The opinion of the court was delivered by: Hurley, Senior District Judge
This action is one of several pending before this Court in which a former employee of Defendants Hustedt Chevrolet, Hustedt Chevrolet Inc. ("Chevrolet Inc."), Hustedt Chevrolet West, Hustedt Chevrolet West Inc. ("West Inc.") Hustedt Hyundai, and/or Hustedt Hyundai, Inc. ("Hyundai Inc.") (collectively "Dealership Defendants") is seeking redress for the alleged discriminatory and retaliatory practices of Defendant Charles Chalom ("Chalom"),*fn1 owner of Dealership Defendants, and hostile work environment created by him. In the instant case, Plaintiff Josephine Caronia ("Plaintiff" or "Caronia") asserts claims under federal and New York state statutes for sexual harassment, hostile work environment, disability discrimination, age discrimination, and retaliation.*fn2 She also asserts common law causes of action. Presently before the Court is Defendants' motion for summary judgment on Caronia's claims for age and disability discrimination and her common law causes of action of intentional infliction of emotional distress, negligent infliction of emotional distress, and assault and battery. For the reasons set forth below, the motion is granted except for assault and battery claims occurring on or after July 27, 2004.
Dealership Defendants are engaged in the sale and lease of cars and trucks.
Chalom owns 100% of the stock of Chevrolet Inc. and Hyundai Inc.*fn3 He has the final decision-making authority for the Dealership Defendants and supervised their employees, including Caronia. Caronia worked at Dealership Defendants at least since 1995 and remained employed until February 8, 2005. She held the position of office manager/controller and was over sixty years of age at the time her employment ended. According to Caronia, on February 8, 2005, she was subjected to a physical assault by Chalom accompanied by his screaming at her to the point where felt her safety was in danger and she was constructively discharged. When Caronia left the dealership, her duties were folded into the existing duties of one Wendy Penalver*fn4. Other co-workers of Caronia were Frank Ventimiglia ("Ventimiglia"), Andrew Levy ("Levy"), Kevin Pratt ("Pratt"), and Paul Weiss ("Weiss"). Pratt, Weiss, Ventimiglia and Levy all commenced actions against Defendants alleging discrimination. It is alleged, among other things, that Chalom was given to constant outbursts of unlawful and inappropriate epithets against different racial and ethnic groups.
Caronia and Chalom had a personal relationship that ended in or about the year 2000. Chalom paid her home mortgage and apartment rental fee from 1995 through January 2005. According to Caronia, from the day she told Chalom that their relationship was over until the day she left her job, Chalom engaged in a course of conduct against her. The course of conduct, she claims, included the following: "Chalom would call [Caronia] into his office and would say that she was ruining his sex life. Chalom would say she was holding his dick hostage.
Chalom would call Caronia cold and a bitch. If Caronia walked out of the office he would say get out and stay out to her. If she was standing at one of the desks, he would rub up against her. Chalom would say to Caronia in front of the office staff that she was provoking him with her tits and her ass and that his anger was her fault. This continued almost every day for five years." (Pl.'s Resp. to Def.s' 56.1 Statement at ¶ 61 (citing Caronia Dep. at 70-71.) Caronia also asserts that "there were constant incidents of Chalom rubbing her and touching her. The more she objected the more he kept doing these things." (Id. at ¶ 75 (citing Caronia Dep. at 209).)
Caronia's claims of sexual harassment and a sexually hostile work environment are not at issue on this motion. Accordingly, it is the evidence she proffers in support of her age and disability discrimination claims to which the Court now turns.
According to Caronia, in November 2004, Chalom promised the members of the office staff, except for her, that they would be receiving raises in March of 2005. In December 2004, she was informed by the dealership's outside accountant that she was going to get a $500.00 per week pay cut. Chalom told her she was the only manager receiving a pay cut, and screamed at her she could take it or leave. According to Caronia, business was bad at all of the dealership's and she did not understand why she was being singled out. Caronia also claims Chalom made ageist comments:
[Chalom] blurted out, "how do you keep those t---s so high at your age." He told her, I don't need an old lady like you, I can get young prostitutes.... Chalom called Caronia the old lady frequently for a period of time, and she was embarrassed and humiliated by this remark. When someone needed a check signed, Chalom would say, see the old lady, she will sign the check, loud enough for everyone to hear.... Chalom though it was amusing, and Caronia informed him she considered it offensive. Chalom admitted calling Caronia "old lady."... Chalom also referred to Caronia as Mother Superior quite a few times. (Pl.'s Resp. to Def.s' 56.1 Statement at ¶¶ 51-52 (citations to depositions omitted).
Turning to her disability claims, Caronia relies upon her deposition testimony, which she summarizes in support of her claim that she was regarded as disabled and was the victim of disability discrimination as follows:
Caronia testified that Chalom escalated his harassment of her because of her health, that she would tell him she was having a hard time and that she needed tranquilizers, and needed to be taking Xanax. Caronia further testified that when she was very upset, it would come out that she didn't feel well and that her blood pressure would go up, and that she was on more medication, and she would try to make Chalom understand that he was affecting her health with his threats. Chalom said the only reason she had a job was because he took pity on her. Caronia further testified that Chalom never treated her more favorably because of her health and that Chalom would ridicule her heart condition and say she was going to outlive him. Chalom told Caronia she was full of S--t.
Caronia felt that Chalom had no regard for her health. He was pushing her to the limit where she had to go to the doctor more often, and had to take more medication than she was usually taking. Chalom was making Caronia reach a point where she could not focus upon or do her job. Caronia had a stent implantation in 1995 and thereafter suffered from high blood pressure and dizzy spells. Chalom escalated his harassment because of Caronia's health. Caronia told Chalom during an argument that she was being treated for high blood pressure, that she was on medication, and her head was exploding, and he had to stop. Caronia complained to Chalom that he was constantly attacking her causing her medical condition. (Pl.'s Resp. to Def.s' 56.1 Statement at ¶¶ 51-52 (citations to depositions and paragraph numbering omitted).
Additional factual information shall be discussed to the extent relevant to the issues at hand.
I. Applicable Law and Legal Standards
Summary judgment pursuant to Federal Rule of Civil Procedure 56 is only appropriate where admissible evidence in the form of affidavits, deposition transcripts, or other documentation demonstrates both the absence of a genuine issue of material fact and one party's entitlement to judgment as a matter of law. See Viola v. Philips Med. Sys. of N. Am., 42 F.3d 712, 716 (2d Cir. 1994). The relevant governing law in each case determines which facts are material; "only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). No genuinely triable factual issue exists when the moving party demonstrates, on the basis of the pleadings and submitted evidence, and after drawing all inferences and resolving all ambiguities in favor of the non-movant, that no rational jury could find in the non-movant's favor. See Chertkova v. Conn. Gen'l Life Ins. Co., 92 F.3d 81, 86 (2d Cir. 1996) (citing Fed. R. Civ. P. 56(c)).
To defeat a summary judgment motion properly supported by affidavits, depositions, or other documentation, the non-movant must offer similar materials setting forth specific facts that show that there is a genuine issue of material fact to be tried. See Rule v. Brine, Inc., 85 F.3d 1002, 1011 (2d Cir. 1996). The non-movant must present more than a "scintilla of evidence," Del. & Hudson Ry. Co. v. Cons. Rail Corp., 902 F.2d 174, 178 (2d Cir. 1990) (quoting Anderson, 477 U.S. at 252), or "some metaphysical doubt as to the material facts," Aslanidis v. U.S. Lines, Inc., 7 F.3d 1067, 1072 (2d Cir. 1993) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986)), and cannot rely on the allegations in his or her pleadings, conclusory statements, or on "mere assertions that affidavits supporting the motion are not credible." Gottlieb v. County of Orange, 84 F.3d 511, 518 (2d Cir. 1996) (internal citations omitted). Affidavits submitted in opposition to summary judgment must be based on personal knowledge, must "set forth such facts as would be admissible in evidence," and must show that the affiant is "competent to testify to the matters stated therein." Patterson v. County of Oneida, 375 F.3d 206, 219 (2d Cir. 2004) (citing Fed. R. Civ. P. 56(e)). "Rule 56(e)'s requirement that the affiant have personal knowledge and be competent to testify to the matters asserted in the affidavit also means that an affidavit's hearsay assertions that would not be admissible at trial if testified to by the affiant is insufficient to create a genuine issue for trial." Patterson, 375 F.3d at 219 (citing Sarno v. Douglas Elliman-Gibbons & Ives, Inc.,183 F.3d 155, 160 (2d Cir. 1999)).
When determining whether a genuinely disputed factual issue exists, "a trial judge must bear in mind the actual quantum and quality of proof necessary to support liability," or "the substantive evidentiary standards that apply to the case." Anderson, 477 U.S. at 254-55.
A district court considering a summary judgment motion must also be "mindful of the underlying standards and burdens of proof," Pickett v. RTS Helicopter, 128 F.3d 925, 928 (5th Cir. 1997) (citing Anderson, 477 U.S. at 252), because the evidentiary burdens that the respective parties will bear at trial guide the district court in its determination of a summary judgment motion. See Brady v. Town of Colchester, 863 F.2d 205, 211 (2d Cir. 1988). Where the non-moving party will bear the ultimate burden of proof on an issue at trial, the moving party's burden under Rule 56 will be satisfied if he can point to an absence of evidence to support an essential element of the non-movant's claim. See id. at 210-11. Where a movant without the underlying burden of proof offers evidence that the non-movant has failed to establish her claim, the burden shifts to the non-movant to offer "persuasive evidence that [her] claim is not 'implausible.'" Brady, 863 F.2d at 211 (citing Matsushita, 475 U.S. at 587).
In deciding a summary judgment motion, a court must resolve all factual ambiguities and draw all reasonable inferences in favor of the non-moving party. See Donahue v. Windsor Locks Bd. of Fire Comm'rs, 834 F.2d 54, 57 (2d Cir. 1987). That being said, it is well-established that a non-movant cannot defeat summary judgment with nothing more than "unsupported assertions," Goenaga v. March of Dimes Birth Defects Found., 51 F.3d 14, 18 (2d Cir. 1995), or the allegations in its pleadings. See Cifarelli v. Vill. of Babylon, 93 F.3d 47, 51 (2d Cir. 1996); see also Fed. R. Civ. P. 56(e). More particularly, although "summary judgment should be used sparingly" in cases where the material fact at issue is the defendant's intent or motivation, the plaintiff must nevertheless offer some "concrete evidence" in his favor, and is "not entitled to a trial simply because the determinative issue focuses upon the defendant's state of mind." Dister v. Cont'l Group, Inc., 859 F.2d 1108, 1114 (2d Cir. 1988). "The summary judgment rule would be rendered sterile... if the mere incantation of intent or state of mind would operate as a talisman to defeat an otherwise valid motion." Meiri v. Dacon, 759 F.2d 989, 998 (2d Cir. 1985).
B. The McDonnell-Douglas Burden-Shifting Methodology
In McDonnell-Douglas Corporation v. Green, 411 U.S. 792, 802-804 (1973), the Supreme Court first enunciated the now-familiar "burden-shifting" formula used in analyzing Title VII employment discrimination claims based on indirect or circumstantial evidence. This standard was further refined in Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 252-253 (1981) and St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 506-511 (1993). Claims brought pursuant to the Age Discrimination in Employment Act ("ADEA") are also analyzed under the McDonnell-Douglas burden-shifting framework. See Woodman v. WWOR-TV, Inc., 411 F.3d 69, 76 (2d Cir. 2005).
Under McDonnell-Douglas and its innumerable progeny, (1) a plaintiff must first establish a prima facie case of discrimination; (2) the burden then shifts to the employer to articulate a legitimate, nondiscriminatory reason for its actions; if the employer does so, the McDonnell-Douglas framework and its presumptions and burdens disappear, leaving the sole remaining issue of "discrimination vel non," and thus (3) the burden shifts back to the plaintiff to prove that the employer's stated reason is merely pretextual and that discrimination based on the asserted protected class was an actual reason for the adverse employment action. See Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (2000). Although intermediate evidentiary burdens shift back and ...