The opinion of the court was delivered by: Glasser, Senior District Judge
Plaintiffs Gary Ko Sheng Chuang ("Plaintiff Chuang"), Yih-Her Lee ("Plaintiff Lee"), Tzu-Kuang Liu ("Plaintiff Liu") and Chung Yung Wang ("Plaintiff Wang", and collectively, the "plaintiffs")*fn1, filed a complaint alleging that their employer, the publisher of The World Journal newspaper ("World Journal" or the "defendant") unlawfully dismissed each of them on the basis of their age.*fn2
The plaintiffs bring their age discrimination claims under the Federal Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq. ("ADEA"), the New York State Human Rights Law ("NYSHRL"), § 296, and the New York City Administrative Code, § 8-107(a). The defendant has moved for summary judgment as to all claims pursuant to Fed. R. Civ. P. 56(c). For the reasons below, the defendant's motion is granted as to all plaintiffs.
The defendant, based in Whitestone, New York, publishes The World Journal, North America's largest Chinese language daily newspaper and employs more than 300 people. (Def. 56.1 Statement, ¶¶ I.A.1, I.A.2, I.A.8.) The four plaintiffs were employees of World Journal, each between the ages of fifty-one and fifty-four at the time of their respective severance from World Journal in the spring and summer of 2004. While it is undisputed that Plaintiffs Lee, Liu and Wang were dismissed by World Journal, World Journal contends that Plaintiff Chuang voluntarily resigned. The parties also dispute whether Plaintiff Lee and Plaintiff Liu suffered adverse employment actions prior to their terminations when they were reassigned to different duties. (Complaint, dated Nov. 11, 2004 ("Compl."), ¶ 81.)
II. Summary Judgment and ADEA
Summary judgment under Fed. R. Civ. P. 56(c) is proper "if 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 that the movant is entitled to a judgment as a matter of law." See Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). When evaluating a motion for summary judgment, "the court must view the evidence in the light most favorable to the party against whom summary judgment is sought and must draw all reasonable inferences in his favor." L.B. Foster Co. v. Am. Piles, Inc., 138 F.3d 81, 87 (2d Cir.1998) (citing Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574 (1986)). The party opposing summary judgment "may not rely on conclusory allegations or unsubstantiated speculation." Scotto v. Almenas, 143 F.3d 105, 114 (2d Cir.1998). Instead, the opposing party "must designate specific facts showing that there is a genuine issue for trial." Celotex, 477 U.S. at 324. A genuine factual issue exists if there is sufficient evidence favoring the opposing party for a jury to return a verdict in its favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986).
While it is "sometimes noted that an extra measure of caution is merited in [granting] summary judgment in a discrimination action because direct evidence of discriminatory intent is rare and such intent often must be inferred from circumstantial evidence found in affidavits and depositions," Holtz v. Rockefeller & Co., Inc., 258 F.3d 62, 69 (2d Cir. 2001) (citing Gallo v. Prudential Residential Servs., 22 F.3d 1219, 1224 (2d Cir.1994)), "summary judgment remains available for the dismissal of discrimination claims in cases lacking genuine issues of material fact." Id. (citing McLee v. Chrysler Corp., 109 F.3d 130, 135 (2d Cir. 1997)). "It is now beyond cavil that summary judgment may be appropriate even in the fact-intensive context of discrimination cases." Abdu-Brisson v. Delta Air Lines, Inc., 239 F.3d 456, 466 (2d Cir. 2001).
Under ADEA, an employer of twenty or more persons may not discharge an employee by reason of his or her age if that employee is at least forty years-old. 29 U.S.C. § 623(a)(1) ("It shall be unlawful for an employer to . . . discharge any individual . . . because of such individual's age. . ."); 29 U.S.C. §§ 630(b), 631(a). Claims under ADEA are governed by the three-step burden-shifting framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). D'Cunha v. Genovese/Eckerd Corp., 479 F.3d 193, 195-96 (2d Cir. 2007). See Woroski v. Nashua, 31 F.3d 105, 108 (2d Cir.1994) ("We analyze ADEA claims under the same framework as claims brought pursuant to Title VII.").
First, the plaintiff must make a prima facie showing of discrimination. To do so, a plaintiff must adduce evidence showing (i) membership in the protected age group, (ii) qualifications for the job at issue, (iii) an adverse employment action, and (iv) that the adverse action occurred under circumstances giving rise to an inference of discrimination. D'Cunha, 479 F.3d at 195 (citing Terry v. Ashcroft, 336 F.3d 128, 137-38 (2d Cir. 2003)). "Though the plaintiff has the ultimate burden of proving the elements of the claim by a preponderance of the evidence, the showing the plaintiff must make as to the elements of the prima facie case in order to defeat a motion for summary judgment is de minimus." Cronin v. Aetna Life Ins. Co., 46 F.3d 196, 203-04 (2d Cir. 1995) (internal citations omitted).
Once the plaintiff has adduced evidence sufficient to set forth a prima facie case, the defendant then has the burden of producing "through the introduction of admissible evidence, reasons for its actions which, if believed by the trier of fact, would support a finding that unlawful discrimination was not the cause of the employment action." Grady v. Affiliated Central, Inc., 233 F.3d 149 (2d Cir. 1997) (quoting St. Mary's Honor Center v. Hicks, 509 U.S. 502, 507 (1993)).
Should the defendant carry this burden, it will be entitled to summary judgment unless the plaintiff puts forth adequate evidence to support a rational finding that the reason proffered by the defendant is a pretext for discrimination or retaliation. Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). "[O]nce the employer has proffered a [nondiscriminatory] reason for its action, all presumptions and special rules drop away . . . [and] the plaintiff, in order to prevail, must have evidence from which the factfinder can reasonably find the essential elements of the claim." James v. New York Racing Ass'n, 233 F.3d 149, 154 (2d Cir. 2000). "In meeting this ultimate burden, an ADEA plaintiff need not show that age was the only factor in the employer's discharge decision, but that age was a determinative factor." Levin v. Analysis & Tech., Inc., 960 F.2d 314, 317 (2d Cir. 1992). Evidence of discrimination need not be direct, as such proof is seldom available, but may be circumstantial. Carlton v. Mystic Transportation, Inc., 202 F.3d 129, 135 (2d Cir. 2000).
The same analysis governs the plaintiffs' New York State and New York City claims. Abdu-Brisson, 239 F.3d at 466; Garone v. United Parcel Service, Inc., 436 F.Supp.2d 448, 473 (E.D.N.Y. 2006) (Glasser, J.) ("Because claims under the NYSHRL are analyzed identically to claims under the ADEA and Title VII, the outcome of an employment discrimination claim made pursuant to the NYSHRL is the same as it is under the ADEA and Title VII. Accordingly, the Court treats the federal, state and city claims together.") (internal citations omitted).
The claims of each plaintiff are evaluated in turn below. World Journal concedes that each of the plaintiffs is over the age of forty and was qualified for his position. World Journal also concedes that the dismissals of Plaintiffs Lee, Liu and Wang constitute adverse employment actions, but argues that Plaintiff Chuang was not subjected to any adverse employment action because he voluntarily resigned. World Journal further argues that each of the plaintiffs has failed to show that he was dismissed under circumstances giving rise to an inference of discrimination.
Plaintiff Chuang was born on November 8, 1950. (Def. 56.1 Statement, ¶ II.A.1.) At the age of thirty-eight, he was hired by World Journal in 1989 as a pressman in its Production Department which is responsible for the daily printing of The World Journal. (Compl. ¶ 14; Def. 56.1 Statement, ¶ II.A.3.) Chuang's primary responsibility was operating the automatic pasting machine, used for moving new rolls of printing paper onto the press so that the press could run continuously. (Def. 56.1 Statement, ¶ II.A.9.) Plaintiff Chuang's last day of employment with World Journal was July 7, 2004. (Id. ¶ II.C.4.) At the time, he was fifty-three years old.
The facts leading chronologically to the departure of Plaintiff Chuang from World Journal are as follows:
On July 1, 2004, Plaintiff Chuang wrote a letter stating "Due to other personal career planning, I hereby submit my resignation effective August 16, 2004." (Def. 56.1 Statement ¶ II.B.2.) The text of the letter that Plaintiff Chuang wrote is not disputed. The head of World Journal's pressroom, Supervisor Wen Hua Liu ("Supervisor Liu"), forwarded the letter to World Journal's Financial Department requesting that Plaintiff Chuang's unused vacation pay be calculated. (Def. 56.1 Statement ¶ II.B.3.)
On July 7, 2004, Supervisor Liu submitted a report to Edwin Ling ("Ling") the Manager of the Production Department and Deputy General Manager of the Circulation Department.*fn3 The report read:
Printing Technician Gary Ko Sheng Chuang originally submitted his resignation stating that he will resign on 08/16/2004. All of a sudden, he told me this morning that he will not be coming back to work tonight (for 07/08/2004 publishing date). This makes me not know how to handle the situation but to ask for instruction from higher officials.
(Report prepared by Wen Hua Liu dated July 7, 2004 ("Liu Report").) Ling returned the report to Supervisor Liu with the following written instructions:
1) Chuang last worked to 07/07/2004; please forward to Financial Department for settling his wages.
2) Chuang's sudden departure has caused disruption for the printing section's normal shift schedule. I have asked Supervisor Liu to make temporary schedule change suspending days off and actively look for suitable person to fill the position at the same time.
(Liu Report; Affidavit of Edwin Ling dated Sept. 26, 2006 ("Ling Aff.") ¶ 6.)
On July 8, 2004, Plaintiff Chuang was notified by letter that his employee benefits were discontinued given his termination on July 7. (Deposition of Gary Ko Sheng Chuang, dated Oct. 11, 2005 ("Chuang Dep."), 66.) The record is bare of any evidence that Plaintiff Chaung sought to inquire regarding the reason for his termination as of that date; sought to clarify that his resignation was as of August 16 and not July 7; or sought to tell the World Journal that he never intended to resign at all and there is an obvious misunderstanding in the matter.
Given the foregoing, World Journal contends that Plaintiff Chuang voluntarily resigned. Ling concluded, in reliance upon Supervisor Liu's report, that Plaintiff Chuang voluntarily resigned on July 1, effective August 16, and that he accelerated the effective date to July 7.
Plaintiff Chuang proffers a different version of the events. At his deposition, he testified that he made a request of Supervisor Liu to allow him vacation time so that he could tend to a sick relative. (Chuang Dep. 26-28.) Supervisor Liu told him, he testified, that "unless you resign, you have a right to submit a memo to say that you resign, then you can't take these days off" because World Journal was not allowing employees to take vacation days. (Id. at 28.) He then testified that Supervisor Liu advised him that if he really wanted the vacation days, he should "write a memo and say that your health is not good and your job is very tiring and you want to make some change, just write it like that." (Id.) Plaintiff Chuang began writing, choosing to say that career planning prompted the letter, rather than his health. (Id. at 28-30.) Plaintiff Chuang testified that Supervisor Liu then took the letter from him before he was finished, threw it in the trash and sent him back to work. (Id. at 37.) "Liu just took it away. He said we really short of hands right now. Besides, as an operator for the press machine, it is not like I can replace you with anybody." (Id. at 28.)*fn4
Plaintiff Chuang also testified that early in his shift, which began at 11:00 pm on July 6 and ended after 5:00 a.m. on July 7, he injured his knee and requested a day off which was granted by Supervisor Liu. (Chuang Dep. 40-51, 60.) Plaintiff Chuang denies resigning on July 7. (Plaintiffs' Response to Def. 56.1 Statement, dated Nov. 14, 2006, ¶ II.C.1.)
In support of his claim of discrimination, Plaintiff Chuang testified to having heard some age-related comments during the course of his employment, such as:
* Supervisor Liu, four years younger than Plaintiff Chuang, often asked whether Chuang had symptoms of senility or Alzheimer's, including on one occasion when Chuang miscalculated his vacation days. (Chuang Dep. 94-96.)
* Plaintiff Chuang was told by Deputy Supervisor Chang I-Chung ("Deputy Supervisor Chang") that Supervisor Liu did not want to hire a person in his forties to work in the press room because of that person's age. (Id. at 100.) Around that time, three individuals in their twenties or thirties were hired. (Id. at 100-01.)
* Plaintiff Chuang, when called upon to instruct an employee in his late twenties on the operation of a machine, was instructed by Deputy Supervisor Chang not to train older workers who wished to receive the same training. (Id. at 98-99.)
* Co-workers said that Plaintiff Chuang was too old for his job and would intentionally hit him on his shoulder which was sore from his work. (Id. at 96-97.) Supervisor Liu told Plaintiff Chuang not to "mind these ...