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Alisa Hecht, 10 Inclusive v. Nextel of New York

June 27, 2012


The opinion of the court was delivered by: Paul A. Engelmayer, District Judge:


Defendant Nextel of New York ("Nextel")*fn1 moves for summary judgment against the Complaint of pro se plaintiff Alisa Hecht ("Hecht"). Hecht alleges: (1) age discrimination, in violation of the Age Discrimination in Employment Act of 1967, 29 U.S.C. § 621 et seq. ("ADEA"); (2) breach of contract; and (3) wrongful termination. For the following reasons, the motion is granted and judgment will be entered in Nextel's favor.

I.Undisputed Facts and Procedural History

The parties agree on the underlying facts in this case, as Hecht did not rebut any of the undisputed facts set out in Nextel's Rule 56.1 statement ("56.1"), and such a failure to respond to an adversary's Rule 56.1 statement constitutes admission of all facts claimed therein. See Amnesty Int'l USA v. Clapper, 638 F.3d 118, 129 n.13 (2d Cir. 2011) (citing Gubitosi v. Kapica, 154 F.3d 30, 31 n.1 (2d Cir. 1998)); see also S.D.N.Y. Local Rule 56.1(c) ("Each numbered paragraph in the statement of material facts set forth in the statement required to be served by the moving party will be deemed to be admitted for purposes of the motion unless specifically controverted by a correspondingly numbered paragraph in the statement required to be served by the opposing party.").

A.Hecht's Employment with Nextel

Nextel is a wireless company that owns and operates systems to provide wireless communications services to customers. 56.1 ¶ 1. On September 30, 2002, Hecht, then age 41, started working for Nextel as a Retention Representative at its Elmsford, New York call center.

56.1 ¶ 4. In 2003, she moved to the Port-Out Prevention ("POP") team, where her job title was Retention Representative/Customer Case Account Services Specialist; she remained at this position until June 11, 2009, when Nextel terminated her employment. 56.1 ¶¶ 5--6 . Between 2006 and Hecht's termination in 2009, Barbara Santoro was the Account Services Manager in charge of the POP team; all of the approximately 50 members of the POP team reported to her, either directly or indirectly via team supervisors. 56.1 ¶¶ 8, 10--11.

During her employment at Nextel, Hecht received multiple warnings about behavior that the company considered unprofessional. 56.1 ¶ 30. On August 29, 2003, she received a written warning for using derogatory language toward another employee. 56.1 ¶ 31. On April 24, 2006, she received another written warning for "argumentative and unprofessional behavior" in her email communications with a co-worker; that same day, she "stormed out of" a meeting regarding her history of unprofessional behavior. 56.1 ¶¶ 32--33. On May 2, 2006, Hecht received a written warning for insubordination, in connection with her outburst at the April 24 disciplinary meeting. 56.1 ¶ 34. And, on June 8, 2008, Hecht received another written warning, this one regarding offensive comments she reportedly made to a co-worker. 56.1 ¶ 37. Hecht's supervisor warned her on at least one occasion that future unprofessional behavior would result in disciplinary measures, up to and including termination. 56.1 ¶ 38.

On June 11, 2009, the date on which Nextel terminated Hecht's employment, there were 53 employees on the POP team. 56.1 ¶ 56. Ten were older than age 40, and 19 had worked for Nextel for longer than Hecht had. 56.1 ¶ 56.

B.Nextel's Personnel Policies

When Hecht began working for Nextel, she received a copy of the company's employee guide (the "Guide"), which she read and signed. 56.1 ¶ 14. The Guide contained a disclaimer section, which provided, inter alia:

Sprint policies, guidelines, practices, handbooks, manuals, programs, plans, video presentations and any other communications are not intended to and do not create a term of employment or employment contract, express or implied, between the employees and Sprint and do not limit or restrict Sprint with respect to the creation or termination of relationships with its employees.

56.1 ¶ 15. The Guide also stated that "[e]mployment at Sprint is 'at will' and for no definite period of time," and that "Sprint or its employees may terminate employment or alter terms of employment at any time, with or without advance notice and for any reason or no reason." 56.1

¶ 16. The Guide further noted that, unless an employee has entered into a signed written employment agreement with the company's chief executive officer or the chief operating officer, that employee is at will. 56.1 ¶ 17. Consistent with the statements in the Guide, Nextel has a long-standing policy that its retention representatives (the job position that Hecht occupied while at Nextel) are at-will employees. 56.1 ¶ 73.

The Guide also set out Nextel's equal employment opportunity statement. As relevant here, it stated that the company does not discriminate on the basis of age. 56.1 ΒΆ 18. Nextel's code of conduct (the "Code"), which is available on the company's internal employee website and which Hecht received and was familiar with, stated that Nextel handles its employment practices in a ...

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