United States District Court, S.D. New York
DOUGLAS C. DUNAWAY, Plaintiff,
MPCC CORP. and JOSEPH URBINATI, JR., individually, Defendants.
OPINION & ORDER
NELSON S. ROMAN, District Judge.
Plaintiff asserts failure-to-hire and retaliation claims under the Age Discrimination in Employment Act of 1967 ("ADEA"). Before the Court are Defendants' motion for summary judgment and Plaintiffs cross-motion for summary judgment. For the following reasons, Defendants' motion is GRANTED and Plaintiffs motion is DENIED.
Plaintiff asserts age discrimination and retaliation claims in connection with his application for a position as a Senior Project Manager at Defendant MPCC Corp. ("MPCC"), a general contractor based in New Rochelle, New York. MPCC placed advertisements for the Senior Project Manager position in the New York Times, Monster.com, and Craigslist.com that ran from as early as May 8, 2011 through at least November 15, 2011. (Pl.'s 56.1 ¶¶ 7-8, ECF No. 55; Reiter Decl. Ex. B at 169:12-21, ECF No. 38-2.) Defendant Joseph Urbinati, Jr., President of MPCC, conducted all applicant interviews and made all pertinent hiring decisions. (Pl.'s 56.1 ¶¶ 15-19.) Plaintiff applied for the position twice by submitting his resume to MPCC on May 14, 2011 and July 14, 2011. (Id. ¶ 14.) Urbinati arranged to interview Plaintiff on July 20, 2011. Plaintiff was 65 years old at the time. (Id. ¶ 2.)
According to Plaintiff, Urbinati started the interview by stating that he was looking for a "long-term" employee of "10 to 15 years, " and then asked Plaintiff his age. (Sapir Decl. Ex. A, 65:23-66:4, ECF No. 48-1.) Plaintiff responded that he was "up in years" and was "in good physical condition" but did not give a number. (Id. at 67:2-12.) Urbinati asked Plaintiff if he was "capable of withstanding the vigors [ sic ] of the position." (Id. at 67:23-25.) Urbinati also told Plaintiff that his father had begun working less in his late 60s and no longer ran the company. (Id. at 65:7-11; Pl.'s Decl. ¶ 10, ECF No. 49.) It is undisputed that, during the interview, Urbinati asked Plaintiff what salary range he expected, and Plaintiff requested a salary between $65, 000 and $95, 000. (Pl.'s 56.1 ¶ 59.)
Urbinati's account agrees in some respects. Urbinati admits that he said he was looking for a "long term" employee (Urbinati Decl. ¶ 39, ECF No. 39), and that he asked Plaintiff how long he intended to continue working as a Senior Project Manager. (Reiter Decl. Ex. A at 79:23-80:13, 172:20-22, 173:4-12.) But Urbinati denies that he asked Plaintiff his age, discussed his father, or stated that he was looking for an employee who would work for MPCC for ten to fifteen years. (Id. at 80:21-24, 82:19-21; Urbinati Decl. ¶ 38). Urbinati added that during the interview, he asked about Plaintiff's work experience, including Plaintiff's seven-year tenure at James A. Jennings, Co. Plaintiff described his role at James A. Jennings as more of an "operations manager" than merely a senior project manager and characterized himself as the "heartbeat of that office and the heartbeat of that company" and the "nuts and bolts of the operation." (Id. at 123:15-24, 178:21-24, 180:6-7, 180:12-15.)
Urbinati testified that Plaintiff's interview was "good, " "pretty good, " or "average"-not "terrible, " but not "very good." (Id. at 217:2-15, 218:3-6; Urbinati Decl. ¶ 51.) Consistent with this assessment, Urbinati wrote "not bad" on Plaintiff's resume during the interview. ( See Reiter Decl. Ex. G, ECF No. 38-7.) Urbinati testified that he suspected that Plaintiff was being dishonest about his experience at James A. Jennings, because if he were truly as integral to the operation as he claimed, he would not have been let go and he would not have requested such a low salary. (Reiter Decl. Ex. A at 123:15-24, 178:15-179:3, 179:24-180:15.) Urbinati further testified that his overall impression was that Plaintiff would not be a good fit or successful at MPCC because of his communication style and demeanor. Urbinati explained that the Senior Project Manager's primary responsibility is to "deal mostly with superintendents that run the projects in the field" and make sure that the items the superintendents request "are there on time." (Id. at 36:12-14.) In Urbinati's words, the project manager should "push the field;" the field should not have to "drag the project manager along." (Id. at 159:9-21.) Urbinati testified that he typically asks candidates for the Senior Project Manager position questions designed to assess "how they're going to communicate with the field guys, how they're going to handle subcontractors, whether they like dealing with phones or emails, how were they with Walkie-Talkies." (Id. at 150:4-14.) Although he struggled to pinpoint the specific phrases Plaintiff used or verbalize the specific mannerisms that Plaintiff exhibited, Urbinati felt that Plaintiff's personality and communication style would be ineffective at MPCC. He explained that MPCC's superintendents, Ryan DiNapoli, Lenny Zampaglione, Kenny Bonnes, and Daryl Walton, would complain frequently if a Senior Project Manager was not pushing a job forward, were "yellers, screamers, " "rough around the edges, " "very demanding, " "I got to have it now, I can't wait until tomorrow, " and would "bark at everyone." (Id. at 36:12-24, 68:20-21, 69:2-9, 69:22-25, 71:16-72:22, 158:5-160:16.) MPCC's former Senior Project Manager Maurice Gawendo and MPCC's Corporate Secretary Debra Cornett largely corroborated Urbinati's characterization of MPCC's superintendents' style of communication. ( See Reiter Decl. Ex. B at 64:21-73-24; Reiter Decl. Ex. D at 56:16-61:12, ECF No. 38-4.)
Urbinati testified that he considered Plaintiff's candidacy over a weekend, and within three to four days of the interview, Urbinati had decided not to hire Plaintiff. (Id. at 67:15-68:8.) Plaintiff called MPCC a week after his interview and spoke to Cornett. (Reiter Decl. Ex. A at 73:4-75:15.) Urbinati testified that when he heard that Plaintiff was on the line, he signaled to Cornett that he had decided not to hire Plaintiff. (Id.; Urbinati Decl. ¶ 60.) No one, however, notified Plaintiff of Urbinati's decision.
Plaintiff filed a complaint with the NYSDHR and the EEOC on August 29, 2011 alleging age discrimination. (Defs.' 56.1 ¶¶ 79-80.) MPCC received a copy of the complaint in that matter on September 6, 2011. (Id. ¶ 86.)
MPCC continued to advertise for the Senior Project Manager position and on October 17, 2011, Urbinati interviewed Maurice Gawendo and Michael Fitzmaurice. (Pl.'s 56.1 ¶ 95.) Urbinati hired both candidates and they started on October 31, 2011. (Id. ¶ 96; Defs.' 56.1 ¶¶ 104, 118.) They were 64 and 58 years old at the time, respectively. (Id. ¶¶ 105, 119.)
Urbinati described Fitzmaurice as a "very good communicator" and said that he felt more comfortable with Fitzmaurice's communication style, his "mannerisms, " his answers, the "way he spoke, " and the fact that he "looked [Urbinati] in the eyes." (Reiter Decl. Ex. A at 92:12-94:18.) After he walked out of the interview with Fitzmaurice, he said "we're going to hire him." (Id. ) When pressed, Urbinati had difficulty verbalizing specific mannerisms that he liked, but mentioned that it had to do with "the way he talked; the way he moved his head; the way he moved his shoulders; the way he moved his hands." (Id. at 95:2-5.) Similarly, Urbinati assessed Gawendo as "interview[ing] well" and having a "strong, gruffy [ sic ] type of personality." (Id. at 148:16-149:8.) He liked that Gawendo "carried himself well, " was "assertive" and "no nonsense, " "stated facts, [and] gave [Urbinati] a lot of answers to questions that [Urbinati] liked." (Id.; Urbinati Decl. ¶ 78.) Urbinati told Gawendo, "I wish I had gotten your resume 10 years ago." (Reiter Decl. Ex. A at 148:17-18; Urbinati Decl. ¶ 80.)
Plaintiff, in Urbinati's estimation, was "a whole different feel, " was "a little unsure of himself, " "wasn't as good of a communicator, " and "lacked the assertiveness to manage difficult subcontractors or ensure that construction project deadlines would be met." (Reiter Decl. Ex. A at 95:15-24; Urbinati Decl. ¶ 58.)
On February 12, 2012, the NYSDHR found that there was no probable cause to believe that MPCC discriminated against Plaintiff on the basis of age. (Defs.' 56.1 ¶ 128.) Urbinati terminated Fitzmaurice on October 12, 2012 because he had repeatedly made mistakes and missed deadlines over a long period of time. (Urbinati Decl. ¶ 90.) In February 2013, Urbinati hired a third Senior Project Manager, Andrew Cardinale, who was 41 years old. (Id. ¶ 88; Cornett Decl. ¶ 33.) Urbinati terminated Gawendo on March 18, 2014 ...