Stephenson v. Hotel Employees & Restaurant Employees Union Local 100

Judgment, Supreme Court, New York County (Jane Solomon, J.), entered November 1, 2002, which, after a jury trial, awarded damages to plaintiffs Albert Stephenson and Leroy Hodge on their causes of action for age discrimination against defendants Hotel Employees and Restaurant Employees Union Local 100 of the AFL-CIO and Hotel Employees and Restaurant Employees International Union, the appeal from which brings up for review an order, same court and Justice, entered on or about January 24, 2003, denying defendants’ motion for judgment notwithstanding the verdict pursuant to CPLR 4404 (a), reversed, on the law, without costs, defendants’ CPLR 4404 (a) motion granted, the verdict set aside, the judgment in favor of plaintiffs vacated, and judgment granted to defendants as a matter of law. The Clerk is directed to enter judgment in favor of defendants dismissing the complaint.

Plaintiffs are former business agents of defendant local union (Local 100), a constituent of defendant international union (HEREIU). In the early 1990s, Local 100 was the subject of a RICO investigation by federal authorities, and faced the prospect of a government takeover. The federal investigation prompted HEREIU, on January 24, 1992, to remove Local 100’s elected officers and to appoint Vincent Sirabella as the local’s “International Trustee” (the Trustee). Thereafter, on June 11, 1992, the Trustee dismissed plaintiffs from their jobs. At the time plaintiffs were discharged, Stephenson was 64 years old, and had been employed by Local 100 for 13 years; Hodge was 55 years old, and had been employed by the local for seven years.

In 1995, plaintiffs commenced this action against Local 100 and HEREIU, alleging that they were victims of age discrimination, a violation of New York’s Human Rights Law (Executive Law § 296). Defendants deny any discriminatory intent, and contend that the terminations were motivated solely by concerns about plaintiffs’ alleged involvement in the corruption for which Local 100 was then being investigated.

At trial, plaintiffs testified that they had performed their jobs without criticism or complaint up to the time they were terminated. They also testified that Frank Gerace, who was brought in by former Local 100 president Anthony R. “Chick” Amodeo to act as day-to-day “boss” of the local, repeatedly made negative comments about plaintiffs’ ages and stated that he wanted “young blood” on the staff. Plaintiffs’ former supervisor, Sergio Fermiglia, also testified that, at two staff meetings, Gerace made statements to the effect that there were “too many old people” at Local 100. However, Gerace ceased working at Local 100 upon the appointment of the Trustee in January 1992, and therefore had no involvement in the Trustee’s decision to terminate plaintiffs the following June. Fermiglia retired from his job with Local 100 on January 3, 1992, prior to the appointment of the Trustee, and thus was not privy to the Trustee’s reasons for terminating plaintiffs.¹

The Trustee, who was older than plaintiffs, died prior to trial. Of the two plaintiffs, only Stephenson testified that the Trustee told him the reason for his termination. Stephenson testified that, on the day he was terminated, the Trustee called him into his office and told him “the reason you are going to be fired [is] because we need new blood, and that is the reason that we have to let all the old people go.”

Defendants presented evidence placing plaintiffs’ terminations in the context of Local 100’s response to the federal investigation that was in progress at the time. Prior to the appointment of the Trustee, federal authorities advised HEREIU that their investigation had uncovered substantial evidence of corruption at Local 100, and that Local 100 would be taken over by the government unless HEREIU took steps to end the criminality. Among other things, the federal authorities told HEREIU that they had reason to believe that Chick Amodeo, Local 100’s president, was associated with organized crime.

Upon learning of law enforcement’s interest in Local 100, HEREIU retained Kroll Associates (Kroll), a private investigative firm, to conduct an investigation of the local. Thereafter, on January 24, 1992, HEREIU issued a formal “Notice of Charges” against Local 100, alleging that Local 100’s officers: (1) had conducted the local’s affairs in a manner “contrary to the interest of that organization resulting in a substantial loss of membership and employers previously covered by collective bargaining agreements”; (2) had engaged in “financial mismanagement resulting in substantial loss of assets and revenue”; and (3) had failed to enforce existing collective bargaining agreements. Based on these charges, HEREIU appointed the Trustee to take charge of Local 100’s affairs, and gave the Trustee a mandate “to take such steps as are necessary to correct the matter giving rise to the trusteeship.”

On February 11, 1992, the Trustee addressed Local 100’s employees (including plaintiffs), and told them that the “status quo” at the local was untenable in view of the government’s ongoing investigation. The Trustee stated, in substance, that he would expect employees of Local 100 to do their jobs honestly and effectively, for the benefit of the local’s members. He invited the resignation of any employee who was unwilling to adapt to the new regime.

William Kish, a Kroll vice-president, testified at trial that, in the course of his investigation of Local 100, he learned from an FBI informant that a number of Local 100 employees—including plaintiffs—were “bag men” for Chick Amodeo, the removed president of Local 100. Kish testified that he gave this information to the Trustee. Thereafter, on June 11, 1992, the Trustee terminated the employment of both plaintiffs, among other business agents.

At or close to the time plaintiffs were terminated, the Trustee also terminated business agents Stephanie Bonafante, Rocco Panaro and Stephen Amodeo (a son of Chick Amodeo), each of whom had also been implicated in the corruption at Local 100. At the time of the terminations, Bonafante was in her twenties or thirties, and Panaro and Stephen Amodeo were both in their thirties. By contrast, employees over the age of 50 who had not been connected to the corruption were not discharged. For example, a business agent named Aldo Lupano, who was in his fifties or sixties in 1992 (Hodge believed that he and Lupano were “[ajbout the same age”), continued to work at Local 100 after the imposition of the trusteeship until his death just before his 65th birthday. In fact, Lupano was one of the business agents to whom plaintiffs’ work was assigned after they were terminated. Similarly, Local 100’s office manager, Marge Rimmelin, who was about 54 years old in 1992, still held that position 10 years later, when this action went to trial.

In their rebuttal case, plaintiffs simply reiterated their prior testimony that they had performed their jobs properly, that they were not involved in any corruption, and that they were not aware of any accusations of corruption against themselves. The jury, after receiving a charge to which defendants objected on a number of grounds, returned a verdict for plaintiffs, and the trial court entered judgment thereon, denying defendants’ motion for judgment notwithstanding the verdict.²

On this record, we find that defendants’ CPLR 4404 (a) motion to set aside the verdict should have been granted. Defendants met their burden of rebutting plaintiffs’ prima facie age discrimination case by presenting admissible evidence of a “legitimate, independent, and nondiscriminatory reason[ ]” for the termination of plaintiffs’ employment (Ferrante v American Lung Assn., 90 NY2d 623, 629 [1997], quoting Matter of Miller Brewing Co. v State Div. of Human Rights, 66 NY2d 937, 938 [1985]). The fact defendants adduced as the reason for plaintiffs’ dismissal was the Trustee’s receipt of information from HEREIU’s investigator that plaintiffs had been identified as “bag men” for Local 100’s organized-crime-connected former president. That the Trustee fired plaintiffs after he received such damaging information about them was never controverted at trial by plaintiffs.

Although plaintiffs steadfastly denied any involvement in the corruption at Local 100, the issue at trial was not whether plaintiffs were actually corrupt. Rather, the issue was whether plaintiffs had been accused of corruption (whether or not the accusations were true) and, if so, whether those accusations actually were the reason they were dismissed. Even if it could be said that the Trustee unfairly credited the information implicating plaintiffs in the corruption (a point as to which we express no opinion), that would not render the dismissals actionable under the Human Rights Law. “The issue [in an action for age discrimination] is not whether defendants acted with good cause, but whether their business decisions would not have been made but for a discriminatory motive” (Ioele v Alden Press, 145 AD2d 29, 36 [1989]).

Beyond proving that the Trustee had a legitimate and nondiscriminatory reason for discharging plaintiffs, defendants presented powerful evidence—also uncontroverted by plaintiffs—that this reason was no pretext for acts of discrimination. Specifically, defendants showed that, at or about the same time plaintiffs were terminated, the Trustee terminated at least three much younger business agents of Local 100—all under the age of 40—who had also been implicated in the corruption. Meanwhile, the Trustee retained at least two employees over the age of 50 who had not been so implicated. Plaintiffs did not offer evidence controverting any of these facts, nor did plaintiffs offer evidence that they were replaced by younger employees or that any younger employees accused of corruption received more favorable treatment than plaintiffs had been afforded.

In sum, defendants proved, through uncontradicted evidence, both (1) that the Trustee had a legitimate, nondiscriminatory reason for dismissing plaintiffs, and (2) that age discrimination was not the real reason for the dismissals. In the face of this compelling showing by defendants, it was plaintiffs’ burden to prove by a preponderance of the evidence “both that the reason [proffered by defendants] was false, and that discrimination was the real reason” (Ferrante, 90 NY2d at 630, quoting St. Mary's Honor Ctr. v Hicks, 509 US 502, 515 [1993]). Plaintiffs failed to carry either prong of this burden of proof. To reiterate, they raised no issue of fact as to the truth of the reason defendants gave for their dismissals, nor did they raise an issue as to the truth of the facts adduced by defendants that were inconsistent with discriminatory intent, i.e., the Trustee’s simultaneous termination of younger employees implicated in the corruption and his retention of older employees who had not been similarly implicated. Plaintiffs did not offer an iota of evidence to create a triable issue as either of these matters.

In the final analysis, plaintiffs’ case rests entirely on plaintiff Stephenson’s uncorroborated and self-serving testimony that the now-deceased Trustee told him that he was being fired because the union needed “new blood.”³ Given the uncontradicted evidence of a legitimate reason for dismissal and of objective facts (the ages of other employees fired or retained) negating any inference of discriminatory intent, we conclude that the Trustee’s alleged statement to Stephenson—which, although ambiguous, could be construed to refer to Stephenson’s age— simply does not support the verdict for plaintiffs. This is not to say that Stephenson’s testimony about the Trustee’s alleged statement is incredible as a matter of law. Rather, in determining whether the verdict for plaintiffs is sustainable, our focus is on the question of whether, in view of the uncontroverted evidence presented at trial, the jury could rationally conclude that the Trustee’s “new blood” statement (assuming the remark was actually made and referred to Stephenson’s age) was an accurate explanation of the reason for plaintiffs’ termination. Given defendants’ uncontroverted proof of a legitimate reason for the dismissals and of objective facts negating any inference of discriminatory intent, the Trustee’s alleged statement to Stephenson was insufficient to provide a “valid line of reasoning and permissible inferences [that] could . . . lead rational [people] to the conclusion reached by the jury” (Cohen v Hallmark Cards, 45 NY2d 493, 499 [1978]), namely, that plaintiffs were dismissed from their jobs based on their ages, rather than based on the Trustee’s undisputed receipt of information linking them to organized crime. Accordingly, since, on this record, “plaintiffis] did not raise a question of fact concerning the falsity of defendants’ proffered basis for [their] termination and that discrimination was more likely the real reason for [their] termination” (Scott v Citicorp Servs., 91 NY2d 823, 825 [1997]), defendants are entitled to judgment as a matter of law.* **⁴

We reject the dissent’s accusation that our decision “usurp[s] the jury’s role.” To the contrary, in determining whether the verdict can be sustained as a matter of law, we are unwilling to ignore (as the dissent does) the objective and uncontroverted facts established by the record that conclusively negate the claim that plaintiffs were terminated for discriminatory reasons. Whatever the reason for the terminations may have been (and, again, plaintiffs do not dispute that the Trustee had received information implicating them in corruption), that reason simply could not have been plaintiffs’ ages in light of the uncontroverted evidence presented at trial. Again, plaintiffs never disputed defendants’ evidence that, at the time plaintiffs were terminated, the Trustee did not discharge other older employees who had not been accused of corruption, while he did terminate those younger employees who, like plaintiffs, had been the subject of such accusations. The dissent does not even attempt to reconcile the finding of age discrimination with these established facts, Although it was the jury’s prerogative to choose among the inferences that could be rationally drawn from the evidence before it, a finding of age discrimination was not, on this record, one of the “permissible inferences” (Cohen v Hallmark Cards, 45 NY2d at 499) the jury could choose.

In view of the foregoing, we need not reach the remaining issues raised by defendants. Concur—Andrias, Saxe, Friedman and Williams, JJ.

1 . We note that Stephenson testified on direct examination that, during the trusteeship, William Granfield, who worked at Local 100 under the Trustee, once asked him to leave the dais of a union meeting because “[t]hey don’t want any older person like me to stay in the meeting.” On cross-examination, however, Stephenson retracted that testimony, stating that Granfield never made any “age-related comments” to him.

2 . Although the dissent approves of the trial court’s charge to the jury that “plaintiffs were ‘qualified’ as a matter of law,” we do not understand how one can be “qualified” for a position of this type, as a matter of law, while there are serious allegations of corruption against that person.

3 . The alleged discriminatory remarks by Gerace, the former day-to-day “boss” of Local 100, are irrelevant, given that Gerace’s involvement with the local ceased upon the appointment of the Trustee in January 1992, months before plaintiffs were terminated. As to Stephenson’s testimony about Granfield’s alleged request, at a meeting during the trusteeship, that Stephenson leave the dais because of his age, as previously indicated, and contrary to the dissent’s assertion, the record shows that Stephenson retracted that testimony before he left the witness stand (see n 1). While the dissent states that Granfield “did not controvert” Stephenson’s testimony about the dais incident, it appears that Granfield (who testified after Stephenson) was never asked about the alleged incident—which is consistent with the testimony having been retracted. We make note of the fact that Granfield was never asked about the alleged dais incident only because the dissent seems to view the absence of any testimony by Granfield about the matter as an admission that the incident occurred as Stephenson originally testified. Contrary to the dissent’s assertion, we do not make the illogical suggestion that “because Granfield . . . was not asked about the incident, Stephenson must have retracted his testimony about [it].” Rather, Stephenson’s retraction explains why Granfield was not asked about the incident, not the other way around. In any event, even if the testimony about the dais incident had not been retracted, such testimony would be insufficient to support the verdict, for precisely the same reasons that Stephenson’s testimony about the Trustee’s “new blood” statement is insufficient to support the verdict.

4 . The dissent attempts to distinguish Scott v Citicorp Servs. (supra) as “a case decided upon a motion for summary judgment.” The dissent apparently means to suggest that the standards for a summary judgment motion differ materially from the standards for a motion for judgment notwithstanding the verdict. The dissent’s suggestion is wrong. Both on a motion for summary judgment and on a motion for judgment notwithstanding the verdict, the standard for granting relief is whether, based on the evidence before the court, the movant is entitled to judgment “as a matter of law” (see CPLR 3212 [b]; 4404 [a]). Whether the determination is based on pretrial evidentiary submissions or on the evidence presented at trial, the legal standard is exactly the same.