Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Waldorf v. Liberty Maintenance

March 29, 2007



Plaintiff John Waldorf sued his former employer Liberty Maintenance, Inc., and Liberty's president, Manuel Frangos ("Manny"), under the New York State Human Rights Law ("State HRL"), N.Y. Exec. Law § 296(1)(a), and the New York City Human Rights Law ("City HRL"), N.Y.C. Admin. Code § 8-107(1)(a). Plaintiff was a project manager for Liberty and its joint ventures, which perform bridge painting and related work pursuant to contract, from October 2001 to December 2004. Plaintiff was terminated at the age of fifty-two and alleges that his age was the motivation for his discharge. Defendants respond that plaintiff was terminated because the most recent project managed by plaintiff came to an end, and Manny was able to assume the work performed by plaintiff. Defendants bring this motion for summary judgment on the grounds that plaintiff has failed to establish a prima facie case of age discrimination and that plaintiff has not met his burden in rebutting defendants' proffered nondiscriminatory explanation for their action. For the reasons set forth below, the Court grants defendants' motion [27] for summary judgment.


The following facts, viewed in the light most favorable to plaintiff, are relevant to this opinion. In October 2001, plaintiff, then 49 years old, began work as a construction manager for a joint venture between Liberty, Dynamic Painting, and Corcon Industrial Painting ("Corcon") on the Goethals Bridge ("Goethals Project") for the Port Authority of New York and New Jersey. (Waldorf Dep. 10--11(Defs.' Ex. C).) Plaintiff's job responsibilities included reporting to the owner and the Port Authority, attending to correspondence and cost estimates, and running the office at the Goethals Project. (Defs.' 56.1 Statement ¶ 5; Pl.'s Counterstatement ¶ 5.) John Frangos ("John"), one of Liberty's owners, participated in the decision to hire plaintiff (Waldorf Dep. 12) and supervised plaintiff's work on the Goethals Project (Defs.' 56.1 Statement ¶¶ 6--7). At the time, Manny Frangos-John Frangos' son and Liberty's president-was working out-of-state on other projects for Liberty. (Id. ¶¶ 8--9.) In July 2002, Waldorf went directly on Liberty's payroll.*fn1

During the summer of 2003, while still performing work on the Goethals Project, plaintiff became a member of the Structural Steel Painters Union, Local 806. (Id. ¶ 12.) According to plaintiff, he joined the union in order to receive better retirement and health benefits. (Id. ¶ 14.) Plaintiff joined Local 806 as a journeyman, although he did not perform any journeyman work, and Liberty subsequently paid him a journeyman's salary, which included an hourly wage rate of approximately $42.50, plus an additional $20--$30 per hour for benefits. (Id. ¶¶ 13--15.)

In November 2003, plaintiff began working on another Liberty/Corcon joint venture project at the Madison Avenue Bridge ("Madison Avenue Project"), where he was supervised by John and Manny.*fn2 (Pl.'s Counterstatement ¶ 18; Defs.' 56.1 Statement ¶¶ 20--22.) Plaintiff's job duties at the Madison Avenue Project were essentially the same as his duties on the Goethals Project. (Defs.' 56.1 Statement ¶ 20.)

By November 23, 2004, work on the Madison Avenue Project was substantially completed. (Id. ¶ 25.) At the time, Liberty had two other projects: a project at the Triborough Bridge, for which Liberty had already hired staff and begun work; and a project at the Verrazano-Narrows Bridge ("Verrazano Project"), for which physical work was scheduled to commence in the spring of 2005. (Id. ¶¶ 39--40; Waldorf Dep. 76--77.) Plaintiff helped develop cost estimates for these projects and hoped to be hired to manage one of them.*fn3 (Waldorf Dep. 58, 76, 77) At some point in December, however, John and Manny told plaintiff that he would not be going to the Verrazano Project because they were hiring Chris Pavlidis instead. (Id. 60-- 62.) Pavlidis was a subcontractor hired to supervise steel work on the Verrazano Project, although Liberty terminated Pavlidis in March 2005, only three months after he started work. (Defs.' 56.1 Statement ¶¶ 61--63.) On December 9, 2004, plaintiff sent an e-mail to Manny, asking him if there was "something we could work out over the winter period, with maybe a reduced salary in lieu of a layoff?" (Defs.' Ex. J.) Manny responded, "We are happy with your work. As a company we have to look at our overhead, though. I will discuss your proposition with my father." (Id.) A few days later, plaintiff suggested to Manny that, instead of laying him off, Liberty could take him off of the union reports and stop paying his union benefits during the wintertime to save money, although plaintiff admitted at his deposition that he knew this arrangement would violate union rules. (Waldorf Dep. 66.) Defendants did not respond to this suggestion, and soon after Liberty offered plaintiff a severance package of $10,000 contingent on his signing an "Employment Separation Agreement and General Release." (Defs.' 56.1 Statement ¶ 41.) Responding to the offer by e-mail, plaintiff refused to sign and stated, "Your determination to fire me, because you apparently think that you can hire someone else to do the job for less money, is not only a breach of our employment contract, but may be unlawful based upon age discrimination . . . ."*fn4 (Id. ¶ 42; Defs.' Ex. R.)

On December 20, 2004, Manny Frangos formally advised plaintiff by e-mail and by letter that he was being laid off and further stated:

It is a well known fact that the line of work Liberty Maintenance is involved in is seasonal. The normal lay-off and shut down period for companies such as ours is November--March. This is the norm for a majority of the firms in this line of business. As a member of the union, your employment is based on availability of work and manpower requirements. Currently, due to both limited outstanding work and related manpower requirements, Liberty Maintenance, inc. cannot effectively utilize your services. As indicated previously, should either of these circumstances change, and you are still available, we would be happy to recall you from the union hall. (Defs.' 56.1 Statement ¶¶ 34--35; Defs.' Ex. L.) At his deposition, Manny explained that, in December 2004, all of Liberty's work was concentrated in the New York area, and consequently he was able to manage all existing projects without the assistance of any additional project managers, including plaintiff. (Defs.' 56.1 Statement ¶ 37.) Plaintiff also claims that Manny told plaintiff that he was being terminated because he was "overpaid." (Waldorf Dep. 113.)

On March 3, 2005, plaintiff filed suit in this Court, alleging age discrimination and retaliatory discharge. On November 14, 2005, following oral argument on defendants' motion to dismiss the Second Amended Complaint, the Court dismissed plaintiff's claim for retaliatory discharge. On August 1, 2006, defendants moved for summary judgment on plaintiff's age discrimination claims.


I. Summary Judgment Standard

Under Federal Rule of Civil Procedure 56(c), summary judgment may be granted "if 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 a judgment as a matter of law." "The plain language of Rule 56(c) mandates the entry of summary judgment . . . against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 321 (1986); see also Distasio v. Perkin Elmer Corp., 157 F.3d 55, 61 (2d Cir. 1998); Conway v. Microsoft Corp., 414 F. Supp. 2d 450, 458 (S.D.N.Y. 2006). A party moving for summary judgment may discharge its burden "by 'showing'-that is, pointing out to the district court-that there is an absence of evidence to support the nonmoving party's case." Celotex, 477 U.S. at 325.

A fact is considered "material" for purposes of Rule 56 if it "might affect the outcome of the suit under the governing law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Whether a material issue is "genuine" depends on whether the evidence is of a type that would permit a reasonable jury to return a verdict in favor of that party. Id.; Mitchell v. Shane, 350 F.3d 39, 47 (2d Cir. 2003). In making its showing that a genuine issue of material fact exists, the nonmoving party may not rely on "the mere existence of a scintilla of evidence" to support its position, but must instead proffer "evidence on which the jury could reasonably find for the [plaintiff]." Dawson v. County of Westchester, 373 F.3d 265, 272 (2d Cir. 2004) (citing Anderson, 477 U.S. at 252). Although "[i]t is now beyond cavil that summary judgment may be appropriate even in the fact-intensive context of discrimination cases," Abdu-Brisson v. Delta Airlines, Inc., 239 F.3d 456, 466 (2d Cir. 2001), it is "sparingly used where intent and state of mind are at issue because . . . careful scrutiny of the factual allegations may reveal circumstantial evidence to support the required inference of discrimination," Graham v. Long Island R.R., 230 F.3d 34, 38 (2d Cir. 2000) (citations omitted). "If, as to the issue on which summary judgment is sought, there is any evidence in the record from any source from which a reasonable inference could be drawn in favor of the moving party, summary judgment is improper." Chambers v. TRM Copy Centers Corp., 43 F.3d 29, 37 (2d Cir. 1994).

II. Claims under the New York State and New York City Human Rights Laws

The State HRL makes it unlawful for an employer, "because of the age . . . of any individual, to refuse to hire or employ or to bar or to discharge from employment such individual or to discriminate against such individual in compensation or in terms, conditions or privileges of employment." N.Y. Exec. Law § 296(1)(a). The City HRL prohibits the same conduct. N.Y. City Admin. Code § 8-107(1)(a). "Although there are differences between the State HRL, the City HRL and the federal Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621, et seq., age discrimination suits brought under the State HRL and City HRL are subject to the same analysis as claims brought under the ADEA." Abdu-Brisson, 239 F.3d at 466 (citing Lightfoot v. Union Carbide Corp., 110 F.3d 898, 913 (2d Cir. 1997)). ADEA claims, in turn, are analyzed under the same burden-shifting framework as claims brought pursuant to Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e, et seq. See Schnabel v. Abramson, 232 F.3d 83, 87 (2d Cir. 2000). Thus, age discrimination claims brought under the State HRL and City HRL are analyzed using the same framework as any other Title VII claim.

The Second Circuit has stated that to establish a prima facie case of age discrimination under the standard enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), "a plaintiff must show (1) that he was within the protected age group, (2) that he was qualified for the position, (3) that he was discharged, and (4) that the discharge occurred under circumstances giving rise to an inference of age discrimination." Schnabel, 232 F.3d at 87 (citing McDonnell Douglas, 411 U.S. at 802). "The burden of proof that must be met to establish a prima facie case is minimal." Hollander v. American Cyanamid Co., 172 F.3d 192, 199 (2d Cir. 1999). Evidence that a plaintiff has been replaced by a younger worker is sufficient to give rise to the inference that the plaintiff was the victim of discrimination. See Schnabel, 232 F.3d at 87; Tarshis ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.