“[A]s trier of fact, the judge is entitled, just as a jury would be, to believe some parts and disbelieve other parts of the testimony of any given witness.”
How later courts described this case
- “[A]s trier of fact, the judge is entitled, just as a jury would be, to believe some parts and disbelieve other parts of the testimony of any given witness.”
Written by the judges who cited it.
The opinion
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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ANGEL RIGOBERTO TORRES,
Plaintiff,
17-CV-5425 (SIL)
-against-
NEW HIGH TECH CAR WASH & LUBE, INC. MEMORANDUM OF
and DAVID BARAM, as an individual, DECISION AND ORDER
Defendants.
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STEVEN I. LOCKE, United States Magistrate Judge:
The following constitutes the Court’s Fed. R. Civ. P. 52 Findings of Fact and
Conclusions of Law in this age discrimination case brought pursuant to the Age
Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 621, et seq. and New York
State Human Rights Law (“NYSHRL”), N.Y. Exec. L. § 290, et seq. after a bench trial
conducted on January 23 and 24, 2023.
I. FINDINGS OF FACT
In 1997, Plaintiff, Angel Rigoberto Torres (“Torres”), at age 51, was hired by
Defendant New High Tech Car Wash & Lube, Inc. in Garden City, New York (“High
Tech”) on an at will basis as an “oil changer,” performing oil changes and replacing
transmissions, a job he held until his termination in July 2016 at age 71. See
Complaint, DE [1]; Answer, DE [13] (admitting to certain relevant facts); Trial
Transcript, DEs [72-1], [72-2] (“TT”) 14, 59-61; Deposition Transcript of Angel
Rigoberto Torres, Oct. 4, 2018, DE [72-3] (“DT”) 11, 13-14, 38.1 The job did not require
1 The parties stipulated at trial that the party deposition transcripts would be admitted as evidence.
See TT 70.
any customer interaction, which was appropriate as Torres speaks no English. TT
62-63; DT 6, 9, 32. Plaintiff earned between $480 and $550 per week. TT 43.
Throughout his employment, High Tech was owned and operated by Defendant
David Baram (“Baram”), who also had authority over personnel and to hire and fire
and set payroll. TT 157-60. High Tech had between 25 and 35 employees, at least
one of whom was employed at the adjoining car wash, Samuel Ayala, and was older
than Plaintiff. TT 14, 62, 160-61, 179-80.
When Torres was first hired, he had problems with his manager, but this
changed when he was moved to a different area. TT 12. He started at six days a
week, which went to five days a week several years later. TT 12-13.
In 2014 or 2015, a new 35 or 36-year-old manager Frank Mejia (“Mejia”) was
hired. TT 15, 17. Mejia was responsible for supervising all of the employees,
including Plaintiff. TT 16. At first, Torres’s relationship with Mejia was good, but it
worsened over time due to performance issues. TT 16, 27.
Initially, Mejia told Plaintiff that customers were complaining about his
(Torres’s) work. TT at 18-19, 114; DT 64.2 Mejia would get “frustrated” if there was
anything wrong with a car and “get mad” at Plaintiff, sometimes leading to verbal
exchanges or disputes, and Mejia was constantly upset because Torres was not
servicing cars quickly enough. TT 76-78, 82 (“Q. So you agree with me, Mr. Torres,
that you had verbal disputes and disagreements and that you fought with Frank
2 Although Plaintiff challenges whether these complaints were actually made because no customers
complained directly to him, see TT at 18-19, the Court gives this little weight as Plaintiff admitted
that the protocol was that the manager took the complaints and then spoke with the offending
employee(s). TT 24, 110-11, 113.
Meija every once in a while, correct?” [overruled objection] “A. Yes.”), 94, 131-32.
Moreover, on one occasion Plaintiff damaged a corvette that cost Defendants $1,450
to repair, and prior to that he damaged a jeep, costing Defendants $400. TT 166-67.
In addition, Torres was intoxicated at work on more than one occasion. TT
167-68. Although Plaintiff initially denied having a drinking problem during the time
he worked for Defendants, TT 66, he modified his testimony to state that he was never
drunk at work, TT 73, after being confronted with his deposition testimony where he
admitted to drinking too much. DT 22 (“Q. Would you say that you were drinking too
much up until four to five months ago [mid-2018 after his termination]? A. Yes.”). In
fact, consistent with this problem, Plaintiff was convicted in 2001 of attacking his
son-in-law with a knife while he was intoxicated. DT 16, 18, 20-21. Torres was
sufficiently drunk during this incident that he does not recall what happened, but he
learned afterwards that his son-in-law had to be taken to the hospital. DT 21. In
any event, Defendants’ testimony on this point was credible, while Plaintiff’s was not.
Also, at some unidentified point in time, Torres admits that he was having
problems with his vision, eventually requiring surgery, which caused him to slow
down at work, such that he could not keep up with the volume, resulting in criticism
that he should be working faster. TT 30, 90-92. Torres also conceded that “there
were . . . complicated jobs that had to be done that due to [his] age it was hard for
[him] to do,” and this “ was stressful” for him. TT 92-93. According to Torres, this
led to his complaints about inadequate lighting at his workspace which Mejia was
slow to fix, such that Torres occasionally bought lamps himself. TT at 31-32.3
These performance problems were not what caused Plaintiff’s termination,
however. Rather, on the discharge day, Baram, who is older than Plaintiff, responded
to a ruckus he heard at the oil change. TT 173-74. When he arrived, three different
employees told him (Baram) that Plaintiff had thrown a bunch of tools at Mejia and
came at Mejia with a knife. TT 173-76, 200, 204-05. This is the reason Plaintiff was
fired. TT 215 (“I fired him because he pulled a knife.”), 218 (Q. “So you decided it
would be Mr. Torres that has to go because of the complaints that were coupled with
this? A. No. I decided to let him go because he pulled a knife.”), 219. During this
incident Baram noticed that Torres smelled of alcohol and sent him home
immediately. TT 174, 177, 183; DT 38.4
In making these findings of fact, the Court acknowledges and rejects as
incredible Plaintiff’s uncorroborated testimony that he was the subject of constant
agist remarks. By way of example, Torres testified that the first time Mejia relayed
a customer complaint about work he did on a car, Torres denied it, and Mejia replied
“[Y]ou are too old. You are too old.” TT 20; see TT 27 (after about six months on the
3 On cross-examination, Baram testified that Defendants did not keep written records of Plaintiff’s
performance issues. TT 185. The Court finds that this lack of performance documentation to be
irrelevant. Initially, the Court accepts Baram’s testimony that the business kept no performance
records for any of its employees. This alone does not cause the Court to reject otherwise creditworthy
testimony. More significantly however, as explained below, these performance issues were not the
reason for Plaintiff’s termination.
4 Although Plaintiff denies bringing a knife to work and tried to undermine Baram’s trial testimony
by pointing out that Baram never called the police as the result of the incident, the Court credits
Baram, who was credible at trial throughout his testimony, and accepts his explanation that he did
not want to see Plaintiff, a 20-year employee, prosecuted. TT 225.
job Mejia would tell Plaintiff he was “too old”), 29 (“You are too old. You are retired
already. You are retired.”), 33. He also claimed that other unnamed coworkers made
similar comments because “[t]hey wanted to get [Plaintiff’s] job” despite that there
was no evidence that indicated Torres’s job was more desirable than any other. TT
27-28, 35. Plaintiff claims that these comments started only after Mejia arrived and
occurred everyday throughout the day. TT 28, 29. Despite the fact that these
statements were allegedly made daily—two to three times a day, and that the
workspace was open, there were no witnesses to any of these statements. TT 20-21.
Then, according to Plaintiff, one day Mejia told him that he would work until
Saturday, after which he was fired. Then on Saturday, Torres met with Mejia and
Baram who told him that he was fired because he was “too old.” TT 38-39. No other
reason was given. TT 39. This is the only time Baram told Plaintiff that he was too
old. TT 86, 90.
The Court rejects all of this testimony for several reasons. Initially, Plaintiff’s
demeanor on the stand was not credible. Further, at several junctures, he gave self-
serving testimony, which he changed only after being confronted with his
contradictory deposition testimony, such as when he denied ever having a drinking
problem, only to admit that point when shown his deposition testimony. More
importantly however, despite testifying that Defendants told him directly that he was
being fired because he was too old, he testified to the contrary at his deposition that
Defendants told him that he was fired due to customer complaints, DT 63, and he
only learned that he was discharged because of his age from a co-worker, Ricard Del
Valle (“Del Valle”), who was fired shortly before Plaintiff, and who Torres failed to
call as a witness at trial. See TT 120-21; DT 67-68. For all of these reasons the Court
declines to credit any of Torres’s testimony connecting Plaintiff’s termination to his
age.5
In any event, as the result of his termination, Torres testified that he was
humiliated and unable to take care of his ailing wife, a problem that became more
difficult during the pandemic, though he never sought or obtained any type of medical
or other treatment as a result. TT 40-41, 118-19. Although he looked for alternative
employment, he could not find any, other than some occasional work. TT at 43-44.6
II. CONCLUSIONS OF LAW
A. Standard of Review
At a bench trial in a civil case, the plaintiff maintains burden of proof to prove
each of the elements of his claim by a preponderance of the evidence. Hoover v. Wilkie,
11-CV-734F, 2020 WL 108423, at *9 (W.D.N.Y. Jan. 9, 2020) (citing Wilson v.
Calderon, 367 F. Supp. 3d 192, 195 (S.D.N.Y. 2019)); Torres-Cuesta v. Berberich, No.
08-CV-1382 ARR LB, 2011 WL 3298448, at *11 (E.D.N.Y. Aug. 1, 2011), aff’d, 511 F.
App’x 89 (2d Cir. 2013). This preponderance-of-the-evidence standard means that
when the evidence as to an issue is evenly balanced, the party with the burden of
5 In reaching this conclusion, the Court acknowledges that Baram admitted that on one occasion he
heard employees joking about Plaintiff’s age in relation to his sex life. TT 190. Without going into
detail, there was no evidence connecting this conduct to the termination decision, and so the Court
disregards it.
6 Finally, the Court notes that there was some questioning implying that the New York State Division
of Human Rights issued a probable cause finding after it investigated Plaintiff’s discrimination claims
before that agency. See TT 49-57, 242-43. This determination was never marked or admitted into
evidence however, and so the Court cannot consider it.
proof on that issue loses. United States v. Gigante, 94 F.3d 53, 55 (2d Cir. 1996);
Hoover, 2020 WL 108423, at *9; Berberich, 2011 WL 3298448, at *11 Where the
testimony is in conflict, it is the province of the district court to determine whose
testimony to credit. Tutt v. Moody, 18-CV-324 (JMA)(ARL), 2022 WL 17976820, at
*3 (E.D.N.Y. Dec. 28, 2022) (quoting Krist v. Kolumbos Rest. Inc., 688 F.3d 89, 95 (2d
Cir. 2012) (“[A]s trier of fact, the judge is entitled, just as a jury would be, to believe
some parts and disbelieve other parts of the testimony of any given witness.”); see
Clayton Servs. LLC v. Sun West Mortgage Co., Inc., 22-511, 2023 WL 2781294 (2d Cir.
Apr. 5, 2023) (summary order); Hoover, 2020 WL 108423, at *9 (credibility and
reliability testimony are determined by the district court).
B. Age Discrimination
Among its provisions, the ADEA bars an employer from discharging an
employee because of age. See 29 U.S.C. § 623(a); McCarthy v. New York City Tech.
College, 202 F.3d 161, 165 (2d Cir. 2002); Haskell v. Kaman Corp., 743 F.2d 113, 119
(2d Cir. 1984). Proof of age discrimination may be in the form of direct evidence, such
as statements by the employer that age was the reason for the discharge, or by
indirect evidence originally outlined by the Supreme Court in McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 802, 93 S. Ct. 1817, 1824 (1973) and later extended to
ADEA cases. See D’ Cunha v. Genovese/Eckerd Corp., 479 F.3d 193, 195 (2d Cir.
2007); Carr v. New York City Transit Auth., 16-CV-9957, 2022 WL 824367, at *8
(S.D.N.Y. Mar. 18, 2022); Marcus v. Leviton Mfg. Co., No. 15CV656SJFGRB, 2016
WL 74415, at *2 (E.D.N.Y. Jan. 6, 2016), aff’d, 661 F. App’x 29 (2d Cir. 2016). To
establish a prima facie case of age discrimination, a plaintiff most show membership
in a protected age group, that he was qualified for the position at issue, an adverse
employment action, and circumstances giving rise to an inference of discrimination.
Brown v. City of Syracuse, 673 F.3d 141, 150 (2d Cir. 2012) (citing Holcomb v. Iona
College, 521 F.3d 130, 138 (2d Cir. 2008)); D’Cunha, 479 F.3d at 195; Carr, 2022 WL
824367, at *8. If the plaintiff can establish a prima facie case, the burden shifts to
the defendants to articulate a non-discriminatory reason for the adverse employment
action. D’Cunha, 479 F.3d at 195; Carr, 2022 WL 824367, at *9; Marcus, 2016 WL
74415, at *2. If the defendants meet this burden of production, then the plaintiff
must prove that the defendants’ explanations are pretextual, such that the real
reason for the adverse action at issue is age-related. D’Cunha, 479 F.3d at 195; see
Marcus, 2016 WL 74415, at *2-3. The discrimination must be the “but-for” cause for
the adverse action. Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 176 129 S. Ct. 2343,
2350 (2009); Spencer v. United Parcel Serv., 354 F. App’x 554 (2d Cir. 2009) (summary
order); Fagan v. U.S. Carpet Installation, Inc., 770 F. Supp. 2d 490, 495 (E.D.N.Y.
2011). NYSHRL age discrimination claims are considered under the same standards.
Boonmalert v. City of New York, 721 F. App’x 29, 32 (2d Cir. 2018) (summary order)
(“NYSHRL claims are treated the same as ADEA claims . . . .”); Alexander v. City of
New York, 19-cv-7023 (AJN), 2020 WL 7027509, at *3 (S.D.N.Y. Nov. 30, 2020);
Clarke-Green v. New York City Dep’t of Educ., No. 17CV778RRMVMS, 2019 WL
13149583, at *6 (E.D.N.Y. Mar. 20, 2019).
Here, Plaintiff’s age discrimination claims fail. The Court accepts Defendants’
testimony that Torres was fired because the owner, Baram, reasonably believed that
Torres attacked Mejia with a knife, conduct for which Plaintiff was already once
convicted after attacking his son-in-law years earlier. The Court found this testimony
credible. In this regard, the Court rejects Plaintiff’s testimony that he was subject to
comments about his age two to three times a day and then told he was being
terminated because of his age. Initially, Torres’s demeanor on the stand was not
credible. Moreover, his testimony was uncorroborated despite his statement that a
co-worker, Del Valle, knew about the discrimination but was not called as a witness
at trial. Further Plaintiff’s testimony about the alleged discrimination was
inconsistent, asserting at trial that Baram and Mejia told him that he was being fired
because of his age, while at deposition saying that he was told that he was terminated
for poor performance and that Torres learned he was discharged because of his age
later from Del Valle. Finally, the Court notes that Plaintiff’s testimony concerning
his drinking problem also changed between his deposition and trial. Once the totality
of this evidence is weighed, and Torres’s testimony is rejected, Plaintiff in unable to
establish, either through direct or indirect evidence that his age was the “but for”
cause of his termination, and his claims against Defendants under both the ADEA
and NYSHRL are dismissed.
III. CONCLUSION
For the foregoing reasons, Plaintiff’s age discrimination claims against
Defendants are dismissed, and the Clerk of the Court is directed to enter judgment
accordingly and close the case.
Dated: Central Islip, New York
June 8, 2023 SO ORDERED.
/s/ Steven I. Locke
STEVEN I. LOCKE
United States Magistrate Judge