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
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).
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