The opinion of the court was delivered by: Hurley, District Judge
Plaintiff Christine Spahr ("Plaintiff" or "Ms. Spahr") brings the present action against Defendant American Dental Centers ("Defendant") for violations of the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 and the New York State Human Rights Law ("NYSHRL") § 296 claiming she was discriminated against on the basis of her age. Defendant now moves for summary judgment as to each of Plaintiff's claims. For the reasons set forth herein, Defendant's motion for summary judgment is GRANTED.
The following summary of facts is drawn from the parties' Local 56.1 statement, and the evidence submitted. The facts are undisputed unless otherwise noted.
Plaintiff is a resident of Farmingdale, New York. Defendant is a New York Corporation that provides dental care services to patients at eleven locations in the New York metropolitan area.
Plaintiff was born in 1950. She began working for Defendant in 1998 as a Dental Assistant at the Commack office, when she was 48 years of age. In October 1999, she was promoted to Office Manager by Linda Lane. Mrs. Lane is the wife of Dr. Jules Lane, the owner of Defendant.
There appear to have been no significant complaints about Plaintiff's job performance from the time she assumed the position of Office Manager until about August 2002. Plaintiff was ill from July 6 to July 22, 2002, then was on vacation from July 22 to August 7, 2002. Shortly after her return to work, on August 12, 2002, two office staff employees in the Commack office called in sick and did not report for work. As a result of the absences, Plaintiff disconnected two of the four office telephone lines, and the disconnections made it difficult for not only customers, but also the office staff to contact the office. (See Spahr Dep. at 171.) When Dr. Helerstein, one of the dentists that worked at the Commack office, finally got through on the office line, he advised Plaintiff that she had no authority to take the telephones off the hook. Plaintiff replied, "Maybe you should fire me." Dr. Helerstein obliged her and recommended to his colleagues that plaintiff be dismissed for "insubordination and dereliction of duty." (Lane Aff. at Ex. A.) The following day, Dr. Helerstein informed Plaintiff that her employment had been terminated. She was 52 at the time. Plaintiff was ultimately replaced as Office manager by Luanna Mossien, who was 47 years-old at the time she was hired.
Plaintiff commenced the present suit on August 29, 2003 alleging age discrimination as a motivating factor behind her termination in contravention of federal and state law. Defendant now moves for summary judgment.
Summary judgment is generally appropriate where 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." Viola v. Philips Med. Sys. of N. Am., 42 F.3d 712, 716 (2d Cir. 1994) (quoting Fed. R. Civ. P. 56(c)). The party seeking summary judgment "bears the initial responsibility of informing the district court of the basis for its motion," and identifying those materials "it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
Once the moving party has offered some evidence that no genuine issue of material fact remains to be tried, the burden shifts to the non-moving party to provide similar evidence indicating that a genuine, triable issue remains. Anderson, 477 U.S. at 250; Fed. R. Civ. P. 56(e). Affidavits submitted in opposition to summary judgment must be based on personal knowledge, must "set forth such facts as would be admissible in evidence," and must show that the affiant is "competent to testify to the matters stated therein." Patterson v. County of Oneida, N.Y., 375 F.3d 206, 219 (2d Cir. 2004) (citing Fed. R. Civ. P. 56(e)). When determining whether a genuinely disputed factual issue exists, "a trial judge must bear in mind the actual quantum and quality of proof necessary to support liability," or "the substantive evidentiary standards that apply to the case." Anderson, 477 U.S. at 254-55.
In deciding a summary judgment motion, a court must resolve all factual ambiguities and draw all reasonable inferences in favor of the non-moving party. Donahue v. Windsor Locks Bd. of Fire Comm'rs, 834 F.2d 54, 57 (2d Cir. 1987). Nevertheless, it is well-established that a non-movant cannot defeat summary judgment with nothing more than "unsupported assertions," Goenaga v. March of Dimes Birth Defects Found., 51 F.3d 14, 18 (2d Cir. 1995), or the allegations in its pleadings. Cifarelli v. Vill. of Babylon, 93 F.3d 47, 51 (2d Cir. 1996); Fed. R. Civ. P. 56(e).
More particularly, although "summary judgment should be used sparingly" in cases where the material fact at issue is the defendant's intent or motivation, the plaintiff must nevertheless offer some "concrete evidence" in his favor, and is "not entitled to a trial simply because the determinative issue focuses upon the defendant's state of mind." Dister v. Cont'l Group, Inc., 859 F.2d 1108, 1114 (2d Cir. 1998). "The summary judgment rule would be rendered sterile . . . if the mere incantation of intent or ...