Lembaris v. University of Rochester
Filing
20
-CLERK TO FOLLOW UP-ORDER granting 14 Motion for Summary Judgment and denying Motion for Sanctions. Signed by Hon. Michael A. Telesca on August 28, 2013. (MES)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
________________________________________
ANN M. LEMBARIS
Plaintiff,
v.
12-CV-6214
DECISION AND ORDER
UNIVERSITY OF ROCHESTER
Defendant,
________________________________________
INTRODUCTION
Plaintiff, Ann M. Lembaris (“Plaintiff”), brings this action
pursuant
to
the
Age
Discrimination
in
Employment
Act,
29 U.S.C. Section 621, et seq. (the “ADEA”) and the New York State
Human Rights Law, New York Executive Law Section 290, et seq.
(“NYSHRL”), alleging that her former employer, the University of
Rochester (“Defendant” or “University”), terminated her because of
her age. (Docket No. 1.)
Defendant now moves for summary judgment
contending that Plaintiff has not produced evidence to establish a
prima facie case of age discrimination or to rebut its legitimate,
non-discriminatory reason for firing her. Plaintiff opposes the
motion contending that there are material issues of fact which
preclude summary judgment.
Defendant’s
motion
for
For the reasons discussed herein,
summary
judgment
is
granted
and
the
Plaintiff’s complaint is dismissed with prejudice.
Defendant also moves for sanctions against Plaintiff and her
attorney, Christina A. Agola, pursuant to Rule 11 of the Federal
Rules of Civil Procedure.
Defendant contends that Plaintiff’s
Page -1-
refusal to voluntarily dismiss this action following discovery is
sanctionable conduct, as the maintenance of this lawsuit after
discovery revealed a lack of evidence of discrimination runs afoul
of Rule 11.
While the Court agrees that Plaintiff’s case lacks
merit, the Court finds that Rule 11 sanctions are not appropriate
in this case.
BACKGROUND
The following facts are taken from the parties’ submissions
pursuant to Local Rule 56(a) and the Court’s review of the entire
record. (Docket Nos. 14, 17.) The Defendant hired Plaintiff on
October 20, 2008 as a Data Control Clerk II.
hired Plaintiff was 49 years old.
At the time she was
Plaintiff remained in this
position until she was fired on November 9, 2011, when she was 52
years old.
Naomi Smith became Plaintiff’s supervisor in May 2011.
Smith
received a complaint that Plaintiff and her colleague, also a
female over the age of 40, misused the timekeeping system, which is
a violation of University policy. Smith conducted an investigation
and interviewed Plaintiff and her colleague who both admitted to
misusing the timekeeping system on one occasion. On that occasion,
Plaintiff’s colleague “clocked out” for Plaintiff at the end of her
shift.
Defendant later learned that Plaintiff and her colleague
had misused the timekeeping system on another occasion as well.
However,
Plaintiff
alleges
that
on
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the
second
occasion
her
colleague merely shut down her system and that Plaintiff clocked
herself out.
Plaintiff and her colleague were terminated after
this incident. Plaintiff, her colleague and all of Plaintiff’s
supervisor’s, including Smith and Smith’s supervisors, were over
the age of 40 at the time of the termination.
Plaintiff avers that individuals who were younger than her
routinely clocked each other out of the timekeeping system. In her
declaration in opposition to the instant motion, Plaintiff offers
two examples of co-workers under the age of 40 who clocked each
other into or out of the timekeeping system.
The record does not
contain evidence that the Defendant knew of these instances, that
these instances were investigated or that the individuals admitted
to violating University policy.
Plaintiff also avers that she was replaced by two individuals
who were younger than her.
However, Plaintiff’s statement is not
based on personal knowledge and the Defendant has offered evidence
that Plaintiff was, in fact, replaced by an individual over the age
of 60.
DISCUSSION
Pursuant to Rule 56, “[t]he court shall grant summary judgment
if the movant shows 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. However,
a nonmovant benefits from such factual inferences “only if there is
a ‘genuine’ dispute as to those facts.” See Scott v. Harris,
550 U.S. 372, 127 S.Ct. 1769, 1776 (2007).
The law is well established that “conclusory statements,
conjecture, or speculation” are insufficient to defeat a motion for
summary judgment. See Kulak v. City of New York, 88 F.3d 63, 71
(2d Cir. 1996). The nonmovant cannot survive summary judgment
simply by proffering “some metaphysical doubt as to the material
facts,”
Matsushita
Elec.
Indus.
Co.
v.
Zenith
Radio
Corp.,
475 U.S. 574, 586 (1986), or presenting evidence that “is merely
colorable, or is not significantly probative.” See Savino v. City
of New York, 331 F.3d 63, 71 (2d Cir.2003) (quoting Anderson,
477 U.S. at 249-50(citation omitted)). Rather, he must “set out
specific facts showing a genuine issue for trial.” See Anderson,
477 U.S. at 248, 250; see also Celotex, 477 U.S. at 323–24;
Wright v. Goord, 554 F.3d 255, 266 (2d Cir.2009).
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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.
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973).
2001);
Under
this framework, Plaintiff must first establish a prima facie case
of age discrimination by showing “(1)[s]he is a member of the
protected
class;
(2)
[s]he
is
qualified
for
[her]
position;
(3)[s]he has suffered an adverse employment action; and (4) the
circumstances surrounding that action give rise to an inference of
age discrimination.” Abdu-Brisson, 239 F.3d at 466-467. Once a
plaintiff has established a prima facie case of discrimination, the
defendant
must
articulate
a
rationale for its actions. Id.
legitimate,
non-discriminatory
The burden then shifts to the
plaintiff to demonstrate that the employer’s stated rationale is
merely a pretext for discrimination. See McDonnell-Douglas Corp.,
411 U.S. at 802; see also Abdu-Brisson, 239 F.3d at 466-467.
To
satisfy this burden under the ADEA, Plaintiff must present evidence
from which a reasonable jury could conclude, by a preponderance of
evidence, that age was the “but-for” cause for the adverse action.
Gorzynski v. Jetblue Airways Corp., 596 F.3d 93, 106 (2d Cir.2010).
Plaintiff’s claims under the NYSHRL are also analyzed under this
framework. Id. at note 6.
Here, Plaintiff has failed to produce any admissible evidence
that
the
circumstances
surrounding
Page -5-
her
termination
were
discriminatory.
Plaintiff alleges that other individuals who were
younger than her were allowed to “clock” each other into and out of
the timekeeping system. However, Plaintiff has not shown that such
individuals
were
similarly
situated
to
her
in
all
material
respects. See Ruiz v. County of Rockland, 609 F.3d 486, 493-4
(2d Cir. 2010). For example, there is no evidence in the record
that these individuals reported to the same supervisor, that the
University was aware of such conduct or that an investigation was
conducted
wherein
those
employees
admitted
to
wrong
doing.
Significantly, Plaintiff’s supervisor affirms that she has not
received
any
other
complaints
regarding
the
misuse
of
the
timekeeping system by other employees. Smith Dec. at ¶18. Further,
while Plaintiff
individuals,
states
her
that
deposition
she
was
testimony
replaced
demonstrates
statement is not based on personal knowledge.
99.
by
two
younger
that
this
Lemaris Dep. at 98-
Further, Defendant has presented proof that Plaintiff was, in
fact, replaced by an individual over the age of 60. Smith Dec. at
¶20.
Lastly, the Court notes that Plaintiff was over the age of 40
when she was hired and all of the relevant decision makers were
over
the
age
of
40
when
she
was
terminated.
While
not
determinative, this evidence weighs against Plaintiff’s conclusory
assertions that her termination occurred under circumstances giving
rise to an inference of age discrimination. See e.g. Smith-Barrett
v. Potter, 541 F.Supp.2d 535, note 4 (W.D.N.Y. March 31, 2008).
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Even
if
Plaintiff
had
produced
sufficient
evidence
to
establish a prima facie case of age discrimination, Plaintiff has
not produced evidence from which a reasonable jury could conclude,
by a preponderance of evidence, that Plaintiff’s age was the butfor cause for her termination.
Plaintiff admits that she violated
Defendant’s
the
policy
regarding
timekeeping
system
and,
as
discussed above, she has not presented any admissible evidence that
she was terminated for any reason other than her admitted wrong
doing.
Therefore, because Plaintiff has failed to establish a prima
facie case of age discrimination and because she has failed to
rebut Defendant’s legitimate, non-discriminatory reason for her
termination,
the
Court
grants
Defendant’s
motion
for
summary
judgment.
With respect to Defendant’s motion for Rule 11 sanctions for
Plaintiff’s maintenance of this lawsuit following discovery, the
Court finds that sanctions in the case are inappropriate. “Under
Fed.R.Civ.P. 11, sanctions may be imposed on a person who signs a
pleading, motion, or other paper for an improper purpose such as to
delay or needlessly increase the cost of litigation, or does so
without
a
belief,
formed
after
reasonable
inquiry,
that
the
position espoused is factually supportable....” Caisse Nationale de
Credit Agricole-CNCA v. Valcorp, Inc., 28 F.3d 259, 264 (2d Cir.
1994). While Plaintiff was ultimately unable to establish her case
Page -7-
with admissible evidence, it is clear from her deposition and
declaration
that
she
personally
believes
that
other
younger
individuals were treated differently and that she was replaced by
younger
individuals.
Though
Plaintiff
was
unable
to
produce
admissible evidence to support her beliefs, the Court does not find
that sanctions are appropriate in this case. Accordingly the
Defendant’s
motion
for
sanctions
is
denied
and
the
case
is
dismissed with prejudice.
CONCLUSION
For the reasons discussed here, Defendant’s motion for summary
judgment is granted and the Plaintiff’s complaint is dismissed with
prejudice.
Defendant’s motion for sanctions 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
August 28, 2013
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