The opinion of the court was delivered by: William M. Skretny Chief Judge United States District Judge
Plaintiff Richard J. Randall commenced this action in December 2008 asserting claims for employment discrimination based on age in violation of the Age Discrimination in Employment Act (the "ADEA"), 29 U.S.C. §§ 621 et seq., and New York State Human Rights Law, N.Y. Executive Law §§ 290 et seq. Pending before this Court is Defendant Kaleida Health's Motion for Summary Judgment. For the reasons discussed below, this Court finds the matter fully briefed and oral argument unnecessary, and concludes that Defendant's motion should be granted.
Plaintiff was employed by Defendant from October 1998 until February 2, 2007. (Deposition of Plaintiff Richard J. Randall, Docket Nos. 21-3 and 29-2, at 26; Declaration of Denise Martin, Docket No. 17 ¶ 8). During that time, he worked as an employee relations specialist and then as a recruiter (Pl's Dep. at 32), and at all times was an at-will employee with no written contract (Id. at 139). On two separate occasions Plaintiff also served as the interim director of corporate employment for Defendant, the first occasion being for approximately five months in the beginning of 2001. (Pl's Dep. at 32-33). Plaintiff was asked at that time if he had any interest in staying on as director, but Plaintiff did not "think the function of corporate human resources was funded properly," such that no incoming director could be effective, and therefore he did not want to take the job. (Pl's Dep. at 34, 36). After his second term as interim director in the beginning of 2003, Plaintiff still had no interest in keeping the position permanently because "nothing really had changed." (Pl's Dep. at 32-33, 37-38). Plaintiff returned to his full-time recruitment position. (Pl's Dep. at 38-39).
In the summer of 2004, Plaintiff went from full time to part time employment. (Pl's Dep. at 51-52). According to Plaintiff, he volunteered to reduce his hours to help the department in light of Defendant's financial problems at the time. (Pl's Dep. at 51-52). This reduction in time would also allow Plaintiff to spend time that summer assisting his recently divorced daughter with childcare. (Pl's Dep. at 51-52, 54, 69). When Plaintiff made this arrangement with Brenda Basher, the then-director of corporate employment, "[t]he understanding was it would be a temporary move and [Plaintiff] would go back at some point to full time," although this agreement was never reduced to writing. (Pl's Dep. at 52). Plaintiff continued to work part time until his termination in February 2007. (Pl's Dep. at 93). When he became eligible in 2006, at age 62, Plaintiff also started to receive Social Security benefits at a reduced rate. (Complaint, Docket No. 1, ¶ 4; Pl's Dep. at 57-58).
Plaintiff requested at some point that he be given the title of Senior Recruiter, which he explains was not a substantively different position but would have provided recognition and a slight pay increase. (Pl's Dep. at 50-51, 67). Basher responded that "she would have to think about it because she didn't know whether a part-timer could be a senior recruiter." (Pl's Dep. at 50-51, 67-68). Plaintiff did not request full time employment again in light of Basher's response because "[t]here was no question of that happening. It was already decided there wasn't enough money." (Pl's Dep. at 67-68). "[T]here was some turnover of recruiters" while he was working part time, and Plaintiff would have known if there was a full time recruiter position open for which he could have applied. (Pl's Dep. at 93). Plaintiff did not recall if he expressed an interest in returning to full time work when a replacement for a full time recruiter became necessary, and Nicole Peracciny was brought in to fill the position (Pl's Dep. at 70-71; see Docket No. 21-5 at 27).
Valerie DeBerry was hired by Defendant in June 2006 as director of diversity, a position created by then-senior vice president of human resources David Whipple. (Deposition of Valerie DeBerry, Docket No. 21-4, at 23-24, 26; Deposition of David Whipple, Docket No. 21-4, at 24-25). In August 2006, DeBerry also took on the additional role of director of corporate employment. (DeBerry Dep. at 23-24, 26, 35). The duties of this newly combined position included supervision of nurse recruiting, which DeBerry had not anticipated, and DeBerry determined that restructuring might prove more effective due to the expected increased workload. (DeBerry Dep. at 32-33). She therefore recommended to Whipple that two part-time recruiting positions be eliminated to create a full-time manager position while remaining as cost neutral as possible. (DeBerry Dep. at 33-34, 38). Whipple approved the decision (Whipple Dep. at 43), and DeBerry eliminated Plaintiff's part-time position as well as another recently-vacated part time recruiter position. (DeBerry Dep. at 34). DeBerry testified at her deposition that, to her knowledge, there were no "other part-time recruiters in the department at that time." (DeBerry Dep. at 38, 45-46).
Plaintiff was informed on February 2, 2007, that his position was being eliminated in order to reallocate those funds to the new position of recruiting manager. (Pl's Dep. at 122; Affidavit of Plaintiff Richard J. Randall, Docket No. 29, ¶ 53). Plaintiff had "never heard the title of recruiting manager, so I said, gee, I wish I would have known about that because I would have applied. And [DeBerry] really didn't answer. She looked down and didn't say anything like I didn't say it." (Pl's Dep. at 123-124). DeBerry apologized for the timing of the termination, right before Plaintiff's vacation, but said "she had to do it then because [Plaintiff] had to be gone before the posting could go up." (Pl's Dep. at 123). Plaintiff could "only surmise she didn't want me applying for it." (Pl's Dep. at 123). Plaintiff was 62 at the time of termination. (Complaint at 4; Docket No. 29-4 at 55). An offer for the position of recruiting manager was subsequently made to Reggie Clark on March 19, 2007, and Clark began work in April of that year. (DeBerry Dep. at 49; Deposition of Reggie Clark, Docket Nos. 21-4 and 29-4, at 12).
Plaintiff filed a Charge of Discrimination with the Equal Employment Opportunity Commission ("EEOC") in May 2007 alleging that he was discriminated against due to his age. (Docket No. 29-4 at 55). He specified therein that at the time of his termination:
There were two other part-time employees who were not similarly laid off.
I was the oldest and most experienced Recruiter in the department. I had nothing but good evaluations and I twice served as the Director of Employment on an interim basis. Since the new Director of Human Resources started in January 2006, [Defendant] has demonstrated a pattern of getting rid of older employees in the department. (Docket No. 29-4 at 55). Defendant denied the allegation of discrimination (Docket No. 29-3 at 13-20). The EEOC determined that Plaintiff had been discharged and denied consideration for the recruiting manager position based on his age in violation of the ADEA. (Docket No. 29-4 at 58-59). In reaching this determination, the EEOC relied on Plaintiff's "testimony that he was never informed of the new position until after he was terminated, and he absolutely would have taken a full-time position if it meant keeping his job, but [Defendant] never gave him the opportunity to even be considered for the job." (Docket No. 29-4 at 58). Although Defendant disagreed with the determination, and continued to assert that no discrimination occurred, Defendant made an "unconditional offer of employment" to Plaintiff of a position substantially equivalent to the one from which he was terminated "without prejudice to [Plaintiff's] right to continue to pursue his claim of discrimination." (Docket No. 21-2 at 2-3 [July 23, 3008 letter from Defendant's counsel to the EEOC]). This offer was not accepted by Plaintiff, who avers in the present litigation that he never received this letter and it was never conveyed to him by the EEOC that the offer was unconditional. (Pl's Aff. ¶ 75). A Notice of Right to Sue was mailed to Plaintiff from the EEOC on September 17, 2008. (Docket No. 29-4 at 64).
Plaintiff commenced the instant action on December 17, 2008, alleging five causes of action: (1) wrongful discrimination on the basis of age and creation of a hostile work environment in violation of the ADEA; (2) intentional age discrimination and the creation of a hostile work environment in violation of New York State Human Rights Law; (3) intentional interference with prospective economic advantage; (4) breach of the covenant of good faith and fair dealing with respect to Plaintiff's "employment contract;" and (5)*fn1 seeking injunctive relief enjoining Defendant from engaging in "illegal acts" to "harm Plaintiff, destroy his professional and personal reputation and damage Plaintiff ...