Downey v. Monro, Inc.
DECISION & ORDER Defendant's motion for summary judgment, dkt. #19 is hereby GRANTED in part and DENIED in part. The motion is DENIED with respect to Plaintiff's state and federal retaliation claims based on age discrimination and GRANTED with respect to all other claims. IT IS SO ORDERED. Signed by Senior Judge Thomas J. McAvoy on 11/21/2022. (egr, )
Case 1:20-cv-01505-TJM-ML Document 24 Filed 11/21/22 Page 1 of 41
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
JOSEPH M. DOWNEY,
Thomas J. McAvoy,
Sr. U.S. District Judge
DECISION & ORDER
Before the Court is Defendant’s motion for summary judgment. See dkt. # 19. The
Court will decide the motion without oral argument.
This case arises out of Plaintiff Joseph M. Downey’s employment with Defendant
Monro, Inc. Plaintiff claims that Defendant discriminated against him by firing him
because of his age and disability. He also alleges that Defendant retaliated against him
because he complained of discrimination. Defendant denies the allegations and contends
that Plaintiff’s termination came for legitimate, non-discriminatory reasons.
Defendant Monro, Inc., is an automotive service company with retail stores in 32
states and 8200 employees. Defendant’s Statement of Material Facts (Defendant’s
Case 1:20-cv-01505-TJM-ML Document 24 Filed 11/21/22 Page 2 of 41
Statement”), dkt. # 19-2, at ¶ 1. 1 Plaintiff worked for Monro from July 2011 until November
2019. Id. at ¶ 2. Plaintiff worked as a District Manager, known formerly as a Market
Manager, during that time. Id. at ¶ 3. In that position, Plaintif f operated 10 to 14 stores.
Id. at ¶ 4. He handled “workforce planning, hiring, training, counseling, development of
store managers, and retention of employees[.]” Id. Plaintiff also had responsibility to
ensure that “all company policies, regulations, and standards were met throughout his
district.” Id. at ¶ 5. While Plaintiff disputes that Defendant actually followed such policies,
Defendant expressed a “longstanding commitment to providing equal employment
opportunity to all employees.” Compare Defendant’s Statement at ¶ 7 with Plaintiff’s
Response to Defendant’s Statement of Material Facts (“Plaintiff’s Response”), dkt. # 23-4,
at ¶ 7.
On November 1, 2019, Shannon Meher, who reported directly to the Plaintiff,
notified Plaintiff that she had been touched inappropriately by a co-worker throughout the
day. Defendant’s Statement at ¶ 17. Defendant alleges that Plaintiff failed immediately to
inform Human Resources of this issue. Instead, he informed his Zone Manager, Tim
Ring, that Meher, who was an Assistant Manager, had walked off the job. Id. at ¶ 18.
Plaintiff also told Ring that Meher had company keys and left “the store without resources
to close the store or to ensure all Monro assets were secured.” Id. at ¶ 18. Plaintiff
claimed to be “‘collecting the facts.’” Id. Plaintiff asserts that he did attempt to contact
Human Resources, but did so too late in the day to reach anyone. Plaintiff’s Response at
Both parties filed the statements of material facts with citations to the record
required by the local rules. The Court will cite to the Defendant’s statement for facts which
are undisputed and note any disputes with references to both parties’ statements.
Case 1:20-cv-01505-TJM-ML Document 24 Filed 11/21/22 Page 3 of 41
¶ 18. Ring responded by reminding Plaintiff that he needed to contact Human Resources.
Defendant’s Statement at ¶ 19. Ring “encouraged” Plaintiff to contact Human Resources
Business Partner Jill Stefanelli. Id. On November 6, 2019, Plaintiff let Ring know that he
had involved Stefanelli in his investigation. Id. at ¶ 20.
Plaintiff sent Stefanelli an email on November 13, 2019. Id. at ¶ 21. Plaintiff
“described” Meher’s complaint as a claim of “hands on her at [store] 28.” Id. Plaintiff
further stated that Meher had used “the complaint as ‘an excuse to go home early.” Id.
Plaintiff points out that the email he sent to Stefanelli claimed that “‘[e]veryone says she
used that excuse to go home early.’” Plaintiff’s Response at ¶ 21. Despite Plaintiff’s
report, Defendant contends, he believed that Meher had a “good faith basis” for her
complaint. Defendant’s Statement at ¶ 22. Plaintiff disputes that the testimony cited by
the Defendant supports this claim. Plaintiff’s Response at ¶ 22.
On November 15, 2019, Plaintiff informed Stefanelli and Ring that he intended to
present Meher with “multiple disciplinary write-ups related to her alleged time and
attendance issues.” Defendant’s Statement at ¶ 23. He planned to suspend her until
further notice. Id. Stefanelli replied that she could not support disciplinary action before
she reviewed the documentation. Id. at ¶ 24. Plaintiff agreed to provide that information.
Id. According to Defendant, Stefanelli immediately became suspicious when she saw the
documentation. Id. at ¶ 25. She was “concerned about the integrity of the proposed
written warnings and the completeness of the investigation[.]” Id. Plaintiff contends that
Stefanelli initially agreed that Meher should be fired, but changed her mind due to
“company politics, not the substance regarding Meher’s time and attendance issues.”
Plaintiff’s Response at ¶ 25.
Case 1:20-cv-01505-TJM-ML Document 24 Filed 11/21/22 Page 4 of 41
Stefanelli found that all 7 written warnings had been signed by Store Manager
Michelle Simmons and witnessed by Assistant Manager Michael Kinns. Defendant’s
Statement at ¶ 26. All seven documents also stated that Meher had refused to sign the
warning. Id. Further, two of the warnings were dated before Meher’s hire on October 14,
2019. Id. at ¶ 27. The next day, Plaintiff emailed Stefanelli two additional warnings aimed
at Meyers. Id. at ¶ 28. The parties agree that the dates on those warnings had been
“modified” to “dates after” Meher’s hire. Id. Even the corrected warnings were
inconsistent with Meher’s time records on the dates allegedly issued. Id. at ¶ 29. One
warning came for a date where Meher had not worked. Id. at ¶ 30. Another warning
stated that Meher had left work for 2/12 hours, but time records showed no breaks during
her work hours. Id. One of the original warnings claimed that Meher was late, arriving at
1:30 p.m. Id. at ¶ 31. Time records showed she clocked in at 12:30 p.m. Id.
Because of these discrepancies, Stefanelli decided she could not rely on the
documents Plaintiff provided or on his investigation. Id. at ¶ 32. Plaintiff responds by
repeating his earlier claims that Stefanelli initially agreed that Meher should be terminated,
and that she changed her mind based on company politics and not for a substantive
reason. Plaintiff’s Response at ¶ 32.
Stefanelli and Regional Vice President Dan Tripoli traveled to Store 28 to
investigate themselves how Plaintiff handled Meher’s complaint. Defendant’s Statement
at ¶ 33. They also investigated Meher’s initial complaint. Id. Defendant contends that the
investigation revealed that Plaintiff had directed Simons “to falsify documentation for the
written warnings[.]” Id. at ¶ 34. Defendant alleges that Plaintiff had directed Simons to
have Kinns sign as a witness and to state that Meher had refused to the sign the warnings
Case 1:20-cv-01505-TJM-ML Document 24 Filed 11/21/22 Page 5 of 41
“in lieu of discussing them with [Simons] and/or administering them to her.” Id. Simons
signed a statement attesting to these claims. Id.
Plaintiff alleges that Simons signed this statement “under duress.” Plaintiff’s
Response at ¶¶ 34-35. Plaintiff points to two statements from Simons dated November
23, 2019. The first, which Simons signed, stated that when Stefanelli and Tripoli spoke
with Simons about the documents she had signed, “[t]heir tone, manner, and the way in
which they conducted the conversation/interrogation made me feel intimidated and I was
under duress when I wrote the statement that Jill had directed me to write.” See Exh. 4 to
Declaration of Joseph Downey, dkt. # 22-3. If she had not been pressured, Simons
claimed, she would have explained that Downey had asked her to “transfer her notes”
about concerns over Meher’s attendance “onto a warning sheet.” Id. The information
Simons transferred was true, she claimed, but she “made human error during the transfer
of the dates.” Id. Plaintiff pointed out the error and sent the docum ents back for
correction. Id. Simons corrected them. Neither she nor Plaintiff intended to deceive
anyone and “all information on the warning sheet was accurate and true and the dates
were fixed once the error had come to my attention.” Id. The second document is an
email Simons sent on November 23, 2019. See Exh. 4 to Downey Declaration. In that
email, Simons “correct[ed] the dates of [her] retraction letter.” Id. Simons explained that
she had written the letter on November 22, 2019, and that she had misstated the date that
Stefanelli and Tripoli came to her store. Id. Simons also resigned her position as store
manager, claiming that the events of the previous few days had “created a hostile work
environment.” Id. Defendant points out that Simons’ retraction came only after Plaintiff’s
termination. Defendant’s Statement at ¶ 36.
Case 1:20-cv-01505-TJM-ML Document 24 Filed 11/21/22 Page 6 of 41
Defendant alleges that Stefanelli and Tripoli “learned” that Plaintiff had directed the
manager who replaced Simons, Don Durkin, to “write up” Meher for violations of Monro’s
attendance policy that Durkin though were “‘questionable.’” Id. at ¶ 37. Plaintiff responds
that Durkin’s name did not come up during the meeting where Defendant terminated
Plaintiff’s employment, and that Durkin did not “write up” Meher for time and attendance
problems. Plaintiff’s Response at ¶ 37. Defendant alleges that Durkin told Stefanelli and
Tripoli that Plaintiff “wanted him to write . . . up” Meher and then send her home “pending
Human Resources review.” Defendant’s Statement at ¶ 38. Durkin further alleged that
Plaintiff told him “not to say anything else or mention Plaintiff.” Id. at ¶ 39. Plaintiff
responds to these two allegations in the same way he responds to the allegation that he
had directed Durkin to write up Meher for questionable violations. See Plaintiff’s
Response at ¶¶ 38-39. Those responses do not address the allegation that Plaintiff
directed Durkin to “write up” Meher. Likewise, Plaintiff’s identical response to Defendant’s
claims that Durkin “refused to comply with Plaintiff’s directives” and informed Plaintiff that if
forced to “write up” Meher he would tell Meher, if asked, that the “write up” came “at
Plaintiff’s direction.” Compare Defendant’s Statement at ¶¶ 40-41 with Plaintiff’s
Response at ¶¶ 40-41. After this response, Defendant contends, “Plaintiff withdrew his
directive[.]” Id. at ¶ 42. Plaintiff told Durkin to instead “think of anything else” he could find
which Meher “should be written up.” Id.2
Defendant claims that Plaintiff testified that Durkin had no reason to lie about what
Plaintiff told him to do. Id. at ¶ 43. Plaintiff points out that he also testified that Durkin
Plaintiff repeats an identical denial here, which does not actually address the
allegations in the Defendant’s statement. Plaintiff’s Response at ¶ 42.
Case 1:20-cv-01505-TJM-ML Document 24 Filed 11/21/22 Page 7 of 41
may have misunderstood what Plaintiff told him to do. Plaintiff’s Response at ¶ 43.
Plaintiff claims that he directed Durkin to document time and attendance issues. Id.
Plaintiff contends that he told Durkin “not to falsify.” Id. He contends that his response
about whether Durkin had reason to lie did not relate to the statem ents discussed above.
“[H]ighly concerned” about Plaintiff’s conduct, “inconsistencies and inaccuracies in
the documents he had submitted,” and “reports” from Meher and Durkin, Stefanelli and
Tripoli raised these allegations with Plaintiff during a meeting on November 19, 2019.
Defendant’s Statement at ¶ 44. Plaintiff disputes that Tripoli and Stefanelli were
concerned about anything but firing him. Plaintiff’s Response at ¶ 44. He contends that
Tripoli and Stefanelli did not even raise Durkin’s name during the meeting. Id.
The parties agree that Plaintiff admitted that he instructed Simons to prepare a
written warning for Meher. Defendant’s Statement at ¶ 45. Defendant claims that Plaintiff
“admits that he abdicated his responsibilities with respect to the investigation into” the
“harassment complaint and instead delegated” that responsibility to Simons. Id. at ¶ 46.
Plaintiff responds that the claim that he “abdicated” his responsibilities is not supported by
the record. Plaintiff’s Response at ¶ 46. Plaintiff contends that he only admitted that
Simons gathered one of the statements in the investigation, and that he did not admit to
“abdicating” his role in the investigation. Id. The Court notes that whether Defendant
“abdicated” his role is an opinion. The role that Plaintiff actually played in investigating the
alleged sexual harassment can be determined by examining the facts.
After the November 19, 2019 meeting, Plaintiff sent Stefanelli and Tripoli a letter.
Defendant’s Statement at ¶ 47. Defendant alleges that the letter offered a summary of the
Case 1:20-cv-01505-TJM-ML Document 24 Filed 11/21/22 Page 8 of 41
meeting and Plaintiff’s opinion of that meeting. Id. Defendant contends that the letter
admitted that “‘given the timing of the sexual harassment allegations it appeared as
though” the write-ups concerning Meher had been “‘coached.’” Id. Plaintiff responds that
he also informed Tripoli and Stefanelli that the write-ups were “appropriate.” Plaintiff’s
Response at ¶ 47. Tripoli and Stefanelli did not accept Plaintiff’s explanation and instead
decided that Plaintiff had directed that the discipline against Meher be falsified in an effort
to have her fired. Defendant’s Statement at ¶ 48. Plaintiff denies that this alleged
falsification was the reason for his termination. Plaintiff’s Response at ¶ 48.
After their investigation, Tripoli and Stefanelli recommended that Plaintiff be fired.
Defendant’s Statement at ¶ 50. They made this recommendation to Donna Maxwell,
Senior Vice President and Chief Human Resources Officer. Id. She had final decisionmaking power in this respect. Id. Maxwell agreed that Plaintiff should be terminated. Id.
Plaintiff disputes that any recommendation to terminate him came because of the results
of Stefanelli and Tripoli’s investigation. Plaintiff’s Response at ¶ 50. Plaintiff was
terminated on November 20, 2019. Id. at ¶ 51. Defendant states that the reason for the
termination was “gross misconduct and . . . failure to execute . . . managerial
responsibilities[.]” Id. Plaintiff denies that the stated reason for the termination was the
real reason. Plaintiff’s Response at ¶ 51.
Ring became Plaintiff’s Zone Manager on October 27, 2019. Defendant’s
Statement at ¶ 52. Zone Manager was the position directly above the District Manager
position that Plaintiff held. Id. Defendant claims that Plaintiff previously stated he enjoyed
his working relationship with Ring. Id. at ¶ 53. Plaintiff disputes this claim. Plaintiff’s
Response at ¶ 53. The parties both point to an exhibit to a declaration produced by
Case 1:20-cv-01505-TJM-ML Document 24 Filed 11/21/22 Page 9 of 41
Tripoli. See Exh. C to Tripoli Declaration, dkt. # 19-5. That exhibit is an email from
Plaintiff to Donna Maxwell dated November 17, 2019. Id. Plaintiff begins his email by
stating that the email’s purpose was “to report some serious issues regarding” himself and
his “supervisor and age discrimination.” Id. “Tim Ring,” Plaintiff reported, “refers to me in
public as John Wayne (an old gunslinger).” Id. Plaintiff relayed a dispute that he had with
Ring over staffing and terminating an employee. Id. He further stated that “I want a
complete cease and desist from Tim Ring.” Id. “I respect him,” Plaintiff stated, “I think he
is a smart good zone manager[.]” Id. At the same time, however, Plaintiff complained that
he “[did] not like the following: [b]eing spoken down to, like I have not been doing this
same work since 1988"; “[b]eing forced to switch so fast to everything electronic and
referring to my age because I have not been able to comply with these changes as fast,
not due to my age, but because my laptop crashed and I have an old one I’m using till I
can afford a new one and the office apps to purchase to maintain electronic reports[.]” Id.
Plaintiff also complained about being directed to use an IPad that had never worked
properly, despite Plaintiff’s efforts to get IT assistance. Id. Plaintiff also contended that
he had “lost bonus” because of changes in store assignments and personnel. Id. Other
stores he oversaw, however, were “having record years.” Id. Plaintiff declared that “I want
the respect I deserve in the position I hold without my name being related to age” and
“[w]ithout being talked down to” and “[w]ithout giving mixed messages about personnel[.]”
Id. Plaintiff then explained his position on Meher’s situation. Id. He explained that “I like
Tim [Ring], I can work with him, but I have also caught him in numerous lies.” Id. After
further explaining his efforts to produce work required in a timely fashion despite
technological and other problems, Plaintiff related that “I do not and will not tolerate any
Case 1:20-cv-01505-TJM-ML Document 24 Filed 11/21/22 Page 10 of 41
form of retaliation from Tim for me reporting this unethical and demeaning way of handling
our Teammates, or any other comments of me being old and aged/I’m 56 not 86.” Id.
Defendant points out that this email came after Stefanelli and Tripoli had begun their
investigation. Defendant’s Statement at ¶ 54. Plaintiff points out that he had not received
formal notice of the investigation when he wrote the email. Plaintiff’s Response at ¶ 54.
Defendant notes that Plaintiff had not had any contact with Ring for weeks before
sending the email. Defendant’s Statement at ¶ 55. Plaintiff does not dispute that he had
not communicated with Ring for that period, but contends that he explained during his
deposition that he sent the email when he did because “he finally just got fed up with”
Ring’s alleged mistreatment of Plaintiff because of his age. Plaintiff’s Response at ¶ 55.
The parties agree that Tripoli was not aware of any age-related complaints raised by
Plaintiff before this time. Defendant’s Statement at ¶ 56.
Plaintiff has no evidence that Stefanelli saw the email he sent Maxwell, “who was
responsible for initially raising concerns over Plaintiff’s handling of” the complaint of sexual
harassment Meher made. Id. at ¶ 57. Plaintiff does not address that claim, but responds
by alleging that he “questioned Tripoli about whether Ring was involved[.]” Plaintiff’s
Response at ¶ 57. According to Plaintiff, Tripoli turned “beet red,” at this question, “and
said nothing, neither did Stefanelli.” Id. Plaintiff points out that he “memorialized what
was discussed” at the November 19, 2019 meeting and sent a copy to Ring and Stefanelli.
Id. That document referenced the November 17, 2019 email. Id. Plaintiff “invited” Tripoli
and Stefanelli “to correct anything he said was inaccurate or misinterpreted.” Id. They did
not respond. Id.
The record before the Court contains a copy of that memorandum. See Exh. M to
Case 1:20-cv-01505-TJM-ML Document 24 Filed 11/21/22 Page 11 of 41
Stefanelli Declaration, dkt. # 19-4. The memorandum is not dated, though Plaintiff opens
by thanking Stefanelli and Tripoli for meeting with him “today.” Id. He suggests that “I
thought it would be helpful for us to have a summary of today’s meeting to ensure that we
are all on the same page with expectations and next steps.” Id. Plaintiff first relates that
his “email regarding concerns with Tim was shared with him and interpreted as an attempt
to mitigate possible adverse outcomes for myself due to the situation” with Meher. Id.
Plaintiff claims that the parties determined that future concerns about supervision would
“not be forwarded to the supervisor in question,” but would instead “be discussed with
those involved with anonymity of the complainant and the situation handled as seen f it.”
Id. Plaintiff further claimed that he “in no way had the impression that I was in jeopardy of
any adverse actions at the time I raised my concerns,” since he had handled the potential
sexual harassment as company policy required. Id. Plaintiff had simply hoped “to improve
the current working environment with” Ring. Id. Plaintiff also represented that “[m]y
concerns regarding Tim will be discussed and addressed,” though Plaintiff remained
“concerned about retaliation and would like to see some assurances that this will not be
the case.” Id. Plaintiff also discussed the issue of his efforts at disciplining Meher. Id. He
attempted to clarify the process for issuing employee discipline notices. Id.
At the time that Defendant fired Plaintiff, Monro had 119 active “Field Managers.”
Defendant’s Statement at ¶ 58. “Field Managers” include “District Managers, Zone
Managers, and Regional Vice Presidents.” Id. Of those employees, fourteen were
Plaintiff’s age or older. Id. Plaintiff was not replaced by a younger District Manager. Id. at
¶ 59. Plaintiff contends that his district “was dissolved.” Plaintiff’s Response at ¶ 59.
Plaintiff could not identify more than one manager who had been replaced by a younger
Case 1:20-cv-01505-TJM-ML Document 24 Filed 11/21/22 Page 12 of 41
manager. Defendant’s Statement at ¶ 60. Plaintiff testified that he would need more
records from the company to answer that question. Plaintiff’s Response at ¶ 60. Plaintiff
also could not point to another employee who faced age-based name calling from Ring.
Defendant’s Statement at ¶ 61. Plaintiff contends that such name calling was a “common
practice” for Ring. Plaintiff’s Response at ¶ 61. Defendant contends that Plaintiff has no
evidence that Ring was involved in his termination. Defendant’s Statement at ¶ 62.
Plaintiff responds that he testified that “he believed Ring was involved as a result of their
November 6, 2019 conversation, but could not show it without looking at company
records.” Plaintiff’s Response at ¶ 62.
Plaintiff requested that Monro grant him a leave of absence to undergo cancer
treatment in January 2016. Defendant’s Statement at ¶ 63. Plaintiff received the
requested leave. Id. Plaintiff testified that Monro did a “great” job in handling his leave
and “took care of everything” so Plaintiff could “concentrate on trying to beat cancer.” Id.
at ¶ 64. Defendant contends that when Plaintiff returned to work he “had no medical
restrictions and was fully capable of returning to full duty.” Id. at ¶ 65. Plaintiff claims he
notified management of “limitations he had with sitting for extended time periods, and
other issues associated with his condition.” Plaintiff’s Response at ¶ 65. At the same
time, Plaintiff admits that his supervisors “always accommodated any acts he took to deal
with [his] alleged complications.” Defendant’s Statement at ¶ 66. Those accommodations
included permitting Plaintiff “to take breaks while traveling to additional stores assigned to
his district.” Id. at ¶ 67. When Plaintiff’s health issues got worse, he requested to have
the additional stores removed from his route. Id. at ¶ 68. Defendant removed the
additional stores after this request. Id. Plaintiff responds that though he did not request
Case 1:20-cv-01505-TJM-ML Document 24 Filed 11/21/22 Page 13 of 41
the transfer of the stores, he agreed to the transfer “because of the strain it was putting on
his health condition.” Plaintiff’s Response at ¶ 68.
Plaintiff admits that he “suffered no adverse actions as a result of taking disability
leave.” Defendant’s Statement at ¶ 69. Plaintiff claims that Ring once told him that
Plaintiff needed to provide a month’s notice before taking another disability leave. Id. at
¶ 70. Defendant claims that Plaintiff “could not recall any specific instances in which he
complained about adverse treatment related to his disability.” Id. at ¶ 71. Plaintiff
responds that he responded to a question on the issue by saying that “he could not recall
without access to his emails.” Plaintiff’s Response at ¶ 71. Plaintiff also contends that
“the four extra stores assigned to him requiring extra travel that affected his condition was
made by Ring and Tripoli despite their knowledge of his condition and its impact on
Plaintiff’s ability to sit for extended periods.” Id.
Defendant further contends that Plaintiff agreed that an alleged decrease in
earnings he suffered came from a change in pay structure for all Monro managers, and
not to him specifically. Defendant’s Statement at ¶ 72. Plaintiff contends that the portion
of his testimony cited on that issue references store managers, and that he was not a
store manager but a district manager. Plaintiff’s Response at ¶ 72. Defendant further
contends that Plaintiff has admitted that reductions to his bonus before he was fired
nothing to do with Plaintiff’s age or disability. Defendant’s Statement at ¶ 72. Plaintiff
agrees that a new bonus program applied to him and would limit his pay, but contends that
the cited discussion did not address how his disability influenced decisions about his pay.
Plaintiff’s Response at ¶ 73.
Defendant alleges that no evidence exists to show that Ring, “the only individual
Case 1:20-cv-01505-TJM-ML Document 24 Filed 11/21/22 Page 14 of 41
Plaintiff claims voiced a concern for his disability,” played a role in Plaintiff’s termination.
Defendant’s Statement at ¶ 74. Plaintiff contends that he testified at his deposition that he
needed access to company records to show that Ring played a role in his firing. Plaintiff’s
Response at ¶ 74. Plaintiff, despite having engaged in discovery, cites to no such records.
He does argue that, when he asked Tripoli about Ring’s role, “Tripoli turned ‘beet red’ and
said nothing.” Id. He also points to the memorandum discussed above, which Plaintiff
claims discussed Ring’s role in his firing. Id. Plaintiff contends that Ring and Tripoli did
not dispute the claims he made in that document, though he asked them. Id. Plaintiff
offers the same response to Defendant’s statement that “[t]here is no evidence indicating
that . . . Ring consulted” with either Stefanelli or Tripoli before they fired Plaintiff.
Defendant’s Statement at ¶ 75; Plaintiff’s Response at ¶ 75.
Plaintiff claims that he “periodically objected to” an alleged “unwritten rule” that
women should not hold management positions at Monro. Defendant’s Statement at ¶ 76.
According to Defendant, Plaintiff admitted that he had not faced any disciplinary action as
a result of these alleged objections. Id. at ¶ 77. Plaintiff responds that he testified that he
was “not aware of” such disciplinary action. Plaintiff’s Response at ¶ 77. Defendant also
contends that Plaintiff agreed “that there is no evidence” that “any of the women he hired
were terminated from Monro.” Id. at ¶ 78. Plaintiff “disputes” this statement, contending
that he actually testified that he had no evidence of such terminations, “but that he knew
some of the women, and at least one was not there anymore, but that he was not in
contact with company employees[.]” Plaintiff’s Response at ¶ 78. He points to a
declaration from Marcel Bauman, who worked at Monro. See Marcel Bauman
Declaration, dkt. # 22-2. Bauman avers that “after Joe got fired, females in the district
Case 1:20-cv-01505-TJM-ML Document 24 Filed 11/21/22 Page 15 of 41
were getting let go left and right.” Id. at ¶ 4. He points to three women, including Simons,
who “were good employees.” Id. He also points to a statement in his own declaration, but
that statement addresses younger managers he claims were hired, and not women. See
Downey Declaration, dkt. # 22-3, at ¶ 32,
Plaintiff began receiving Social Security disability benefits in December 2019.
Defendant’s Statement at ¶ 79. Plaintiff points out that such benefits were not new
benefits, but a reinstatement of benefits he had previously obtained. Plaintiff’s Response
at ¶ 79. Plaintiff agrees that he has not sought or obtained other employment since Monro
terminated him. Defendant’s Statement at ¶ 80. 3
Plaintiff’s Complaint raises seven counts. See dkt. # 1. Count 1 alleges that
Defendant discriminated against him by firing him and retaliated against him because of
his disability in violation of the Americans with Disabilities Act (“ADA”). Count Two alleges
that Defendant discriminated against and retaliated against Plaintiff because of his age in
violation of “Title VII of the United States Code.” Count Three alleges that Defendant
Plaintiff has offered additional material facts with citations to the record in his
response to Plaintiff’s statement. See Plaintiff’s Statement of Additional Material Facts,
dkt. # 22-4 at ¶¶ 1-16. Some of those facts are referenced in Plaintiff’s responses
discussed above. Others provide additional support for Plaintiff’s contentions discussed
above, and others provide additional support for his claims that his treatment of Meher
followed company policy. The Court will refer to the evidence that Plaintiff cites as
appropriate in deciding this matter. The Court notes that the Local Rules permit a party’s
response to a moving party’s statement of material fact to “set forth any assertions that the
opposing party contends are in dispute in a short concise Statem ent of Additional Material
Facts in Dispute, containing separately numbered paragraphs.” N.Y.N.D. L.R. 56.1(b).
The rules permit the moving party to file a separate response to such additional
statements or to address such statements in a reply memorandum of law. The Court
notes that this portion of the rule, in contrast to the section addressing the moving party’s
statement of material facts, does not contain any requirement that the Court accept
properly supported additional facts as true if the moving party does not respond to them.
Case 1:20-cv-01505-TJM-ML Document 24 Filed 11/21/22 Page 16 of 41
retaliated against Plaintiff for opposing discrimination against women in violation of Title
VII. Count Four alleges discrimination on the basis of Plaintiff’s age in violation of Section
296(1)(a) of the New York Human Rights Law (“NYSHRL”). Count Five alleges disability
discrimination in violation of the Section 296(1)(a) of the NYSHRL. Count Six alleges
retaliation for Plaintiff’s opposition to Defendant’s discrimination against women in
employment in violation of the Section 296(1)(c) of the NYSHRL. Count Seven claims
discrimination and retaliation under Section 296(7) of he NYSHRL
Defendant answered the Complaint and the parties engaged in discovery. At the
close of discovery, Defendant filed the instant motion. The parties then briefed the issues,
bringing the case to its present posture.
Defendant seeks summary judgment. It is well settled that on a motion for
summary judgment, the Court must construe the evidence in the light most favorable to
the non-moving party, see Tenenbaum v. Williams, 193 F.3d 581, 593 (2d Cir. 1999), and
may grant summary judgment only where "there is no genuine issue as to any material
fact and ... the moving party is entitled to a judgment as a matter of law." FED. R. CIV. P.
56(a). An issue is genuine if the relevant evidence is such that a reasonable jury could
return a verdict for the nonmoving party. Anderson v. Liberty Lobby, 477 U.S. 242, 248
A party seeking summary judgment bears the burden of informing the court of the
basis for the motion and of identifying those portions of the record that the moving party
believes demonstrate the absence of a genuine issue of material fact as to a dispositive
issue. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the movant is able to
Case 1:20-cv-01505-TJM-ML Document 24 Filed 11/21/22 Page 17 of 41
establish a prima facie basis for summary judgment, the burden of production shifts to the
party opposing summary judgment who must produce evidence establishing the existence
of a factual dispute that a reasonable jury could resolve in his favor. Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). A party opposing a properly
supported motion for summary judgment may not rest upon "mere allegations or denials"
asserted in his pleadings, Rexnord Holdings, Inc. v. Bidermann, 21 F.3d 522, 525-26 (2d
Cir. 1994), or on conclusory allegations or unsubstantiated speculation. Scotto v.
Almenas, 143 F.3d 105, 114 (2d Cir. 1998).
Defendant seeks summary judgment on several grounds. The Court will address
each in turn, as appropriate.
Title VII Claims
Defendant first argues that the Court must dismiss any Title VII claims that Plaintiff
raises. Defendant contends that Title VII prohibits discrimination and retaliation on certain
bases, which do not include discrimination on the basis of age or disability. Since the only
discrimination Plaintiff claims is based on age and disability, Defendant insist that Plaintiff
cannot prevail on his Title VII claims. Plaintiff has not responded to this argument.4
As the Court’s decision here will make clear, Plaintiff’s response focuses almost
solely on whether Defendant’s stated reasons for firing him were pretext for Defendant’s
real reasons for the termination. “Federal courts may deem a claim abandoned when a
party moves for summary judgment on one ground and the party opposing summary
judgment fails to address the argument in any way.” Taylor v. City of New York, 269
F.Supp. 68, 75 (E.D.N.Y. 2003). Here, the Plaintiff argues that he has evidence to support
claims of employment discrimination on the basis of age and disability, but does not offer
any argument that he could raise such claims under Title VII. As the Court will explain, he
could not raise such claims even if he continued to maintain them. The Court does not
consider Plaintiff to have abandoned his general claims of discrimination, however, and
Case 1:20-cv-01505-TJM-ML Document 24 Filed 11/21/22 Page 18 of 41
Title VII of the Civil Rights Act of 1965 provides that “it shall be an unlawful
employment practice for an employer--(1) to fail to hire or to discharge any individual . . .
because of such individual’s race, color, religion, sex, or national origin[.]” 42 U.S.C. §
2000e-2(a)(1). Federal law also provides that “[i]t shall be an unlawful employment
practice for an employer . . . to discriminate against any individual . . . for opposing any
practice made an unlawful employment practice this title[.]” 42 U.S.C. § 2000e-3(a). “Title
VII prohibits discrimination on the basis of race, color, religion, sex or national origin and
retaliation against people who complain about discrimination.” Mathirampuzha v. Potter,
548 F.3d 70, 74 (2d Cir. 2008).
Title VII, does not, however, include protections for discrimination on the basis of
age or disability. Federal courts have repeatedly reached this conclusion. See, e.g.,
Canonica v. United States, 41 Fed. Cl. 516, 522 (Ct. Fed. Cl. 1998) (“T itle VII does not
prohibit discrimination on the basis of age.”); Bostanci v. New Jersey City Univ., 476 Fed.
Appx. 499, 501 (3d Cir. 2012) (“Age is not a protected class under Title VII.”); Marrero v.
Schindler Elevator Corp., 494 F.Supp.2d 102, 111 (D. P.R. 2007) (dism issing Title VII agediscrimination claim because Title VII does not apply to such claims); Carlisle v. St.
Charles Sch. Dist., 507 F.Supp.2d 1018, 1028 (E.D. Mo. 2007) (“Ag e discrimination claims
are not actionable under Title VII and therefore defendant’s motion for summary judgment
as to this claim is properly granted.”); Chiesa v. New York State Dep’t of Labor, 638
F.Supp.2d 316, 324 (N.D.N.Y. 2009) (granting summary judgment on Title VII disability
discrimination claim because Title VII does not prohibit discrimination on that basis); Lewis
will address them under the standards available for such claims.
Case 1:20-cv-01505-TJM-ML Document 24 Filed 11/21/22 Page 19 of 41
v. New York City Police Dep’t, 908 F.Supp.2d 313, 330 (E.D.N.Y. 2012) (granting
summary judgment on Title VII claim because plaintiff alleged discrimination based on
disability, which Title VII does not prohibit).
Because Plaintiff’s claims of discrimination based on disability and age do not
allege discrimination on any basis protected by Title VII, the Court will grant the motion in
Defendant next argues that Plaintiff lacks sufficient evidence to support his claims
for age discrimination and disability discrimination under any relevant statute. After
discussing the prevailing legal standard, the Court will address the age discrimination and
disability discrimination claims in turn. As a preliminary matter, the Court notes that the
Second Circuit Court of Appeals “has ‘repeatedly expressed the need for caution about
granting summary judgment to an employer in a discrimination case where . . . the merits
turn on a dispute as to the employer’s intent.” Tolbert v. Smith, 790 F.3d 427, 434 (2d Cir.
2015) (quoting Holcomb v. Iona Coll., 521 F.3d 130, 137 (2d Cir. 2008)). Still, “‘the
salutory purposes of summary judgment–avoiding protracted and harassing trials–apply
no less to discrimination cases than to . . . other areas of litigation.’” Id. (quoting Weinstock
v. Columbia Univ., 224 F.3d 33, 41 (2d Cir. 2000)).
As a preliminary matter, the Court notes that age discrimination claims brought
under New York and federal law apply the same standard. Wanamaker v. Columbian
Rope Co., 108 F.3d 462, 467 (2d Cir. 1997). Likewise, “[a] claim of disability
discrimination under the New York State Human Rights Law, N.Y. Exec. Law §§ 290-301,
Case 1:20-cv-01505-TJM-ML Document 24 Filed 11/21/22 Page 20 of 41
is governed by the same legal standards as govern federal ADA claims.” Graves v. Finch
Pruyn & Co., 457 F.3d 181, 184 n.3 (2d Cir. 2006).
Courts interpreting claims of employment discrimination under the ADA and antiage discrimination laws follow the burden-shifting framework set out by the Supreme Court
in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Kovco v. RockbestosSurprenant Cable Corp., 834 F.3d 128, 136 (2d Cir. 2016). Under this f ramework, the
“plaintiff must initially come forward with facts sufficient to establish a prima facie case that
his discharge was effected under circumstances giving rise to an inference of
discrimination.” Greenway v. Buffalo Hilton Hotel, 143 F.3d 47, 52 (2d Cir. 1998). Once
plaintiff meets his burden, “the burden of production then shifts to the defendant, who
must proffer a legitimate, non-discriminatory reason for its actions in order to rebut the
presumption of unlawful discrimination” created when plaintiff makes out a prima facie
case. Id. If the employer makes out this burden to “articulate an explanation that, if true,
would connote lawful behavior,” the burden returns to “the plaintiff to persuade the
factfinder that the employer’s proffered explanation is merely a pretext for unlawful
To “establish a prima facie case of discrimination under the ADA, a plaintiff must
show (a) that his employer is subject to the ADA; (b) that he is disabled within the meaning
of the ADA or perceived to be so by his employer; (c) that he was otherwise qualified to
perform the essential functions of the job with or without reasonable accommodation; and
(d) that he suffered an adverse employment action because his disability.” Brady v. WalMart Stores, 531 F.3d 127, 134 (2d Cir. 2008).
“To establish a prima facie case of age discrimination, a plaintiff must show four
Case 1:20-cv-01505-TJM-ML Document 24 Filed 11/21/22 Page 21 of 41
things: (1) he is a member of the protected class; (2) he is qualified for his position; (3) he
has suffered an adverse-employment action; and (4) the circumstances surrounding that
action give rise to an inference of age discrimination.” Abdu-Brisson v. Delta Air Lines,
Inc., 239 F.3d 456, 466 (2d Cir. 2001). “A plaintif f’s burden of establishing a prima facie
case is de minimis.” Id. at 467. That burden “is neither ‘onerous,’ nor ‘intended to be rigid,
mechanized or ritualistic.’” Id. (quoting, in turn, Fisher v. Vassar College, 114 F.3d 1332,
1335 (2d Cir. 1997) and Meiri v. Dacon, 759 F.2d 989, 996 (2d Cir. 1985)).
Defendant argues that Plaintiff cannot establish a prima facie case of disability
discrimination. Defendant first contends that Plaintiff has not put forth evidence that he
was disabled within the meaning of the ADA at the time of his firing. Plaintiff had returned
to work after his previous illness without restriction in September 2016, and Defendant
contends that nothing in the record supports a finding that he suffered from any other
physical or mental impairment after that date. Defendant had in the past granted
accommodations for Plaintiff’s job difficulties related to his cancer, and Defendant
contends that Plaintiff cannot point to any other conduct by supervisors or decision makers
that indicates an animus because of his disability. Plaintiff’s brief in opposition points to
no evidence that indicates that Defendant fired Plaintiff because of his disability. Plaintiff
must here put forth evidence that his disability was the “but for” cause of his firing.
Natofsky v .City of New York, 921 F.3d 337, 349 (2d Cir. 2019).
No evidence indicates that Defendant failed to accommodate Plaintiff or
Case 1:20-cv-01505-TJM-ML Document 24 Filed 11/21/22 Page 22 of 41
discriminated against Plaintiff because of his health condition before his termination.5
Indeed, the evidence related above indicates that Defendant permitted Plaintiff a leave of
absence to treat his cancer and changed his assignments to accommodate health
conditions after Plaintiff returned to work. Plaintiff’s own testimony indicates that he had
no complaints about Defendant’s willingness to accommodate him during his cancer
treatment, and that he had returned to a norm al work schedule before his termination.
Plaintiff provides a declaration describing his medical condition. See Plaintiff’s
Declaration, dkt. # 22-3. He relates that he received a diagnosis of Stage 3 colo-rectal
cancer in September 2015. Id. at ¶ 28. Plaintiff “went out on disability in January 2016.”
Plaintiff offers no argument that he suffered from a disability or was perceived as
suffering from a disability at the time of his termination. “For purposes of determining
whether an ADA plaintiff is a ‘qualified individual with a disability,’ the ADA defines
‘disability’ to include, inter alia, ‘a physical or mental impairment that substantially limits
one or more major life activities.’” Hamilton v. Westchester Cty., 3 F.4th 86, 92 (2d Cir.
2021) (quoting Woolf v. Strada, 949 F.3d 89, 93 (2d Cir. 2020) (in turn citing 42 U.S.C. §
12102(1)(A)). While courts formerly interpreted “disability” in a narrow fashion, Congress
amended the ADA in 2008 to “[broaden] the definition of ‘disability’” in the statute. Id. The
purpose of that amendment “‘was to overrule the Supreme Court’s arguably narrow
interpretation of what constitutes an ADA-qualifying disability as set forth in Sutton v.
United Air Lines, Inc., and Toyota Motor Mfg., Ky, Inc. v. Williams, and to make clear that
the substantial-limitation requirement in the definition of ‘disability’ is not an exacting one.’”
Id. (quoting Woolf, 949 F.3d at 94). To broaden the reach of the statue, the ADA
amendments provide “that ‘[t]he term substantially limits shall be construed broadly in
favor of expansive coverage, to the maximum extent permitted by the terms of the ADA,’
and ‘is not meant to be a demanding standard.’” Id. (quoting 28 C.F.R. § 35.108(d)(1)(i)).
The amendments also directed courts that “the term ‘substantially limits’ is to be
interpreted and applied to require a lower degree of functional limitation than the standard
required prior to the” amendments. Id. Plaintiff has not even attempted to explain his
limitations and how they meet this standard, nor has he explained the type of ADA claim
he seeks to make. He does not explain whether Defendant allegedly failed to
accommodate him because of some disability from which he suffered or whether
Defendant terminated him because of his disability. The Court declines to examine the
record and attempt to divine what arguments Plaintiff, who is represented by counsel, may
have been able to make.
Case 1:20-cv-01505-TJM-ML Document 24 Filed 11/21/22 Page 23 of 41
Id. Defendant kept Plaintiff’s job open for ten months. Id. Plaintiff received Social
Security Disability in June 2016 and notified Defendant of those payments. Id. These
payments from Social Security reduced the amount of long-term disability insurance for
which Defendant and Defendant’s disability insurer were responsible. Id. Plaintiff’s
condition “caused bowel regulation difficulty” that “impede[d] [his] ability to sit through
meetings[.]” Id. at ¶ 29. Ring and Tripoli attended those meetings and saw that Plaintiff
often had to “get up and leave[.]” Id. Plaintiff also notified a Sam Senuk, a senior Vice
President, about this situation. Id. Plaintiff was also hospitalized for complications of his
condition in January 2019. Id. Both Ring and Tripoli were aware of his condition. Id.
Despite this knowledge, Ring and Tripoli assigned Plaintiff several stores in
geographic locations that increased the amount of tie Plaintiff had to drive. Id. at ¶ 30.
These assignments caused “increased travel requiring prolonged driving–sometimes 80100 miles.” Id. These new assignments “exacerbated disabling symptoms, and
decreased [Plaintiff’s] performance and earnings.” Id. Plaintiff contends that “those
actions were taken to either induce [his] resignation,” or harm his performance enough to
allow his termination. Id. Plaintiff discussed the four extra stores he had recently been
assigned in a phone conversation with Ring on November 6, 2019. Id. at ¶ 13. Ring told
Plaintiff that the four stores “would be assigned to another District Manager[.]” Id. Plaintiff
told Ring he “favor[ed]” the idea, “because of the strain” the extra stores were “putting on
[his] health condition.” Id. Ring, Plaintiff reports, became angry at this, “shouting that
[Plaintiff] had to give him a warning about going out on disability[.]” Id. Plaintiff became
perplexed at this, because Plaintiff had not thought that agreeing to fewer stores
represented a desire to go out on disability. Id. Plaintiff suspected that Ring had hoped to
Case 1:20-cv-01505-TJM-ML Document 24 Filed 11/21/22 Page 24 of 41
provoke him in a way that would provide a pretext for discipline or termination.
Plaintiff grounds his claims for disability discrimination in Defendant’s reaction to his
cancer diagnosis. He admits that Defendant accommodated his illness by holding his job
open while he received disability payments. Plaintiff also admits that Defendant altered
his area of supervision when he complained about the stress of driving to cover particular
stores. A reasonable juror could not draw an inference of discrimination from such
conduct. The only evidence before the Court which could lead to an adverse inference
regarding Defendant’s position about Plaintiff’s cancer diagnosis comes from Ring’s
alleged statement to Plaintiff that Plaintiff needed to warn Ring before taking another leave
of absence due to a health condition. T his statement does not amount to a threat to fire
Plaintiff if he became sick again, and nothing indicates that Defendant took any action in
anticipation of Plaintiff suffering a future illness. Plaintiff claims that Ring hoped to
provoke him; but admits that Ring’s effort failed. Such evidence does not support an
inference of discrimination.
No reasonable juror could conclude that Defendant terminated Plaintiff because of
his disability. While a reasonable juror could perhaps conclude that Ring warned Plaintiff
not to seek an accommodation in the future, no evidence before the Court indicates that
Plaintiff had requested an accommodation or intended to request an accommodation. The
Court finds that no evidence supports Plaintiff’s prima facie ADA claim and will grant the
motion in that respect. Because the Court adjudicates NYSHRL claims on the same
standard, the Court will also grant the motion with respect to any NYSHRL disability
Case 1:20-cv-01505-TJM-ML Document 24 Filed 11/21/22 Page 25 of 41
With respect to age discrimination, Defendant argues that Plaintiff has failed to
establish his prima facie case because Plaintiff has failed to put forth any evidence that
would permit a jury to make an inference of age discrimination. Plaintiff has offered,
Defendant claims, only evidence of a few stray remarks by Ring about Plaintiff’s age. That
evidence, according to Defendant, offers no nexus between Ring’s comments and
Plaintiff’s firing. Ring was not a decision-maker when it came to Plaintiff’s firing.
“It well-settled that an inference of discriminatory intent may be derived from a
variety of circumstances, including, but not limited to: ‘the employer’s continuing, after
discharging the plaintiff, to seek applicants from persons of the plaintiff’s qualifications to
fill that position; or the employer’s criticism of the plaintiff’s performance in ethnically
degrading terms; or its invidious comments about others in the employee’s protected
group; or the more favorable treatment of employees not in the protected group; or the
sequence of events leading to the plaintiff’s discharge.’” Leibowitz v. Cornell Univ., 584
F.3d 487, 502 (2d Cir. 2009) (quoting Chambers v. TRM Copy Ctrs. Corp., 43 F.3d 29, 37
(2d Cir. 1994)). “[A] claimant bringing suit under the ADEA must demonstrate that age
was not just a motivating factor behind the adverse action but rather the ‘but-for’ cause of
it.” Id. at 498 n.2 (quoting Gross v. FBI, Financial Services, Inc., 129 S.Ct. 2343, 2350-51
(2009)). A plaintiff cannot prevail on an ADEA claim by “show[ing] ‘that age was simply a
motivating factor’ in the employer’s adverse action.” Lively v. WAFRA Inv. Advisory Grp.,
Inc., 6 F.4th 293, 303 (2d Cir. 2021) (quoting Gross, 557 U.S. at 174).
As evidence of age discrimination, Plaintiff alleges in his declaration in opposition to
the Defendant’s motion that “I was subjected to name calling and jokes about my age.”
Plaintiff’s Declaration, dkt. # 22-3, at ¶ 31, Ring referred to Plaintiff as “‘old man’, and
Case 1:20-cv-01505-TJM-ML Document 24 Filed 11/21/22 Page 26 of 41
‘John Wayne.’” Id. Ring “asked me when I had to ‘pick my wife up from Girl Scouts.’” Id.
Ring also “poked fun” and Plaintiff’s “computer skills.” “None of” those comments, Plaintiff
declares, were “welcome.” Id. Plaintiff hoped that his good performance would be
recognized, and he would be promoted. Id. He would then no longer have to answer to
Ring. Id. When Plaintiff had chances for promotion with Defendant, however, “I was not
offered or interviewed, despite being as qualified, or more qualified than other younger
employees who were offered positions or interviewed for them.” Id. at ¶ 32. Plaintiff
cannot state “the exact number of people [his] age that held [his] position,” though he
“believe[s] the proportion is small.” Id. Plaintiff felt qualified to serve as zone manager,
but did not receive even an interview. Id. Others, Dan Tripoli, Jamie Jenison, George
Ruth, Bill Burnett, and William Carver, “were all either interviewed, promoted, or promoted
without interview from 2013-early 2019.” Id.
The Plaintiff thus points to two types of evidence that he contends support an
inference of age discrimination. First, Plaintiff points to comments from Ring concerning
his age and his computer abilities. Plaintiff implies that the comments about his technical
skill also criticized his age. These comments were made by Ring, Plaintiff’s direct
supervisor. Plaintiff does not describe the comments as pervasive or constant, and the
comments do not directly reference age. These comments represent stray age-related
comments. “Stray age-related remarks are insufficient to raise an inference of
discriminatory motive unless they ‘(1) [were] made repeatedly, (2) drew a direct link
between [discriminatory] stereotypes and the adverse employment decision, and (3) were
made by supervisors who played a substantial role in the decision to terminate.’” Id.
(quoting Naumovski v. Norris, 934 F.3d 200, 216 n. 47 (2d Cir. 2019)). T he comments as
Case 1:20-cv-01505-TJM-ML Document 24 Filed 11/21/22 Page 27 of 41
described were not made repeatedly. Plaintiff also fails to point to any direct link between
those comments and the decision to terminate him or not promote him. Finally, Plaintiff
alleges that Tripoli and Stefanelli made the decision to terminate him, but fails to allege
any connection between them and the age-related remarks. A jury could not use this
evidence to draw an inference of age discrimination.
Plaintiff has also failed to produce evidence a jury could use to conclude that
Defendant’s failure to promote him and promote others provides an inference of age
discrimination. Plaintiff does not provide any specific information about these alleged
failures to promote. He offers no evidence of specific promotions that he sought. He
provides no information of the dates when he sought those jobs, the locations of those
jobs, the other candidates for those jobs, and Defendant’s explanations for failing to
promote him. He also provides no information except the names of others who received
promotions. He does not describe in any detail their qualifications. He also does not
provide their ages. Plaintiff has not offered information sufficient to create an issue of fact
that would permit a reasonable juror to draw an inference that age was the but-for reason
for Defendant’s failure to promote him. While Plaintiff’s burden to demonstrate
discrimination when it comes to his prima facie case is not a high one, Plaintiff does have
a burden. Without any evidence beyond his speculation, he cannot meet that burden.
The Court also finds that Plaintiff has not pointed to any evidence that indicates that Ring
played a role in his firing, further undermining his claim that age discrimination caused his
The Court therefore finds that Plaintiff has failed to make out a prima facie case for
age discrimination and will grant the Defendant’s motion in this respect as well. Since, as
Case 1:20-cv-01505-TJM-ML Document 24 Filed 11/21/22 Page 28 of 41
the Court has explained, the legal standard for age discrimination under the NYSHRL is
the same as under federal law, the Court will grant the motion on the state-law claims as
Defendant next argues that the Court should dismiss any retaliation claims that
Plaintiff raises. Defendant contends that Plaintiff claims retaliation for engaging in three
types of protected activities: complaints about discrimination against women, requests for
accommodations for his disability, and complaints about Ring’s age discrimination against
him. Defendant argues that Plaintiff cannot make out a prima facie to support any of
Courts evaluate retaliation claims using the same framework whether the claims are
brought under Title VII or the ADA. Sarno v. Douglas Elliman-Gibbons & Ives, Inc., 183
F.3d 155, 159 (2d Cir. 1999). “To establish a prima facie case of unlawful retaliation, a
plaintiff must show ‘(1) that [he] participated in a protected activity, (2) that [he] suffered an
adverse employment action, and (3) that there was a causal connection between [his]
engaging in the protected activity and the adverse employment action.’” Rasmy v. Marriot
Int’l, Inc., 952 F.3d 379, 391 (2d Cir. 2020) (quoting Gorzynski v. JetBlue Airways Corp.,
596 F.3d 93, 110 (2d Cir. 2010)). Protected activity occurs whether or not the plaintiff
complains about conduct that is actually illegal “so long as he can establish that he
possessed a ‘good faith, reasonable belief that the underlying challenged actions of the
employer violated that law.’” Sarno, 183 F.3d at 159 (quoting Quinn v. Green Tree Credit
Corp., 159 F.3d 759, 769 (2d Cir. 1998)). Protected activity can include the “filing of
Case 1:20-cv-01505-TJM-ML Document 24 Filed 11/21/22 Page 29 of 41
formal charges of discrimination,” but such activity can also include “informal protests of
discriminatory employment practices, including making complaints to management, writing
critical letters to customers, protesting against discrimination by industry or by society in
general, and expressing support of co-workers who have filed formal charges.” Sumner v.
United States Postal Service, 899 F.2d 203, 209 (2d Cir. 1990). “A plaintif f may prevail on
a claim for retaliation even when the underlying conduct complained of was not in fact
unlawful ‘so long as he can establish that he possessed a good faith, reasonable belief
that the underlying challenged actions of the employer violated [the] law.’” Treglia v. Town
of Manlius, 313 F.3d 713, 719 (2d Cir. 2002) (quoting Sarno v. Douglas Elliman-Gibbons &
Ives, Inc., 183 F.3d 155, 159 (2d Cir. 1999)).
Prima Facie Case
Plaintiff appears to allege retaliation on three bases: complaints about sex
discrimination, disability discrimination, and age discrimination. The Court will address
each in turn.
Defendant first seeks dismissal of any retaliation claims based on Plaintiff’s
purported reporting of discrimination based on sex. Defendant argues that Plaintiff’s
claims of complaining about such discrimination are vague and unverified, that Plaintiff
complained only to Ring, who did not take any adverse employment actions, and that
Plaintiff has altogether failed to point to any retaliatory action. Defendant argues that on
this basis Plaintiff has failed to make out a prima facie case. Plaintiff does not offer any
particular argument in his briefing about whether he opposed any discrimination on the
Case 1:20-cv-01505-TJM-ML Document 24 Filed 11/21/22 Page 30 of 41
basis of sex.
The Court will grant the motion in this respect. While, as explained above, Plaintiff
offers some evidence that he complained about the Defendant’s treatment of women, he
does not offer any specific evidence that he made any complaints to the people who
decided to terminate his employment or offer any specifics at all that he actually made
such complaints. Plaintiff just offers a general allegation that he had often complained
about such discrimination. Such evidence is too vague to demonstrate that the employer
was aware of a particular complaint. Plaintiff has thus failed to produce evidence a jury
could use to find that the Defendant’s decision makers were even aware that he engaged
in the protected activity. Without some specifics about actual complaints, no reasonable
juror could find that Plaintiff has established his prima facie case in this respect. Plaintiff’s
vague claim that he at various times complained about how Defendant treated women,
which lacks any effort to describe the specifics of the claims or when he made them, is
not sufficient for a reasonable jury to find protected activity.
Even assuming that Plaintiff has established that he offered complaints about
discrimination towards women, Plaintiff has not produced evidence by which a reasonable
juror could find that those complaints caused the adverse employment action in question.
To establish the causation part of a retaliation claim, a plaintiff “must show that the
allegedly adverse action occurred in circumstances from which a reasonable jury could
infer retaliatory intent.” Treglia, 313 F.3d at 720. “[A] close temporal relationship between
a plaintiff’s participation in protected activity and an employer’s adverse actions can be
sufficient to establish causation.” Id. Five months between the complaint and the adverse
action “is not too long to find the causal relationship.” Gorzynski v. JetBlueAirways Corp.,
Case 1:20-cv-01505-TJM-ML Document 24 Filed 11/21/22 Page 31 of 41
596 F.3d 93, 110 (2d Cir. 2010). W hen an employer has an especially complicated
decision-making hierarchy “a five month-time frame “satisfy the ‘in custody’ requirement of
the federal habeas statutes by showing that he is subject to ‘a significant restraint upon his
physical liberty not shared by the public generally.’” Rutigliano, 887 F.3d at 105 for a
decision to fire an employee may not be exceptional.” Rasmy, 952 F.3d at 391. Here,
Plaintiff points to complaints that he made directly to Tripoli and Stefanelli about
comments that Ring made to him. His firing followed close on those reports. None of his
complaints, discussed above, however, involved any specific allegations that Monro
mistreated women. A reasonable juror could not infer retaliatory intent from complaints
about discrimination unrelated to sex. The Court will therefore grant the motion with
respect to any claims about discrimination related to sex, whether brought under federal
law or the NYSHRL.
Defendant next argues that the Court should grant judgment on Plaintiff’s claims of
retaliation related to his requests for accommodations for his disability. Defendant argues
that the evidence indicates that Monro accommodated any requests Plaintiff made related
to his illness, and that no evidence indicates that Plaintiff suffered any adverse
employment action for seeking accommodations. Plaintiff again fails to respond to this
argument but instead focuses on alleged retaliation for complaining about Ring’s
The Court will grant the motion in this respect as well. As explained, Plaintiff
presents no evidence of an adverse employment action related to his requests for
accommodations related to his disability. He agrees that Defendant met his requests for
Case 1:20-cv-01505-TJM-ML Document 24 Filed 11/21/22 Page 32 of 41
accommodation, and took no adverse employment action against him because of his
illness. Defendant attempted to accommodate the disability, and Plaintiff’s firing did not
come in connection to any requests for accommodation. As with his alleged complaints
about sex discrimination, his alleged complaints about disability accommodations were not
a subject of his email to Maxwell, whether the decisionmakers saw that email or not. The
motion will be granted with respect to Plaintiff’s retaliation claims with reference to
The remaining issue as to retaliation, then, is whether evidence exists to support a
prima facie case that Defendant retaliated against Plaintiff for complaining about age
discrimination. Plaintiff argues that his email to Donna Maxwell and Tripoli concerning
Ring’s treatment of him represented a report of age discrimination. He contends that
evidence exists that both Stefanelli and Tripoli were aware of his email to Maxwell before
they fired him.6 Since they fired him quickly after he reported discrimination, Plaintiff
claims, a jury would be permitted to conclude that the firing was retaliatory.
Plaintiff asserts that a factual issue exists because questions exist:
whether plaintiff’s November 17, 2019 email to Donna Maxwell complaining of Tim
Ring was shared with Ring, which would violate defendant’s confidentiality policy,
and again show Stefanelli and Tripoli’s concerns about plaintiff were not quite what
they professed. At his November 19, 2019 meeting with Stefanelli and Tripoli,
Plaintiff directly questioned whether the email was shared. Tripoli “turned beet red”
saying nothing in response and Stefanelli was silent. Qui tacet consentire vedetur
(He who is silent is considered as assenting when his interest is at stake). Plaintiff
also sent Stefanelli and Tripoli a summary of the meeting in which he asserted the
email was shared, and invited any disagreement with the summary’s contents. He
got none. Qui no negat fatetu (He who does not deny admits). Additionally, Tim
Ring’s declaration makes no denial he mocked plaintiff’s age and health condition,
which Marcel Baumann’s declaration says he did.
Plaintiff’s Brief in Opposition, dkt. # 22-5, at 4-5 (internal citations om itted).
Case 1:20-cv-01505-TJM-ML Document 24 Filed 11/21/22 Page 33 of 41
More detail on this issue is useful. Plaintiff sent the email in question to Donna
Maxwell on November 17, 2019 at 3:49 p.m. See Exh. C to Tripoli Declaration, dk5. # 195. He copied Tripoli on the email. Id. Plaintiff explains that “I am writing this to you to
report some serious issues regarding myself, my supervisor and age discrimination.” Id.
“Tim Ring,” Plaintiff reports, “refers to me in public as John Wayne (an old gunslinger).”
Id. Plaintiff then explains that, during discussions over reducing employment numbers,
Ring engaged in a “one way conversation that when I tried to speak he would speak over
me in a demeaning manner.” Id. Plaintiff complained about the specific management
decisions in question and that stated: “This is what I’m asking. I want a complete cease
and desist from Tim Ring. I respect him. I think he is a smart good zone manager.” Id.
At the same time, however, Plaintiff reported that he did “not like the following: being
spoken down to, like I have not been doing this same work since 1988. Being forced to
switch so fast to everything electronic and referring to my age because I have not been
able to comply with these changes as fast, not due to my age, but because” of technical
difficulties. Id. After further complaints and explanations about his success in managing
certain stores, Plaintiff related that “I want the respect I deserve in the position I hold
without my name being related to age. Without being talked down to. Without giving
mixed messages about personnel.” Id. In the end, Plaintif f claimed that “I do not and will
not tolerate any form of retaliation from Tim for me reporting this unethical and demeaning
way of handling our Teammates, or any other comments of me being old and aged/I’m 56
not 86.” Id.
After meeting with Tripoli and Stefanelli on November 19, 2019, Plaintiff wrote them
a message. See Exh. M to Tripoli Declaration, dkt. # 19-4. Plaintiff stated that “I thought it
Case 1:20-cv-01505-TJM-ML Document 24 Filed 11/21/22 Page 34 of 41
would be helpful for us to have a summary of today’s meeting to ensure that we are all on
the same page with expectations and next steps.” Id. Plaintiff first related that his “email
regarding concerns I had with Tim was shared with him and interpreted as an attempt to
mitigate possible adverse outcomes for myself due to the situation with Shannon.” Id.
According to Plaintiff, “[d]iscussion regarding these issues” led to a number of items,
including that “[i]n the future, should concerns arise regarding supervision, the concern will
not be forwarded to the supervisor in question.” Rather, such “concerns will be discussed
with those involved with anonymity of the complainant and the situation handled as seen
fit.” Id. Plaintiff claimed that his complaint about Ring was not related to any sense that
Plaintiff felt he was in “jeopardy” because of the way that he had handled the complaint
about sexual harassment. Id. He raised the issues about Ring, because he felt that
sharing such concerns “was important to address to improve the current working
relationship with Tim.” Id. Plaintiff agreed that he, Tripoli, and Stefanelli had discussed
his concerns about Ring, but Plaintiff related that he was “concerned about retaliation and
would like some assurances that this will not be the case.” Id.
Stefanelli wrote to Plaintiff on November 20, 2019 to inform him that he was
terminated from his position as Market Manager. See Exh. N to Tripoli Declaration, dkt. #
19-4. The termination was effective on that day. Id. Stefanelli informed Plaintiff that the
termination was “result of gross misconduct involving fabrication of employee performance
documents.” Id. A “Separation Notice” that Stefanelli provided stated that Plaintiff had
“submitted performance documentation to Human Resources requesting the termination
of an employee in your area due to unsatisfactory attendance.” See Exh. O to Tripoli
Dec., dkt. # 19-4. Monro reviewed that documentation and determined that Plaintiff had
Case 1:20-cv-01505-TJM-ML Document 24 Filed 11/21/22 Page 35 of 41
directed another employee to fabricate attendance warnings for the employee in question,
and Stefanelli cited those actions as grounds for firing. Id. Plaintiff disputed the basis for
his firing, stating “I think this is in direct retaliation for my letter regarding my supervisor
Tim Ring. Also I feel that my discussion with Tim Ring about my health concerns, where
he freaked out about ‘warning him’ have played a part in my dismissal from employment.”
The Court notes that “[t]he burden of proof that must be met to establish a prima
facie case” in the employment discrimination context “is minimal.” Hollander v. American
Cyanamid Co., 172 F.3d 192, 199 (2d Cir. 1999). Further, as ex plained above, a close
temporal proximity between the alleged protected activity and an adverse employment
action can be evidence that the protected activity caused the adverse employment action.
Given the limited nature of Plaintiff’s burden in this respect, the Court finds that Plaintiff
has–barely–met that burden. While the Court recognizes that Plaintiff’s complaint of age
discrimination came after Plaintiff became aware that Tripoli and Stefanelli were
investigating his conduct concerning Meher, the Court finds that there is evidence that a
jury could use to conclude that Tripoli and Stefanelli were aware of his complaints when
Plaintiff was terminated. While a reasonable juror could certainly view Plaintiff’s
complaints as an insincere attempt to salvage a job that seemed to be slipping away, such
a juror could also reasonably infer that Plaintiff’s complaints about age discrimination led
to Plaintiff’s firing. Plaintiff has made out a prima facie case in this respect only.
Legitimate Non-Discriminatory Reasons
If a plaintiff makes out a prima facie case for retaliation, “the defendant may rebut
that showing by articulating a legitimate, non-discriminatory reason for the employment
Case 1:20-cv-01505-TJM-ML Document 24 Filed 11/21/22 Page 36 of 41
action.” Weinstock, 224 F.3d at 42. “A defendant meets this burden if he presents
reasons that, ‘taken as true, would permit the conclusion that there was a
nondiscriminatory reason for the adverse action.’” Adu-Brisson v. Delta air Lines, Inc., 239
F.3d 456, 469 (2d Cir. 2001) (quoting St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 509
(1993)). Here, the Court has found only that Plaintiff has made out a prima facie case with
respect to his retaliation claims related to age discrimination. Even if the Court has erred
in reaching conclusions about whether Plaintiff has facts to support a prima facie case with
reference to the other forms of discrimination discussed here, the Court would reach the
same conclusion about whether Plaintiff has offered legitimate non-discriminatory reasons
for terminating the Plaintiff.
Defendant contends that Monro had a legitimate non-discriminatory reason for
firing Plaintiff: Tripoli and Stefanelli found that Plaintiff had fabricated documents while
investigating claims of sexual harassment at one of the stores that he managed. The
evidence related above indicates that Tripoli and Stefanelli found that Plaintiff did not
follow the procedures the company mandated when Meher made her complaint of sexual
misconduct at work. Instead, they found, Plaintiff allegedly encouraged others to fabricate
documents that reflected poorly on Meher and justified terminating her. Defendant
contends that “Plaintiff was terminated for the falsification of company records in an
attempt to have one of his subordinates unjustifiably (and seemingly unlawfully)
While Plaintiff disputes that the reasons stated for his termination were the real
reasons for that action, he does not argue that the reasons provided by the Defendant are
legitimate non-discriminatory reasons for the employment action. Based on the evidence
Case 1:20-cv-01505-TJM-ML Document 24 Filed 11/21/22 Page 37 of 41
summarized above, the Court finds that evidence exists to support Defendant’s claim that
Monro fired Plaintiff because of his conduct of the investigation into Meher’s claim of
sexual harassment. The Court finds that Defendant has met its burden in this respect.
Once a defendant satisfies this burden to present legitimate non-discriminatory
reasons for the employment decision, “the presumption of discrimination arising with the
establishment of the prima facie case drops from the picture.” Weinstock, 224 F.3d at 42.
“[T]he plaintiff must then come forward with evidence that the defendant’s proffered, nondiscriminatory reason is a mere pretext for actual discrimination.” Id. A plaintiff may meet
this burden “by demonstrating weaknesses, implausibilities, or contradictions in the
employer’s proffered, legitimate, non-retaliatory reasons for its actions. From such
discrepancies, a reasonable juror could conclude that the ex planations were pretext for a
prohibited reason.” Kwan v. Andalex Grp., LLC, 737 F.3d 834, 846 (2d Cir. 2013).
“Temporal proximity alone is insufficient to defeat summary judgment at the pretext stage,”
but “a plaintiff may rely on evidence comprising [his] prima facie case, including temporal
proximity, together with other evidence such as inconsistent employer explanations, to
defeat summary judgment[.]” Id. at 847. “[T]he way to tell whether a plaintiff’s case is
sufficient to sustain a verdict is to analyze the particular evidence to determine whether it
reasonably supports an inference of the facts plaintiff must prove–particularly
discrimination.” James v. New York Racing Ass’n, 233 F.3d 149, 157 (2d Cir. 2000). A
retaliation claim requires a showing that “retaliation was a ‘but-for’ cause of the adverse
action, and not simply a ‘substantial’ or ‘motivating’ factor in the employer’s decision.”
Case 1:20-cv-01505-TJM-ML Document 24 Filed 11/21/22 Page 38 of 41
Kwan, 737 F.3d at 845. Such “‘but-for’ causation does not require proof that retaliation
was the only cause of the employer’s action, but only that the adverse action would not
have occurred in the absence of the retaliatory motive.” Id. at 846; see also, Lively v.
WAFRA Inv. Advisory Grp., Inc., 6 F.4th 293, 307 (2d Cir. 2021)(age-discrimination
retaliation requires proof of but-for causation).
Here, Defendant argues that none of the decisionmakers regarding Plaintiff’s
termination were aware of any age-based comments that Ring alleged made when their
investigation into his conduct began, and that Plaintiff can offer only conclusory and
unsupported accusations of pretext. Plaintiff responds that questions of fact exist over
whether Plaintiff was fired for falsifying company records. He argues that questions exist
over whether he actually falsified records, whether Tripoli and Stefanelli conducted a
proper investigation, and whether they coerced statements from workers who later
retracted them. He complains that they failed to take a statement from Don Durkin, who
had also reported on Meher’s attendance issues, and f rom Mike Kinns, a store manager
who signed the attendance reports allegedly in contention. Plaintiff also points to the
disputes about whether Tripoli and Stefanelli had been apprised of Plaintiff’s email about
Ring. Plaintiff also points to the temporal proximity between his firing and his complaint as
evidence to support pretext.
The question, then, is whether Plaintiff has put forth sufficient evidence for a
reasonable juror to conclude that retaliation was the but-for cause of his termination, and
that his alleged misconduct surrounding Meher’s complaint of sexual harassment was
mere pretext for Defendant’s real motivation. As explained above, Stefanelli and Tripoli
gathered evidence that indicated that, when confronted with a complaint of sexual
Case 1:20-cv-01505-TJM-ML Document 24 Filed 11/21/22 Page 39 of 41
harassment from one of his employees, Plaintiff did not address the accusation with any
discipline, but instead enlisted other employees in an effort to create a poor work history
for the accuser that would justify her firing. Plaintiff points to evidence that he claims
indicates that Stefanelli and Tripoli pressured one employee into making false statements,
which she later recanted. He also contends that the evidence they conducted was not
sufficient to gather all of the facts.
As explained, Plaintiff must point to evidence of record that indicates “weaknesses,
implausibilities, or contradictions in the employer’s proffered, legitimate, non-retaliatory
reasons for its actions” sufficient for a reasonable juror to find pretext if Plaintiff hopes to
avoid summary judgement. Kawn, 737 F.3d at 846. The Courts finds that Plaintiff
has–barely–produced such evidence. As explained above, there is evidence from Simons
that her statements to Stefanelli and Tripoli regarding Plaintiff’s alleged directions to create
false records about Meher came only because of pressure from those two. If a juror
believed this testimony, that juror might also reasonably believe that Stefanelli and Tripoli
acted not because their investigation had revealed misconduct, but because of an attempt
to manufacture a reason to terminate Plaintiff. As their recommendation for termination
came after evidence indicates that Plaintiff made them aware of his complaints against
Ring for age discrimination, a reasonable juror could conclude that the reason that the butfor cause of Plaintiff’s termination was his complaints about age discrimination. The Court
will therefore deny the motion with respect to this claim.
Defendant next argue that Plaintiff should be precluded from obtaining front or back
pay as a remedy for the alleged retaliation because the Social Security Administration has
Case 1:20-cv-01505-TJM-ML Document 24 Filed 11/21/22 Page 40 of 41
determined he was disabled as of December 2019. Defendant also argues that, if Plaintiff
contends that he is capable of working, his damages for front and back pay should be
precluded because he has failed to seek other employment since his termination. Plaintiff
has not responded to these arguments.
“In fashioning a remedy for discrimination, a court should place ‘the injured party . .
. as near as can be, in the situation he would have occupied if the wrong had not been
committed.’” Thornley v. Penton Publ., 104 F.3d 26, 31 (2d Cir. 1997) (quoting Albemarle
Paper Co. v. Moody, 422 U.S. 405, 418-19 (1975)). As a general matter, a plaintiff who
prevails on an employment discrimination claim is “entitled to an award of back pay from
the date of her termination until the date of judgment.” Saulpaugh v. Monroe Cmty. Hosp.,
4 F.3d 134, 144 (2d Cir. 1992). An award of back is designed “to completely redress the
economic injury the plaintiff has suffered as a result of discrimination.’” Id. at 145 (quoting
Gutzwiller v. Fenik, 860 F.2d 1317, 1333 (6 th Cir. 1988)). A person who receives disability
payments, however, cannot work, and is not entitled to damages from back pay during
periods of disability. Id. The person’s lost income during those periods is not a loss
“suffered as a result of discrimination.” Id. As such, damages do “not extend to granting
back pay for a period when a plaintiff would have unable, due to an intervening disability,
to continue employment.” Thornley, 104 F.3d at 31.
The undisputed evidence here indicates that Plaintiff began receiving Social
Security Disability benefits after Defendant terminated his employment. The Court agrees
with the Defendant that Plaintiff may not obtain back pay for any period in which he
received Social Security disability benefits. Plaintiff is foreclosed from claiming any back
pay for periods in which he received Social Security disability payments. Similarly, Plaintiff
Case 1:20-cv-01505-TJM-ML Document 24 Filed 11/21/22 Page 41 of 41
is not eligible to obtain front pay for periods in which he cannot work. Kovaco v.
Rockbestos-Surprenant Cable Corp., 979 F.Supp.2d 252, 262 (Dist. Conn. 2013). No
evidence is before the Court concerning the expected duration of the disability for which
Plaintiff currently receives disability payments, nor is there evidence of precisely when
Plaintiff began receiving such benefits. As such, the Court will wait until the evidence
regarding damages and disability appear at trial before deciding for what periods Plaintiff
may obtain damages. Defendant’s similar claim that Plaintiff is not entitled to front pay
because he failed to mitigate his damages by seeking another job is likewise best resolved
at trial, when questions of fact can be addressed.
For the reasons stated above, Defendant’s motion for summary judgment, dkt. #
19, is hereby GRANTED in part and DENIED in part. The motion is DENIED with respect
to Plaintiff’s state and federal retaliation claims based on age discrimination and
GRANTED with respect to all other claims.
IT IS SO ORDERED.
Dated: November 21, 2022
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?