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Hu v. UGL Services Unicco Operations Co.

United States District Court, S.D. New York

October 9, 2014

DAVID HU, Plaintiff,
v.
UGL SERVICES UNICCO OPERATIONS CO., Defendant.

OPINION AND ORDER

LORNA G. SCHOFIELD, District Judge.

Plaintiff David Hu brings this employment action against Defendant UGL Services Unicco Operations Co., alleging violations of the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq. ("ADEA"), the New York State Human Rights Law, Executive Law § 290 et seq. ("NYSHRL") and the New York City Administrative Code § 8-101 et seq. ("NYCHRL"). Defendant has moved for summary judgment on all claims ("Motion"). For the reasons stated below, Defendant's Motion is granted.

I. BACKGROUND

A. Timeline of Events

Plaintiff's claims in this action arise out of the termination of his employment with Defendant on September 4, 2012.

Plaintiff was born in China on October 25, 1953, and moved to the United States in 1984, where he enrolled in a two-year college program and took a number of courses in English. From approximately August 1, 2007, until his discharge on September 4, 2012, Plaintiff was employed by Defendant, a provider of facilities management services, as a heating, ventilation and air conditioning ("HVAC") engineer at the College of Mount Saint Vincent. Until March 2012, Plaintiff reported to Robert Dice. From March 2012 through the end of his employment with Defendant, Plaintiff reported to Darin Altilio. Both Dice and Altilio reported to Timothy Drury, an account manager responsible for servicing the College.

During his employment with Defendant, Plaintiff received a series of warnings from both of his supervisors about his work performance. The warnings were documented in the form of "Progressive Discipline Notices." In total, Plaintiff received five warnings from Dice, as follows. On February 10, 2011, Plaintiff received a verbal warning regarding his failure to follow verbal directions and safety procedures. On February 25, 2011, Plaintiff received a written warning regarding his improper operation of a vehicle and failure to report an accident. On May 3, 2011, Plaintiff received a verbal warning for failure to report an injury in a timely manner. On January 5, 2012, Plaintiff received a verbal warning for "jumping out" a flow switch in one of the College's boilers without removing the jumper. On March 3, 2012, Plaintiff received a verbal warning for pulling a motor off the back of a van and creating unsafe conditions. Plaintiff does not dispute that he received these warnings from Dice, but contends that they did not relate to Plaintiff's abilities as an engineer.

Plaintiff similarly received from Altilio numerous warnings and a suspension, but denies having committed some of the infractions for which the warnings were given. On May 16, 2012, Plaintiff received a verbal warning for tardiness to safety meetings. On May 30, 2012, Plaintiff received a written warning for misreporting that repairs were made and equipment was operational. On June 13, 2012, Plaintiff received a written warning for "jumping out" a Maryvale chiller. Plaintiff denies having jumped out the chiller. On June 13, 2012, Plaintiff was suspended for two days for failing to follow Altilio's request to install an air conditioning unit and leaving a live outlet uncovered. Plaintiff does not dispute leaving the outlet uncovered but states that he left it uncovered briefly because he could not understand instructions he received over the radio and went to the office to request clarification.

On July 6, 2012, Plaintiff received a "final" written warning for failing to follow Altilio's instructions to report back before replacing a fuse. Altilio testified at his deposition that Plaintiff used an incorrectly sized fuse, causing damage to the unit and requiring Altilio to call an outside vendor to repair it. Plaintiff concedes that he used the wrong fuse, but asserts that he did so because it was an emergency. Plaintiff also contests Altilio's allegation that the unit was damaged because of the repair. Plaintiff unsuccessfully challenged the July 6 warning through his union. At the grievance meeting, Plaintiff was asked if he wished to have an interpreter present, and declined the offer.

In addition to the above warnings, Defendant adduces evidence of two further performance-related issues, both disputed by Plaintiff. First, in August 2012, according to attendance records kept by Defendant, Plaintiff was late for ten out of eighteen safety meetings. Plaintiff disputes the accuracy of the attendance records. At his deposition, Plaintiff stated that he was late to safety meetings between one and three times. Second, during the summer of 2012, Plaintiff failed on three occasions to fill out and submit to his supervisor "A/C log sheets, " recording that each air-conditioning unit had been checked for the day and was functional. Plaintiff denies this allegation.

On September 4, 2012, Plaintiff was discharged. At the time of his discharge, Plaintiff was compensated at a rate of $33.50 per hour. The decision to terminate Plaintiff's employment was made by William Macco, Defendant's Director of Labor Relations, in consultation with Drury and Altilio. Plaintiff was notified that he was being laid off by a letter dated September 4, 2012, which stated that Plaintiff's discharge was due to tardiness, failure to submit daily work assignment forms, poor work performance, failure to follow supervisors' directives, and safety violations. Around the same time, another individual of similar age, Carlos Bautista, was also laid off.

On or around September 20, 2012, Plaintiff grieved his discharge without success. On March 14, 2013, Plaintiff's union arbitrated his discharge. Plaintiff was represented by counsel at the arbitration but expressly declined the use of an interpreter. On March 25, 2013, a sole arbitrator issued an award, finding that Defendant had just cause to terminate Plaintiff.

After Plaintiff and Bautista were discharged, they were replaced by two HVAC technicians, Michael Yang and Laurence Capelli. Yang was hired one day after Plaintiff was laid off. Yang is now 42 years old and was hired at a rate of $15 per hour. Capelli was hired approximately seven months after Plaintiff's discharge. Capelli is now 58 years old and was hired at a rate of $29 per hour.

B. Plaintiffs Deposition

At his deposition, Plaintiff testified that he believed he was being set up and that Drury and Altilio did not like him. When asked if either individual had ever made comments about his age, Plaintiff replied that they had not. When asked whether any other employees working for Defendant had made comments about his age, Plaintiff did not provide a responsive answer.

When asked why he was discharged, Plaintiff responded "[t]hey fired me because they first discriminated against me." After being asked for clarification, Plaintiff stated "[w]ell, maybe they just don't like me. They discriminated against me." When asked who discriminated against him, Plaintiff testified "[w]ell, simple logic is that whoever dismissed me is the one who discriminated ...


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