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November 21, 2005.

DUANE READE, Defendant.

The opinion of the court was delivered by: DENISE COTE, District Judge


Duane Reade has moved for summary judgment on all claims brought against it in this employment discrimination action by Steve Abrams ("Abrams") and Dante Scioscia ("Scioscia"). In January 2004, Duane Reade merged three lines of store supervision into a consolidated District Manager position. Twelve employees who had been District Managers under the old supervisory scheme, including Abrams and Scoiscia, were considered for ten of the new consolidated District Manager positions. Abrams and Scioscia were the two not offered a position. All the plaintiffs' claims arise from that decision. Abrams and Scioscia both claim that they were discriminated against because of their age. Abrams also alleges discrimination based on his religion. Scioscia brings additional claims of discrimination based on a disability. For the following reasons the motion is denied in part and granted in part.


  The following facts are undisputed or as shown by the plaintiffs except where noted. Duane Reade owns and operates retail drug and consumer convenience stores in and around New York City. In January 2004, Duane Reade instituted a company-wide reorganization or reduction-in-force ("RIF") that was designed to consolidate and eliminate administrative positions in an effort to reduce salary costs. The RIF resulted in the elimination of eighty-eight positions across the company. As part of that effort the system of store supervision was restructured and consolidated. Prior to the reorganization three different positions shared the responsibility of supervising the operations of the stores: Pharmacy Supervisors, Photography Supervisors, and District Managers. Each of the positions was responsible for the supervision of several stores in a given area of the City. District Mangers were in charge of the front end operations of the stores, including cashiers, the sales and merchandise floor, and general store maintenance. Through the reorganization, the positions of Pharmacy Supervisor and Photography Supervisor were eliminated, and a consolidated District Manger position was given responsibility for all operations. In choosing its new consolidated District Managers, Duane Reade considered all its employees in the three separate lines of supervision, but because experience working with pharmacies was considered a particularly important qualification for the new position, the Pharmacy Supervisors were given top priority. District Managers were given second priority and Photography Supervisors were given third priority. Twenty-nine employees were considered for the fourteen consolidated District Manager positions. Four Pharmacy Supervisors were able and willing to assume the consolidated position. As a result, ten slots were left for the fourteen District Managers and eight Photography Supervisors.

  At the time of the reorganization Abrams and Scioscia were the two oldest District Managers. Abrams had worked for Duane Reade as a District Manager for over five years. He had previously worked at RockBottom stores for twenty-four years, which Duane Reade acquired in August 1998. Abrams is Jewish and was fifty-seven years old in January 2004. Scioscia was hired by Duane Reade in July 2000 as a District Manager. He was sixty-two years old in January 2004. Scioscia suffers from kidney stones and was scheduled to miss two days of work for a related medical procedure in January 2004. The decision not to offer him a consolidated District Manager position came before his scheduled procedure.

  The District Managers were supervised by two Directors of Operations, Mike DeFazio ("DeFazio") and Bill Keenan ("Keenan"), each of whom was responsible for supervising half of the District Managers. DeFazio and Keenan were in turn supervised by Thomas Ordemann ("Ordemann"), the Vice-President of Operations. In order to select the District Managers to fill the ten available slots Ordemann asserts that he instructed the two Directors of Operations to rank the District Managers under their supervision. The rankings were to be based entirely on their own business judgment. Ordemann asserts that he also made his own set of rankings, also based solely on his business judgment, and then compared his rankings with those made by the DeFazio and Keenan before making his final judgment. Despite emphasizing that the rankings of the District Managers were the determinative factor in its decision-making process, the defendant has not produced any documentation of those rankings or this decision-making process.

  Ordemann asserts that Abrams was ranked last by both Ordemann and by his direct supervisor DeFazio. Ordemann attributes this ranking to repeated issues regarding the conditions in his stores. Ordemann alleges that Scioscia was found to be less suitable than others for the new position by his superivisor Keenan. He attributes the low ranking, at least in part, to the fact that Scioscia's performance was only adequate despite managing less demanding stores with low sales volume. Ordemann claims that it was based on the information from the ranking process that he decided not to offer the plaintiffs positions as consolidated District Managers.

  The plaintiffs were informed of the decision not to offer them consolidated District Manager positions on January 13, 2004. Abrams was offered and accepted a position as a Store Manager with the same pay and benefits as he had enjoyed while a District Manager. It is undisputed that Scioscia's employment with Duane Reade ended on January 13, 2004. The parties disagree over whether Scioscia was also offered a Store Manager position. Scioscia contends that Ordemann would not discuss a possible position as a Store Manager with him but instead sent him to see Duane Reade's Vice-President for Human Relations, Jim Rizzo ("Rizzo"). Scioscia alleges that Rizzo promised to contact him later with the details of the Store Manager position but never followed through on that promise.

  The plaintiffs filed their complaint on July 15, 2004. Both Abrams and Scioscia allege that the decision not to offer them one of the new positions was motivated by their age in violation of the Age Discrimination in Employment Act of 1967 ("ADEA"), 29 U.S.C. § 621 et seq., the New York State Human Rights Law ("NYSHRL"), N.Y. Exec. Law § 290 et seq., and the New York City Human Rights Law ("NYCHRL"), New York City Admin. Code § 8-101 et seq. Abrams also alleges that he was discriminated against because of his religion in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq., the NYSHRL and the NYCHRL. Scioscia brings additional claims for discrimination based on a disability under the American with Disabilities Act of 1990 ("ADA"), 42 U.S.C. § 12101 et seq., the NYSHRL and the NYCHRL. Finally, Scioscia brings a claim under the Family Medical Leave Act of 1993 ("FMLA"), 29 U.S.C. § 2601 et seq. Following the close of discovery, the defendant moved for summary judgment on August 5, 2005.


  Summary judgment may not be granted unless the submissions of the parties taken together "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). The moving party bears the burden of demonstrating the absence of a material factual question, and in making this determination the court must view all facts in the light most favorable to the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Summary judgment should only be granted when "no reasonable trier of fact could find in favor of the non-moving party." James v. New York Racing Ass'n, 233 F.3d 149, 152 (2d Cir. 2000) (citation omitted). When the moving party has asserted facts showing that the non-movant's claims cannot be sustained, the opposing party must "set forth specific facts showing that there is a genuine issue for trial," and cannot rest on "mere allegations or denials" of the movant's pleadings. Fed.R.Civ.P. 56(e); accord Burt Rigid Box, Inc. v. Travelers Property Cas. Corp., 302 F.3d 83, 91 (2d Cir. 2002).

  A. Age Discrimintion

  The ADEA makes it "unlawful for an employer . . . to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's age." 29 U.S.C. § 623 (a) (1). Courts analyzing discrimination claims under the ADEA apply the three step burden-shifting framework established by McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1972). See Woodman v. WWOR-TV, Inc., 411 F.3d 69, 76 (2d Cir. 2005). The plaintiffs also bring age discrimination claims under state and city law, which are subjected to the same burden-shifting analysis as claims under the ADEA. Abdu-Brisson v. Delta Air Lines, Inc., 239 F.3d 456, 466 (2d Cir. 2001).

  To sustain their claim of age discrimination the plaintiffs must first establish a prima facie case of age discrimination by showing that (1) they were within the protected class; (2) they were qualified for the position; (3) they suffered an adverse employment action; and (4) the adverse employment action occurred under circumstances giving rise to an inference of discrimination. Terry v. Ashcroft, 336 F.3d 128, 137-138 (2d Cir. 2003). An adverse employment action is one which is "more disruptive than a mere inconvenience or an alteration of job responsibilites." Id. at 138 (citation omitted). "Examples of materially adverse changes include termination of employment, a demotion evidenced by a decrease in wage or salary, a less distinguished title, a material loss of benefits, significantly diminished material responsibilities, or other indices unique to a particular situation." Id. (citation omitted); see De La Cruz v. New York City Human Resources Admin. Dep't. of Soc. Servs., 82 F.3d 16, 21 (2d Cir. 1996) (holding transfer to less elite division of Department of Social Services satisfied the third prong of a prima ...

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