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Palmer v. Ultimate Technology

July 13, 2007


The opinion of the court was delivered by: Michael A. Telesca United States District Judge



Pro Se plaintiff William R. Palmer, ("Palmer"), brings this action pursuant to the Age Discrimination in Employment Act of 1967, ("ADEA")(codified at 29 U.S.C. § 621 et. seq.) claiming that defendant Ultimate Technology, Inc. ("Ultimate") discriminated against him on the basis of his age, and engaged in harassment, failure to promote, failure to provide reasonable accommodations, and retaliation. Specifically, Palmer, who was then 41 years of age, alleges that he was harassed by his supervisors and terminated from his employment because of his age. Palmer claims that because of Ultimate's actions, he suffered financial harm and emotional and physical stress.

On August 10, 2005, Ultimate succeeded in its motion to dismiss all of the claims in Palmer's complaint, with the exception of the age discrimination claim. Both the parties have engaged in and concluded discovery with respect to Palmer's remaining age discrimination claim. On March 19, 2007, pursuant to Rule 56 of the Federal Rules of Civil Procedure, Ultimate moved for summary judgment dismissing Palmer's claims on grounds that Palmer failed to state a prima facie case of discrimination, and he failed to rebut Ultimate's legitimate, non-discriminatory reason for terminating his employment. For the reasons set forth below, Ultimate's motion for summary judgment is granted, and Palmer's complaint is dismissed.


Ultimate provides a host of product options and services throughout the entire point-of-sale ("POS") life cycle, including innovative solutions, deployment support, and management services for the retail industry. In addition to offering traditional computer workstation models, Ultimate also offers related peripheral products, such as customized keyboards and customer display devices, hand-held scanners, printers, and interactive kiosks.

Ultimate employed Palmer as a senior software engineer on August 19, 1996.*fn1 Palmer's primary responsibilities included designing and writing firmware codes that ran on a microprocessor embedded inside PC peripherals, such as custom programmable keyboards, magnetic card readers, and touch screens. In addition, Palmer was hired as an exempt employee and was expected to manage his own attendance and conform to Ultimate's regular work hours. Moreover, Palmer was placed under the direct supervision of Paul Wolf, who was later succeeded by Randall Hems.*fn2

After a few years, both Wolf and Hems observed that Palmer's performance did not meet Ultimate's level of expectations. They also observed that during the latter half of his employment Palmer demonstrated an inability to plan, organize and manage projects in such a way as to meet commitments, and exhibited a poor pattern of attendance and unscheduled absences with little or no notice. Palmer received a "needs improvement" rating on his 2001, 2002 and 2003 evaluations and was subsequently placed on a performance improvement plan. Under the plan, Palmer initially showed improvement but was not able to sustain improved performance for any significant period of time. Regardless of being on notice regarding his performance, Palmer did not show any improvement while working on subsequent projects.

Palmer also continued to have difficulty conforming to regular work hours. Palmer does not dispute that he had difficulty conforming to a regular work schedule and prioritizing his projects. Palmer also acknowledges that he was put on notice regarding his absences from work. On November 13, 2003, in light of his alleged poor performance and his failure to show sustained improvement, Ultimate terminated Palmer's employment. This was similar to Ultimate's decision to terminate Brendan McDaniels, aged 24, and Terrence Sheeley, aged 27, both of whom were terminated for their poor performance in the year immediately preceding Palmer's termination. Palmer was terminated by the joint decision of three of Ultimate employees, who were in charge of management and two of whom were over the age of 40 years. Subsequently, Ultimate hired Mr. Mark Chapman, who was 44 years old, as a replacement for Palmer.


I. Ultimate's Motion for Summary Judgment

Rule 56(c) of the Federal Rules of Civil Procedure provides that summary judgment "shall be rendered forthwith 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 judgment as a matter of law." When considering a motion for summary judgment, all inferences and ambiguities must be resolved in favor of the party against whom summary judgment is sought. R.B. Ventures, Ltd. v. Shane, 112 F.3d 54 (2d Cir. 1997). If, after considering the evidence in the light most favorable to the nonmoving party, the court finds that no rational jury could find in favor of that party, a grant of summary judgment is appropriate. Annis v. County of Westchester, 136 F.3d 239, 247 (2d Cir. 1998).

Ultimate claims that there are no material issues of fact in dispute, and that as a matter of law, it is entitled to summary judgment. Ultimate argues that Palmer's employment was terminated not because of his age but because of his poor performance and his failure to show any sustained improvement. Ultimate also ...

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