The opinion of the court was delivered by: John T. Curtin United States District Judge
In this action, plaintiff Patrick M. Kazukiewicz claims that defendant Kaleida Health terminated his employment at the Buffalo General Hospital on account of his age, in violation of the Age Discrimination in Employment Act of 1967 ("ADEA"), 29 U.S.C. § 621, et seq. Defendant moves for summary judgment dismissing the action.
For the reasons that follow, defendant's motion is granted.
Kaleida Health is a not-for-profit healthcare provider with several hospitals and healthcare facilities throughout Western New York, including Buffalo General Hospital (Item 23-13, Roche Decl., ¶ 6). Plaintiff was hired by Kaleida in December 2006 to work as a drywall taper on a renovation project at Buffalo General Hospital's Cardiac Catheterization Lab (referred to in the parties' submissions as the "Cath Lab"). He was 55 years old at the time.
The Cath Lab project at Buffalo General Hospital began in the fall of 2006, and was conducted in phases to accommodate ongoing patient care activities (id. at ¶¶ 13-14).
Work on the Cath Lab was covered by a Memorandum of Understanding ("MOU") between Kaleida and the Buffalo Building & Construction Trades Council ("Trades Council"), which requires Kaleida to hire union labor referred through the Trades Council's member unions for certain construction and renovation projects at Kaleida facilities (see Item 23-13,¶ 8; Item 23-14, Stevens Decl., ¶ 5). One of the Trades Council's member unions is the International Union of Painters and Allied Trades of America and Canada, District Council #4 (the "Painters' Union"). Plaintiff was a member of the Painters' Union at the time he was hired by Kaleida.
Peter Murphy is Kaleida's Director of Facilities, a position he has held since 2005 (Item 23-12, Murphy Decl., ¶ 1). His responsibilities include oversight of internal construction and renovation projects for Kaleida facilities, including Buffalo General Hospital. According to Mr. Murphy, tradesmen hired for projects covered by the MOU are employed on an "as needed" basis, and are ordinarily laid off as work winds down and the project comes to a close (see id. at ¶ 21). Kaleida does not post these positions but rather, in accordance with the MOU, Mr. Murphy solicits job applications for these positions from the Trades Council's member unions. The applications are kept on file by Suzanne Roche, Kaleida's Corporate Employment Supervisor, until positions become available (see id. at ¶¶ 16-17; see also Item 23-13, ¶¶ 13-14).
Plaintiff submitted a Kaleida Health job application to the Painters' Union in October 2006 (Item 23-11), and it was forwarded to Ms. Roche by the union's Regional Business Representative, Mark Stevens (Item 23-13, ¶ 24). In November 2006, Mr. Murphy advised Ms. Roche that a taper was needed for the Cath Lab project. Ms. Roche identified plaintiff as the next available taper, and processed his application (id. at 25).
Plaintiff began working for Kaleida on December 11, 2006. He was part of a crew of approximately 16 other painters and tapers also working on the Cath Lab project. At the time of his hire, Mark Boody was the painting foreman, and in early Spring 2007, Mr. Boody was replaced by Peter Sheehan (Item 23-12, ¶ 24).
In approximately mid-March 2007, Mr. Murphy met with the construction superintendent for the Cath Lab project to review the budget and status of the work. He then met with the individual craft union foremen to inform them that the work force needed to be reduced because the current phase of the project was coming to a close, and was over budget. He also informed Mr. Stevens that at least one taper or painter would be laid off (see id. at 25-27). On March 23, 2007, approximately three-and-a-half months after he was hired, plaintiff was informed by his foreman, Mr. Sheehan, that his employment was being terminated (id. at ¶ 28).
On April 26, 2007, plaintiff filed a verified complaint of discrimination with the New York State Division of Human Rights ("NYSDHR") alleging that Kaleida discharged him because of his age and replaced him with two younger workers, in violation of the ADEA (Item 23-3). On December 19, 2007, NYSDHR issued a Determination and Order dismissing the complaint, stating as follows:
After Investigation, and following opportunity for review of related information and evidence by the named parties, the Division has determined that there is NO PROBABLE CAUSE to believe that [Kaleida] has engaged in . . . the unlawful discriminatory practice complained of.
The record does not support [plaintiff]'s allegation that he was terminated because of his age. The evidence . . . shows that, while [plaintiff] states he was replaced by two younger employees, one of the employees is actually older than [plaintiff]. The record shows that ...