Foos v. Monroe Boces #2

Filing 36

ORDER granting in part and denying in part 27 Motion for Summary Judgment. Signed by Hon. Michael A. Telesca on January 15, 2013. (MES)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
________________________________________
WILLIAM FOOS,
Plaintiff,

10-CV-6221
DECISION
and ORDER

v.
MONROE-2 ORLEANS BOCES,
Defendants.
_______________________________________
INTRODUCTION

Plaintiff, William Foos (“Plaintiff”), brings this action
pursuant to the Age Discrimination in Employment Act, 29 U.S.C. §§
621

et

seq.

(“ADEA”)1

alleging

that

Monroe-2

Orleans

BOCES

(“Defendant” or “BOCES 2”) unlawfully discriminated against him
because of his age when he applied for the precision machining
teacher position at BOCES 2. Plaintiff claims that individuals who
were less qualified than he were chosen for interviews and that he
was not chosen for an interview because of his age.
Defendant moves for summary judgment contending that Plaintiff
has not presented sufficient evidence of discrimination such that
a reasonable jury could find in his favor. Defendant also contends
that

even

if

Plaintiff

has

presented

sufficient

evidence

of

discrimination, he is only entitled to nominal damages, and his
claims for compensatory relief and attorney’s fees should be
1

Plaintiff also initially brought a claim under New York State law, but that claim was
dismissed by this Court in a Decision and Order dated June 29, 2011. (Docket No. 22.)
1

dismissed.
For

the

reasons

discussed

herein,

Defendant’s

motion

is

granted in part and denied in part. Defendant’s motion for summary
judgment on the issue of liability is denied.

However, the Court

finds that Plaintiff is limited to the recovery of nominal damages
and therefore, is not entitled to recover attorney’s fees for the
reasons stated herein.
BACKGROUND
The following facts are taken from the parties’ submissions
pursuant to Local Rule 56(a) and the exhibits attached thereto and
are not in dispute unless otherwise noted. (Docket Nos. 27, 33.)
In 2009, BOCES 2 posted an opening for the position of precision
machining teacher within the Career and Technical Center.

At the

time, Plaintiff was employed as a precision manufacturing teacher
at Monroe #1 BOCES (“BOCES 1”), and he applied for the position at
BOCES 2.

Plaintiff was qualified for the position.

Executive Principal of the Career and Technical Center at
BOCES 2, Joseph Salemi (“Salemi”), reviewed the applications and
selected applicants for interviews. Salemi selected six individuals
to interview, two of whom were later selected for second round
interviews.

Plaintiff was not selected for an interview.

Plaintiff contends that he was not selected for an interview
because of his age (58), and that other, younger, less qualified
candidates were chosen for interviews.

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Defendants respond that

while

Plaintiff

was

qualified

for

the

position,

all

other

candidates were equally or more qualified. Plaintiff disputes this
fact. Salemi

testified

that

Plaintiff

was not

chosen

for

an

interview based on the contents of his application. He stated that
Plaintiff’s application indicated an interest in the position based
on its location, rather than his interest in growing the program.
Salemi also stated that he believed the program at BOCES 1, where
Plaintiff was employed, was struggling, in part because Plaintiff
did not have the necessary drive to grow the program at BOCES 1. He
formed this belief through informal conversations with the director
of

BOCES

1.

However,

Salemi

also

admitted

that

he

had

a

conversation with the director at BOCES 1 in which he stated that
Plaintiff was not selected for an interview because he was a “short
timer” - someone seeking a position only to fulfill his retirement
obligations.

Salemi testified that he only made this statement

because he did not want to discuss Plaintiff’s performance issues
directly with his colleague.
DISCUSSION
Pursuant to Rule 56 of the Federal Rules of Civil Procedure,
a court shall grant a motion for summary judgment if the moving
party demonstrates “that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of
law.” See Fed.R.Civ.P. 56(a). Once the movant has met this burden,
the burden shifts to the nonmovant who must “come forward with

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evidence to allow a reasonable jury to find in his favor” on each
of the elements of his prima facie case. See Lizardo v. Denny's,
Inc., 270 F.3d 94, 101 (2d Cir.2001); Celotex Corp. v. Catrett, 477
U.S.

317,

325-27

(1986).

The

court

must

draw

all

factual

inferences, and view the factual assertions in materials such as
affidavits, exhibits, and depositions in the light most favorable
to the nonmoving party. See Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 255 (1986); Celotex Corp., 477 U.S. at 322.
Plaintiff’s ADEA discrimination claim is analyzed under the
McDonnell Douglas burden-shifting framework. See Abdu-Brisson v.
Delta Air Lines, Inc., 239 F.3d 456 (2d Cir. 2001); McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 802 (1973).

Under this

framework, Plaintiff must first establish a prima facie case of age
discrimination by showing “(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.” AbduBrisson, 239 F.3d at 466-467. Once a plaintiff has established a
prima facie case of discrimination, the defendant must articulate
a legitimate, nondiscriminatory rationale for its actions. Id. The
burden then

shifts

to

the

plaintiff

to

demonstrate

that the

employer’s stated rationale is merely a pretext for discrimination
and that age discrimination is the true reason for the defendant’s
actions. See McDonnell-Douglas Corp., 411 U.S. at 802; see also

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Abdu-Brisson, 239 F.3d at 466-467.
A.

Material Issues of Fact Preclude Summary Judgment
Here, the parties dispute whether Plaintiff has met his burden

of coming forth with evidence that the circumstances surrounding
Defendant’s failure to select him for an interview give rise to an
inference

of

discrimination

and

that

the

Defendant’s

rationale is merely a pretext for discrimination.

stated

The Court finds

that Plaintiff has met his burden and that a reasonable jury could
conclude that Salemi failed to select Plaintiff for an interview
because of his age.
Salemi

made

a

comment

to

the

director

of

BOCES

1

that

Plaintiff was not chosen because he was a “short timer” - someone
who would stay with the program only until he fulfilled retirement
requirements. Salemi Dep. at pg. 50-51.

This statement could be

construed by a reasonable jury as evidence that Plaintiff’s age at
the time he applied, 58, played an integral role in his inability
to secure an interview because he was close to retirement age.
Accordingly, because the Court finds that material issues of fact
remain with respect to whether Plaintiff was not chosen for an
interview because of his age, Defendant’s motion for summary
judgment is denied with respect to liability.
B.

Damages
In a Decision and Order dated June 29, 2011 (“June 2011

Order”) this Court granted in part and denied in part Defendant’s

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motion for judgment on the pleadings. (Docket No. 22.)

The Court

permitted

pain and

Plaintiff to

proceed

with

his

claims

for

suffering, lost employment benefits and lost job opportunities.
However, in the June 2011 Order, the Court specifically found that
Plaintiff had abandoned his claim for “lost wages.”

Plaintiff

stated in his memorandum of law opposing Defendant’s motion to
dismiss his

claim

for

compensatory

damages

that

he

“has not

incurred lost wages or out of pocket medical expenses.” (Docket No.
18.) Plaintiff cited a supplemental initial disclosure provided to
the Defendant

which

outlined

his

claim for damages

and also

specifically disavowed a claim for lost wages. Instead, he alleged
“pain and suffering, loss of employment benefits and loss of job
opportunities.”

Based on these assertions, the Court found that

Plaintiff had abandoned his claim for lost wages and dismissed the
claim.
Plaintiff now seeks to reassert a claim for lost wages to
avoid summary judgement on this issue, however, Plaintiff has not
sought leave of court to amend the complaint to reassert the claim.
See Dilworth v. Goldberg, – F.Supp.2d –, 2012 WL 4017789, *34
(S.D.N.Y. 2012). Further, the reassertion of such a claim at this
stage in the litigation, after having affirmatively abandoned the
claim in more than one filing with the Court, and without any
explanation as to why the claim was initially abandoned, would
cause undue delay.

See Sahra v. Town of South old, 48 F.3d 674 (2d

6

Cir. 1995)(“Undue delay and futility of the amendment, among other
factors, are reasons to deny leave [to amend].”). Accordingly, the
Court will not permit Plaintiff to reassert his claim for lost
wages at this stage.
Plaintiff has not responded to Defendant’s argument that his
claims for pain and suffering and loss of employment benefits
should also be dismissed, and he does not dispute that he did not
experience any pain and suffering or a loss of employment benefits.
Accordingly, Plaintiff’s claims for pain and suffering and loss of
employment benefits are also dismissed.
Plaintiff’s remaining claim for compensatory damages is that
his current position was reduced to part-time for the 2011-2012
school year.

However, at the time of the alleged discrimination,

in 2009, Plaintiff’s position was full-time and remained full-time
until the 2011-2012 school year.

There is no evidence in the

record that this subsequent reduction in hours was causally related
to the Defendant’s failure to interview or hire the Plaintiff for
the precision machining teacher position at BOCES 2. Further,
Plaintiff has not presented evidence or articulated what damages he
may have suffered due to this reduction in hours. Having abandoned
his claim for lost wages, pain and suffering and lost employment
benefits, the Court finds that Plaintiff has not presented any
evidence of damages in relation to the subsequent reduction of his
position to part-time.

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Accordingly, the Court finds that Plaintiff has not presented
sufficient evidence that he suffered any damages and his claim for
compensatory damages is dismissed. Should Plaintiff ultimately
prevail on liability, his recovery will be limited to nominal
damages.
C.

Attorney’s Fees
Defendant contends that if Plaintiff’s recovery is limited to

nominal damages, his request for attorney’s fees should also be
denied.

Plaintiff has not responded to this argument.

In civil rights litigation, “an award of fees to a plaintiff
recovering nominal damages will be rare, appropriate only when a
plaintiff’s success relies on a new rule of liability that serves
a significant public purpose.” McGrath v. Toy “R” Us, Inc., 409
F.3d 513, 518 (2d Cir. 2005)(internal quotations omitted). “[T]he
vast majority of civil rights litigation does not result in groundbreaking conclusions of law, and will warrant fee awards only if a
plaintiff recovers some significant measure of damages or other
meaningful relief.” Id. Plaintiff has not articulated how this case
could fall within this standard and the Court finds that this case
does not present an issue that is rare or novel and it does not
fall within the category of cases where an award of fees is
appropriate.

Accordingly, Plaintiff is not entitled to recover

attorney’s fees.

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CONCLUSION
For the reasons discussed herein, Defendant’s motion for
summary judgment on the issue of liability is denied.

Defendant’s

motion for summary judgment on the issue of damages is granted, and
the Court dismisses Plaintiff’s claim for compensatory relief.
Further, because the Court finds that Plaintiff may recover only
nominal damages, Plaintiff’s request for attorney’s fees is denied.

ALL OF THE ABOVE IS SO ORDERED.
S/ MICHAEL A. TELESCA
HON. MICHAEL A. TELESCA
United States District Judge
Dated:

Rochester, New York
January 15, 2013

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