The opinion of the court was delivered by: Chin, D.J.
In this employment discrimination case, plaintiff David Posner alleges that his former employer Sprint/Unlimited Managenment Company ("Spring") and its employees Frank Bromberg and Michael Desa discriminated against him because of his age, in violation of federal, state, and city law. He also alleges that defendants defamed him through statements they made about his discharge. Defenndants move for summary judgment. For the reasons that follow, the motion is granted.
The facts are largely undisputed, and any conflicts in evidence have been resolved in favor of plaintiff.
1. Posner's Employment at Sprint
Posner was employed by Sprint in its Enterprise Sales Group in New York from in or about October 1984 until his dismissal on May 10, 2004. (Am. Compl. ¶¶ 2, 5). Posner held the title of Account Executive II, and received both a base salary and a commission on his sales. (Id. ¶¶ 14-17). At the time of his discharge, Posner was sixty years old. (Id. ¶ 26).
In 1997, another employee repeated to Posner a remark made about Posner by Sprint vice president Dave Berry at a meeting Posner did not attend. (Posner Dep. 135:21-136:9). Berry reportedly said that Posner did not represent the future of Sprint. (Id.).
In 1992, Posner activated a toll-free 800 number under the account of one of his customers at that time, Landstar System, that connected to his home telephone. (Am. Compl. ¶ 30; Posner Dep. 88:15-90:13). Posner contends that he activated the line so that customers could reach him toll-free at home after office hours and on weekends, and that both his contact at Landstar System and his immediate supervisor at the time, Kevin McCullugh, were informed of, and consented to, this action. (Am. Compl. ¶¶ 30, 32; Mills Cert. Ex. G (Posner's statement to Spring Corporate Security ("Posner Statement")); Posner Dep. 92:1-9). Posner used the line for business with Landstar and for "personal 'emergency' use." (Am. Compl. ¶ 32). After activating the first toll-free number, Posner eventually activated four additional lines, that connected to his cellular phone, his son's home in Texas, his daughter's home, and the home of a personal friend who was attempting to adopt a child. (Id. ¶ 33; Posner Statement).
As the customers Posner serviced for Sprint changed over the years, he transferred the lines he had opened to different customer accounts. (Am. Compl. ¶ 33). On the day of Posner's dismissal, he stated that he could not recall whether he had asked for permission from customers other than Landstar to add his lines to their account, but asserted at his deposition that he did obtain permission for the line that connected to his home, although not for the other lines. (Posner Statement; Posner Dep. 101:23-102:5, 113:13-24, 119:10-13, 120:11-16). At all times, Posner paid the usage bills. (Am. Compl. ¶ 34; Posner Statement). Because the lines were billed under a client's account, they were less expensive than they would have been had Posner purchased them independently as a retail customer. (Posner Dep. 122:20-23, 123:16-124:5).
In January 2004, Posner discussed the toll-free number that rang at his home with Bromberg. (Am. Compl. ¶ 37). During this conversation, Bromberg told Posner that this line was "okay." (Id.).
On April 21, 2004, an anonymous source alerted Sprint's Ethics Helpline that Posner had opened toll-free lines for himself and his family under a customer's account and was receiving "a significant discount on . . . long distance." (Id. ¶ 36; Mills Cert. Ex. E). On May 10, 2004, Posner was called to a meeting with John Anninos and Gary Lenz, members of the Sprint Corporate Security Department. (Am. Compl. ¶ 38). Anninos and Lenz questioned Posner about the toll-free numbers. (Id. ¶ 39). Later that day, Posner signed a written statement, recounting what he had told Anninos and Lenz, that was drafted by Sprint, acknowledging his opening and use of the numbers. (Id. ¶ 40). Before signing the document Posner made some corrections to it. (Posner Dep. 151:3-152:18). In the document, Posner stated that he had not asked his current customer's permission to transfer his lines to its account. (Posner Statement).
Following the discussion with Posner, Anninos conferred in person or by phone with Desa, Katherine Downing of Sprint Human Resources, Sprint Vice President of Sales Northeast Paul Deering, and Susan Stucker from Sprint's legal department. (Deering Dep. 19:9-12). Posner's actions were considered theft from the company, both because Posner received the benefit of a customer's volume discount on the service and cost of the calls, and because he was paid a commission on the billings from these numbers. (See Anninos Dep. 166:0-167:7). After the meeting, the final determination was that Posner had violated Sprint policy by "tamper[ing] with costumer (sic) records" and "us[ing] customer's [accounts] to connect services to his home, family and friends," and consequently Posner had to be dismissed. (See Deering Dep. 23:12-24:10, 25:11-17).
Later that afternoon Posner's employment was terminated by Desa, with Bromberg present. (Am. Compl. ¶¶ 41-42). Posner received no warnings prior to his dismissal. (Id. ¶ 43). On May 19, 2004, Posner received a notice from Sprint stating that he had been discharged "for cause": Posner was fired because he had set up the toll-free numbers without permission, a violation of Sprint policy. (Id. ¶ 45). This statement was later repeated to at least one prospective employer of Posner, Global Crossing. (Posner Dep. 192:2-25). Global Crossing hired Posner nevertheless. (Id.).
The day after his dismissal, Posner wrote to Sprint Chairman and CEO Gary Forsee. (Mills Cert. Ex. H). In his e-mail message, Posner stated that he felt he was fired over "an indiscretion and error in jugement (sic)," and that in light of the circumstances, "[t]ermination [of his employment] seems a bit extreme." (Id.). He further wrote that he "would have accepted a suspension without pay for a period" as an appropriate response to his actions, but also recognized that "you might simply say that no one is immune from corporate policy," not even himself, an employee with twenty years' experience. (Id.). Although Posner did not believe that he had done anything wrong by activating the lines (Posner Statement; Posner Dep. 111:22-24), in large part because the bills for these lines were minimal (perhaps ten or fifteen dollars per month) (Posner Dep. 109:22-110:6), he recognized that their existence on a customer's account could impact, albeit perhaps only minimally, his commission or bonus. (Id. at 111:25-112:2, 113:25-116:2). In retrospect, he understood that others might view his actions as improper. (Id.).
4. Posner's Knowledge of Other Dismissals at Sprint
In Posner's affidavit in opposition to defendants' summary judgment motion, he recounts two incidents, one occurring sometime between 1989 and 1992 and one in 1997, of employees under the age of forty who were disciplined for improprieties including theft, but not discharged.*fn1 (Posner Aff. ¶¶ 16-18). Posner knows of the first incident because the employee worked in his office, and at some point Anninos "recounted to [Posner] the facts and circumstances" of that incident. (Id. ¶ 17). Posner does not state how he knows of the second incident. (Id. ¶ 18). Finally, in his Equal Employment Opportunity Commission complaint and deposition testimony in this case, Posner recounts five individuals over forty who had been discharged by Sprint in the preceding thirty months. (Posner Dep. 167:5-180:23). At his deposition, however, Posner stated that he did not know with certainty that age was a factor ...