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BOYCE v. BANK OF NEW YORK

United States District Court, S.D. New York


September 13, 2005.

YVONNE BOYCE, Plaintiff,
v.
BANK OF NEW YORK, Defendant.

The opinion of the court was delivered by: KEVIN FOX, Magistrate Judge

REPORT and RECOMMENDATION

TO THE HONORABLE JED S. RAKOFF, UNITED STATES DISTRICT JUDGE

I. INTRODUCTION

  Yvonne Boyce ("Boyce") is a black woman. She commenced this action against her former employer, the Bank of New York ("BNY"), alleging that BNY violated Title VII of the Civil Rights Act of 1964 and the Age Discrimination in Employment Act of 1967 ("ADEA") when, based on her race and age, it: (a) terminated her employment, after approximately 27 years, while offering whites, who worked on a project with her, the opportunity to transfer to other BNY positions; and (b) retained employees younger than Boyce in positions similar to the position that Boyce held immediately prior to her termination, for which Boyce maintains she was qualified. Boyce also alleges that, due to her race, she was not given the job title Work Coordinator, while she performed the tasks associated with that job title for BNY's Accounts Payable Department ("APD"). As a result of not being given the appropriate job title, Boyce attempted to transfer from APD. However, Boyce contends that because of her race, BNY delayed effecting a transfer for her. Boyce also alleges that in 2001, BNY placed her in a racially segregated workplace setting in its Avenue of the Americas facility. In addition, Boyce contends that BNY retaliated against her for complaining to senior management, in 2000, about her inability to secure a transfer between BNY units and her inability, in 2001, to get BNY personnel records changed to reflect accurately her job title. According to Boyce, the retaliation was made evident through the failure of APD supervisory personnel to prepare Boyce's annual performance evaluation timely, so that she might receive a salary increase in November 2000, at the end of her normal twelve-month performance review cycle. Instead, Boyce contends the responsibility for preparing her performance evaluation was shifted to supervisory personnel in BNY's Alternative Delivery and Technological Support Division ("ADTSD"), a BNY unit into which Boyce transferred in December 2000. As a consequence, Boyce's annual salary adjustment was delayed for ninety days.

  Before the Court is BNY's motion for summary judgment, made pursuant to Fed.R.Civ.P. 56. According to BNY, certain claims of unlawful discrimination made by Boyce in this action are without the applicable statute of limitations. With respect to the remaining claims of unlawful discrimination, BNY alleges that Boyce is unable either to: (a) establish a prima facie case of race or age discrimination; or (b) establish that the reasons proffered by BNY for its conduct are pretextual. Therefore, BNY contends it is entitled to judgment as a matter of law. Boyce opposes the defendant's motion for summary judgment; it is addressed below.

  II. BACKGROUND

  In October 2000, Nancy Gons ("Gons"), BNY vice president, Retail Banking Sector, ADTSD, interviewed Boyce for an administrative position in ADTSD. At that time, Boyce was seeking to transfer out of APD. Gons explained to Boyce that she needed someone to assist her and the ADTSD staff as it prosecuted BNY's branch automation project ("Project"). The Project involved upgrading BNY's computer and telecommunications network for approximately 384 BNY facilities. In order for Boyce to fulfill her assignment within ADTSD, Gons explained to Boyce, during their initial interview, that Boyce would need to attend training classes to enhance her computer software skills.

  Boyce was eager to transfer from APD at the time she met with Gons because she had discovered that BNY's organizational chart had, for several years, identified her job title as Work Coordinator, while APD identified her job title as Senior Clerk. Boyce requested that her job title be changed by APD to reflect that she was performing the more responsible tasks of a Work Coordinator. According to Boyce, a white male employee in APD, Paul Davies ("Davies"), had received the job title Work Coordinator, and she had not. BNY denies that Davies ever held the job title Work Coordinator. In any event, in Boyce's estimation, BNY acted in a dilatory manner regarding her request to have her job title changed. Consequently, Boyce complained to BNY senior management. BNY records reflect that Boyce's job title was changed to Work Coordinator in July 2000. Boyce denies this. She maintains the change occurred in 2001.

  Gons, who is a white woman, selected Boyce to fill the position for which Gons interviewed her. At the time she made the selection, Gons was aware that Boyce was 48 years of age. Gons was one year older.

  In December 2000, Boyce joined ADTSD. Thereafter, Boyce attended two training classes, where she became knowledgeable in the following computer operating system and software programs: Windows, Lotus, Microsoft Word and Excel. Boyce recalls that when she joined ADTSD, she was responsible for: (i) attending Project meetings, where she took notes and recorded attendance; (ii) scheduling conference calls; and (iii) corresponding with BNY branches, in order to advise them of scheduled meetings and conference calls. Boyce was also responsible for E-mail transmissions. Although Boyce reported directly to Gons, Boyce contends that she also assisted other ADTSD project managers.

  From December 2000, when Boyce joined ADTSD, until September 11, 2001, Boyce was assigned to work at BNY's Barclay Street, Manhattan, New York, facility. However, as a result of the events occurring on September 11, 2001, the Barclay Street facility became uninhabitable. In or about October 2001, ADTSD relocated to 620 Avenue of the Americas, also in Manhattan. At the BNY Avenue of Americas facility, Gons recalls that Boyce, along with BNY officers and administrative staff, worked in an open area, that is, a workspace without walls or other dividers. According to Gons, the open workspace was occupied by white and black BNY employees. Boyce recalls that the open workspace was populated solely by black employees, after two white employees, who worked in that area for a short stint, were transferred. Boyce also recalls that she and other non-white BNY employees jokingly referred to their open workspace as "the plantation." Boyce testified, during a pretrial deposition taken in connection with the instant action, that she believed the seating arrangement in the open workspace was discriminatory because "you had basically one predominant race in there." However, Boyce testified further that she never complained to BNY that the open workspace environment was discriminatory.

  By in or around July 2002, according to Gons, Boyce's facility with the computer software programs noted above had not improved adequately. Therefore, Gons counseled Boyce orally and provided Boyce with a written performance evaluation through which Gons instructed Boyce "to improve her working knowledge of the Bank's computer network including Microsoft Word, Excel, PowerPoint, and Lotus Notes programs and applications." The written performance evaluation was submitted to the Court in connection with the instant motion. The document contains the following handwritten notations: "Given to Yvonne but she did not sign and return." Boyce alleges that when Gons presented the performance evaluation to her, it did not reflect Boyce's job title accurately. Therefore, at Gons' direction, Boyce did not sign the document, in order that Gons might investigate the matter of Boyce's correct job title. Boyce contends that Gons never returned to her with the performance evaluation. Later in the year 2002, Gons also found it necessary to counsel Boyce "for prematurely scheduling conference calls without confirming [Gons'] availability and avoiding incoming telephone calls by sending them automatically to voicemail."

  By November 2002, Gons alleges that she began to assign Boyce secretarial tasks that were not computer-related, because Gons found that Boyce "was not becoming proficient in the Bank's computer network and other systems." Gons maintains that she assigned plaintiff's computer-related tasks to Emiliana Echeverria ("Echeverria"), a BNY administrative secretary. Boyce challenges this assertion. According to Boyce, Gons never gave her computer-related assignments and, furthermore, Boyce contends she never observed Gons give any computer-related assignments to Echeverria. Boyce alleges that Gons "barely spoke to ? Echeverria," who, Boyce says, worked for two other BNY employees: Greg Finlay and Mike Emery.

  Gons recalls that in or about March 2003, ADTSD completed the branch automation assignment. Therefore, it was necessary to reduce the ADTSD workforce. Gons reviewed the qualifications of the ADTSD administrative staff and determined that Boyce had less seniority in ADTSD than the other administrative secretaries: Echeverria, who BNY contends is African-American and Cuban, and was born in 1965; and Irene Diaz, whom BNY maintains is Hispanic, and was born in 1958. Gons contends that Echeverria and Diaz each possessed computer-related skills that were superior to those that Boyce possessed, since Echeverria and Diaz were proficient in Microsoft Word, Excel and other computer programs. Gons weighed these factors as well as Boyce's "poor job performance during the latter half of 2002 for which [Gons had previously] counseled plaintiff." After weighing these factors, Gons concluded that Boyce should be the administrative employee terminated as part of the reduction-in-force that ADTSD was undertaking because it had completed the Project.

  On May 5, 2003, Gons notified Boyce that her employment by BNY was terminated. Boyce remembers that event differently. Boyce recalls that, at some time between 8:40 a.m. and 8:45 a.m., on May 5, 2003, Gons summoned her into Gons' office. Shortly thereafter, Christine Triago, a BNY Personnel Department representative, informed Boyce, who was then 51 years old, that her 27-year career with BNY was over. Thereafter, Gons assigned Boyce's duties to Echeverria.

  Boyce was not the only ADTSD staff member whose employment was terminated as a result of the reduction-in-force occasioned by the completion of the Project. BNY eliminated the positions of the following bank officers: John Hicks, senior vice president, ADTSD Head; Michael Emery ("Emery"), vice president, project manager-retail banking; Jean Mizzi ("Mizzi"), vice president, project manager-retail banking; and Suzann Emmens ("Emmens"), assistant vice-president, project manager-retail banking. Hicks and Emery are white men who were born in 1943 and 1949, respectively. Mizzi and Emmens are white women who were born in 1944 and 1946, respectively.

  Prior to terminating Mizzi's employment, BNY offered her the opportunity to transfer to the branch manager position at BNY's Patchogue, New York, facility. Judith Cassell ("Cassell"), managing director and senior human resources manager for BNY, explained, through an affidavit she submitted in support of the defendants' motion, that Mizzi was offered the opportunity to transfer to a new position "because of her previous experience working in and supervising the operations of the Bank's retail branches."

  Emmens was also offered the opportunity to transfer to another position before her termination was effected. Emmens was offered the opportunity to assume the ATM Services manager position at BNY's Maywood, New Jersey, facility. According to Cassell, Emmens was offered the position "because of her background in retail banking technology and her knowledge of the Bank's operational systems."

  Boyce contends that Emmens was offered the opportunity to transfer to a different BNY position, while Boyce was not, even though the quality of Emmens' work performance had been criticized. Cassell's affidavit notes that, in connection with her search for a transfer opportunity for Emmens, she received a negative assessment of Emmens' performance during a time when she had served in BNY's Computer Processing Division's Lotus Notes Support Group. Edward Mulligan ("Mulligan"), who headed BNY's Computer Processing Division in the Technology Sector, reported that Emmens was not considered "a stellar performer." Moreover, she failed to "get along well with some of the support staff and management" with whom she interacted. Emmens' conduct, according to Mulligan, was not such that corrective action needed to be taken.

  Neither Mizzi nor Emmens accepted her transfer offer. Cassell reports that neither Hicks nor Emery was offered the opportunity to transfer to another BNY position prior to being terminated.

  With respect to Boyce's claim that she was treated differently from Mizzi and Emmens by BNY, because she was not offered the opportunity to transfer to a different position prior to her termination, Cassell alleged, in her affidavit, that she made inquiries of 11 BNY human resources representatives in an effort to determine whether a vacant position, for which Boyce was qualified, was available for Boyce within BNY. Despite Cassell's inquiries, no position for which Boyce was qualified was located.

  Boyce also alleges that Mizzi and Emmens were afforded exit interviews prior to severing their ties to BNY, during which the opportunities to transfer, described above, were presented to them. Boyce maintains that she was not given a similar exit interview and, furthermore, that BNY policy requires that an exit interview be conducted in connection with the termination of an employee. In support of her contention, Boyce submitted a copy of the relevant BNY policy statement. That document advises, but does not mandate, that an exit interview with a representative from BNY's Human Resources Department be conducted prior to an employee's termination "whenever possible."

  III. DISCUSSION

  Standard of Review

  Summary judgment may be granted in favor of the moving party "if 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 judgment as a matter of law." Fed.R.Civ.P. 56(c); see D'Amico v. City of New York, 132 F.3d 145, 149 (2d Cir. 1998). When considering a motion for summary judgment, "[t]he court must view the evidence in the light most favorable to the party against whom summary judgment is sought and must draw all reasonable inferences in his favor." L.B. Foster Co. v. America Piles, Inc., 138 F.3d 81, 87 (2d Cir. 1998) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S. Ct. 1348, 1356 [1986]).

  The moving party bears the burden of showing that no genuine issue of material fact exists. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 2552 (1986). Once the moving party has satisfied its burden, the non-moving party must come forth with "specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e); see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S. Ct. 2505, 2511 (1986).

  In order to defeat a motion for summary judgment, the non-moving party cannot merely rely upon allegations contained in the pleadings that raise no more than "some metaphysical doubt as to the material facts." Matsushita, 475 U.S. at 586, 106 S. Ct. at 1355. "[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment." Anderson, 477 U.S. at 247-48, 106 S. Ct. at 2510. The non-moving party must offer "concrete evidence from which a reasonable juror could return a verdict in his favor." Id., at 256, at 2514. Summary judgment should only be granted if no rational jury could find in favor of the non-moving party. See Heilweil v. Mount Sinai Hospital, 32 F.3d 718, 721 (2d Cir. 1994).

  Where, as here, a litigant appears before the court pro se, that litigant's submissions should be read liberally and interpreted so as "to raise the strongest arguments that they suggest." McPherson v. Coombe, 174 F.3d 276, 280 (2d Cir. 1999). However, this does not mean that the pro se litigant is released from the typical requirements of summary judgment. A "bald assertion" made by the pro se litigant that is not supported by evidence will not be sufficient to overcome a motion for summary judgment. See Lee v. Coughlin, 902 F. Supp. 424, 429 (S.D.N.Y. 1995).

  Statute of Limitations

  In a state such as New York, which maintains an administrative agency to receive and adjudicate claims of unlawful discrimination, a person alleging employment discrimination under Title VII or ADEA is obligated to file a charge of discrimination with the United States Equal Employment Opportunity Commission ("EEOC") within 300 days after the alleged discriminatory act. See Pikulin v. The City University of New York, 176 F.3d 598, 599 (2d Cir. 1999); Miller v. International Telephone and Telegraph Corp., 755 F.2d 20, 23 (2d Cir. 1985). In like manner, a claim of retaliation must also be filed with the EEOC no later than 300 days after an alleged retaliatory act occurs. See National Railroad Passenger Corp. v. Morgan, 536 U.S. 101, 113-114, 122 S. Ct. 2061, 2072-2073 (2002). In the instant case, Boyce filed a claim of race and age discrimination with the EEOC on May 27, 2003. On November 19, 2003, Boyce amended her discrimination charge by adding an allegation that BNY retaliated against her by enlarging, from 12 months to 15 months, the period during which her annual performance evaluation was to be prepared and issued, and by extending by 3 months the date on which her annual salary would be enhanced.

  BNY contends that any claim of unlawful discrimination or retaliation asserted by Boyce in this action, arising out of an event which occurred more than 300 days prior to the May 27, 2003 filing of Boyce's complaint with the EEOC, is time-barred and may not be considered by the court unless the allegation of unlawful discrimination falls within what has come to be known as the "continuing violation doctrine."

  A claimed violation of Title VII or ADEA, that occurred outside the applicable filing limitation period, may be considered timely filed if the claimant was subjected to a continuing violation of the applicable statute. The continuing violation exception to the filing limitation period extends that period for all claims of discriminatory acts committed under an ongoing policy of discrimination, notwithstanding the fact that those acts, standing alone, would have been barred by the statute of limitations. See Lightfoot v. Union Carbide Corp., 110 F.3d 898, 907 (2d Cir. 1997); Miller, 755 F.2d at 25. A continuing violation may be found where: (1) there is proof of specific ongoing discrimination policies or practices; or (2) the employer permits specific and related instances of discrimination to continue unremedied for so long that they constitute a discriminatory policy or practice. See Quinn v. Green Tree Credit Corp., 159 F.3d 759, 766 (2d Cir. 1998). Where only discrete incidents of discrimination, that are unrelated to an identifiable policy or practice exist, no continuing violation will be found. See Lightfoot, 110 F.3d at 907.

  Boyce has not identified any specific ongoing discriminatory BNY policies or practices that would permit the Court to find that the continuing violation doctrine is applicable to any claims she has made in this action that BNY engaged in unlawful discriminatory conduct. Furthermore, the record before the Court does not contain evidence that BNY permitted specific and related instances of discrimination to continue without remedy for such an extended period of time that it would be appropriate to conclude that a discriminatory policy or practice existed at BNY. Rather, the record before the Court contains allegations by Boyce concerning discrete instances of alleged discrimination that are unrelated to any identifiable BNY policy or practice. Therefore, in the circumstance of this case, the Court finds that the continuing violation doctrine is not applicable to the claims of unlawful discrimination made by Boyce. Consequently, any claim of unlawful discrimination made by Boyce premised on an event(s) occurring more than 300 days prior to May 27, 2003, the date on which Boyce filed her charge of discrimination with the EEOC, is barred by the applicable statute of limitations.*fn1 These claims include that: (1) Boyce was not awarded the proper job title based on her race; (2) Boyce was stymied in her effort to transfer from APD to a different BNY unit because of her race; (3) Boyce's annual salary increase and the preparation of her annual performance evaluation were delayed to retaliate against her; and (4) Boyce was forced to work in a segregated open workspace area in the months immediately following the events of September 11, 2001. Therefore, the only claims of discrimination that were made timely are Boyce's race and age discrimination claims arising out of the termination of her employment on May 23, 2003.

  Establishing a Claim of Discrimination

  Claims of discrimination brought under Title VII and ADEA are analyzed in accordance with the three-part evidentiary framework established in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817 (1973); Roge v. NYP Holdings, Inc., 257 F.3d 164, 168 (2d Cir. 2001). Under that framework, a plaintiff must first establish a prima facie case of discrimination. That is accomplished when the plaintiff shows that: (a) the plaintiff was at the relevant time a member of the protected class; (b) the plaintiff was qualified for the job at issue; (c) the plaintiff suffered an adverse employment action; and (d) the adverse employment action occurred under circumstances that give rise to an inference of discrimination. Circumstances giving rise to an inference of discrimination might include such facts as the replacement of the plaintiff by a person of a different race, see International Brotherhood of Teamsters v. United States, 431 U.S. 324, 358, 97 S. Ct. 1843, 1866 (1977), or, in the circumstance of an age discrimination claim, the replacement of the plaintiff by someone "substantially younger" than the plaintiff. See O'Connor v. Consolidated Coin Caterers Corp., 517 U.S. 308, 313, 116 S. Ct. 1307, 1310 (1996). Once the plaintiff establishes a prima facie case of discrimination, the burden of production then shifts to the employer to show "some legitimate nondiscriminatory reason" for the employment action about which the plaintiff has complained. McDonnell Douglas, 411 U.S. at 802, 92 S. Ct. at 1824. Thereafter, at the third and final step within the three-part framework, it becomes incumbent upon the plaintiff to present evidence demonstrating that the reason proffered by the employer is not the true reason for the contested employment decision but merely a pretext for discrimination. See McDonnell Douglas, 411 U.S. at 804-805, 93 S. Ct. at 1825-1826.

  Race Discrimination

  The defendant contends that Boyce has not met her burden of establishing a prima facie case of race discrimination because she has not shown either that she was qualified for the position from which she was terminated or that she was terminated under circumstances that give rise to an inference of race discrimination. With respect to Boyce's qualification for the position she held at the time she was terminated, the Court notes that neither party has submitted proof of the minimum qualifications for that position. However, in the affidavit she submitted in support of the instant motion, Gons stated that she explained to Boyce "during her interview [in October 2000] that her job duties would include the acquisition of technology skills and knowledge of computer programs such as Microsoft Word, Microsoft Excel, Lotus Notes, and PowerPoint." While Boyce disputes that the computer program PowerPoint was ever discussed with her when she interviewed with Gons, Boyce concedes that during her interview with Gons, they discussed the need for Boyce to improve her computer skills and, further, that Gons would send Boyce to training classes to improve those computer skills. Boyce also conceded, during her deposition, that she attended training classes "for Lotus and Word, and then sometime after . . . for Excel."

  According to BNY, Boyce's failure to improve her computer skills sufficiently, so as to meet the expectations of her employer, demonstrates that she was not qualified for the job she held at the time of her termination. BNY notes that Gons had to counsel Boyce orally for her work performance deficiencies. Additionally, in the performance evaluation Gons prepared that was never signed by Boyce, Gons recorded in the section reserved for Gons to "[d]escribe those areas that should be strengthened" by Boyce, that Boyce needed to "[i]mprove [her] working knowledge of Microsoft Office: Excel, Word, and PowerPoint" as well as Boyce's "working knowledge of Lotus Notes full capabilities as well as the network." Furthermore, Gons also found Boyce's performance of that aspect of her job which required that Boyce schedule conference calls to be less than satisfactory. The record indicates that Gons had to counsel Boyce "for prematurely scheduling conference calls without confirming [Gons'] availability." Gons also had to counsel Boyce for "avoiding incoming telephone calls by sending them automatically to voicemail."

  Although the record does not contain evidence of the minimum qualifications for the position that Boyce held, the record evidence is adequate to support the conclusion that Boyce did not possess fully the skills needed to perform the ADTSD assignment for which Gons hired her. While Gons provided a means for Boyce to acquire the requisite computer-based skills and/or to enhance her computer-based skills, Boyce failed to achieve the level of proficiency that was apparently needed for her position. As a result, Gons had to decrease the number of tasks she required of Boyce and assigned some of Boyce's work responsibilities to other ADTSD personnel. Thus, the Court finds that Boyce's work performance deficiencies became disqualifying problems. Gons' expectation, upon hiring Boyce, that with appropriate training Boyce would acquire the skills necessary to perform adequately in the administrative position for which Gons hired Boyce, was never realized.

  In a case such as this, Boyce bears the burden of establishing that she "possesses the basic skills necessary for performance of [the] job." Powell v. Syracuse University, 580 F.2d 1150, 1155 (2d Cir. 1978); Owens v. New York City Housing Authority, 934 F.2d 405, 409 (2d Cir. 1991). Moreover, in order to establish her prima facie case of discrimination, Boyce must demonstrate that she was qualified for the position she held at the time she was discharged by BNY. See Dugan v. Martin Marietta Aerospace, 760 F.2d 397, 400 (2d Cir. 1985). The record before the Court does not support such a finding. Therefore, Boyce has not met her burden.

  With respect to the issue of whether the circumstances permit an inference that Boyce's termination was race-based, BNY contends that no such inference would be proper given that Gons was the BNY employee who determined to hire Boyce for the ADTSD administrative position that she held and was also the BNY employee who determined to terminate Boyce's employment. The Second Circuit has explained that "[a]lthough each case must involve an examination of all the circumstances, some factors strongly suggest that invidious discrimination was unlikely. For example, 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. This is especially so when the firing has occurred only a short time after the hiring." Grady v. Affiliated Central Inc., 130 F.3d 553, 560 (2d Cir. 1997). As noted above, Gons hired Boyce after interviewing her. Therefore, she was fully aware of plaintiff's race at the time she made her hiring decision. Boyce commenced her tenure in ADTSD in December 2000. Just shy of two and one-half years later, when the branch automation project for which Boyce was hired to provide administrative services was completed, Gons determined, after considering several factors, including Boyce's poor performance, to terminate Boyce's employment. The facts and circumstances of the instant case support a finding that invidious discrimination was unlikely. Boyce has not offered any evidence for the Court's consideration that would support reaching a different conclusion. Therefore, the Court finds that Boyce has not sustained her burden in connection with this element of her prima facie case. Inasmuch as the analysis of Boyce's prima facie case of age discrimination would mirror the analysis that was made with respect to Boyce's claim of race discrimination, that is, she would have to demonstrate, inter alia, that she was qualified for the position she held at the time of her termination, and also that her discharge occurred under circumstances giving rise to an inference of discrimination, the Court finds that Boyce has also failed to establish a prima facie case of age discrimination. Boyce's failure to establish a prima facie case of either race or age discrimination obviates the need for the Court to proceed further with the McDonnell Douglas three-part evidentiary framework analysis. On the record before, the Court the defendant is entitled to summary judgment. IV. RECOMMENDATION

  For the reasons set forth above, the defendants motion for summary judgment should be granted.

  V. FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION

  Pursuant to 28 U.S.C. ยง 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties have ten (10) days from service of the Report to file written objections. See also Fed.R.Civ.P. 6. Such objections, and any responses to objections, shall be filed with the Clerk of Court, with courtesy copies delivered to the chambers of the Honorable Jed S. Rakoff, United States District Judge, 500 Pearl Street, Room 1340, New York, New York 10007, and to the chambers of the undersigned, 40 Centre Street, Room 540, New York, New York 10007. Any requests for an extension of time for filing objections must be directed to Judge Rakoff. FAILURE TO FILE OBJECTIONS WITHIN TEN (10) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. See Thomas v. Arn, 474 U.S. 140 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir. 1992); Wesolek v. Candair Ltd., 838 F.2d 55, 57-59 (2d Cir. 1998); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983).

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