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Anthony Antunes v. Putnam/Northern Westchester Board of

May 19, 2011


The opinion of the court was delivered by: Seibel, J.


Before the Court is Defendants' Motion for Summary Judgment. (Doc. 16.)


The following facts are undisputed except where noted. Plaintiff Anthony Antunes was born March 27, 1927. (Pl.'s 56.1 ¶ 48; Defs.' Resp. 56.1 ¶ 48.)*fn1 In August 1997, at the age of 70, he started working for Defendant Putnam/Northern Westchester Board of Cooperative Education Services ("BOCES") as a part-time courier, or van-driver. (Pl.'s 56.1 ¶ 48; Defs.' Resp. 56.1 ¶ 48; Pl.'s Dep. at 48, 123.)*fn2 At various times after 1997, Plaintiff applied for and was denied a full-time position as a custodial worker at BOCES. (Pl.'s 56.1 ¶¶ 69, 71, 73, 75-- 78, 82.) Plaintiff identifies eight instances on which there were vacancy notices posted for the custodial worker position and he applied: (1) in or about 1999 or 2000, (2) once again later in 2000, (3) on May 12, 2003, (4) on or about August 8, 2003, when there were two vacancies, (5) on August 9, 2005, (6) on September 7, 2005, (7) on October 4, 2006, and (8) on July 3, 2007. (Id. ¶¶ 69, 71, 73, 75, 77, 78, 81.)*fn3

BOCES employs full-time custodial workers in its Operations & Maintenance Department, and assigns them to day or evening shifts, as well as to specific locations in BOCES buildings, and charges them with building cleaning, maintenance, and repair duties. (Defs.' 56.1 ¶¶ 8, 10; Pl.'s 56.1 ¶¶ 8, 10.)*fn4 The job description for the custodial worker position lists the following as "required knowledge, skills, abilities and attributes":

Working knowledge of building cleaning practices, supplies and equipment and the ability to use them economically and efficiently; familiarity with the operation and maintenance of heating systems; ability to make minor plumbing, electrical, carpentry, and mechanical repairs and perform a variety of routine maintenance tasks; ability to understand and carry out simple oral and written directions; willingness to perform custodial and other manual tasks; thoroughness; dependability; physical condition commensurate with the duties of the position. (Micolo Aff. Ex. A.)*fn5 The job description also notes that there is no "minimum acceptable training and experience" for the position. (Id.)

Plaintiff had held various other jobs prior to his employment with BOCES that, he maintains, qualified him for the position of custodial worker. Before 1944, he worked in a slaughterhouse, where his responsibilities included cleaning walls and horse stables. (Pl.'s 56.1 ¶ 50.) From 1944 to 1946, he served in the U.S. Navy, during which time he was required to clean both personal and shared living spaces. (Id. ¶ 52.) From 1951 to 1991, he was employed in various capacities for New York Seven-Up/Joyce Beverages, including as Operations Manager, Division Sales Manager, Sales & Operations Manager, Sales Manager, and Distributor in various parts of the New York metropolitan area, and from 1991 to 1996, he worked as a Fleet Operations Manager for The Coca Cola Bottling Company of New York, Inc. (Defs.' 56.1 ¶ 6; Pl.'s 56.1 ¶ 6.) Plaintiff's responsibilities at various times while working for those two companies included performing and/or directing the cleaning of various product displays, warehouses, and delivery trucks. (Pl.'s 56.1 ¶¶ 55--57.)*fn6

Plaintiff was never promoted to custodial worker. Instead, over the period during which he applied for the promotion, every custodial worker vacancy was filled with a part-time cleaner who was already employed by BOCES. (Defs.' 56.1 ¶ 21; Pl.'s 56.1 ¶ 21.) Those part-time cleaners selected over Plaintiff include the following:

Year Selected as Name Age Prior Experience as Custodial Worker when Selected Part-Time Cleaner 2001 Edward Walsh 51 5 years 2003 Jason Wolfe 24 7 years 2003 Philip Nouvion 25 5 years 2005 Charles Costin 23 1 year, 10 months 2006 Guillermo Berrueco 43 2 years, 9 months 2007 Nicolas Zamora 27 2 years, 5 months (Defs.' 56.1 ¶ 28; Pl.'s 56.1 ¶ 28; Micolo Aff. ¶¶ 11, 14--16, 19; Micolo Supp. Aff. ¶¶ 2--3.) *fn7

Plaintiff has adduced evidence of various statements that were made to him by BOCES personnel over that same period. For example, when Plaintiff first interviewed for the custodial worker position in 1999 or 2000, then-Director of Facilities and head of BOCES's Operations & Maintenance Department, Bernard Collins, explained to Plaintiff that BOCES was seeking a custodian who would remain in the position for four to five years. (Pl.'s 56.1 ¶ 69.) Sheila Campbell, secretary to Collins's successor, Defendant Vincent Garnot, (Garnot Aff. ¶ 1),*fn8 told Plaintiff several times that he was old enough to be her father, (Pl.'s 56.1 ¶ 63). Darwin Delacruz, a senior custodial worker at BOCES, asked Plaintiff several times how old he was, what he had for breakfast and lunch, and why he was still working. (Id. ¶¶ 64, 79--80.) In March 2002, Plaintiff applied for and accepted a part-time position as a library clerk in the BOCES Copy Center, a position outside the Operations & Maintenance Department, and, upon discovering this, Garnot met with Plaintiff and told him that "you work for me and me alone," prompting Plaintiff to withdraw from this other position. (Id. ¶ 61.)*fn9

The specific employment action that serves as the basis for Plaintiff's claim is Defendants' failure to promote Plaintiff to the evening-shift custodial worker position in July 2007. (Pl.'s 56.1 ¶ 81; Defs.' Resp. 56.1 ¶ 81; see Pl.'s Mem. at 4 (referring to the July 3, 2007 vacancy as "[t]he [f]ailure to [h]ire [w]hich is at [i]ssue").)*fn10 On July 10, 2007, Plaintiff wrote a letter to Garnot attaching the July 3, 2007 vacancy notice*fn11 for the custodial worker position and requesting that Garnot, "Please accept this memo as my application for the attached position posted. Resume on file!" (Garnot Aff. Ex. B.) Garnot wrote Plaintiff on July 18, 2007 confirming receipt of the July 10, 2007 letter and stating that "[u]pon review, it was determined that you do not have the custodial experience that is required for this particular position." (Id. Ex. D.) Plaintiff was not interviewed for the position thereafter. (Pl.'s 56.1 ¶ 82; Defs.' Resp. 56.1 ¶ 82.)

The promotion was instead given to part-time cleaner Nicolas Zamora, (Defs.' 56.1 ¶ 28; Pl.'s 56.1 ¶ 28), who, as indicated above, was 27 years old when he was hired and had worked as part-time cleaner for BOCES for the preceding two years and five months in the same building to which he would be assigned as custodial worker, (Defs.' 56.1 ¶¶ 34, 45). As part-time cleaner, Zamora's duties included cleaning, mopping, and taking out the garbage in the BOCES building to which he was assigned. (Pl.'s 56.1 ¶ 90; Defs.' Resp. 56.1 ¶ 90.)*fn12 In addition to serving as part-time cleaner, Zamora also served for a period of time as interim evening-shift custodial worker, after the full-time evening-shift custodial worker had been transferred to the day shift. (Defs.' 56.1 ¶ 46.) During the selection process for the custodial worker position, Zamora produced two very positive references, one from a custodial worker who supervised his work as part-time cleaner, and one from a non-custodial staff member at BOCES with whom he had interacted. (Id. ¶ 44.) He also earned high interview marks from Garnot and the two then-senior custodial workers (including Darwin Delacruz), whom Garnot involved in all interviews for non-senior custodial worker positions. (Id.)*fn13

Plaintiff filed a charge of discrimination with the U.S. Equal Employment Opportunity Commission ("EEOC") on October 19, 2007, alleging that Defendants discriminated against him on the basis of his age by failing to promote him to the full-time custodial worker position. (Pl.'s 56.1 ¶ 93; Defs.' Resp. 56.1 ¶ 93; see Pl.'s Aff. Ex. 18.) Meanwhile, Zamora resigned from his custodial worker position effective September 26, 2008, after having been told by BOCES that he would be terminated for poor work performance. (Micolo Aff. ¶ 22, Ex. K.)

Plaintiff filed the Complaint in the instant case on March 30, 2009, asserting a claim against BOCES for age discrimination under the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et seq., as well as a claim against both Defendants for age discrimination under the New York State Human Rights Law ("NYSHRL"), N.Y. Exec. Law § 296 et seq. (Doc. 1.) On July 2, 2010, Defendants moved for summary judgment. (Doc. 16.)

Plaintiff later withdrew his NYSHRL claim, (Pl.'s Mem. at 1 n.1), and it is therefore dismissed with prejudice.*fn14


A.Summary Judgment Standard

Summary judgment is appropriate when "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). "[T]he dispute about a material fact is 'genuine' . . . if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A fact is "material" if it "might affect the outcome of the suit under the governing law . . . . Factual disputes that are irrelevant or unnecessary will not be counted." Id. On a motion for summary judgment, "[t]he evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor." Id. at 255. The movant bears the initial burden of demonstrating the absence of a genuine issue of material fact, and, if satisfied, the burden then shifts to the non-movant to present evidence sufficient to satisfy every element of the claim. Holcomb v. Iona Coll., 521 F.3d 130, 137 (2d Cir. 2008) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323--24 (1986)). "The mere existence of a scintilla of evidence in support of the [non-movant's] position will be insufficient; there must be evidence on which the jury could reasonably find for the [non-movant]." Anderson, 477 U.S. at 252. Moreover, the non-movant "must do more ...

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