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Baur v. Rosenberg

December 2, 2008

ELIZABETH BAELS BAUR, PLAINTIFF,
v.
ROSENBERG, MINC, FALKOFF & WOLFF, DEFENDANT.



The opinion of the court was delivered by: Gerard E. Lynch, District Judge

OPINION AND ORDER

Elizabeth Baels Baur, appearing pro se, brought this action against her former employer, Rosenberg, Minc, Falkoff & Wolff ("the Firm"), alleging that she was unlawfully terminated because of her age, in violation of the Age Discrimination in Employment Act, 29 U.S.C. § 621, et seq. ("ADEA"),*fn1 New York Human Rights Law, N.Y. Exec. Law § 290, et seq., and New York City Human Rights Law, N.Y.C. Admin. Code § 8-101, et seq. The Firm moves for summary judgment on the grounds that the plaintiff has not established a prima facie case, and that the Firm's actions were based on legitimate, non-discriminatory reasons that plaintiff has not adduced evidence to rebut. Also pending is plaintiff's motion to reopen discovery. For the reasons set forth below, the motion for summary judgment will be granted and the motion to reopen discovery will be denied.

BACKGROUND

The following facts are uncontested. The defendant, Rosenberg, Minc, Falkoff & White, is a small law firm with approximately twenty-five employees. (Id. ¶ 3.) In 1989, the Firm hired Baur as a legal secretary (Def.'s R. 56.1 Statement*fn2 ¶ 1.) ("Def.'s 56.1") Although Baur worked for the Firm apparently without incident for many years, beginning in 2004, and continuing until her termination two years later, both Steven Falkoff, the Firm's managing partner and Baur's supervisor (Id. ¶¶ 7-8.), and Anna Reyes, the Firm's office manager, had difficulty managing Baur's disruptive behavior. (Id. ¶¶ 9-10.) During this period Baur was frequently reprimanded for unprofessional conduct and poor performance.

The first such incident occurred in August 2004 when Baur responded to a paralegal's request for assistance by complaining to Falkoff that she did not "appreciate being prevailed upon by others in the office." (Id. ¶¶ 17-18.) This attitude upset Falkoff, who explained to Baur that it was her responsibility to take assignments from any attorney or paralegal in need of assistance. (Id. ¶ 19.) Falkoff also gave Baur an "official letter of reprimand," warning that she was "subject to termination at any time and without further notice." (Id. ¶¶ 20-21.)*fn3 Sometime in 2005, Falkoff issued an oral reprimand to Baur after she obtained a salary advance from firm partner Peter Rosenberg without first informing him that both Falkoff and Reyes had previously rejected her request for the same advance. (Id. ¶¶ 22-25.) Another incident involved Baur's repeated improper entry of data into the Firm's database system, conduct Falkoff believed to be deliberate. (Id. ¶ 27.) This behavior culminated in a note from Falkoff to Baur indicating that additional errors would not be tolerated. (Id. ¶¶ 26-27.) Baur also continued to make what Falkoff considered to be excessive photocopies, despite numerous warnings to stop. (Id. ¶ 28.) Finally, the Firm "strongly believed"--but was unable to conclusively establish--that Baur was responsible for mailing unauthorized letters to a number of the Firm's business associates falsely purporting to sever ties between the Firm and those associates. (Id. ¶ ¶ 29, 34.) Dan Minc, a partner at the Firm, confronted Baur about the letters, but Baur denied the charge and the matter was dropped.

In August 2005, Baur's difficulties expanded beyond the office when she had a run-in with the building's security guard. (Id. ¶ 37.) The guard's account of the confrontation--Baur contends that she was on the receiving end of the "harassment" (Pl.'s Aff. ¶ 8)--prompted a call from the building manager demanding Baur's immediate and permanent removal from the building. (Pl.'s Aff. ¶ 37; Williams Aff., Exh. F.) Minc was able to assuage the building manager, but he warned Baur that future similar incidents would result in her termination. (Def.'s 56.1 ¶ 37.)

During this time period, Baur was also habitually late for work. While she was scheduled to report at 9:30 a.m., time sheets establish that she routinely arrived after 10:00 a.m. (Id. ¶¶ 13-14; Decl. in Supp. of Mot. for Summ. J., Exh. H.) ("Parker Declaration, Exh. H") Both Reyes and Minc confronted Baur about her tardiness. (Def.'s 56.1 ¶¶ 14-15.) To lessen the strain on all parties and "avoid future issues," the Firm adjusted Baur's work hours, allowing her to arrive at 10:00 a.m. (Id.) Despite this accommodation, Baur's tardiness continued. (Id. ¶ 16; Parker Declaration, Exh. H.)

The Firm's issues with Baur came to a head on January 3, 2006 when Baur confronted Reyes for failing to deliver her paycheck as usual. (Def.'s 56.1 ¶¶ 41, 43). While details of the incident differ, it is undisputed that doors were slammed and the argument became heated. (Id. ¶¶ 42-43; Pl.'s Aff. ¶ 41.) This time, the Firm did not give Baur a warning. Instead, Falkoff fired her. (Def.'s 56.1 ¶ 45.)

To the extent that Baur disputes any of the above, it is only to insist that the Firm shaded or manufactured these incidents as part of a plan to either force her resignation or create a pretext to fire her. (See, e.g., Pl.'s Aff. ¶¶ 11-12, 14, 17, 21-22, 29, 42, 44, 46.)

DISCUSSION

I. Summary Judgment Standard

Summary judgment is appropriate where the "pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and the movant is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). In deciding a motion for summary judgment, the court must resolve all ambiguities and construe all facts in the non-movant's favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).

Nevertheless, the nonmoving party cannot defeat a motion for summary judgment by relying solely on "conclusory allegations or unsubstantiated speculation." Scotto v. Almenas, 143 F.3d 105, 114 (2d Cir. 1998). Instead, the non-movant must "by affidavits or as otherwise provided... set out specific facts showing a genuine issue for trial," Fed. R. Civ. P. 56(e)(2), and come forward with "evidence on which the jury could reasonably find for the non-movant." Pocchia v. NYNEX Corp., 81 F.3d 275, 277 (2d Cir. 1996), quoting Anderson, 477 U.S. at 252. If the ...


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