United States District Court, E.D. New York
Plaintiffs: McLaughlin & Stern, LLP By: Jose G. Santiago,
Defendant: Stoneman, Chandler & Miller LLP, By: John M.
Simon, Esq. Fox Rothschild By: James L. Lemonedes, Esq.
MEMORANDUM & ORDER
R. Hurley United States District Judge
Arthur D'Antonio (“Plaintiff” or
“D'Antonio”) commenced this action against
his former employer, defendant Petro, Inc.
(“Defendant” or “Petro”) asserting
claims under the Americans with Disabilities Act, 42 U.S.C.
§ 12101, et seq. (the “ADA”), the
Age Discrimination in Employment Act, 29 U.S.C. § 621
et seq. (the “ADEA”), the Family and
Medical Leave Act, 29 U.S.C. § 2601 et seq.
(the “FMLA”) and the New York State Human Rights
Law, N.Y. Exec. Law § 296 et seq. (the
“NYSHRL”). Presently before the Court is
Defendant's motion for summary judgment. For the reasons
set forth below, the motion is granted.
following facts are taken from Defendant's Rule 56.1
Statement and Plaintiff's Rule 56.1 Counterstatement,
unless otherwise indicated, and are undisputed unless
a retail distributor of home heating oil, maintains an
Information Technology (“IT”) Department that
employs approximately 20 individuals. It hired D'Antonio
in 1993 as a night operator in the IT Department's
Operations Group. The Operations Group is generally
responsible for executing software programs that transfer
data files related to Petro's customer billing
statements, dunning letters, bank statements, and the like.
D'Antonio was promoted to the position of Supervisor of
Computer Operations, a position he held until his layoff on
April 9, 2013. At all relevant times, D'Antonio was
directly supervised by Peter Paprota (“Paprota”),
Manager of System Engineering and Computer
Operations. Paprota was in turn supervised by Brian
Boschert (“Boschert”), Director of IT.
Supervisor of Computer Operations, D'Antonio was mainly
responsible for generally administering Operations'
responsibilities and supervising Operations Analysts. In the
years leading up to his 2013 layoff, D'Antonio supervised
two Operations Analysts, Mike Ledesma (“Ledesma”)
and Joe Bach (“Bach”). As Operations Analysts,
Bach and Ledesma were directly responsible for running
software systems and procedures to generate reports or other
results. Defendant describes the duties of Bach and Ledesma
as similar but, given that they worked at different times of
day, one was more familiar with tasks that needed to be
completed in the morning, while the other was familiar with
tasks to be completed in the evening. Plaintiff describes
their duties as different with Bach responsible for back-up
tapes and Ledesma responsible for creating statements and
delivery invoices for customers. As their supervisor,
D'Antonio made sure Bach and Ledesma completed their
duties and he was the first line of support if they
experienced problems or were unavailable to perform their
duties. D'Antonio maintains that his responsibilities
also included putting together new procedures, managing bank
tapes, and managing Pegasus and Raven (software programs used
or 2011, Chris DiMattio, the Vice President of Finance and
Boschert's supervisor, directed Boschert to reduce IT
expenditures and, if possible, trim staff. In response,
Boschert reviewed various IT positions, ultimately
eliminating the position of Dion Xavier, Networking
Supervisor, reducing one position of Security Manager and one
position of Administrator from full-time to part-time, and
not filling an open help desk position. None of these
individuals belonged to the Operations Group or were
supervised by Paprota. D'Antonio states of Petro:
"They were always reviewing staffing . . . .[I]t was
constant. I heard people talking about it, they were always
switching from one department to other [sic] department . . .
. [T]he security manager didn't have a full-time job so
they made him part time." On February 1, 2012,
D'Antonio had a heart attack. He took three or four weeks
of medical leave from work after his heart attack, returning
to work in March 2012. In early April, 2102, D'Antonio
had an anxiety attack, resulting in his taking approximately
six weeks medical leave for his condition, diagnosed as
stress, anxiety and depression, returning to work in May
2012. Between 2008 and January 2016, at least three (3)
employees in Petro's IT Department have taken medical
leave from work under the FMLA. Two of those three continue
to be employed by Petro (the third is the Plaintiff, Arthur
D'Antonio). Of those two, one employee has been promoted
since taking medical leave and the other employee is Paprota.
his return from medical leave in May 2012 D'Antonio
claims Paprota and Boschert treated him differently. He
testified that Paprota:
used to say good morning. Didn't say good morning
anymore. When he walked by my office he either looked up in
the air, down at the floor or in the other direction . . . .
Any minor little incident became a major incident. He would
pace back and forth by my office for 20 minutes with his
hands behind his back, head up at the ceiling and ramble on
about something that was of no consequence . . . .Basically
just never talked to me. Didn't even discuss work for the
most part, occasionally something would come up, but it was
like total separation . . . . He used to talk about the job,
what was going on, issues with other workers. He stopped
Ex. A to Simon Aff. (D' Antonio Tr.) at 115-17. He
further testified that he received the same treatment from
Boschert. Although his “contact with [Boschert] is not
on the level it was with [Paprota], but there was zero, not
even good morning anymore.” Id. at 175.
Plaintiff admits that Boschert did not make any comments to
him about his disability, but asserts that Paprota on more
than one occasion asked him “if [he] was comfortable
doing [his] job, if [he] could still do [his] job.”
Id. at 176.
alleges that in March 2012, upon his return from his first
medical leave for his heart attack, Paprota asked whether he
was thinking about retiring. Id. at 160-61. Paprota
mentioned retirement a second time, in July 2012, after
D'Antonio had (in May) returned from his second leave for
anxiety. Each time D'Antonio responded that he was not
considering retiring, the matter was immediately dropped:
"There was no persistence." Id.
time period between his return from medical leave in May 2012
and his layoff in April 2013, D'Antonio describes eight
interactions with Paprota as follows:
July 18, 2012, after D'Antonio disagreed with Paprota
about a project Paprota had assigned him months before (which
project Plaintiff asserts would have violated a company
policy and have likely resulted in the termination of the
entire Operations Group), D' Antonio claims that Paprota
"came flying in [to my office] completely out of
control, smashed into the door, smashed his hands on my desk,
jumped at my face that forced me to move back in my chair,
and he said Who the f--- do you think you are? And he kept
moving his face at me forcing me further and further back.
Completely out of control. I mean, his face, his eyes, he was
like a raging lunatic." Def.'s 56.1 ¶ 25(a);
Pl.'s Counter 56.1 ¶ 25.
four occasions D'Antonio's subordinate, Ledesma, made
errors resulting in incorrect billing, Paprota came to
D'Antonio, saying "how do we stop this from
happening, pacing back and forth, just being stressful,
creating stress, anxiety . . . ." During the fourth such
interaction (allegedly the day before D' Antonio's
termination), Paprota "came in with this super type of
walk, smashed his hands on the desk, [and] jumped up in
[D'Antonio's] face.” D'Antonio testified
that he said that he and Paprota needed to have a meeting
with Boschert or D'Antonio would complain to someone
outside the department. Def.'s 56.1 ¶ 25(b);
Pl.'s Counter 56.1 ¶ 25.
After Ledesma made another "big mistake, " Paprota
came to D'Antonio and said "[w]e have to keep this
from happening in the future, how can we stop this from
happening again, it's costing the company money . . .
." Def.'s 56.1 ¶ 25(c); Pl.'s Counter 56.1
After Paprota found D' Antonio speaking with a company
official, Paprota "told me never to do that, I'm not
supposed to be talking to him, he's upper management
I'm not supposed to be involved with him. You have to
know your place. All kinds of derogatory remarks to kind of
put me down as much as possible. Create stress, anxiety . . .
feel useless." D' Antonio admitted he should not
have been speaking to the person. Def.'s 56.1 ¶
25(d); Pl.'s Counter 56.1 ¶ 25.
After Paprota found D'Antonio speaking with a co-worker,
Susan Burrell (whom Boschert and Paprota had previously
warned about socializing at work), Paprota "came in and
bomb blasted me, told me not to talk to her, she's not
supposed to be talking, she's supposed to be doing her
job. Started rambling on about, you got work to do, you
can't talk to people, et cetera, et cetera, et
cetera." Def.'s 56.1 ¶ 25(e); Pl.'s Counter
56.1 ¶ 25.
respect to the July 18, 2012 interaction, D'Antonio sent
an email to Paprota, copying Boschert stating in relevant
In addition, you were just in my office in an out of control
state. I consider your behavior harassment. You were loud,
obnoxious, challenging and down right rude. This will not be
tolerated without follow up in the future. I suggest we sit
with Brian [Boschert] and discuss how to properly converse
with employees in a civilized manner. I am a person and
should be treated as such, always.
Def.'s 56.1 ¶ 33; Pl.'s Counter 56.1 ¶ 33.
Approximately one half hour later, Paprota responded with an
email to D' Antonio, copying Boschert, stating:
I was frustrated because this project has been going in since
November of 2011, I differ with your explanation of "out
of control." As a matter of fact I left your office
after you asked me to outline the steps to get the task
completed, steps that have been verbally discussed several
times on the past. If you want to sit down with Brian that is
fine, I will ask Brian to schedule. In the meantime please
initiate this task.
Def.'s 56.1 ¶ 34; Pl.'s Counter 56.1 ¶ 34.
D'Antonio replied approximately fifteen minutes later
with an email to Paprota, copying Boschert stating: "We
need to sit and talk with Brian. I will not allow myself to
be badgered. You will not address me in that manner."
Def.'s 56.1 ¶ 35; Pl.'s Counter 56.1 ¶ 35.
Antonio admits that he never made a complaint about age
discrimination. Def.'s 56.1 ¶ 36; Pl.'s Counter
56.1 ¶ 36.
in 2012, Boschert and Paprota, as part of their compliance
with DiMattio's directive, then turned their attention to
IT's Operation Group to determine whether three-fulltime
employees, viz. D'Antonio, Bach and Ledesama,
were necessary. They had previously explored cutting
Operations Group positions, even securing a proposal to
outsource the Operations Group in 2006-07. In the ...