The opinion of the court was delivered by: Glasser, United States Senior District Judge
Plaintiff Dorothy Presser ("Plaintiff" or "Presser") originally brought this action against Defendants Key Food Stores Cooperative, Inc. ("Key Food" or "Defendant") and Grocery Haulers, Inc., under the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. §§ 626 et seq., the Older Worker's Benefits Protection Act ("OWBPA"), 29 U.S.C. § 626 (f), the Worker Adjustment and Retraining Notification ("WARN") Act, 29 U.S.C. § 2101 et seq., the New York State Human Rights Law ("NYSHRL"), N.Y. Exec. L. §§ 290 et seq., and the New York City Human Rights Law ("NYCHRL"), Title 8 of the New York City Charter & Administrative Code. Presser and Grocery Haulers, Inc. have subsequently settled.
By Memorandum and Order dated December 3, 2002, Presser v. Key Food, 2002 WL 31946714, (E.D.N.Y.2002) ("Presser I"), this Court dismissed Presser's claims under the ADEA and the OWBPA, leaving only claims under the WARN Act, NYSHRL and NYCHRL. In a subsequent order of this Court, Presser v. Key Food Stores Co-op., Inc., 218 F.R.D. 53, 21 IER Cases 68 (E.D.N.Y.2003) ("Presser II"), Plaintiff was granted leave to amend the Complaint to include a class of nonunion and union Key Food employees who allegedly received ineffective WARN Act notices prior to being laid off and did not sign releases of their WARN Act claims. In Presser II, the Court denied Plaintiff's request to include a class of individuals who had signed releases of claims against Key Food on the grounds that such an addition would be futile.
Plaintiff now moves to amend her WARN Act claim, certify subclasses, and for summary judgment on WARN Act liability. Defendant cross moves for summary judgment on the WARN Act claim and the age discrimination claims under NYSHRL and NYCHRL.
Local Rule 56.1 places the responsibility on the parties to clarify the elements of the substantive law which remain at issue because they turn on contested facts.See Monahan v. New York City Dept. of Corrections, 214 F.3d 275, 292 (2d Cir.2000). It requires a party moving for summary judgment to submit a statement of undisputed facts together with citation to the admissible evidence of record supporting each fact. (See Local Rule 56.1(a), (d)). If the opposing party then fails to specifically controvert a fact with citation to contrary admissible evidence in the record, that fact will be deemed admitted. (See Local Rule 56.1(c)(d)). "[W]here there are no citations or where the cited materials do not support the factual assertions in the Statements, the Court is free to disregard the assertion." Holtz v. Rockefeller & Co., Inc., 258 F.3d 62, 73 (2d Cir.2001). Each party has presented the Court with a 56.1 Statement supporting its motion for summary judgment on the WARN Act claim. Because the relevant facts are more easily discernible therein, the Court refers to Defendant's 56.1 Statement. Plaintiff errantly responded not to Defendant's properly filed 56.1 Statement, but to the Statement of Facts included in Defendant's Memorandum of Law. Thus, the Court has independently determined which of Defendant's WARN-Related statements of fact are properly supported by the record. Citations in Section II, Age Discrimination-related Facts, refer to Defendants' 56.1 Statement on Plaintiff's Discrimination Claims.
Key Food is a co-operative that services more than one hundred member supermarket stores in the New York metropolitan area. Key Food formerly operated a warehouse at 8925 Avenue D, in Brooklyn, New York (the "Warehouse"). Several departments, including the printing department, operated out of the Warehouse until July 2000 when Key Food sold a portion of its business to Grocery Haulers, Inc. and ceased to operate the Warehouse. (56.1, ¶ 1).
Plaintiff Dorothy Presser was hired by Key Food on or about June 3, 1976 as a typesetter in the printing department. Throughout her employment with Key Food, Ms. Presser worked in the print shop adjoining the Warehouse. As a typesetter, Ms. Presser was responsible for setting type for newspaper advertisements and signage placed in the stores. (56.1, ¶ 2).
In early 2000, Grocery Haulers, which had taken over Key Food's perishables operation in 1997, offered to purchase the Warehouse operations. (Id.).
Key Food produced a letter dated March 10, 2000, which was distributed as a WARN Act notice to the unrepresented warehouse employees. (56.1, ¶ 4). This letter, reads, in relevant part:
We are regretfully taking this opportunity to advise you that effective May 1, 2000, a permanent mass layoff or plant closing will occur arising out of the sale of a portion of the business and the services of employees of Key Food Stores Co-Operative, Inc. (the "Company") at its warehouse located at 8925 Avenue D, Brooklyn, New York 11236, and its satellite warehouse located at 663 East 56th Street, Brooklyn, New York, will no longer be required as of that date. The Company hopes to be able to retain a number of administrative personnel and the Company hopes that the entity purchasing the assets will offer employment to a substantial number of former employees of Key Food. Nevertheless, in accordance with the applicable law, this notice is given to you pursuant to the Worker Adjustment and Retraining Notification Act ("WARN"), 29 U.S.C. § 2101. Under such circumstances where all employees will be subject to the mass layoff or plant closing, there will be no bumping rights which may be asserted by those affected employees.
Appropriate WARN notices are being sent to Ms. Susan Luck, New York State Department of Labor . . . and the Honorable Rudolph W. Giuliani, Mayor of the city of New York . . .
The name, address, and telephone number of a Company representative to contact is Mr. Ronald D. Phillips, Controller, Key Food Stores CoOperative, Inc., 8925 Avenue D, Brooklyn, New York 11236, (718) 451-1000. (Pallitto Aff., Ex. 3). Key Food also produced a signature log, bearing Presser's signature, on which employees were asked to acknowledge receipt of "Mr. Pallitto's March 10 letter." (Pallitto Aff., Ex. 6 ("signature log")).
Key Food sent substantially similar WARN Act notices by certified mail to local officials on March 16, 2000, and to John Gilligan, the President of Bakery Drivers Local 802 ("the Union"), which was the collective bargaining representative for the unionized employees working in the Warehouse at all relevant times. (56.1, ¶6).
Because Key Food did not own the Warehouse, but leased it from the City of New York, Grocery Haulers required either a sublease or the City's consent to an assignment of the lease as part of its purchase of the Warehouse operations. (Pallitto Aff., ¶ 13). The original transaction contemplated an initial sublease of the Warehouse lease by Key Food to Grocery Haulers, with a subsequent assignment of that lease by Key Food to Grocery Haulers. (Id.). After executing sale documents, however, Grocery Haulers had difficulty obtaining financing because Key Food could only deliver a sublease at closing, rather than an assignment. (Id., ¶4). With a transaction that became dependent, in part, upon the approval of the City of New York to assign the lease, the proposed closing of the transaction was postponed on several occasions. (Id.).
The transaction was delayed on three occasions. On or about April 21, May 24 and June 22, 2000, Key Food produced additional notices reflecting these delays and extending the date of the anticipated closing. (56.1, ¶ 5, See also Pallitto Aff., Ex. 7-10, 12-19). As with the original notices, these notices were produced in triplicate, addressed to the Union President, local officials, and unrepresented employees. (Id.). Also as with the original WARN notices, corresponding certified mail receipts corroborate that the letters were sent to the President of the Union and local officials on or about the dates of the additional notices. (Id.). Key Food distributed the additional notices to the unrepresented employees with their paychecks on April 21, 2000, May 24, 2000, and June 22, 2000. (See Pallitto Aff., ¶¶ 13, 16, 17; Phillips Dep., 208-210).
Essentially, each of these notices made reference to the first notice, repeated its contents, and informed the recipients that because of continued negotiations, the transaction and the layoffs would be postponed to a new date. The April 22 letter extended the anticipated layoff date from May 1 to May 15; the May 24 letter extended the date to June 19; and the June 22 letter extended the date to July 17, 2000. (Id.).
The June 22 additional notice addressed to "Associate[s]" reads as follows: As you are aware, on or about March 10, 2000 the Company provided you with notice that there would be a mass layoff and/or plant closing arising out of the sale of a portion of the business, and that the services of employees at the Company's facilities at 8925 Avenue D, Brooklyn, New York and at its warehouse located at 663 East 56th Street, Brooklyn, New York would no longer be required as of May 1, 2000. That notice was given pursuant to the WARN Statute, 29 U.S.C. § 2101. As before, the Company hopes to be able to retain a number of administrative personnel and the Company hopes that the entity purchasing the assets will offer employment to a substantial number of former employees of Key Food.
By reason of, among other things, the continuing transition between Key Food Stores Co-Operative, Inc. and Grocery Haulers, Inc., we are taking this opportunity to advise you that the permanent plant closing and/or mass layoff will not take place until on or about July 17, 2000. This notice is given pursuant to the WARN Statute and its regulations, including 20 C.F.R. § 639.10. [. . .]
The name, address and telephone number of a Company representative to contact is Mr. Ronald D. Phillips, Controller, Key Food Stores CoOperative, Inc., 8925 Avenue D, Brooklyn, New York, 11236. (718) 451-1000. (Pallitto Aff., Ex. 16).
Presser acknowledges receiving the June 22 additional notice. (Presser Dep. at 36-38). However, despite her signature on a log sheet acknowledging receipt of the March 10 letter, (See Pallitto Aff., Ex. 6), and that there had been recent rumors that the plant might be closing, she denies receiving any of the earlier letters, or any notice whatsoever from Key Food, that the plant would be closing. (Id. ("Q: ...[P]rior to June 22nd, you had not received any notice from Key Food that there was going to be a plant closing? A: No.")). Moreover, she testified that she was reassured by her boss, Richard Schwartz, that even if the plant closed, her job would be safe. In her deposition, she stated:
A: . . . I wasn't worried at that time whether I was going to have a job or not because Richard Schwartz told us that the Printing Department was definitely staying with Key Food.
Q: When did he tell you that?
A: As soon as the rumor started floating that Key Food was going to close down or was going to sell the warehouse, Richard Schwartz told us, the entire department, he said, "Not to worry. Our department is solid. We will not be going anyplace."
Q: Now, when you say when the rumors started swirling, was that prior to having received this letter?
A: There were rumors about selling the warehouse, yes, for many years.
Q: I see. And when you referred to Mr. Schwartz saying, "Don't worry.
The Printing Department won't be going anywhere." When did he say that? Was that in the prior months prior to June of 2000?
A: When the rumor started going around I guess everyone just looked at Richard, we were wondering what was going on. But he said not to worry; it had nothing to do with the Printing Department; it was all the warehouse.
Q: No. I understand that. The question is, when did he make that statement?
A: I don't exactly remember when he made that statement.
Q: Well, do you think it was in the year prior to receiving the [June 22 notice]?
A: I don't know about a year prior to that but I'm sure it's maybe a couple of weeks before that.
Q: I see. So the rumors starting [sic] swirling several weeks before you actually received the notice?
A: The rumors about closing was, [sic] yes. (Presser Dep. 40-41).
When the closing of the sale actually took place on Saturday, July 29, 2000 there were approximately 270 total layoffs. (Phillips Aff., ¶ 21). The Union employees, however, were rehired immediately by Grocery Haulers without any loss in work time.
(56.1, ¶ 7). Some of the non-union members, including some members of the printing department, were also hired by Grocery Haulers or retained by Key Food. (Phillips Aff. ¶ 20). Nowhere in the record is it clearly indicated how many non-union individuals were either not retained by Key Food or hired by Grocery Hauler.
Despite efforts made by Schwartz to assist Presser in obtaining a new job with either Key Food or Grocery Haulers, (see Schwartz Aff. ¶¶ 6-10, Phillips Aff. ¶¶ 13), Presser, along with two of the six other members of the printing department, was one of the non-union employees who was laid off and not subsequently rehired by either Grocery Haulers or Key Food. (Phillips Aff. ¶ 20). Key Food offered all employees who were laid off and did not belong to the Union, including Presser, one week of severance pay for each year of service, up to ten weeks, in exchange for a general release. (Phillips Aff., ¶ 23). Because Presser had been employed by Key Food for 24 years, she was offered ten weeks' severance pay in exchange for the release. (Phillips Aff., ¶ 23). She rejected the severance offer. (56.1, ¶ 20).
II. Age Discrimination-related Facts
Key Food maintained a written anti-discrimination policy which it routinely distributed to its employees. (56.1, ¶ 3). Although there was a procedure for reporting allegations of age-related employment discrimination, Presser never reported any incidents of discrimination. (Id.). When asked about the substance of her age discrimination claim, she testified as follows:
Q: Alright. Now, from the time that you started working at Key Food, up until approximately, let's just call it January of 2000, all right, did you have any problems at Key Food with respect to discrimination?
A: I did have, at one time I had different problems which had to do with medical [insurance].
Q: Okay. But as far as the allegations in your Complaint that you might have been discriminated against because of your age? A: No.
Q: Do you believe you were treated fairly on a day-to-day ...