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Barone v. S&N Auerbach Management, Inc.

United States District Court, E.D. New York

December 8, 2014

MICHAEL BARONE, Plaintiff,
v.
S&N AUERBACH MANAGEMENT, INC., Defendant

Michael Barone, Plaintiff, Pro se, Lake Grove, NY.

For S& N Auerbach Management, Inc., Defendant: Mark S. Mancher, Paul J. Siegel, LEAD ATTORNEY, Jackson Lewis, P.C., Melville, NY; Timothy James Domanick, Jackson Lewis P.C., Melville, NY.

OPINION & ORDER

SANDRA J. FEUERSTEIN, United States District Judge.

On December 12, 2012, plaintiff Michael Barone (" plaintiff") commenced this employment discrimination action against defendant S& N Auerbach Management, Inc. (" defendant"), alleging that defendant discriminated against him because of his age in violation of the Age Discrimination in Employment Act (" ADEA"), 29 U.S.C. § § 621, et seq., and the New York State Human Rights Law (" NYSHRL"), N.Y. Exec. Law § 290, et seq . Defendant now moves pursuant to Rule 12(c) of the Federal Rules of Civil Procedure for judgment on the pleadings. For the reasons stated herein, defendant's motion is granted.

I. Background

A. Factual Background[1]

Plaintiff is a sixty (60) year old man who was employed by defendant as a Superintendent from 1973 until 1982, and as a General Manager from 1982 until his employment was terminated on or about May 9, 2012. (Complaint [" Compl." ], ¶ ¶ 6, 11, 13). According to plaintiff, during the course of his employment he " maintained an excellent work record[, ]" (Compl., ¶ 12), and " never received any written or verbal warnings, was never given any negative feedback regarding his work performance, [and] was never given any unsatisfactory reviews." (Compl., ¶ 16).

Plaintiff alleges that " occasionally" during the course of his employment, with the permission and consent of defendant's owner, (Compl., 15 17, 18), he would hire defendant's employees to work on his own personal renovations, and that " he was never reprimanded for doing so[.]" (Compl., ¶ 18).[2]

In or about April 2012, plaintiff hired several of defendant's employees to complete renovations at the home of one of his relatives. (Compl., ¶ 19). According to plaintiff, he told those employees " to perform the work after work hours and on weekends[, ]" and defendant was aware of that project " and even allowed Plaintiff to order supplies through [it]." (Compl., ¶ ¶ 19, 20).

On or about May 7 and 8, 2012, two (2) of defendant's employees were unable to perform scheduled work for defendant in Suffolk County due to rain. (Compl., ¶ 21). Plaintiff asked those employees " to stop at his relative's home on their way back to the office since they were unable to complete their work task[, ]" and those employees " spent approximately two (2) hours cleaning at [his] relative's home" on each of those days. (Compl., ¶ 22).

On or about May 9, 2012, defendant terminated plaintiffs employment " for allegedly using company employees." (Compl., ¶ 23).[3] Plaintiff alleges that " [s]ubsequent to [his] termination, [defendant] hired a thirty (30) year old male to perform most, if not all of [his] job duties, at a substantially reduced salary." (Compl., ¶ 24; see also id., ¶ 30).[4]

B. Procedural History

On December 12, 2012, plaintiff, by counsel, filed a complaint against defendant alleging that defendant discriminated against him because of his age in violation of the ADEA (first cause of action) and the NYSHRL (second cause of action) and seeking, inter alia, an award of back pay; front pay; prejudgment interest; lost fringe ...


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