Lacap v Innovative Commerical Sys.
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Lacap v Innovative Commerical Sys. 2011 NY Slip Op 32699(U) October 13, 2011 Supreme Court, New York County Docket Number: 113680/08 Judge: Debra A. James Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. SCANNEDON 1011812011 [* 1] SUPREME COURT OF THE STATE OF NEW YORK - NEW YORK COUNTY PRESENT: DEBRA A. JAMES PART 59 Justice Index No.: Plaintiff, -v- 113680/08 Motion Date: ROBERT LACAP, 07/12/11 Motion Seq. No.: INNOVATIVE COMMERCIAL SYSTEMS, Defendant. 01 Motion Cal. No.: The following papers, numbered 1 to 3 were read on this motion for summary judgment. I Notice of MotionlOrder to Show Cause -Affidavits -Exhibits PAPERS NUMBERED 1 Answet'lng Affidavits - Exhibits 2 Replying Affidavits - Exhibits 3 Cross-Motion: 0 Yes om 18 2011 No Upon the foregoing papers, NEW YORK COUNTY CLERK'S OFFICE In this case, plaintiff Roberto Lacap (Lacap) alleges that he was discriminated against, based on his age, ethnicity and national origin, when his employment with defendant Innovative Commercial Systems (ICs) w a s terminated. ICS moves for summary judgment, pursuant to CPLR 3212, dismissing the complaint. Lacap is Filipino and states that he was 52 when he lost his job. ICs is in the business of sales, service and installation of electronic security and comunications systems. Lacap was employed by ICs from October 1998 until September 2008, and spent his time with ICs as an installer/technician, working for the l a s t four years in ICs's service department. Check One: 0 FINAL DISPOSITION Check if appropriate: DO NOT POST Plaintiff contends NON-FINAL DISPOSITION REFERENCE c SETTLE/SUBMlT ORDERIJUDG. ] [* 2] that his termination from I C s was without cause or justification, as he had never received performance warnings or discipline, and had always been praised for his work ethic, efficiency and j o b knowledge. Plaintiff filed this action on October 9, 2008. Plaintiff claims defendant violated T i t l e 8 of the New York City Administrative Code (City Law) and Article 15 of the New York State Executive Law (State Law) by terminating his employment on account of his age, national origin, ethnicity, or some combination thereof. The City Law and State Law both provide that it is unlawful for an employer "to . . * discharge from employment such individual or to discriminate against such individual in compensation or in terms, conditions or privileges of employment" based on, among other things, national origin, ethnicity and age (Executive Law 5 296 C13 [a]; Administrative Code tal). ยง 8-107 [a] Absent direct evidence of discrimination, claims of discrimination pursuant to the State Law and City Law are reviewed under t h e burden-shifting framework established by the United States Supreme Court in McDonne11 DQualas Corp. v Greea (411 US 792 [ 1 9 7 3 ] ) ( Inc., 3 NY3d 421, y 429 [20041 [federal burden-shifting standards apply to state and local human rights' laws claims] ) . This framework requires that a plaintiff initially establish that he or she is a member of a protected class, qualified for -2- [* 3] the employment position, and has suffered an adverse employment action that occurred under circumstances giving rise to an inference of discrimination (Bailey v rJew York Westchester Med, C tr., 38 AD3d 119, 122-123 [lst Dept 2 0 0 7 1 ) . Sa. Upon the making of such a showing, the burden shifts to the employer to articulate some "legitimate, nondiscriminatory reason!' for the adverse employment action taken (Stepheuon v Rote 1 ErnpL.5. & Rest. Empls. Union L o c a l 100 of AFL-CIO, 6 NY3d 265, 270 [ 2 0 0 6 ] [internal quotation marks and citation omitted]). In response, a plaintiff must raise a triable issue of fact as to whether the defendant's explanation for its action was pretextual; that is, a plaintiff must raise a genuine "question of fact concerning either the falsity of [the] defendant's proffered basis for the termination or that discrimination was more likely t h e real reason" (Heminway v Pelham Country Club, 14 AD3d 536, 537 [2d Dept 20051, quoting Ferafante v &ne rican Lunq As=. , 90 NY2d 6 2 3 , 631 [ 1 9 9 7 1 ) . I C s argues that it is entitled to summary judgment because plaintiff cannot demonstrate that his j o b termination occurred under circumstances giving rise to an inference of discrimination or that ICs's reason for firing plaintiff was pretextual.' ICs In reply, I C s argues that plaintiff has not demonstrated any of the prima facie elements of his claim, but TCS did not challenge any element other than "inference," and may not raise new arguments on reply (seeSanford v 27-29 W 181st St Asw Inc., 300 AD2d 250 [lst Dept 20021 [reply is for the limited purpose of -3- [* 4] submits the deposition testimony of its president, Robert Horowitz, and of plaintiff's supervisor, James More, in support of its motion. The parties do not dispute that More joined ICs's service department in or around May 2008, and supervised plaintiff for three to four months before plaintiff's j o b terminationt2 but that plaintiff had been supervised by others at ICs before More became his supervisor. The parties also do not dispute that More is at least t e n years younger than plaintiff, Caucasian and American-born. Addressing plaintiff's age discrimination claim first, More's testimony reflects that every person hired or transferred into the service department f o r a period of time before and after plaintiff's departure was 10 to 20 years younger than plaintiff. In addition, plaintiff testified that More t o l d him that plaintiff was getting slow and that the other staff members, all of whom, according to More's testimony, were younger than plaintiff, could do the job. A s the non-moving party on this responding to the opposition, not for raising new arguments to which the opposing party has had no opportunity to respond]). In any event, defendant does not dispute that plaintiff w a s 52 years old, fired and that he worked for ICs for about ten years. From these.facts, the inference that plaintiff was qualified for the job and suffered an adverse employment event is reasonable. From the testimony submitted, it appears that after More joined the service department there may have been a transition period during which both More and plaintiff's former supervisor, Mr. Uligan, were both in the service department. -4- [* 5] motion, f o r purposes of this m tion, plaintiff's testimon! must be presumed true. More also testified that another 13-year employee, transferred into the service department in 2009, whom More described as in his late BOs, and Filipino or of Filipino heritage, was transferred because either.the project manager he worked for, or the employee himself, got a little slow, and ICs's president moved him over because he wanted to keep everybody employed. This evidence is sufficient to establish a prima facie caSe of age discrimination, as it demonstrates plaintiff's replacement by younger workers, before and after his termination Bemis v New Ynrk State Div. of Human Riqhts, 26 AD3d 6 0 9 , 611 [3d Dept 2 0 0 6 1 ["Petitioner met this burden by showing that there was engineering work for which he was qualified and several younger engineers were assigned to his unit to perform such work j u s t before and after his layoff notice',]), and raises the factual issue of whether or not ICs engaged in age-related stereotyping. To demonstrate that More's "slow" comment was not age- related, I C s points to More's deposition transcript, which At oral argument, defendant's counsel read More's testimony, regarding the employee in his late 4 0 s , as ' [ h l e worked for another project manager, and got a little slow", however, More's deposition transcript reflects that More testified that ' e worked f o r another project manager and & got a little slow". h That testimony is ambiguous as to whether More was describing the manager or the worker as slow. -5- [* 6] reflects that More testified that plaintiff was slow, and then describes what he meant by that. More does not, however, discuss what he meant when he allegedly made this statement to plaintiff. Moreover, while ICs argues that no one was hired to take plaintiff s p l a c e at I C s after he was terminated, More s testimony reflects that three employees were eventually hired into the service department to do the same type of work that plaintiff did, none of whom were in their fifties at the time, but were approximately 10 to 20 $ears younger t h a n plaintiff. More did not testify unequivocally t h a t these employees, or another he hired, were not hired to replace plaintiff. From More s testimony it appears that he h i r e d another worker who was in his e a r l y 30s at the time. As plaintiff has met his prima facie b u r d e n , the inquiry shifts to whether ICs has demonstrated a legitimate, nondiscriminatory reason f o r terminating plaintiff s j o b must be addressed. To meet this burden,YICS submits More s testimony that he observed plaintiff s work performance a n d that it was inadequate in that plaintiff was slow, requiring More to follow up with another technician, who would be sent back to the work site to r e p a i r what plaintiff was incapable of repairing, which would then g e t repaired. than 10 times. More testified t h a t t h i s occurred more More also testified t h a t issues were not being resolved, that plaintiff would disappear and he was unable to -6- [* 7] reach plaintiff by phone, and that he d i d not h e a r from plaintiff throughout the day, although plaintiff was supposed to report to him from work sites. More testified that by slow, he meant that plaintiff took the long way to get things done, such as by waiting 30 minutes for a bus to come instead of walking a few b l o c k s and just dragging the day 90 a minimum could be done in the eight hours he was being paid for, a minimum amount of work. More testified that he spoke with plaintiff on several occasions about his work and the quality of his work during the time plaintiff worked under his supervision. More a l s o testified about an issue with service tickets, as did Horowitz, and t h e time it took plaintiff to do work. With this testimony, I C s has met i t s burden to articulate a nondiscriminatory reason for terminating plaintiff from his job. ICs also contends that, since 2004, p r i o r to being supervised by More, plaintiff had j o b performance problems that were consistently the same and that continued through September 2008 despite repeated warnings. In support, ICs points to the testimony of Horowitz, t h a t it was his understanding that plaintiff was transferred from department to department due to performance issues, that ICs granted plaintiff s requests f o r extended vacations, which caused hardship to the company, and that there were two instances when plaintiff s then-supervisor (Uligan) was on vacation and Horowitz was informed that plaintiff -7- [* 8] c o u l d not be located. Defendant also submits two interoffice e - mail messages concerning plaintiff s vacation time, an unsigned warning letter from 2004, and a few other interoffice e-mail messages from 2003-2005 and 2008. In opposition, plaintiff ch,q-.llenges defendant s contention that plaintiff s j o b performance had been in question for some time as misleading and inaccurate. Plaintiff points to the undisputed fact that he was with the company for approximately ten years, and to Horowitz s testimony that plaintiff regularly received bonuses and pay increases. Plaintiff argues that this indicates that he met his employer s expectations over the years. In addition, it is undisputed that the record contains no evidence that plaintiff received warning letters, discipline, or documents reflecting performance issues during the period when plaintiff was supervised by More. More testified t h a t he had discussions with plaintiff about his work and performance on several occasions during the three to four month period that he supervised him, but that he could not r e c a l l a specific instance when he did so, or give an example of specific customer complaints about plaintiff s w o r k . Contradicting More s testimony, plaintiff testified that the first time that More spoke with him indicating any problem was the very day that plaintiff was fired, that More had not previously said anything about the quality of plaintiff s work, t h e number of hours he -8- [* 9] worked, or his attitude, and that plaintiff had been unaware of any performance issues, Regarding time concerns with service tickets, giving plaintiff's testimony the benefit of a11 reasonable favorable inferences, he testified t h a t he finished p r o j e c t s in less days than t h e given time-frame. No documentary evidence addressimg the service tickets f o r projectsljobs has been submitted on t h i s record. Thus, plaintiff raises a fact issue about the credibility of More's testimony as to plaintiff's performance (Communications & co . , 202 & Entertainment C Q ~ P v Hibbard Brgwn . AD2d 191, 192 [ l s t Dept 19941 [summary judgment was also p r o p e r l y denied in view of the parties' sharply conflicting affidavits since it is well settled that it is not t h e court's role to pass upon issues of credibility on a summary judgment motion]). While More's inability to r e c a l l any matters in detail may simply reflect the passing of time, this is a determination that: must be made by the trier of fact. To the extent that defendant has provided a proper foundation for the admission of e-mail messages from 2003-2005 that were not written by plaintiff, these documents do not address issues contemporaneous with plaintiff's job termination. Horowitz's testimony about performance problems plaintiff experienced with his former supervisor appears to concern these same matters, which occurred years prior to plaintiff's termination. ICs has not provided testimony or an affidavit from -9- [* 10] any of plaintiff's former supervisors about these issues, and Horowitz testified that he did not have personal knowledge of plaintiff's work performance. While the record does contain two e-mail messages from 2008, to the extent that these email messages, submitted through attorney affidavit, are admissible, it is not clear what they prove or supportU4 Regarding vacation requests, ICs does not here assert or o f f e r evidence that plaintiff was actually terminated f o r anything having to do with 5 his approved requests for, or taking of, vacation in y e a r s past. On summary judgment, the role of the court is issue-finding (Rpse v Da Ecib USA, 2 5 9 AD2d 2 5 8 , 2 5 9 [lst Dept 1999]), and not: to draw inferences and characterizations in a movant's favor from evidence that does not either speak for itself or necessarily s u p p o r t the inference. Defendant's contention that plaintiff's performance was inadequate prior to h i s time supervised by More is clearly an interpretation or conclusion from evidence t h a t does not speak for itself, To defeat: summary judgment, a plaintiff must present sufficient evidence to infer that the employer was motivated in whole or in p a r t by discrimination Grady v Affiliated Cent., Inc,, ',30 (see F3d 553, 560 [2d Cir 19971, ' While the attorney affidavit submitted o r t h e motion states that t h e emails were from More to Horowitz and Horowitz t o More, More's deposition testimony reveals that he had poor recollection about t h e content of the emails. In addition, ICs does not indicate that these messages were business r e c o r d s . Horowitz testified that he approved the vacation requests. -10- [* 11] cert denied 5 2 5 US 936 [1998]; FLLrrante, 90 N Y 2 d at 631 [to defeat summary judgment, a plaintiff may point to evidence establishing a reasonable inference that t h e employer s reason is n o t worthy of credence]). The factfinder s disbelief of the reasons p u t forward by the defendant (particularly if disbelief is accompanied by a suspicion of mendacity) may, together w i t h t h e elements of a prima facie case, suffice to show intentional discrimination (peeves v Sanderson Plumbinq Prods,, Inc., 5 3 0 US 133, 147 [ 2 0 0 0 ] [internal quotation marks and citation omitted]). While a plaintiff may not meet his burden to demonstrate pretext simply by showing disagreement with his employer s reasons, More s testimony concerns certain alleged but unspecified incidents, and plaintiff has raised a fact issue about the veracity or credibility of More s testimony, t h e r e b y raising a fact question concerning the falsity of the defendant s proffered basis f o r the termination, which precludes summary judgment ( F e r r a n t e , 90 NY2d at 631; Heminqwav, 14 A D 3 d 536, supra). The prima facie case here, including that plaintiff was the oldest person in the service department and the o n l y one in his 5 0 s , More s alleged comment to plaintiff and his deposition statement about another relatively o l d e r worker, and t h a t every other p e r s o n brought into the service department to do the same job plaintiff did was considerable younger than plaintiff, raises a fact issue as to pretext (3ee O w e n s v New York City H o w . Auth., -11- [* 12] 934 F2d 405, 410 [2d Cir], cert denied 502 US 964 119911 [statements made by individuals with "substantial influence" over plaintiff's employment raise genuine issue of fact on issue of pretext]; Ryduchowski v Port Auth. of N . Y . & N . J . , 1998 WL 812633, * l o , 1998 US Dist LEXIS 18558, *30 [ED NY 19981 [genuine issue of fact as to whether employeris proffered reason was pretextual where inference could be drawn that someone with a discriminatory motive influenced the decisionmaker]). Consequently, summary judgment m v s t be denied as to plaintiff's age discrimination claim. 'The same is not true concerning plaintiff's claim of discrimination based on national origin or ethnicity. Plaintiff testified that no one ever said anything to him t h a t led him t o believe that he was being discriminated against because he was Filipino, that nothing happened during the y e a r s t h a t he w a s at the company to lead h i m to believe that the company discriminated against Asians or F i l i p i n o s , that there were other Filipino workers at I C s , including in t h e service department. Plaintiff's testimony is that his h e a r t led h i m to believe that his termination may have been due to the color of his skin, as well as his belief t h a t a white person would not have been summarily dismissed in the manner in which plaintiff was. insufficient 'to raise a fact question. This is That an American-born employee may have been hired at or around the time of plaintiff's -12- [* 13] Accordingly, it is Dated: ENTER : October 1 3 , 2 0 1 1 NEW YORK COUNTY CLERK'S OFFICE I -13-
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