Campbell v. Rite Aid Corporation

UNITED STATES DISTRICT COURT 11:38 am, Sep  17, 2020

EASTERN DISTRICT OF NEW YORK

-------------------------------------------------------x U.S. DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

RICHARD CAMPBELL,

LONG ISLAND OFFICE

Plaintiff,

Case No.: 18-cv-1799 (SJF)(SIL)

v. ORDER ADOPTING

REPORT &RECOMMENDATION

RITE AID CORPORATION, (ECF No. 29)

Defendant.

-------------------------------------------------------x

FEUERSTEIN, Senior District Judge:

I. Introduction

Before the Court is a Report and Recommendation of the Honorable Steven I. Locke,

United States Magistrate Judge, dated June 18, 2020 (hereafter, “Report”1) (see ECF No. 29):

A. Recommending that the motion for summary judgement (hereafter, the “Motion”)(see

ECF No. 25) of Defendant Rite Aid Corporation (the “Company” or “Defendant”), which

seeks the dismissal the claims of age discrimination brought pursuant to the Age

Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 621, et seq., and the New

York State Human Rights Law (“NYSHRL”), N.Y. Exec. L. § 290, et seq., by Plaintiff

Richard Campbell (“Campbell” or “Plaintiff”), be granted in its entirety with prejudice

(see Report at 1, 16); and

B. Advising, inter alia, that: the Report was “being served on all parties by electronic

filing on the date” of the Report, i.e., June 18, 2020; “[a]ny objections to th[e] Report . . .

must be filed with the Clerk of the Court within fourteen (14) days of [its] receipt;” and,

“[f]ailure to file objections within the specified time waives the right to appeal the

District Court’s order” (Report at 16-17 (citing 28 U.S.C. § 636(b)(1); Fed. R. Civ. P.

6(a), 72, Ferrer v. Woliver, No. 05-3696, 2008 WL 4951035, at *2 (2d Cir. Nov. 20,

2008); Beverly v. Walker, 118 F.3d 900, 902 (2d Cir. 1997); and, Savoie v. Merchants

Bank, 84 F.3d 52, 60 (2d Cir. 1996).)

1 The Court presumes the parties’ familiarity with the terms of art defined in the Report, which

are incorporated herein.

Plaintiff generally objects to the Report (hereafter, “Objection”) (see ECF No. 31),

claiming “the Magistrate Judge misinterpreted the evidence presented by Plaintiff” in opposing

the Motion. (Id. at 1; see also id. at 3-4.) In response, the Company asserts that the Plaintiff’s

Objection “is based on a handful of unsupported conclusory statements in his self-serving

affidavit that are insufficient to create a genuine issue of material fact regarding any of his

claims” (ECF No. 32 (“Response”) at 1-2), and, therefore, the Court should adopt the Magistrate

Judge’s recommendation that the Motion be granted. (See id. at 2-5.) For the reasons that

follow, the Court overrules Plaintiff’s objections and adopts Magistrate Judge Locke’s Report in

its entirety.

II. Background

The Plaintiff has not objected to the Magistrate Judge’s recitation of the factual

background which gives rise to this action, i.e., that: after the Company’s acquisition of

Plaintiff’s prior employer, Plaintiff became a manager of the Company’s North Babylon, Long

Island store (see Report at 2; see also id. (describing the general duties of a store manager)); after

Michael Lysohir (“Lysohir”) became a Company district manager in July 2011, he oversaw,

inter alia, Plaintiff’s store, which included visiting it two to three times each month and meeting

with Plaintiff to check on store conditions, operations, and overall functioning (see id.);

Plaintiff’s job performance at the North Babylon store was deficient and ultimately resulted in

the store being evaluated at a low level (see id. at 3-4; see also id. at 3 (describing Lysohir’s

concerns with Plaintiff’s job performance)); Plaintiff agreed with the assessment that areas of his

job performance needed improvement (see id. at 4); despite Plaintiff’s subsequent transfer to the

Huntington Station East store, a smaller Rite Aid store (see id.), he continued to exhibit

deficiencies in his job performance; after Plaintiff became the manager of the Huntington Station

East store, it was consistently ranked as one of the worst in the district under at least one of

several criteria (see id. at 5); despite Plaintiff’s assurances that “he would ‘meet Company

expectations as regards store standards and operation’ and ‘hold associates accountable for

timely completion of tasks,’” many of the same job performance deficiencies were noted in his

September 2012 performance evaluation (id. at 6); and, because of “Plaintiff’s continued failure

to improve the store’s performance despite nearly two years of assistance from Lysohir, he was

terminated on November 26, 2012.” (Id.) Finding no error in Magistrate Judge Locke’s

presentation of the factual background of this case, it is adopted in its entirety.

III. Discussion

A. Applicable Standards

1. The Report and Recommendation Standard of Review

Rule 72 of the Federal Rules of Civil Procedure permits a magistrate judge to conduct

proceedings of dispositive pretrial matters without the consent of the parties. See Fed. R. Civ. P.

72(b). Any portion of a report and recommendation on dispositive matters to which a timely

objection has been made is reviewed de novo. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b).

However, “when a party makes only conclusory or general objections, or simply reiterates the

original arguments, the Court will review the report strictly for clear error.” Frankel v. City of

N.Y., Nos. 06-cv-5450, 07-cv-3436, 2009 WL 465645, at *2 (S.D.N.Y. Feb. 25, 2009); see also

Butto v. Collecto, Inc., 290 F.R.D. 372, 379 (E.D.N.Y. 2013) (“In a case where a party makes

only conclusory or general objections, or simply reiterates his original arguments, the Court

reviews the Report and Recommendation only for clear error.” (quotations and citation omitted)).

The Court is not required to review the factual findings or legal conclusions of the magistrate

judge as to which no proper objections are made. See Thomas v. Arn, 474 U.S. 140, 150, 106 S.

Ct. 466, 88 L. Ed.2d 435 (1985). Whether or not proper objections have been filed, the district

judge may, after review, accept, reject, or modify any of the magistrate judge’s findings or

recommendations. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b).

2. The Summary Judgment Motion Standard of Review

“Summary judgment is proper ‘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.’” ING Bank N.V. v.

M/V TEMARA, IMO No. 9333929, 892 F.3d 511, 518 (2d Cir. 2018) (quoting Fed. R. Civ. P.

56(a)); accord Jaffer v. Hirji, 887 F.3d 111, 114 (2d Cir. 2018). In ruling on a summary

judgment motion, the district court must first “determine whether there is a genuine dispute as to

a material fact, raising an issue for trial.” McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184,

202 (2d Cir. 2007) (internal quotations and citations omitted); see also Ricci v. DeStefano, 557

U.S. 557, 129 S. Ct. 2658, 2677 (2009) (“On a motion for summary judgment, facts must be

viewed in the light most favorable to the nonmoving party only if there is a ‘genuine’ dispute as

to those facts.” (emphasis added; internal quotations and citation omitted)).

In reviewing the record to determine whether there is a genuine issue for trial, the court

must “construe the evidence in the light most favorable to the non-moving party,” Centro de la

Comunidad Hispana de Locust Valley v. Town of Oyster Bay, 868 F.3d 104, 109 (2d Cir. 2017)

(quotations, alterations and citation omitted), and “resolve all ambiguities, and credit all factual

inferences that could rationally be drawn, in favor of the party opposing summary judgment.”

Davis-Garett v. Urban Outfitters, Inc., 921 F.3d 30, 45 (2d Cir. 2019) (quotations and citation

omitted); see also Hancock v. County of Rensselaer, 823 F.3d 58, 64 (2d Cir. 2018) (“In

determining whether there is a genuine dispute as to a material fact, we must resolve all

ambiguities and draw all inferences against the moving party.”). “Where the record taken as a

whole could not lead a rational trier of fact to find for the nonmoving party, there is no genuine

issue for trial.” Ricci, 557 U.S. at 586 (quoting Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio

Corp., 475 U.S. 574, 587, 106 S. Ct. 1348 (1986)); accord Baez v. JetBlue Airways Corp., 793

F.3d 269, 274 (2d Cir. 2015).

“The moving party bears the initial burden of showing that there is no genuine dispute as

to a material fact.” CILP Assocs., L.P. v. PriceWaterhouse Coopers LLP, 735 F.3d 114, 123 (2d

Cir. 2013) (quotations, brackets and citation omitted); accord Jaffer, 887 F.3d at 114. “[W]hen

the moving party has carried its burden[,] . . . its opponent must do more than simply show that

there is some metaphysical doubt as to the material facts . . . [,]” Scott v. Harris, 550 U.S. 372,

380, 127 S. Ct. 1769 (2007) (quoting Matsushita Elec., 475 U.S. at 586-87), and must offer

“some hard evidence showing that its version of the events is not wholly fanciful[.]” Miner v.

Clinton County, N.Y., 541 F.3d 464, 471 (2d Cir. 2008) (quotations and citation omitted). The

nonmoving party can only defeat summary judgment “by adduc[ing] evidence on which the jury

could reasonably find for that party.” Lyons v. Lancer Ins. Co., 681 F.3d 50, 56 (2d Cir. 2012)

(quotations, brackets and citation omitted). Since “there is no issue for trial unless there is

sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party[,]

. . . [i]f the evidence is merely colorable, . . . or is not significantly probative, . . . summary

judgment may be granted.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50

(1986)(quotations and citations omitted).

Furthermore, in moving for or opposing summary judgment, the Local Rules require

parties to provide statements setting forth purported undisputed facts and responses to such

asserted facts. See Holtz v. Rockefeller & Co., 258 F.3d 62, 74 (2d Cir. 2001) (“The purpose of

Local Rule 56.1 is to streamline the consideration of summary judgment motions by freeing

district courts from the need to hunt through voluminous records without guidance from the

parties.”), abrogated on other grounds by Gross v. FBL Fin. Servs., Inc., 557 U.S. 167 (2009).

Each statement must be supported by citation to admissible evidence in the record, see Local

Civil Rule 56.1(b), (d), and where a statement is not “specifically controverted,” it “will be

deemed to be admitted for purposes of the motion.” Local Rule 56.1(c) (emphases added); see

also Giannullo, 322 F.3d at 140 (“If the opposing party then fails to controvert a fact so set forth

in the moving party’s Rule 56.1 statement, that fact will be deemed admitted.” (citations

omitted)); Taylor & Fulton Packing, LLC v. Marco Intern. Foods, LLC, No. 09-cv-2614, 2011

WL 6329194, at *4 (E.D.N.Y. Dec. 16, 2011)(“Where a nonmovant . . . files a deficient

statement, courts frequently deem all supported assertions in the movant’s statement admitted

and find summary judgment appropriate.” (footnote omitted; emphases added)). To specifically

controvert a statement of material fact, a nonmovant must do so with specific citation to

admissible evidence. See Local Rule 56(d); see also Ezagui v. City of N.Y., 726 F. Supp.2d 275,

285 n.8 (S.D.N.Y. 2010)(noting statements which a nonmovant does “not specifically deny–with

citations to supporting evidence–are deemed admitted for purposes of [movant’s] summary

judgment motion”) (collecting cases); Universal Calvary Church v. City of N.Y., No. 96-cv-4606,

2000 WL 1745048, *2 n.5 (S.D.N.Y. Nov. 28, 2000). “‘[W]here there are no[] citations or

where the cited materials do not support the factual assertions in the Statements, the Court is free

to disregard the assertion.’” Holtz, 258 F.3d at 73-74 (2d Cir. 2001) (quoting Watt v. N.Y.

Botanical Garden, No. 98-cv-1095, 2000 WL 193626, at *1 n.1 (S.D.N.Y. Feb. 16, 2000);

further citations omitted). It is not the role of the Court to search the summary judgment record

for evidence supporting a nonmovant’s opposition. See N.Y.S. Teamsters Conf. Pension & Ret.

Fund v. Express Servs., Inc., 426 F.3d 640, 648-49 (2d Cir. 2005)(recognizing authority of

district courts to institute local rules governing summary judgment submissions, which permits

courts “to efficiently decide” such motions “by relieving them of the onerous task of ‘hunt[ing]

through voluminous records without guidance from the parties’” (further citations omitted));

Ford v. Ballston Spa Cent. Sch. Dist., Nos. 05-cv-1198, 05-cv-1199, 2008 WL 697362, at *3

(N.D.N.Y. Mar. 13, 2008) (same).

3. The Age Discrimination Standard of Review

The Magistrate Judge properly analyzed Plaintiff’s ADEA and NYSHRL age

discrimination claims under the McDonnell Douglas three-part burden shifting analysis (see

Report at 8 (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973); further citations

omitted); see also id. at 10 (stating age discrimination analysis under NYSHRL is the same as

under the ADEA; citations omitted)) pursuant to which a plaintiff needs only present a prima

facia case of age discrimination,2 a light burden, before the employer is required to present a

non-discriminatory reason for its adverse employment action; if those two steps are satisfied, in

order to defeat an employer’s summary judgment motion, the plaintiff has to present a triable

issue of fact that, but for his age, he would not have been terminated. (See id. at 9 (articulating

standard; citations omitted).) No party has objected to the Magistrate Judge’s articulation of the

applicable analysis, which is adopted in its entirety.

2 For this initial step, Magistrate Judge Locke stated:

Campbell must establish a prima facie case of age discrimination

by demonstrating that “(1) he was a member of the protected age

group; (2) he was qualified for the position; (3) he suffered an

adverse employment action; and (4) such action occurred under

circumstances giving rise to an inference of discrimination.”

(Report at 9 (quoting Gorzynski v. JetBlue Airways Corp., 596 F.3d 93, 107 (2d Cir. 2010)

(citing Carlton v. Mystic Transp., Inc., 202 F.3d 129, 134 (2d Cir. 2000))).)

B. The Instant Case

1. The Magistrate Judge’s Report

While describing Plaintiff’s “overall evidence [a]s thin,” Magistrate Judge Locke,

nonetheless, concluded it was sufficient to make out a prima facie case of age discrimination,

thereby “warrant[ing] further analysis under the McDonnell Douglas burden shifting test.”

(Report at 12.) Notably, in determining Plaintiff satisfied his prima facie burden, the Magistrate

Judge relied upon, inter alia, Plaintiff’s affidavit. (See id. (citing Campbell Aff. (ECF No. 26-2),

¶¶8-10).)

Magistrate Judge Locke then shifted his focus to the Company’s evidence to assess

whether it had offered a legitimate, non-discriminatory reason for its actions, finding that the

“Defendant . . . submitted sufficient evidence that Campbell was terminated as a result of his

poor performance.” (Id.; see also id. at 13.) Among other things, the Report highlights that

Plaintiff admitted “his poor performance was the reason for his transfer” to the smaller Rite Aid

store (id. at 12) and “acknowledged that []his pattern of poor performance led to his discharge.”

(Id. at 13.) Because “[t]he Second Circuit has made clear that an employee’s poor performance

constitutes a lawful nondiscriminatory reason for his or her termination,” (id. (citing Meiri v.

Dacon, 759 F.2d 989, 997 (2d Cir. 1985); Weber v. City of N.Y., 973 F. Supp.2d 227, 255

(E.D.N.Y. 2013)), the court found the Company “ha[d] provided ample evidence to demonstrate

that Plaintiff’s discharge was nondiscriminatory.” (Id.)

With the Defendant having satisfied its McDonnell Douglas burden, Magistrate Judge

Locke turned to Plaintiff’s ultimate burden, i.e., demonstrating that the Company’s reason for

terminating him was a pretext, stating, inter alia, that: “[t]he burden of establishing pretext is

higher than what was required of Plaintiff to state his prima facie case of discrimination” (Report

at 13); Plaintiff “may rely on the same evidence to demonstrate pretext as he used to support his

prima facie case” (id. at 13, 14 (citations omitted)); and, to defeat Defendant’s Motion, Plaintiff

“must provide evidence that, taken in his favor, raises a question of material fact regarding

whether his age was the ‘but for’ cause of his termination.” (Id. at 13 (“Demonstrating that age

was a ‘but for’ cause ‘does not mean ‘that age was the employers [sic] only consideration, but

rather that the adverse employment action would not have occurred without it.’” Ehrbar v.

Forest Hills Hosp., 131 F. Supp. 3d 5, 20 (E.D.N.Y. 2015) (emphasis in original; further citation

omitted)).)

On the record presented, the Magistrate Judge found Plaintiff failed to present “sufficient

evidence to create an issue of material fact as to whether age discrimination was the ‘but for’

cause of his termination,” since Plaintiff “d[id] not dispute his poor work performance” and “the

evidence establishes that Plaintiff agreed that his performance was a problem.” (Id. at 14 (citing

Campbell Dep. (ECF No. 25-4) 173:10-174:16; 264:8).) The Magistrate Judge fortified his

recommendation with his additional finding that Plaintiff had “not presented sufficient evidence

that Defendant’s dissatisfaction with his performance was in any way pretextual,” highlighting

that in his Local Rule 56.1 counterstatement, Plaintiff “admit[ed] almost all of Defendant’s facts,

and for most of those he dispute[d], he d[id] so without the required citations to the record” (id.

at 14; see also id. at 15), further noting that Plaintiff’s affidavit, “submitted in opposition to the

motion for summary judgment, is referred to only once in his [Local] Rule 56.1

[counter]statement, but does discuss the treatment of other older managers as evidence of age

discrimination.” (Id. at 15 (citing Campbell Aff., ¶¶7-20).) Of import, Magistrate Judge Locke

observed that Plaintiff’s statements regarding the other older managers were “largely conclusory

and comprised of inadmissible hearsay” and “include[d] generalities such as older managers

being critiqued based on ancillary issues, without any details about which managers were

critiqued, who critiqued them, what was said or when.” (Id. (citing Campbell Aff., ¶8); see also

id. at 16 (“Had deposition testimony or affidavits been submitted from these individuals, or any

other details that would allow further evaluation, the Court might have been able to consider

them, but no such evidence was offered.”).) Therefore, the Magistrate Judge found Plaintiff’s

affidavit insufficient to defeat Defendant’s Motion. (See id. at 16.)

2. Consideration of Plaintiff’s Objection

The Plaintiff’s Objection to the Report is unsustainable. He is incorrect that Magistrate

Judge Locke “misinterpreted the evidence” Plaintiff presented in opposing the Company’s

Motion (Objection at 1). To the contrary and as is plain from the Report, the Magistrate Judge

Locke considered the entire record presented in making his recommendation, including: the

parties’ Local Rule 56.1 statements; Plaintiff’s Affidavit and his deposition testimony; and,

Lysohir’s Affidavit and various exhibits attached to said Affidavit. In doing so, Magistrate

Judge Locke employed his broad discretion in overlooking Plaintiff’s noncompliance with Local

Rule 56.1, see Holtz, 258 F.3d at 73 (stating a court has “broad discretion” to overlook a party’s

noncompliance with local rules and, with that discretion, may opt to conduct an assiduous review

of the record (quotation marks and citations omitted)), which instructs, inter alia, that to

specifically controvert a statement of material fact, a nonmovant must do so with specific

citation to admissible evidence, and where a statement is not “specifically controverted,” it “will

be deemed to be admitted for purposes of the motion.” Local Rule 56.1(c) (emphasis added); see

also supra at Part III(A)(2) at pp. 5-7 (discussing applicable law and collecting cases).

Magistrate Judge Locke properly interpreted the record evidence, finding that while the Plaintiff

“admit[ted] almost all of Defendant’s facts,” as to those which he disputed, Plaintiff “d[id] so

without the required citations” (Report at 14-15), and in the one instance Campbell disputed a

fact relying upon his affidavit (see Report at 15), that was done without specificity (see Pl.’s

Local Rule 56.1 Counterstatement (ECF No. 26-3), ¶25 (citing Campbell Aff., in toto)). Cf.,

e.g., EC ex rel. RC v. County of Suffolk, 882 F. Supp.2d 323, 338 n.5 (E.D.N.Y. 2012)(“Mere

reference, for example, to an entire deposition is not ‘specific’.”). Given the applicable Local

Rules and case law, the Magistrate Judge was under no obligation to go beyond the parties’ Rule

56.1 statements in making his recommendation regarding the Motion, which recommendation

would be supported by consideration of those statements alone. See, e.g., Amnesty Am. v. Town

of W. Hartford, 288 F.3d 467, 470-71 (2d Cir. 2002)(“[B]ecause nothing in the federal rules

mandates that district courts conduct an exhaustive search of the entire record before ruling on a

motion for summary judgment, district courts are entitled to order litigants to provide specific

record citations.”); see also Rodriguez v. Nassau County, No. 16-cv-2648, 2019 WL 4674766, at

*9 (E.D.N.Y. Sept. 25, 2019) (“A district court is ‘under no obligation to engage in an exhaustive

search of the record’ when considering a motion for summary judgment.” (quoting Jones v.

Goord, 435 F. Supp.2d 221, 259 (S.D.N.Y. 2006) (citing Amnesty Am. v. Town of W. Hartford,

288 F.3d 467, 470–71 (2d Cir. 2002))); further citations omitted); Patacca v. CSC Holdings,

LLC, No. 16-cv-679, 2019 WL 1676001, at *17 (E.D.N.Y. Apr. 17, 2019)(ruling it is “not role

of the Court to search the summary judgment record for evidence supporting” a party’s

position)(citations omitted). If, however, as is the case here, a court employs its discretion in

looking beyond the parties’ Rule 56 statements to examine proffered evidence, error will not be

had. See Holtz, 258 F.3d at 73.

Further, that branch of Plaintiff’s Objection based upon his contention that the Magistrate

Judge erroneously “dismisse[d] Plaintiff’s affidavit as containing hearsay and holding no

probative value” is untenable. (Objection at 3.) The Magistrate Judge “generously construed”

Plaintiff’s affidavit in a light most favorable to him, see Peters v. Molloy Coll. of Rockville Ctr.,

No. 07-cv-2553, 2010 WL 3170528, at *3 (E.D.N.Y. Aug. 10, 2010)(quoting Federal Deposit

Ins. Corp. v. Arcadia Marine, Inc., 642 F. Supp. 1157, 1160 (S.D.N.Y. 1986)), thereby rejecting

Defendant’s argument that Plaintiff could not meet his prima facie burden of stating an age

discrimination claim (see Def.’s Support Memo. (ECF No. 25-2) at 8-9). Absent a finding of

probative value, Plaintiff would have been unable to cross the threshold hurdle of McDonnell

Douglas burden-shifting analysis. (See Report at 11-12 (citing Campbell Aff., ¶¶8-10).) As

such, there is no merit to this portion of Plaintiff objection.

Nor was it erroneous for the Magistrate Judge to decline to consider Campbell’s affidavit

in determining whether Plaintiff had established a triable issue of fact as to the final, pretext

component of the McDonnell Douglas analysis. Plaintiff maintains the Magistrate Judge erred in

not considering the affidavit because his affidavit was clearly based upon his personal

knowledge. (See Objection at 3.) That, however, is only one of three components required of an

affidavit used to oppose a summary judgment motion; pursuant to Rule 56(c)(4), such an

affidavit “must [1] be made on personal knowledge, [2] set out facts that would be admissible in

evidence, and [3] show that the affiant . . . is competent to testify on the matters stated.” Fed. R.

Civ. P. 56(c)(4) (emphasis added). As the Company alludes, Plaintiff has not established that he

was competent to testify to many of the matters averred in his affidavit, especially those

regarding the other older managers. (See Response at 3 (arguing “Plaintiff does not explain the

basis for what he alleges is his ‘personal knowledge’ of the employment circumstances of the

other Rite Aid employees”).) Indeed, the Magistrate Judge noted the deficiencies of Campbell’s

averments in explaining why he would not consider the affidavit in assessing the pretext prong.

(See Report at 15 (“The conclusory statements [about the other older managers] include

generalities such as older managers being critiqued based on ancillary issues, without any details

about which managers were critiqued, who critiqued them, what was said or when.”); see id. at

16 (“Had deposition testimony or affidavits been submitted from these individuals, or any other

details that would allow further evaluation, the Court might have been able to consider them, but

no such evidence was offered.”).) “However, where an affiant may lack personal knowledge of

the facts set forth in h[is] declaration, if the averments are based on ‘clearly referenced . . .

documents and deposition transcripts’ that are ‘clearly identifiable’ and have been produced

during discovery, the court may find the declaration admissible.” Peters, 2010 WL 3170528, at

*2 (quoting Pharmacy, Inc. v. Am. Pharm. Partners, Inc., No. 05-cv-776, 2007 WL 2728898, at

*1 (E.D.N.Y. Sept.14, 2007)). De novo review of the record demonstrates that was not the case

here as, for example, Plaintiff did not proffer any EEOC documentation he alluded to regarding

the other older managers (cf., Campbell Aff., §§ 12, 15), nor did he present affidavits or

deposition testimony from those persons which would substantiate his averments. Thus, no error

lies with Magistrate Judge Locke’s decision not to consider Campbell’s affidavit. See id. (“[A]

court may, in considering a motion for summary judgment, simply decline to consider those

aspects of a supporting affidavit that do not appear to be based on personal knowledge or are

otherwise inadmissible.” (further citations omitted)).

Rather, in the absence of “some hard evidence showing” that the Company’s reason for

terminating Campbell was a pretext, see Miner, 541 F.3d at 471, Plaintiff’s acknowledgement of

his poor job performance (see Report at 14) was sufficient to support Magistrate Judge Locke’s

recommendation that the Company’s Motion be granted. See, e.g., Markovich v. City of N.Y.,

588 F. App’x 76, 77 (2d Cir. 2015) (“While [plaintiff] established a prima facie case of

discrimination, he did not dispute the accuracy of the observations reported in his negative

performance reviews.”); see also Meiri, 759 F.2d at 997 (recognizing poor job performance is a

valid and nondiscriminatory reason for discharge); Weber, 973 F. Supp. 2d at 255 (collecting

cases re: poor job performance as nondiscriminatory reason for adverse employment action). As

the Company aptly argued, “[P]laintiff cannot rely on unsupported allegations about other

employees to oppose summary judgment in the face of undisputed facts regarding his own

situation.” (Response at 6.) Indeed, having declined to consider Plaintiff’s deficient affidavit,

and with no other evidence from Plaintiff, Magistrate Judge Locke properly concluded that

“Plaintiff fail[ed] to submit sufficient evidence that his termination for poor performance was

pretextual, or that age was the ‘but for’ cause of his adverse treatment,” and properly

recommended that this Court grant Defendant’s Motion. (Report at 16.) See Celotex, 477 U.S.

at 322 (holding summary judgment is warranted, “after adequate time for discovery and upon

motion, against a party who fails to make a showing sufficient to establish the existence of an

element essential to that party’s case, and on which that party will bear the burden of proof at

trial”); accord El-Nahal v. Yassky, 835 F.3d 248, 252 (2d Cir. 2016), cert. denied, 137 S. Ct.

2187 (2017); see also, e.g., Crawford v. Franklin Credit Mgmt. Corp., 758 F.3d 473, 486 (2d

Cir. 2014) (“[W]here the nonmoving party will bear the burden of proof on an issue at trial, the

moving party may satisfy its burden [of showing the absence of a genuine dispute as to any

material fact] by pointing to an absence of evidence to support an essential element of the

nonmoving party’s case[.]” (quotations, alterations and citation omitted)).

* * *

To the extent not articulated, the Court has considered Plaintiff’s remaining arguments in

support of his objections to the Report and finds them to be without merit. Having conducted a

de novo review of the record, notwithstanding the general nature of Plaintiff’s objections, no

error is found in the Report; thus, Plaintiff’s objections are overruled and Magistrate Judge

Locke’s well-reasoned recommendation regarding the Company’s Motion is adopted in its

entirely. (See Report at 16.)

V. Conclusion

Accordingly, IT IS HEREBY ORDERED that the Defendant’s Motion is granted; the

Clerk of Court is directed to enter judgment in Defendant’s favor and then close this case.

IT IS FURTHER ORDERED that the October 29, 2020 Status Conference scheduled in

this case is marked off the Court’s calendar.

SO ORDERED this 17th day of September 2020 at Central Islip, New York.

Sandra J. Feuerstein

/s/

Sandra J. Feuerstein

United States District Judge