The opinion of the court was delivered by: P. Kevin Castel, District Judge
Plaintiff Mostafa Ahmed, represented by counsel, brings this action against his former employer, Heartland Brewery ("Heartland"), Heartland's Chief Executive Officer ("CEO"), Jon Bloostein and the General Manager of the Union Square location where plaintiff was employed, Carl Clements. Plaintiff asserts that defendants fired him on the basis of his age in violation of federal and state law. The Verified Complaint in this action was filed on March 8, 2005 and assigned to the late Honorable Richard Conway Casey. It was reassigned to me on May 31, 2007.
The parties have now filed cross-motions for summary judgment. Defendants contend that plaintiff can neither provide any direct evidence of discrimination nor establish a prima facie case of discrimination. Even if plaintiff is able to establish a prima facie case, defendants assert that they have offered legitimate, nondiscriminatory, reasons for plaintiff's termination and that plaintiff, in response to the motion, has failed to come forward with evidence that these reasons are pretextual. Plaintiff opposes defendants' motion and has offered his own summary judgment motion on all claims. In addressing defendants' motion, I have considered only plaintiff's version of the facts and such other facts as are not disputed by the plaintiff. For the reasons discussed below, defendants' motion is granted in full and, consequently, plaintiff's motion is denied.
Plaintiff is an Egyptian male born on March 10, 1956. (Ahmed Dec. ¶ 5) In January 2004, plaintiff responded to an ad in a newspaper which indicated that there was a manager's position available with Heartland which is a brewery and restaurant chain. (Ahmed Dep. 40) The specific restaurant was not indicated in the advertisement. (Ahmed Dep. 40) Plaintiff applied for the position and received a phone call from a "young lady", plaintiff could not recall who, setting up an interview with Richard Pietromonaco, Heartland's Director of Operations. (Ahmed Dep. 41) The interview, which took place in January 2004, consisted of general questions about plaintiff's resume and work experience. (Ahmed Dep. 42-43) No comment was made about plaintiff's age at the interview. Plaintiff interviewed with Heartland employees a total of five more times, meeting again with Pietromonaco, then Bloostein, then Clements, then Kelly Taylor, one of the bar tenders and managers at the Union Square location, and Gary Tripp and finally with Bloostein a second time. (Ahmed Dep. 50-61; Bloostein Dep. 8-11) Plaintiff described all of the interviews as being similar and noted nothing remarkable about any of them. (Ahmed Dep. 50-58) At the final interview with Bloostein on March 15, 2004, plaintiff was offered and accepted the job of floor manager at the Union Square location. (Ahmed Dec. ¶ 4) Plaintiff was 48 years old at the time that he was hired. (Ahmed Dec. ¶ 5) Bloosetin and Pietronmonaco were in their 40s and Clements was 26. (Bloostein Dep. 18, 26; Celments Dep. 17)
Plaintiff began working a day or two following his hiring. (Ahmed Dep. 68) He did not receive a formal training manual but was instead told that he would have on-the-job training. During plaintiff's first day on the job, either Clements or Diane Esquival, the other floor manager at the Union Square location, walked plaintiff around the restaurant, showing him the checklist of opening and closing duties for which all floor managers were responsible. These duties included opening the restaurant's safe, handling the cash, counting the change box in the safe, managing the point of sale functions, supervising the staff, interacting with customers and running the bar and restaurant areas. (Ahmed Dep. 61, 77-80; Clements Dep. 18-19) Plaintiff served as a floor manager for approximately two weeks before being discharged on March 31, 2004. Plaintiff contends that at his termination, Clements told him that "most of the staff are women in their twenties and the customers are young and he could not fit me in." (Ahmed Dec. 7)
Following his discharge, plaintiff tried to contact both Bloostein and Pietromonaco to protest his firing. On April 28, 2004, plaintiff wrote Bloostein a letter objecting to his firing and, citing Clements' statement on March 31, accusing Heartland of having terminated him due to his age. (Ahmed Dec. 9; Duhan Dec. Exh. B) Plaintiff also requested reinstatement to the floor manager position. Heartland responded in a letter dated May 4, 2004, asserting that plaintiff had been fired for performance related reasons and declining to reinstate plaintiff. (Dunhan Dec. Exh. A) In July 2004, plaintiff filed a charge of discrimination with the Equal Employment Opportunity Commission ("EEOC"). (Ahmed Dec. 10; Duhan Dec. A) Heartland did not respond to plaintiff's filing with the EEOC. On November 30, 2004, the EEOC issued a determination that, in light of plaintiff's submissions and the lack of a rebuttal submission by Heartland, plaintiff had established a prima facie case of discrimination. (Dunhan Dec. Exh. H) The EEOC letter invited Heartland to participate in the conciliation process which Heartland did not. On December 13, 2004, the EEOC issued a right to sue letter. (Dunhan Dec. Exh. I) Plaintiff then timely filed his Complaint on March 8, 2005.
The Verified Complaint asserts claims for relief under Title VII of the Civil Rights Act of 1964, 42 U.S .C. §§ 2000e et seq., as amended by the Civil Rights Act of 1991, ("Title VII"), the Age Discrimination in Employment Act of 1967, 29 U.S.C. §§ 621 et seq., ("ADEA"), New York Executive Law § 296 and New York City Administrative Code § 8-107. The Verified Complaint sets forth the essence of the facts outlined above. He asserts that at his termination on March 31, 2004, Clements told him that he did not "fit in" at Heatland as "most of the staff . . . were in their twenties and that the customers were young." (Compl. ¶ 16) Plaintiff also alleges that during his time at Heartland, his performance was issued a favorable rating by defendants. (Compl. ¶ 19) Plaintiff therefore contends that he was unlawfully discharged by defendants due to his actual or perceived age in violation of state and federal laws prohibiting age discrimination in employment. (Compl. ¶¶ 14; 21) Plaintiff seeks a judgment directing defendants to take actions to eliminate their unlawful employment practices as well as compensation for his lost wages, emotional and mental distress, compensatory damages and attorneys fees and costs for this action. (Compl. ¶¶ a-i)
B. SUMMARY JUDGMENT STANDARD
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 a judgment as a matter of law." Fed. R. Civ. P. 56(c). It is the initial burden of a movant on a summary judgment motion to come forward with evidence on each material element of his claim or defense, demonstrating that he or she is entitled to relief. A fact is material if it "might affect the outcome of the suit under the governing law . . . ." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The evidence on each material element must be sufficient to entitle the movant to relief in its favor as a matter of law. Vermont Teddy Bear Co., Inc. v. 1-800 Beargram Co., 373 F.3d 241, 244 (2d Cir. 2004).
When the moving party has met this initial burden and has asserted facts to demonstrate that the non-moving party's claim cannot be sustained, the opposing party must "set forth specific facts showing that there is a genuine issue for trial," and cannot rest on "mere allegations or denials" of the facts asserted by the movant. Fed. R. Civ. P. 56(e). In raising a triable issue of fact, the non-movant carries only "a limited burden of production," but nevertheless "must 'demonstrate more than some metaphysical doubt as to the material facts,' and come forward with 'specific facts showing that there is a genuine issue for trial.'" Powell v. Nat'l Bd. of Med. Exam'rs, 364 F.3d 79, 84 (2d Cir. 2004) (quoting Aslandis v. United States Lines, Inc., 7 F3d 1067, 1072 (2d Cir. 1993)).
An issue of fact is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248. The Court must "view the evidence in the light most favorable to the non-moving party and draw all reasonable inferences in its favor, and may grant summary judgment only when no reasonable trier of fact could find in favor of the nonmoving party." Allen v. Coughlin, 64 F.3d 77, 79 (2d Cir. 1995) (quotations and citations omitted); accord Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587-88 (1986). In reviewing a motion for summary judgment, the court must scrutinize the record, and grant or deny summary judgment as the record warrants. Fed. R. Civ. P. 56(c). A verified complaint is treated as an affidavit for summary judgment purposes, and is therefore considered in determining whether material issues of fact exist, provided that it meets the other requirements for an affidavit under Rule 56(e). Colon v. Coughlin, 58 F.3d 865, 872 (2d Cir. 1995)(citing Fed. R. Civ. P. 56(e)). Mere "conclusory statements, conjecture, or speculation by the party resisting the motion will not defeat summary judgment." Kulak v. City of New York, 88 F.3d 63, 71 (2d Cir. 1996) (citing Matsushita Elec. Indus. Co., 475 U.S. at 587)); see also Anderson, 477 U.S. at 249-50 (noting that summary judgment should be granted if the evidence is "merely colorable" or "not significantly probative"). When cross-motions for summary judgment are made, the standard is the same as that for an individual motion, however, "each party's motion must be examined on its own merits, and in each case all reasonable inferences must be drawn against the party whose motion is under consideration." See Morales v. Quintel Entm't, Inc., 249 F.3d 115, 121 (2d Cir. 2001). In the absence of any disputed material fact, summary judgment is appropriate. Fed. R. Civ. P. 56(c).
Although discrimination claims typically involve questions of intent, which are ill-suited to resolution at the summary judgment stage, the Second Circuit has gone "out of [its] way to remind district courts that the 'impression that summary judgment is unavailable to defendants in discrimination cases is unsupportable.'" Weinstock v. Columbia Univ., 224 F.3d 33, 41 (2d Cir. 2000) (quoting McLee v. Chrysler Corp., 38 F.3d 67, 68 (2d Cir. 1994)), cert. denied, 540 U.S. 811 (2003). See also Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, ...