The opinion of the court was delivered by: Joseph F. Bianco, District Judge
Plaintiff Joseph Mathews brings this action alleging employment discrimination based on his age in violation of the Federal Age Discrimination in Employment Act, 29 U.S.C. §§ 621 et seq. (the "ADEA"), and the New York State Human Rights Law, N.Y. Exec. Law §§ 290 et seq. ("NYHRL"). Specifically, plaintiff alleges that defendant Atria Huntington, and one of its employees, defendant Alex Stehly, discriminated against plaintiff by terminating him because of his age. Defendants move for summary judgment. For the reasons that follow, defendants' motion is granted in its entirety.
Construed in a light most favorable to plaintiff, the non-moving party, the facts are as follows:
Atria owns and operates a senior living facility located in Huntington, New York ("Atria Huntington"). (Compl. ¶ 7.) Plaintiff Joseph Mathews ("Mathews") was hired as the Food Services Director at Atria Huntington in July 2001, when he was sixty-one years of age. (Dfts.' 56.1 ¶ 2.)*fn1 Plaintiff obtained the position after interviewing with Joe Geiser ("Geiser"), Atria's Regional Food Service Director. (Id. ¶ 3.)
According to defendants, during plaintiff's period of employment, Alex Stehly ("Stehly"), Executive Director of Atria Huntington, received complaints from residents of Atria Huntington and their family members regarding the quality of food offered at the facility. (Id. ¶ 7; Pl.'s 56.1 ¶ 7.)
Moreover, during plaintiff's employment, results of surveys of residents regarding the quality of food service at Atria Huntington would, according to plaintiff, "improve" during some periods, and "stay the same" or "go down" during others. (Id. at 95.) At some point in July, August, or September of 2004, Stehly met with plaintiff to discuss the resident survey results. (Dft.'s Ex. 1, at 93.) At the meeting with Stehly, plaintiff believed that there was "nothing to indicate that these people were not happy with the food service."*fn2 (Id. at 94.) Instead, according to plaintiff's deposition testimony, the reason for the occasional downturns in the survey results was that:
[E]lderly people always complain. . . . They always complain, no matter who's this [sic]. Because what they do is eat and complain, right?
In addition, throughout plaintiff's employment at Atria Huntington, he failed to comply with Atria Huntington's policy requiring employees to order a certain percentage of food products from a specific vendor, Sysco. (Dfts.' ¶ 8.) Specifically, according to plaintiff, Geiser established a policy whereby plaintiff was required to order 85% of Atria Huntington's requirement of food products from Sysco. (Dfts.' Ex. 1, at 106.) However, while plaintiff was aware of this requirement and ordered some products from Sysco, he failed, as a matter of course, to order the volume of products from Sysco "that they [Atria Huntington] wanted." (Id., at 108-09.)
In mid-September 2004, plaintiff had an encounter with one of his subordinates, Maria Rosaria Napolitano ("Napolitano"), wherein plaintiff spoke to Napolitano using an "intense" and "strong" tone. (Id. ¶ 9.) According to Napolitano and a supervisor who witnessed the encounter, Patricia LaBarbera ("LaBarbera"), plaintiff yelled loudly and cursed at Napolitano; plaintiff does not recall if he used profanities when speaking to Napolitano. (Id. ¶¶ 12-14; Pl.'s 56.1 ¶¶ 12-14.) Stehly discussed with LaBarbera the encounter between plaintiff and Napolitano. (Dfts.' 56.1 ¶ 15.) Thereafter, according to Stehly, he met with Geiser and they agreed that plaintiff's conduct warranted termination. (Id. ¶ 18; Pl.'s 56.1 ¶ 18.)
On October 4, 2007, Stehly and another Atria Huntington supervisor, Jill Dragotta ("Dragotta"), met with plaintiff to inform him of his termination. (Dfts.' 56.1 ¶ 19.) At that meeting, Stehly stated that he had learned that plaintiff had "yelled" at Napolitano, and he fired plaintiff. (Id. ¶ 20.) At the time of plaintiff's termination, Stehly was forty-five years old, and Geiser was fifty-one years old.*fn3 (Dfts.' Ex. 13.)
Plaintiff initiated this action on October 6, 2005. Defendants moved for summary judgment on February 19, 2007. Oral ...