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Fadia v. New Horizon Hospitality

May 19, 2010

DEEPAK C. FADIA, PLAINTIFF,
v.
NEW HORIZON HOSPITALITY, DEFENDANT.



The opinion of the court was delivered by: Charles J. Siragusa United States District Judge

DECISION AND ORDER

INTRODUCTION

This is an action in which Deepak C. Fadia ("Plaintiff"), proceeding pro se, alleges that his former employer, New Horizon Hospitality ("Defendant"), discriminated against him in violation of the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et seq., by terminating his employment. Now before the Court is Defendant's motion [#42] for summary judgment. For the reasons that follow, Defendant's application is granted and this action is dismissed.

BACKGROUND

Unless otherwise noted, the following are the facts of this case, viewed in the light most favorable to Plaintiff. At all relevant times Defendant operated the Crowne Plaza Hotel in the City of Rochester, New York. On or about July 17, 2006, Defendant hired Plaintiff as a hotel security guard.*fn1 Plaintiff was sixty-two years of age at the time he was hired. Defendant maintains that during the period of Plaintiff's employment, it issued him several disciplinary warnings. More specifically, Defendant contends that: On one occasion, Defendant counseled Plaintiff after a guest's camera, which had been entrusted to Plaintiff to return to the guest, disappeared;*fn2 on another occasion, Defendant counseled Plaintiff after he failed to appear for an evening shift; on other occasions, Defendant counseled Plaintiff for matters such as failing to inventory keys, failing to lock doors, and failing to deliver laundry to hotel guests. On September 16, 2007, Plaintiff's supervisor, Ray Bassett ("Bassett"), and another employee, Thomas Keilman ("Keilman"), indicated that they found Plaintiff "sleeping on the job at the front desk of the hotel, with the hotel's front door unlocked and ajar." (Def. Stmt. of Facts ¶ 21). On September 19, 2007, Defendant terminated Plaintiff's employment.

On or about October 1, 2007, Plaintiff filed a discrimination complaint with the Equal Employment Opportunity Commission ("EEOC"), alleging that Defendant discriminated against him because of his age. In support of the complaint, Plaintiff stated that he was forced to work "seven day a week continue up to three-week couple of times." [sic] Plaintiff stated that he eventually began working part-time. Plaintiff further stated that Bassett was his supervisor, and that on September 22, 2007, Bassett asked him to sign a disciplinary "write up." Plaintiff indicated that he refused to sign the "write-up," and Bassett told him that he was "not serious about work. I am too old for work. I have to leave. Currently I am sixty four year old. I need your help to solve this problem." On or about March 17, 2008, the EEOC dismissed the complaint, finding that "[t]he evidence in this case does not support a conclusion that the complainant was discriminated against on the basis of his age." Instead, the EEOC stated, in pertinent part: "The fact that the complainant was hired at the age of 62 indicates that the respondent would not have a propensity to terminate the complainant [two] years later strictly because of his age. The evidence indicates that after verbal and written counseling the complainant failed to improve his performance and as a result his employment was terminated."

On June 23, 2008, Plaintiff commenced this action. In April 2009, Defendant served Plaintiff with a demand for interrogatories [#28]. The demand included the following interrogatories:

Interrogatory No. 2

With respect to Plaintiff's allegations of harassment and/or age discrimination set forth in the Complaint for this action, please set forth with specificity for each incident ("Incident") claimed where Plaintiff suffered harassment and/or age discrimination:

A. The date of the occurrence of each Incident,

B. Each person who was present during the Incident'

C. The location of each Incident,

D. The substance of any alleged comments made during each incident,

E. The date, if any, that you complained of or reported the Incident . . . . ***

Interrogatory No. 4

Please set forth the factual basis for your allegations that Defendant perpetrated age discrimination and/or harassment against the Plaintiff. (Defendants First Set of Interrogatories to Plaintiff [#28]). Plaintiff did not respond to the interrogatories.

On May 15, 2009, Defendant deposed Plaintiff. (Stiller Affirmation, Exhibit E). Since Plaintiff had not responded to Defendant's interrogatories, Defendant orally asked Plaintiff the interrogatory questions during the deposition. Plaintiff testified that during his employment Vince McIntyre ("McIntyre") was the head of hotel security. (Pl. Dep. at 17). Plaintiff initially testified that he never received any disciplinary warnings during his employment. (Id. at 24). However, he later stated that on three or four occasion in 2006 and 2007, McIntyre and/or Bassett wrote "comments" about his work performance, and asked him to sign them, but he refused. (Id. at 38-41). Plaintiff generally denied having any memory of any of the incidents for which he was reprimanded. (See, e.g., Id. at 77-79).*fn3 Plaintiff stated that on one occasion, when he complained that some ...


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