The opinion of the court was delivered by: Dora L. Irizarry, U.S. District Judge
ORDER ADOPTING REPORT AND RECOMMENDATION
Plaintiff Marvin Grill ("Grill") brought suit against his employer, Trians Photo Lab, Inc. d/b/a/ Tri Color Imaging ("Tri Color" or "defendant") alleging that defendant violated the Age Discrimination in Employment Act, 29 U.S.C. §§ 621, et seq ("ADEA") and New York Executive Law §§ 294 and 297 by terminating him. Defendant moved for summary judgment on all of the claims pursuant to Fed. R. Civ. P. 56. By order dated October 23, 2006, this court referred the motion to U.S. Magistrate Judge Arlene R. Lindsay for preparation of a Report and Recommendation ("R&R"). Judge Lindsay issued a R&R on January 30, 2007, and recommended that this court deny defendant's motion. Defendant filed timely objections to the R&R on February 10, 2007. Plaintiff filed a brief response to defendant's objections on February 20, 2007. For the reasons set forth below, the court adopts the R&R in its entirety.
When reviewing a magistrate judge's report, a district judge must make a de novo determination with respect to those parts of the R&R to which any party objects. The district court may then "accept, reject, or modify the recommended decision, receive further evidence, or recommit the matter to the magistrate judge with instructions." Fed. R. Civ. P. 72(b);28 U.S.C. § 636(b); See also United States v. Raddatz, 447 U.S. 667, 673-76, 100 S.Ct. 2406, 65 L.Ed.2d 424 (1980).
ADEA cases are determined according to the framework set out by the Supreme Court in McDonnell Douglas Corp. v Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed. 2d 668 (1973). See Terry v. Ashcroft, 336 F.3d 128, 137-38 (2d Cir. 2003).Under the McDonnell Douglas analysis, the plaintiff carries the initial burden of proving a prima facie case of discrimination. Id. To establish a prima facie case, the plaintiff must show that (1) he is a member of a protected class; (2) he is qualified for the position; (3) he suffered an adverse employment action; and (4) the adverse employment action occurred under circumstances giving rise to an inference of discrimination. D'Cunha v. Genovese/Eckerd Corp., 04 CV 0391, 2007 WL 587249, *2 (2nd Cir. Feb 27, 2007). The parties agreed that plaintiff is a member of a protected class and he experienced an adverse employment action. In the R&R, Judge Lindsay determined that summary judgment was inappropriate because genuine issues of material fact exist regarding whether Grill was qualified for his position and whether Grill was terminated under circumstances that give rise to an inference of discrimination.
Material Issues of Fact Exist Regarding Whether Grill Was Qualified for the Job In its objections to the R&R, defendant takes issue with Grill's qualifications for the position and contends that, because Grill was not qualified for the job, he fails to establish a prima facia case under ADEA. Essentially, defendant argues that Grill was not qualified because defendant's sales decreased when Grill was general manager, despite the fact that Grill admitted being instructed to increase sales. Defendant puts an inordinate amount of weight on the expectation that Grill would increase sales, perhaps because it can empirically show that sales decreased while Grill was general manager. However, a de novo review of the record demonstrates that Grill was not only hired to increase sales, but had myriad other duties. Grill testified that:
Q: After you asked Nick what your function would be, what specifically did he say?
A: I would oversee the operation. Communicate with the existing accounts. Set up marketing programs. Set up sales programs, and proceed to actively pursue new accounts.
Q: Were those, in fact, your duties and responsibilities as general manager at Tri Color?
Deposition of Marvin Grill, annexed as Exhibit F to the Affidavit of Steven Seltzer ("Selzer Aff."). Grill's account is corroborated by the testimony of Nick Melconian, the founder of Tri Color:
Q: While you were in the restaurant, did you discuss what Mr. Grill's duties at Tri Color would be?