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Vormittag v. Unity Electric Co.

United States District Court, E.D. New York

August 28, 2014



RAYMOND J. DEARIE, District Judge.

In this employment discrimination and retaliation suit, plaintiff Michael Vormittag alleges that defendant Unity Electric Co., Inc. ("Unity") used a required reduction in force as a pretext to fire him because of his age and because his daughter filed a sex discrimination charge against the company. He asserts claims under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. ("Title VII"), the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq. ("ADEA"), New York State Human Rights Law, N.Y. Exec. Law § 290 et seq. ("NYSHRL"), and New York City Human Rights Law ("NYCHRL"). Unity moves for summary judgment. For the reasons below, the Court grants in part and denies in part Unity's motion.


Viewed in the light most favorable to the plaintiff, the record reveals the following facts, which are undisputed except as otherwise noted. In January 2010, Mr. Vormittag was fired from Unity as part of an announced large-scale reduction in force after working there for twenty-three years. He was sixty-two-years-old at the time. His daughter, also a former Unity employee, had earlier filed a sex discrimination charge against the company in November 2009. At issue is whether Unity used the need to furlough and lay off employees as a pretext for firing Mr. Vormittag, when it actually did so to discriminate against Mr. Vormittag because of his age and because his daughter had filed a charge of sex discrimination against the company.

Unity is in the business of commercial and industrial design and implementation, and Mr. Vormittag was employed there as an A-Rated Journeyperson electrician from November 20, 1987 until January 8, 2010. An A-Rated Journeyperson is a unionized position, subject to a collective bargaining agreement. As part of that agreement, A-Rated Journeypersons at Unity must go on furlough for a designated number of weeks each year if there is unemployment in the union ranks to ensure that all the electricians have work opportunities. Def.'s 56.1 Statement ¶¶ 7-8. Such furloughs were common, and Nicholas DeMaio, Unity's Superintendent, was responsible for coordinating the furlough schedules.

2009 was a difficult year for the construction industry. Id . ¶¶ 4-5, 9. Given the overall unemployment levels, the Joint Industry Board of the Electrical Industry, which consists of fifteen Union and fifteen Employer representatives, required Unity to furlough its A-Rated Journeypersons for fourteen weeks, with 20% to be furloughed for a four-week period starting on January 4, 2010. Id . ¶¶ 9-11. Unity was required to hire replacement electricians for all those furloughed and employ them for twenty-six consecutive weeks, or fire 25% of its workers at the beginning of 2010. Id . ¶ 30. In the first week of January 2010, Unity determined it could not retain all the required replacements for twenty-six weeks, so it was forced to lay off 25% of its electricians in early January. Id . ¶ 32.

Mr. DeMaio had the task of selecting the workers to place on furlough and then lay off; and he chose Mr. Vormittag as one such employee. Mr. DeMaio's reasoning in choosing Mr. Vormittag is at the center of this dispute, and the parties present two very different versions of how he came to be selected.

Unity highlights Mr. DeMaio's deposition testimony that he based his furlough and layoff decisions on minimizing the impact on the projects Unity had in progress at that time and retaining as many foremen and sub-foremen as possible because those are supervisory positions. Phillips Deel. Ex. B (DeMaio Dep. Tr.), at 119:3-120:3. It stresses that at the time of the furlough, Mr. Vormittag was not a foreman or sub-foreman, and he was working on a job at Goldman Sachs that was winding down. Moreover, most of the work that remained for the Goldman Sachs job was "data work, " and Mr. DeMaio believed that other A-Rated Journeypersons on the Goldman Sachs job were more proficient in this type of work than Mr. Vormittag. Def.'s 56.1 Statement ¶ 28.

Mr. Vormittag's version of events takes us back to November 2009, when his daughter Kerry Arciuolo filed a sex discrimination charge against Unity with the New York State Division of Human Rights after being fired from the company.[1]Mr. Vormittag alleges that days later Mr. DeMaio asked to speak with him in a private room, even though Unity's unwritten policy was that Mr. DeMaio would only speak with an A-Rated Journeyperson if a foreman was present. See id. ¶ 65; Phillips Deel. Ex. B, at 63: 11-19. Mr. Vormittag asserts that Mr. DeMaio asked him to get his daughter to drop the charge, but Mr. Vormittag replied that she was an adult and that he could not get her to do so. At his deposition, Mr. Vormittag testified that Mr. DeMaio then "looked down at the floor like he was in disgust with me" and that he told him Unity had never been sued before. Phillips Decl. Ex. A (Vormittag Dep. Tr.), at 47:10-14. Mr. Vormittag presents a more troubling version of events in his affidavit: he alleges that Mr. DeMaio told him that "times were tough and if the company had to hire a lawyer and/or pay a judgment people could lose their jobs. He further stated that people close to [Mr. Vormittag's] daughter could lose their jobs." Vormittag Aff. ¶ 24.

In addition, Mr. Vormittag calls into question Mr. DeMaio's purported reasoning in choosing to furlough and fire him in early January 2010. He notes that Mr. DeMaio initially testified at his deposition that "there was no rhyme or reason" he chose to fire Mr. Vormittag over somebody else and that he "just had to meet a number." Phillips Decl. Ex B., at 114:17-18. In contrast, Mr. DeMaio spoke about the need to maintain project progress and retain those in supervisory positions when questioned by Unity's attorney after a recess. See id. at 117:24-120:3.

Mr. Vormittag filed the instant action alleging age discrimination and retaliation. Unity argues that Mr. Vormittag was furloughed and fired due to the large-scale reduction in force; his age and his daughter's discrimination charge played no role in Mr. DeMaio's decision making.


Summary judgment is only appropriate if 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). The moving party "bears the burden of showing that he or she is entitled to summary judgment." Huminski v. Corsones, 396 F.3d 53, 69 (2d Cir. 2005). In determining whether the moving party has met this burden, the Court "is not to weigh the evidence but is instead required to view the evidence in the light most favorable to the party opposing summary judgment, to draw all reasonable inferences in favor of that party, and to eschew credibility assessments." Amnesty Am. v. Town of W. Hartford, 361 F.3d 113, 122 (2d Cir. 2004) (internal quotation marks omitted). If the moving party meets its burden, the non-moving party must tender evidence demonstrating a genuine issue for trial, Salahuddin v. Goord, 467 F.3d 263, 272-73 (2d Cir. 2006), and must offer more ...

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