motion for summary
judgment is granted in part and denied in part. The parties shall
appear for a pretrial conference on September 9, 2005 at 3:30