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D'Antonio v. Petro, Inc.

United States District Court, E.D. New York

March 29, 2017

PETRO, INC., Defendant.

          For Plaintiffs: McLaughlin & Stern, LLP By: Jose G. Santiago, Esq.

          For Defendant: Stoneman, Chandler & Miller LLP, By: John M. Simon, Esq. Fox Rothschild By: James L. Lemonedes, Esq.


          Denis R. Hurley United States District Judge

         Plaintiff 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.


         The 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 otherwise noted.

         Petro, 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.

         In 2003 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.[1] Paprota was in turn supervised by Brian Boschert (“Boschert”), Director of IT.

         As 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 by Petro).

         In 2010 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.

         Following 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 doing that.

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.

         D'Antonio 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.

         In the 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:

         1. On 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.

         2. On 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.

         3. 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 ¶ 25.

         4. 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.

         5. 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.

         With respect to the July 18, 2012 interaction, D'Antonio sent an email to Paprota, copying Boschert stating in relevant part:

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.

         D' Antonio admits that he never made a complaint about age discrimination. Def.'s 56.1 ¶ 36; Pl.'s Counter 56.1 ¶ 36.

         Meanwhile 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 ...

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