The opinion of the court was delivered by: Marian W. Payson United States Magistrate Judge
Plaintiff Darlson Rupert ("Rupert") has sued the City of Rochester (the "City") under the Age Discrimination in Employment Act ("ADEA") and the New York State Human Rights Law ("NYSHRL"). (Docket # 1). Pursuant to 28 U.S.C. § 636(c), the parties have consented to have a United States magistrate judge conduct all further proceedings in this case, including the entry of final judgment. (Docket # 9). Currently pending before this Court is the City's motion for summary judgment on Rupert's claims. (Docket # 15). The following constitutes the decision and order of this Court.
I. Rupert's Employment with the City
The following facts are undisputed except where otherwise noted. ( See Docket ## 15, 19, 20). Rupert was born on January 27, 1951. In 1980, he began working for the City's Department of Environmental Services ("DES") in its Solid Waste Division, where he remained employed for twenty-six years until his retirement in 2006. He worked as an "Environmental Services Operator I" and was responsible for operating a truck used to empty litter baskets. Rupert received various awards and certificates of service during his years of service for the City, including awards for "Solid Waste Excellence" in 1997 and 2000 and the June Employee Recognition Team Award in 2003.
While employed with the City, Rupert was a member of Local 1635 of the American Federation of State, County and Municipal Employees (the "Union"). Non-uniformed union members, such as Rupert, were required to adhere to written standards of conduct (the "Standards of Conduct") promulgated by the City. Among other things, the Standards of Conduct prohibited engaging in personal work on City time, stealing City property, and using City property, including vehicles, "for private business or personal gain." (Docket # 15-4, Ex. D). The Standards of Conduct provided that "[f]or most offenses, a system of progressive discipline will be used [, . . . pursuant to which] employees [will be] warned in writing or given disciplinary suspensions, demotions or fines, not to exceed $100 for related offenses, before being given the penalty of discharge." ( Id. ). The Standards of Conduct further provided that progressive discipline would not be employed "[i]n cases of more serious offenses," for which "suspension, demotion, fines, and discharge" would be appropriate. ( Id. ).
During his tenure with the City, Rupert was disciplined on three occasions prior to the events leading to his retirement. In 1995 and 2000, he received written reprimands, the first for failing to punch in and the second for excessive use of sick time. In 2001, Rupert was suspended without pay for ten days for removing City property (a plow) without authorization and with intent to use it for personal purposes. In the letter notifying him of the suspension, Rupert was cautioned that "any further infractions of th[at] nature [would] result in further disciplinary action." ( Id. at Ex. B).
On July 24, 2006, Rupert drove his personal van and trailer into the gated work compound because a friend wanted to borrow the trailer. When he arrived, the trailer contained several large items, such as a basketball hoop and pieces of siding. Rupert removed the items from the trailer using a City "boom" truck and stored them in the boom truck until the next day. The following day, Rupert reloaded the items into his trailer and then paid to dispose of them at the City's dump.
On July 24, 2006, photographs depicting Rupert using the boom truck were left on Rupert's supervisor's desk. The supervisor asked Rupert to explain the photographs, and Rupert admitted his actions. Several days later, at his supervisor's request, he provided a written statement acknowledging his conduct. Specifically, the statement provided:
I brought my trailer into work because a friend needed to use it. On my trailer I had a basketball stand, a chair and a stool with about 20 pieces of siding. When I got to work I put them into a boom truck because I was running to [ sic ] late to dump them. I didn't get my trailer back so I drove my truck in and took and emptied the boom of all the items and took them to the dump and paid to get rid of them. ( Id. at Ex. C). Rupert subsequently participated in a meeting to address his conduct, which was attended by the Commissioner of DES, Paul Holahan, two of Rupert's supervisors and two union representatives. At the conclusion of the meeting, Commissioner Holahan advised Rupert that his conduct "likely constituted a terminable offense" in view of his record of discipline for a prior similar offense. (Docket # 15-8 at ¶ 15).
Commissioner Holahan thereafter made the decision to terminate Rupert's employment and issued a letter to him, dated September 1, 2006, informing him that his employment would be terminated effective September 5, 2006 as a result of "the egregious nature of your conduct and your previous disciplinary history." (Docket # 15-5, Ex. E). The termination letter stated that Rupert had committed three violations of the Standards of Conduct, namely, (1) conducting personal work on City time; (2) stealing City property; and (3) using City vehicles without authorization "for private business or any personal gain." ( Id. ).
At Rupert's request, on September 8, 2006, the Union filed a grievance challenging and seeking recission of the termination decision. The grievance was filed under the terms of the applicable collective bargaining agreement between the Union and the City (the "CBA"), which provided that disciplinary determinations could be challenged through a grievance and, in the event that the grievance were not settled, could be taken to binding arbitration at the request of the Union or the City.*fn1 (Docket # 15-4, Ex. G at 53). As a result of the grievance filing, the City stayed Rupert's termination and placed him on unpaid suspension pending the outcome of the grievance process. In late September, the Union and the City negotiated a proposed settlement which would have permitted Rupert to retire on November 6, 2006, in return for a release of claims. (Docket # 15-4, Ex. H). Rupert did not sign the settlement agreement and instead retired on October 30, 2006 without an agreement. Because he retired, and was not terminated, he retained his health benefits.*fn2 No further action was taken with respect to the grievance.
Rupert did not sign the settlement agreement because he did not wish to release any workers' compensation or unemployment insurance benefits claims against the City.*fn3
Rupert claims that at the time the Union proposed the settlement to him, his Union representative told him that "[t]hey were done[;] [t]his was what I got." (Docket # 15-2, Ex. 3 at 48). Rupert did not request arbitration, although he was aware of his right to request that the Union proceed to arbitration. ( Id. at 44, 49). He was also aware that other employees had successfully negotiated "last chance" agreements permitting them to return to work after filing grievances challenging their termination decisions. ( Id. at 33-34, 41-43, 50).
Following Rupert's retirement, the City promoted a thirty-seven-year-old employee to Rupert's position. The City and Rupert dispute whether that employee was the next eligible employee on the then-current list of eligible candidates.*fn4
II. Similar Misconduct By Other Employees
During the course of Rupert's twenty-six-year employment with the City, other employees, as well as supervisors, in the Solid Waste Division brought personal trash to work for disposal. Some of those employees evidently also used City vehicles to facilitate the disposal of that trash, as well as for other personal reasons. Indeed, at his deposition, Rupert identified ten Solid Waste employees his age or older who routinely imported trash without incurring discipline.
In addition, the record on this motion contains affidavits from five former and current Solid Waste Division employees who personally engaged in such conduct without discipline. Two of those five were older than Rupert at the time of the conduct. All five affirm that the practice of using City equipment to dispose of personal trash was common among Solid Waste Division employees, although the time frame during which that conduct was prevalent is unclear. Four of the five stopped working before Rupert's retirement. The fifth states that employees were warned about the conduct after Rupert's retirement and does not indicate whether the conduct continued after that warning.
On August 22, 2005, the Solid Waste Division held a safety meeting, the written agenda for which contained a list of "reminders," including one stating, "Do Not Import Trash." (Docket # 15-7, Ex. X). Rupert attended this meeting, but alleges that importation of trash was never discussed.
In early 2006, the Mayor of the City of Rochester created a new department, the Office of Professional Integrity, to investigate employee abuses of trust, such as personal work on City time and unauthorized use or theft of City property. Coincident with the formation of the new office, the Mayor also appointed Holahan as the new DES Commissioner in January 2006. At the time, supervisors were instructed to "vigilantly enforce" the City's Standards of Conduct and were warned to be "more diligent" in guarding against ...