The opinion of the court was delivered by: David G. Larimer United States District Judge
Plaintiff, Paul Masters, commenced this action against his former employer, F.W. Webb Company ("Webb"), alleging claims under the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq., the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et seq. , the New York Human Rights Law ("HRL"), N.Y. Exec. L. § 296 et seq., and the Municipal Code of the City of Rochester, New York. Webb has moved for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure.
Webb, a wholesale distributor of plumbing and heating supplies, hired plaintiff in July 1999 as a salesman for the Rochester market. The person who made the decision to hire plaintiff was Ed Robicheau, the general manager of the Syracuse, New York office.
Webb had no office in Rochester, which was part of the geographic area covered by the Syracuse office. Accordingly, plaintiff, though based in Rochester (where he also lived), reported to Robicheau in Syracuse. Prior to plaintiff's hiring, Webb had no full-time salesmen in Rochester, which had previously been serviced by sales employees operating out of Syracuse.
Plaintiff was terminated in March 2002, at the age of sixty. Webb contends that the reason for this decision was that the Syracuse branch had been losing money for some time, and that the Rochester market had become particularly unprofitable, due principally to unfavorable economic conditions in the Rochester area. Defendant does not claim that plaintiff was fired for cause, that his performance had been unsatisfactory, or that he was to blame for the losses in the Rochester market. Webb contends that his position was eliminated outright, and that plaintiff's duties were reassigned to someone in the Syracuse office.
Plaintiff alleges that he was terminated on account of his age and perceived disability. Plaintiff's disability claim is primarily based on the fact that plaintiff had surgery for bladder cancer during his employment with Webb, as well as on certain comments that Robicheau allegedly made indicating that he had concerns about whether plaintiff was physically able to perform his job, due to plaintiff's age and medical problems. Plaintiff also alleges that he suffered from heart disease and diabetes, although at oral argument on the pending motion plaintiff's counsel conceded that there is no direct evidence that anyone involved in the decision to terminate plaintiff was aware of those conditions.
I. Plaintiff's Age and Disability Discrimination Claims--Legal Framework
Plaintiff's claims of age and disability discrimination are subject to the burden-shifting analysis of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). First, plaintiff must establish a prima facie case of discrimination by demonstrating: (1) membership in a protected class; (2) satisfactory job performance; (3) an adverse employment action; and (4) circumstances giving rise to an inference of discrimination. See Collins v. New York City Transit Auth., 305 F.3d 113, 118 (2d Cir. 2002); Regional Econ. Community Action Prog., Inc. v. City of Middletown, 294 F.3d 35, 48-49 (2d Cir.), cert. denied, 537 U.S. 813 (2002).*fn1
Once plaintiff has established a prima facie case, the burden shifts to defendant to articulate a legitimate, nondiscriminatory reason for the adverse employment action. See James v. New York Racing Ass'n, 233 F.3d 149, 154 (2d Cir.2000). The burden then returns to plaintiff to present evidence that the proffered reason is a pretext for discrimination. See St. Mary's Honor Center v. Hicks, 509 U.S. 502, 508 (1993). Although "direct evidence of discrimination is not necessary," Carlton v. Mystic Transp., Inc., 202 F.3d 129, 135 (2d Cir.), cert. denied, 530 U.S. 1261 (2000), "an employer [is] entitled to judgment ... if the record conclusively reveals some other, nondiscriminatory reason for the employer's decision, or if the plaintiff only creates a weak issue of fact as to whether the employer's reason was untrue and there [is] abundant and uncontroverted independent evidence that no discrimination had occurred." Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 148 (2000) (emphasis added); see also Norton v. Sam's Club, 145 F.3d 114, 118-120 (2d Cir.) (holding that an age discrimination case "may be built entirely out of circumstantial evidence"), cert. denied, 525 U.S. 1001 (1998); Rosen v. Thornburgh, 928 F.2d 528, 533 (2d Cir.1991) (recognizing that employers are unlikely to leave "smoking gun" evidence "attesting to discriminatory intent").
Evidence supporting the plaintiff's prima facie case, plus evidence that the defendants' proffered reasons for his termination are false, may, in some cases, be enough to withstand a motion for summary judgment. Lizardo v. Denny's, Inc., 270 F.3d 94, 103 (2d Cir. 2001). Whether summary judgment is appropriate in a particular case depends upon "the strength of the plaintiff's prima facie case, the probative value of the proof that the [defendant's] explanation is false, and any other evidence" that supports the defendant's case. Reeves, 530 U.S. at 148-49.
In support of its motion, Webb contends that the undisputed facts show that plaintiff's position was eliminated as a business decision because the accounts that plaintiff serviced in the Rochester area were a financial drain on the company. Webb does not blame plaintiff for that; in fact, as evidence of its nondiscriminatory intent, Webb has submitted evidence that during his employment with Webb, plaintiff got good reviews and was given several salary increases. Webb contends that due to factors outside of plaintiff's or Webb's control (such as cutbacks at Eastman Kodak Co. ("Kodak") in Rochester), the Rochester accounts were simply not profitable enough to justify keeping a full-time salesman in Rochester.
Webb also notes that Robicheau (who was 58 years old when he hired plaintiff) was the same person who made the decision to terminate plaintiff about two and a half years later. Webb thus relies on the "same actor" inference, i.e., the principle "that when the person who made the decision to fire was the same person who made the decision to hire, especially when the firing occurred only a short time after the hiring, it is difficult to impute to him an invidious firing motivation that would be inconsistent with his decision to hire." Jetter v. Knothe Corp., 324 F.3d 73, 76 (2d Cir. 2003); accord Carlton, 202 F.3d at 137-38.
In addition, Webb states that after plaintiff's termination, the four remaining outside sales employees in the Syracuse branch were all over age 40. Dkt. #110 ¶ 63. Webb has also presented evidence that Robicheau was responsible for hiring a number of 40-and-older employees over the years, including a 61-year-old man hired on February 25, 2002, about two weeks before plaintiff was terminated. Dkt. #111-3 at 5, ¶ 19.
With respect to plaintiff's disability discrimination claim, Webb admits that Robicheau was aware of plaintiff's cancer surgery, but Webb asserts that there is no evidence that plaintiff was in fact disabled or that he was perceived to be disabled by Robicheau. According to defendants, Robicheau had no idea to what extent, if any, plaintiff's surgery or bladder condition affected plaintiff's ability to perform his job, particularly since plaintiff worked 90 miles away from Robicheau's office in Syracuse.
III. Plaintiff's Response
In opposition to defendants' motion, plaintiff relies to a great extent on certain comments that Robicheau allegedly made about plaintiff's age and medical condition. In particular, he alleges that Robicheau informed plaintiff of plaintiff's termination over dinner at a restaurant in Rochester around early March 2002. According to plaintiff's deposition testimony, Robicheau "started off the conversation by saying that he was afraid he was going to have to lay [plaintiff] off" because "management had directed [Robicheau] to cut expenses for the Syracuse branch." Dkt. #116 Ex. A at 135-36.
Plaintiff also testified that Robicheau and he "discussed at length ... the fact that [plaintiff] had a medical problem and how much that had affected [his] work and how much time [he] had lost, as well as the fact that [plaintiff] was getting older, and between a combination of the two problems, that there was some doubt in [Robicheau's] mind as to whether or not [plaintiff] would be able to continue." Id. at 134. Plaintiff testified that he "left that meeting with a very strong impression that the major reason [for terminating plaintiff's employment] was not a financial reason but strictly a matter of [his] age and [his] disability--or perceived disability ...," because plaintiff did not consider himself disabled at that time. Id. at 135.
Plaintiff also testified about alleged age-related remarks that Robicheau made at various other times, such as asking plaintiff if he were "getting too old to do this job," or commenting that plaintiff was "slowing down." Id. at 151. Plaintiff estimated that Robicheau made such comments about "half a dozen" times between late 2001 and plaintiff's termination in March 2002. Id.
With respect to plaintiff's medical condition, plaintiff testified that after his surgery for bladder cancer in February 2001, he was on medical leave for three months, and that afterwards he "had a number of repeat minor surgeries because of problems associated with the major operation." Id. at 157. He stated that after each of these "minor" surgeries, he would miss several days of work, and for a while after he returned to work he would have some limitations on his mobility, ability to attend meetings, etc. Id. at 158.
Plaintiff testified that "it didn't take long after the first or second minor surgery when [he] started hearing comments from Ed Robicheau like 'Is this ever going to end? ... Are you ever going to get cured, where you won't have to do all of these things?'" Id. Plaintiff testified that Robicheau would also say to him, "[I]s there any other things [sic] you can try to make yourself better? The cost is getting astronomical." Id. at 159.
Plaintiff has also presented evidence that at a meeting with Kodak representatives after his termination, Steve Perkins, a Webb salesman who had taken over responsibility for plaintiff's former accounts, told the Kodak representatives that plaintiff had left Webb due to his age and health problems.*fn2 Apparently he was prompted to bring this subject up because in the past, plaintiff had typically attended those meetings, and the Kodak ...