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August 24, 2005.


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. (Id.).

  "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' Investigation

  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 seq..

  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 retaliation claim.


  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). ...

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