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Franco v. New York City Off-Track Betting Corp.

April 28, 2006


The opinion of the court was delivered by: Azrack, United States Magistrate Judge


Plaintiff Norma Del Franco ("Del Franco") brings this action against her former employer, defendant New York City Off-Track Betting Corporation ("OTB"), alleging that OTB discriminated against her on the basis of age in violation of the Age Discrimination in Employment Act of 1967 ("ADEA"), 29 U.S.C. § 621 et seq. Plaintiff further claims that defendant created a hostile work environment.

By motion dated December 28, 2005, defendant moves for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. The parties consented to have a United States Magistrate Judge preside over this case for all purposes, including entry of judgment, pursuant to 28 U.S.C. § 636(c). Viewing the evidence in the light most favorable to plaintiff, I find that there are no material facts in dispute such that a reasonable jury could conclude that plaintiff was discriminated against on the basis of her age. I further find that plaintiff failed to establish, as a matter of law, the existence of a hostile work environment. Accordingly, defendant's motion for summary judgment is granted and plaintiff's claims are dismissed.


The following facts are taken from the parties' Local Civil Rule 56.1 statements, the deposition testimony of Norma Del Franco, Ronald Chin, and Richard Gatto, and the declaration of Patrick Dunphy, and are undisputed unless otherwise noted.

Defendant OTB is a public benefit corporation established by the laws of New York for the purpose of raising revenue through off-track wagering on horse races. OTB branches are supervised by Branch Managers, who report to District Directors. OTB employs full-time, part-time, and per diem employees. Per diem employees are not permanently assigned to a specific OTB branch but rather, they fill in for full-time and part-time employees at different branches on an as-needed basis. Per diem employees obtain work assignments by calling the Branch Field Operations ("BFO") office. When possible, OTB attempts to accommodate per diem employees by allowing them to call the BFO office in their district for assignments at locations within close proximity to their homes.

Plaintiff Del Franco was hired by OTB as a per diem betting clerk on March 16, 1999, at which time she was 63 years old. Del Franco resided in Elmhurst, New York and at her request, OTB directed plaintiff to call the BFO office in Queens to obtain work assignments. Plaintiff was assigned to the BFO office in Queens until March 2000.

On March 19, 2000, Ronald Chin, Manager of OTB Branch #106 in Queens, filed a Memorandum*fn1 in which he recounted an incident where plaintiff addressed him using vulgar language.*fn2 (See Declaration of Isaac Klepfish, dated Dec. 28, 2005, submitted in Support of Def.'s Mot. for Summ. J. ("Klepfish Decl."), Ex. D; see also Deposition of Ronald Chin ("Chin Dep.") 12:18-13:14, Klepfish Decl., Ex. O.) Shortly following this incident, Del Franco was reassigned to work at OTB locations in District I, which covers Manhattan. (See Declaration of Patrick Dunphy, Acting Vice-President of OTB Operations, dated Dec. 28, 2005 ("Dunphy Decl.") ¶ 9, Klepfish Decl., Ex. N.) Defendant maintains that Del Franco was transferred to Manhattan because of complaints it received from several Branch Managers in Queens. (Id.) Plaintiff, however, contends that OTB informed her that she was being transferred because OTB did not have any work available in Queens. (See Deposition of Norma Del Franco ("Del Franco Dep.") 91:14-20; see also Pl.'s 56.1 Statement, Ex. C.)

On December 11, 2000, Michelle Daniels, Supervising Manager of OTB Branch #136 in Manhattan, wrote a letter to Durita Goodwin ("Goodwin"), Director of District I, which stated that Del Franco: had taken it upon herself to assign and open a window. She did not consult the Mgr, nor did she have authority to open and assign herself to a window. I informed her of the fact that this action is not permitted. Ms. Del Franco then picked up her coat and left the branch, leaving window #13 opened [sic] . . . . Ms. Del Franco has worked at the branch before and seems to have difficulty following instructions. (emphasis in original). (See Klepfish Decl., Ex. E.)

In February 2001, Del Franco was issued a formal Reprimand*fn3 by Ervin Toms ("Toms"), Supervising Manager of OTB Branch #23 in Manhattan, where Del Franco was scheduled to work for several days. (See Klepfish Decl., Ex. F.) In the reprimand, Toms stated that fifteen minutes before the start of her scheduled shift on February 9, 2001, Del Franco telephoned to inform him that she was unable able to work because she was having car trouble. (Id.)

The following morning, on February 10, 2001, Goodwin received a telephone call from Del Franco requesting a work assignment for that day. (See Klepfish Decl., Ex. G.) After she turned down an assignment in the Bronx, Del Franco was assigned to work at Branch #14 in Queens from 12:00 p.m. to 6:30 p.m. (Id.) Later that evening, however, Goodwin was notified that, unbeknownst to her, Del Franco was already scheduled to work from 6:30 p.m. to 11:30 p.m at Branch #23 in Manhattan, but she failed to report for work at that location. (Id.) On February 11, 2001, Goodwin wrote a letter to Patrick Dunphy, who was then Executive Director of Branch Operations/Manpower, requesting that OTB remove Del Franco from District I. (See Klepfish Decl., Ex. G.) Goodwin stated that "[i]t appears [Del Franco] was given an assignment, chose to ignore it, called in and got another assignment more to her liking." (Id.) After these three incidents, plaintiff was transferred back to Queens. (See Dunphy Decl. ¶ 10.)

Plaintiff does not dispute that she failed to show up for work at Branch #23 in Manhattan. (See Del Franco Dep. 125:6-10.) Rather, plaintiff claims that after her conversation with Toms on the evening of February 9, 2001, she notified the BFO office that she could not work the "midnight shift" that week because her car was not running. (Id. 125:14-126:2) Plaintiff, however, does concede that she called the BFO office on the following day to request a new work assignment, which coincidentally, was closer to her home in Elmhurst. (Id. 126:5-15.)

After she was transferred back to Queens in March 2001, plaintiff was assigned to OTB Branch #112. On June 8, 2001, Richard Gatto ("Gatto"), Manager of Branch #112, filed a Notice of Complaint*fn4 against Del Franco because she refused to serve a customer. (See Klepfish Decl., Ex. H; see also Deposition of Richard Gatto ("Gatto Dep.") 31:8-21; 35:4-25; 36:7-21; 38:4-39:3, Klepfish Decl., Ex. P.) The complaint stated that "[a]fter 5 minutes of heated conversation between . . . us[,] she relented & served customer. She refused to quiet down when asked by Mgr. until 10 minutes after incident." (See Klepfish Decl., Ex. H.) That same day, Gatto also wrote a letter to his supervisors indicating that:

On several occasions myself and Agent Del Franco had altercations usually over work ethics, serving customers, and attitude. On [sic] any given situation[,] many of these deficiencies would warrant a notice of complaint, however, fairness and conscience dictated and no complaints were ever issued. However[,] this last incident on Friday 6/8/01 was gross misconduct on her part . . . . Can not with all honesty work with anybody that has total disregard toward myself and minimal awareness of cashier's functions and service toward customers.

(See Klepfish Decl., Ex. I; see also Gatto Dep. 39:24-41:25.)

OTB terminated Del Franco's employment, effective June 14, 2001. (See "Letter of Termination," dated June 11, 2001, Klepfish Decl., Ex. J.) The letter stated that plaintiff was being discharged because of "misconduct which was prejudicial to the New York City Off-Track Betting Corporation." (Id.) On November 30, 2001, Del Franco filed a post-termination complaint with the Equal Employment Opportunity Commission ("EEOC"), stating that "NYC OTB discharged [her] because of [her] age." (See Klepfish Decl., Ex. M.) The EEOC dismissed the complaint on March 7, 2002 and informed Del Franco of her right to sue. (Id.) Plaintiff commenced the instant action on May 23, 2002.

Defendant contends that summary judgment is appropriate because there are no genuine issues of material fact in dispute. Specifically, defendant argues that it is entitled to summary judgment as a matter of law because plaintiff has failed to (1) establish a prima facie case of age discrimination and (2) exhaust her administrative remedies with respect to her hostile work environment claim.


A. Summary Judgment ...

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