The opinion of the court was delivered by: Joseph F. Bianco, District Judge
Plaintiff Peter Catalano ("Catalano" or "plaintiff") brings this action alleging employment discrimination in violation of the Federal Age Discrimination in Employment Act, 29 U.S.C. §§ 621 et seq. ("ADEA"), the Americans with Disabilities Act, 42 U.S.C. §§ 12101 et seq. ("ADA") and New York State Human Rights Law, N.Y. Exec. Law §§ 296 et seq. ("NYHRL") against defendant Lynbrook Glass and Architectural Metal Corp. ("Lynbrook Glass" or "defendant"). Specifically, plaintiff alleges that defendant discriminated against plaintiff by terminating him because of his age and disability.
Defendant moves for summary judgment. For the following reasons, defendant's motion is denied as to the age discrimination claim. With respect to the disability claim, plaintiff stated for the first time in opposition to summary judgment that he was only raising a "regarded as disabled" claim under the ADA, rather than the disability claim set forth in the complaint. However, the "regarded as disabled" claim is materially different from the claim set forth in the complaint and, thus, was not the subject of questioning during plaintiff's deposition. Accordingly, the Court refuses to consider this new claim without plaintiff's formally moving to amend the complaint and explaining to the Court why such a claim should be added at this late juncture, especially given plaintiff's statement at his deposition that he was not making any such claim.
The following facts are taken from the parties' depositions, declarations, exhibits and respective Local 56.1 statements of facts.*fn1 Upon consideration of a motion for summary judgment, the Court construes the facts in the light most favorable to the non-moving party. See Capobianco v. City of New York, 422 F.3d 47, 50 (2d Cir. 2005). Thus, the Court shall construe the facts in favor of the plaintiff.
Joseph Torsiello (hereinafter, "Joseph Torsiello" or "J. Torsiello") began working for Lynbrook Glass in 1975 and became President when he purchased it in the mid-1990s from his father, who has since retired. (Def.'s Rule 56.1 Statement ("Def.'s 56.1") ¶ 2.) J. Torsiello's brother, Larry Torsiello ("L. Torsiello"), began working with Lynbrook Glass in the 1980s as Vice President. (Id. ¶ 4.) J. Torsiello testified that, in 1989, he approved a job description prepared by Consultec Associates regarding a comptroller position. (J. Torsiello Dep. 22-23.) Plaintiff disputes any reference to the word "comptroller." (Pl.'s Dep. 13; Def.'s Ex. A ¶ 2.) J. Torsiello testified that he replaced the word "controller" with "chief financial officer" to satisfy the controller who had the position in 1989, and testified that it was the same position. (J. Torsiello Dep. 60.) J. Torsiello hired plaintiff for the position of "controller" on December 8, 1997. (Def.'s 56.1 ¶ 14.) Plaintiff was fifty-nine (59) years old when hired. (Id. ¶ 15.) As controller, plaintiff's duties included a complete oversight of the accounting department, which consisted of accounts payable, accounts receivable, payroll and any related items, insurance matters, preparing financial reports, overseeing contract administration, working with the Company's accountants, and preparing schedules and reports necessary for interim and year-end reports. (Id. ¶ 16.) However, plaintiff contends that he was not charged with all of the duties set forth in the job description, nor did defendant ever provide plaintiff with a copy of such description. (J. Torsiello Dep. 23.)
2. Plaintiff's Job Performance
The articulated basis for plaintiff's termination was his alleged poor job performance over the course of his time at Lynbrook Glass. The following evidence is contained in the record concerning the plaintiff's performance.
J. Torsiello testified that, during the first year of plaintiff's employment, plaintiff was a good worker, worked hard, and put in a lot of effort. (Id. at 28.) However, according to J. Torsiello, he wanted plaintiff to be more proactive than reactive (Def.'s 56.1 ¶ 23), and J. Torsiello informed plaintiff of this during his first year review on February 4, 1999. (J. Torsiello Dep. 30-31; Def.'s Ex. C.) J. Torsiello also testified that plaintiff's sloppiness and errors were a reoccurring problem throughout his first year (J. Torsiello Dep. 28), but plaintiff disputes this, contending there is no such reference in defendant's written performance log to which defendant cites. (Def.'s 56.1 ¶¶ 23-24; Pl.'s 56.1 ¶¶ 23-24; Def.'s Ex. C). Plaintiff contends that at no point in time during his employment with defendant did defendant ever provide plaintiff with written performance evaluations. (Pl.'s Dep. 89.) At the end of his first year, plaintiff received a raise of $75 per week, bringing his salary up to $1,190 per week. (Def.'s 56.1 ¶ 25.)
In July 1999, the Company implemented a new computer system. (Def.'s 56.1 ¶ 26.) J. Torsiello testified that, by February 2000, plaintiff had not yet changed over to the new system. (J. Torsiello Dep. 41; Def.'s Ex. C.) This system involved a new accounting software program that plaintiff was responsible for getting up and running. (Id.) Instead, according to J. Torsiello, plaintiff operated both systems concurrently, doubleentering data for almost a year and a half. (Id.) J. Torsiello testified that he blamed plaintiff for the computer failure and, as a result, did not give him a bonus at that time. (Id.) Plaintiff, however, denies that he was solely responsible for implementation of the computer system. (J. Torsiello Dep. 39-40; Pl.'s Dep. 74.) According to plaintiff, J. Torsiello brought in an outside company to upgrade the system, and that company failed to complete the assignment for more than six months. (Pl.'s Dep. 74.) Plaintiff further contends that all employees experienced a learning curve associated with the upgrade. (J. Torsiello Dep. 40-41.)
J. Torsiello conducted another annual review in February 2000. J. Torsiello was disappointed with plaintiff's work, which he contends was sloppy and contained many typographical errors and incorrect numbers. (Id. at 33-36.) According to J. Torsiello's written performance log, plaintiff did not read or review documents before presenting them to defendant. (Id. at 34.) J. Torsiello also mentioned that plaintiff was not a strong manager (id.) and that J. and L. Torsiello had to go over the accounts receivable because plaintiff was backlogged with other work (Def.'s Ex. C). However, plaintiff contends that J. Torsiello still regarded plaintiff as a "good worker" and "great controller" and never advised plaintiff as to the perceived sloppiness or errors in his work. (Pl.'s Dep. 87-88; J. Torsiello Dep. 100.) J. Torsiello is not in possession of plaintiff's allegedly deficient work product. (Def.'s Ex. L, at 9.) Similar disputed performance issues and contentions are prevalent between the years 2001 and 2005.*fn2
Defendant also cites to two notable performance issues by plaintiff. The first involved improper handling and oversight of an audit of the books and records of Lynbrook Transportation Corporation relating to the IBT Local 282 fringe benefit funds. Defendant alleges that plaintiff allowed for the production of Lynbrook Glass records, thereby triggering a claim for $52,000 in fringe benefit contributions and a resulting lawsuit. (J. Torsiello Dep. 88-91, 108-109.) Plaintiff contends that he was not solely responsible for such an audit, and J. Torsiello delegated a large portion of such an assignment to an assistant bookkeeper, Karen Tucillo. (Pl.'s Dep. 42, 45, 164-167.) The second incident involved plaintiff's failure to ensure that CNA Insurance Company was not overpaid premiums, and that plaintiff was unable to resolve the matter. (J. Torsiello Dep. 83-86.) Plaintiff claims that he was simply required to check the classifications and that J. Torsiello personally objected to such wrongful classifications. (Pl.'s Dep. 54.)
Plaintiff notes that, despite all of these alleged performance problems between 2001 and 2005, plaintiff continued to receive salary increases and bonus payments that were approved by both Torsiello brothers. (J. Torsiello Dep. 100; Pl.'s Dep. 73, 76; L. Torsiello Dep. 40.) In February 2000, plaintiff received a $40 per week increase in salary and a $3,000 bonus. (Def.'s 56.1 ¶ 39.) Plaintiff did not receive a bonus in December 2000. (Def.'s Ex. C.) J. Torsiello testified that he did not give plaintiff a bonus because of plaintiff's failure to convert over to the new computer system and other performance issues. (J. Torsiello Dep. 39.) Plaintiff, however, contends that defendant's Exhibit C indicates that plaintiff was denied a bonus because he was paid while he was out on medical leave. (Pl.'s 56.1 ¶ 44; Def.'s Ex. C.) Plaintiff received a raise and bonus in February 2002. (Def.'s 56.1 ¶ 56.) During an early review in 2003, plaintiff received a $50 per week wage increase and a $4,000 bonus. In February 2003, J. Torsiello's mother, a bookkeeper at Visiontron, suffered a stroke and missed time from work. (Def.'s 56.1 ¶ 63.) As a result, plaintiff split time between Lynbrook and Visiontron and did a lot of extra work at Visiontron. Plaintiff received an $8,000 bonus in 2003. (Id.) According to J. Torsiello, the bulk of the work and plaintiff's efforts merited the high bonus. (Id.) On January 29, 2004, J. Torsiello gave plaintiff another wage increase of $55 per week. J. Torsiello testified that the purpose of these raises and bonuses was to keep plaintiff motivated. (J. Torsiello Dep. 49-50, 100.) Plaintiff did not receive a bonus in December 2004 and did not receive a raise in February 2005. (Def.'s 56.1 ¶ 68.)
J. Torsiello testified that, between February 2001 and February 2005, he and L. Torsiello considered replacing plaintiff.*fn3 (J. Torsiello Dep. 98-99.) According to J. Torsiello, they ultimately did not replace him on those prior occasions because of the potential staffing issues that could have resulted from the small size of the company. (Id.) Staffing became more stable in 2004 and 2005, so the Torsiellos again raised the issue of replacing plaintiff. (Id. at 67.) After plaintiff's review in February 2005, J. Torsiello decided to discharge plaintiff. (Id. at 58.) J. Torsiello testified that his termination plan consisted of interviewing candidates, finding a replacement and discharging plaintiff. (Id. at 61.)
In mid-February 2005, Castellano, Korenberg & Co. referred Louis Veneziano ("Veneziano") to Lynbrook Glass as a candidate for the "controller" position. (Torsiello Dep. 64.) Torsiello interviewed Veneziano and gave him an offer of employment on March 10, 2005. (J. Torsiello Dep. 64; Def.'s Ex. J.) However, Veneziano turned down the offer. (J. Torsiello Dep. 65.)
On March 17, 2005, J. Torsiello placed a classified ad in Newsday for a controller. (J. Torsiello Aff. ¶ 3; Def.'s Ex. K.) The ad ran from March 20, 2005 to April 2, 2005. (Id.) Lynbrook Glass interviewed David Goldberg ("Goldberg") and offered him the controller position at some time prior to ...