Preuss v. Kolmar Laboratories, Inc.
2013 U.S. Dist. LEXIS 126809
S.D.N.Y.2013Background
- Plaintiffs William Preuss (b.1948), Robert Bloomer (b.1945), and Francis Xavier Cañero (b.1959) sued Kolmar Laboratories for age discrimination and retaliation under the ADEA and New York Human Rights Law arising from 2009–2010 layoffs, recalls, and a 2010 termination.
- Kolmar moved for summary judgment and submitted five employee affirmations; plaintiffs moved to strike some affirmations for failure to disclose witnesses under Fed. R. Civ. P. 26 and 37.
- Relevant workplace facts: Kolmar underwent financial distress and layoffs in 2009; supervisors (notably Director of Operations Luckey) made layoff recommendations and allegedly used ageist language (e.g., calling employees “old man,” hoping older employees would retire).
- Plaintiffs allege hostile work environment based on repeated age-related remarks and disparate treatment in selection for layoffs (younger employees retained or absorbed duties); Cafiero was later recalled then terminated in 2010 after an EEOC charge.
- Court treated numerous factual disputes as material but resolved the procedural motions: it partially struck two affirmations (May and Smith), allowed three others (Dussinger, Matyus, Bock) with conditions, and awarded fees tied to the Motion to Strike.
- On summary judgment, the court denied Kolmar judgment on hostile work environment and disparate-treatment (RIF) claims but granted summary judgment dismissing plaintiffs’ retaliation claims.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility of undisclosed witness affidavits (Rule 26/37) | Affidavits should be stricken because affiants were not disclosed and plaintiffs lacked notice/prejudice | Non-disclosure was harmless or the affiants were discoverable via depositions/documents; some material was work-product | Granted in part: Dussinger, Matyus, Bock admitted (no prejudice; identities known); May and Smith stricken (May irrelevant/opinion; Smith undisclosed & central) |
| Hostile work environment (ADEA & NYSHRL) | Repeated age-based epithets and comments by Luckey created an objectively and subjectively hostile environment; Luckey influenced layoff decisions | Conduct was not severe or pervasive; Luckey lacked power to take tangible employment actions | Denied summary judgment for Kolmar: triable issue exists as to hostile environment and vicarious liability (Luckey plausibly a supervisor because his recommendations were routinely adopted) |
| Disparate treatment / reduction-in-force (RIF) | Plaintiffs were qualified; younger employees retained or absorbed duties; policies (seniority/bumping) were not followed — evidence of pretext | Layoffs driven by legitimate business needs; positions eliminated; nondiscriminatory reasons offered | Denied summary judgment: genuine disputes (policy departures, who retained duties, bumping application) create triable issues on pretext and but-for age causation |
| Retaliation (ADEA & NYSHRL) | Preuss and Cafiero contend adverse actions followed protected complaints (internal/EEOC) | Employer points to timing and legitimate reasons (policy change pre-dated EEOC, recall occurred before notice, temporal gap) | Granted: retaliation claims dismissed. Preuss’s severance theory fails (policy changed before EEOC); Cafiero’s termination too remote (≈3 months) and no other causal evidence |
Key Cases Cited
- Anderson v. Liberty Lobby, 477 U.S. 242 (summary judgment standard)
- Celotex Corp. v. Catrett, 477 U.S. 317 (summary judgment burden-shifting)
- McDonnell Douglas Corp. v. Green, 411 U.S. 792 (burden-shifting framework for discrimination claims)
- Vance v. Ball State Univ., 133 S. Ct. 2434 (definition of "supervisor" for vicarious liability)
- Harris v. Forklift Sys., Inc., 510 U.S. 17 (hostile work environment objective/subjective test)
- Hayut v. State Univ. of N.Y., 352 F.3d 733 (severity/frequency analysis for hostile work environment)
- Terry v. Ashcroft, 336 F.3d 128 (ADEA elements; hostile-work-environment analysis)
- Brennan v. Metro. Opera Ass'n, 192 F.3d 310 (hostile work environment tests and standards)