Grady v. Affiliated Cent., Inc.

• Citation: 130 F.3d 553
• Decision Date: 10 December 1997
• Docket Number: D,No. 157,157
• Parties: 75 Fair Empl.Prac.Cas. (BNA) 1416, 72 Empl. Prac. Dec. P 45,123 Maxine GRADY, Plaintiff-Appellant, v. AFFILIATED CENTRAL, INC., Defendant-Appellee. ocket 97-7100.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

Page 553

130 F.3d 553

75 Fair Empl.Prac.Cas. (BNA) 1416,

72 Empl. Prac. Dec. P 45,123

Maxine GRADY, Plaintiff-Appellant, v. AFFILIATED CENTRAL, INC., Defendant-Appellee.

No. 157, Docket 97-7100.

United States Court of Appeals, Second Circuit.

Argued Oct. 10, 1997.

Decided Dec. 10, 1997.

Maxine Grady, Brooklyn, NY, pro se.

Andrew S. Hoffmann, New York City (Wiseman, Hoffmann & Walzer, New York City, on the brief), for Defendant-Appellee.

Before: KEARSE and CABRANES, Circuit Judges, and COTE, District Judge ^*.

KEARSE, Circuit Judge:

Plaintiff pro se Maxine Grady appeals from a judgment of the United States District Court for the Eastern District of New York, John Gleeson, Judge, dismissing her complaint alleging that defendant Affiliated Central, Inc. ("Affiliated"), terminated her employment on the basis of her age, in violation of the Age Discrimination in Employment Act of 1967 ("ADEA"), 29 U.S.C. § 623 (1994). The district court granted summary judgment dismissing the complaint on the ground that Affiliated had presented a sufficiently supported nondiscriminatory reason for terminating Grady's employment and Grady had not produced evidence that could show that the reason advanced was false. On appeal, Grady contends that summary judgment was inappropriate because there was a genuine issue of fact to be tried as to the reason for her discharge. She also contends that summary judgment should not have been granted without affording her additional discovery. For the reasons below, we affirm.

I. BACKGROUND

Most of the facts are not in dispute. We describe the events, most of which occurred in late September 1993, in the light most favorable to Grady as the party against whom summary judgment was granted.

A. Grady's Employment at Affiliated

Affiliated is a central alarm station that provides 24-hour-a-day monitoring services for residential and business alarm vendors In September 1993, Bacolas, who was then age 52, hired Grady, then age 51, as a trainee for the position of central station operator. Grady began her employment at Affiliated on September 20, 1993. Eight days later, Bacolas told Grady she was "not pleased." The next day, September 29, 1993, Richard Bunkiewicz, the central station operations manager, informed Grady that her employment with Affiliated was terminated.

throughout the United States. The alarm signals received by Affiliated indicate burglaries, fires, hold-ups, and medical or other emergencies. Affiliated employs "central station operators" who monitor the alarm signals, using sophisticated computer terminals, and dispatch appropriate responses. The operators also answer telephone calls, perform customer service tasks, and make data entry changes in subscriber files. Stella Bacolas was Affiliated's central station manager; her responsibilities included hiring, training, and evaluating the central station operators.

B. The Present Action

After filing a charge with the Equal Employment Opportunity Commission ("EEOC") and receiving a right-to-sue letter, Grady commenced the present action. The complaint alleged, inter alia, that one woman about 20-25 years of age (later identified as Danielle Pionegro) began as a trainee on the same day as Grady, and that at the end of Grady's first week, Affiliated hired two additional trainees (later identified as Denise Franco and Milagros Montano) who were about half Grady's age. The complaint alleged that there was "technically" no basis on which Affiliated could have evaluated Grady's performance as a trainee because she had no assignment other than observing the experienced operators; that Grady had nonetheless fielded several calls herself under the supervision of those operators; and that her performance as a trainee had been "magnificent[ ]," indeed, "light-years ahead of [her] fellow trainees." According to the complaint, Grady was fired without being given any reason; she was assured that "everything about [her] work" was "just fine" and was told that she was being fired because of a "gut feeling." The complaint alleged that Affiliated had discharged Grady to make room for the two newly hired, younger trainees and hence had discriminated against Grady on the basis of her age.

Following discovery, Affiliated moved for summary judgment, asserting that Grady had been discharged because of her poor work performance. Its motion was supported by, inter alia, an affidavit from Bacolas, who described Affiliated's training program in general and her experience with Grady in particular as follows:

7. Applicants who are hired are put through a brief training program before they are assigned to work on their own as operators. For the first few days of employment, the new trainees are instructed to observe experienced operators performing all aspects of the job. This includes computer terminal operations, data entry commands, alarm handling procedures and telephone etiquette. During these first few days, I spend several hours with each trainee making sure they are comprehending the various functions of the job. After a few days of observing, the trainees trade place [sic ] with experienced operators and begin handling simple functions such as handling incoming calls and performing basic computer functions. If the trainee is able to grasp the required functions and duties, they are given more responsibility and, after a week or so, they are assigned to their own terminal.

8. Maxine Grady ("Grady") was hired as a central station operator trainee in early September 1993. She began her employment with Affiliated on September 20, 1993.... I was responsible for hiring Ms. Grady and for attempting to train her for the operator position.

9. From the outset of her employment, it was obvious that Grady was having great difficulty grasping the basic functions of the central station operator job. During the first several day [sic ] in which she was asked to observe the experienced operators, it became apparent that Ms. Grady was simply was [sic ] unable to understand the usage of a computer terminal or how to perform simple computerized tasks.

10. Moreover, when I would correct her misunderstandings about the operation of the computer terminal or suggest how she might improve her comprehension, she frequently responded defensively and told me that she "knew what she was doing" and that I was not being fair with her.

11. After four or five days of attempting to explain the operation of the computer terminal to Ms. Grady, she was asked to sit at the terminal and handle incoming calls. Each time Ms. Grady was asked to handle a call, she was unable to perform simple computer commands such as moving from screen to screen and cross-referencing subscriber accounts to locate customer information. She also consistently performed the wrong dispatch functions in response to incoming calls, and was unable to provide clear verbal instructions when required.

12. When Ms. Grady was unable to handle simple alarm calls after a full week of training, I determined that she was not working out and that it made little sense to continue to train her. Moreover, her defensiveness and failure to listen to constructive criticism made it difficult to help her improve. Accordingly, at the end of the shift, I told Ms. Grady that I was not happy with her performance.

13. After the shift, I spoke to Richard Bunkiewicz and told him that Ms. Grady was unable to grasp the duties of an operator. After a brief discussion, we agreed that it would be best to let Ms. Grady go.

(Affidavit of Stella Bacolas dated June 28, 1996 ("Bacolas Aff."), pp 7-13.) Affiliated also submitted the affidavit of Bunkiewicz, who confirmed Bacolas's description of the decision to terminate Grady and stated that he had informed Grady, when firing her, that the reason for the termination was the quality of her performance:

5. [On] September 29, 1993, I called Ms. Grady into my office at the beginning of her shift and said that I was very sorry to tell her that we had made a decision to "let her go". She asked me why she was being terminated, and I explained that she was not progressing as quickly as other employees at learning how to perform the functions of the central operator job, and that we needed people who were able, after a short period of time, to handle incoming calls on their own. Ms. Grady asked me if it was anything specifically that she had done to warrant her termination, and I told her that the decision was based on her performance....

. At no time did I tell Ms. Grady that her termination was unrelated to her job performance or that it was based on a "gut feeling". Rather, I made it absolutely clear that she was being terminated because she was unable to grasp the functions of the central operator job within a sufficient period of time.

(Affidavit of Richard Bunkiewicz dated June 28, 1996, pp 5-6.) Affiliated also submitted a September 29, 1993 "payroll status change" record indicating Grady's discharge and describing the "reason for change" as "unsatisfactory performance."

Bacolas stated that Grady had not been fired because of her age or treated any differently from employees who were younger:

15. .... Denise Franco (DOB 3/1/68) and Milagros Montano (DOB 8/6/62) were hired on September 27, 1993. Like Grady, Ms. Franco was unable to grasp the operator functions and was terminated for unsatisfactory performance on October 8, 1993. Ms. Montano, who was a marginal trainee, resigned her job on October 18, 1993.

....

17. Ms. Grady's claim that her employment was terminated because of her age is, in a word, ludicrous. I am presently fifty-five years old. Neither I nor anyone else during my tenure with Affiliated has ever discriminated against any employee on the basis of age or for any other reason. In fact, Affiliated employs many older workers like myself who make up a substantial portion of our workforce.

18. While I never knew Grady's exact age during her brief employment, it was...