       09-2025-cv
       Pacenza v. IBM Corporation

                               UNITED STATES COURT OF APPEALS
                                     F OR T HE S ECOND C IRCUIT

                                        SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED
ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE
32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH
THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE
NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY
NOT REPRESENTED BY COUNSEL .


            At a stated Term of the United States Court of Appeals
       for the Second Circuit, held at the Daniel Patrick Moynihan
       United States Courthouse, 500 Pearl Street, in the City of
       New York, on the 2 nd day of February, two thousand and ten.

       Present: RICHARD C. WESLEY,
                GERARD E. LYNCH,
                              Circuit Judges,
                MARK R. KRAVITZ,
                              District Judge. *
       ________________________________________________

       JAMES C. PACENZA, SR.,

                                  Plaintiff-Appellant,

                    - v. -                                     (09-2025-cv)

       IBM CORPORATION,

                         Defendant-Appellee.
       __________________________________________________



       Appearing for Appellant:             MICHAEL D. DIEDERICH, JR., Law
                                            Office of Michael D. Diederich,
                                            Jr., Esq., Stony Point, New

                                            York.



             *
                The Honorable Mark R. Kravitz, of the United States District Court
       for the District of Connecticut, sitting by designation.

                                               1
     Appearing for Appellee:       KEVIN G. LAURI, Jackson & Lewis,
                                   LLP, New York, New York.

          Appeal from the United States District Court for the
     Southern District of New York (Gardephe, J.).

 1       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

 2   AND DECREED that the judgment of the United States District

 3   Court for the Southern District of New York be AFFIRMED.

 4       Plaintiff, James C. Pacenza, Sr., commenced this action

 5   under the Americans with Disability Act of 1990 (“ADA”), the

 6   Age Discrimination in Employment Act of 1967 (“ADEA”), and

 7   the New York State Human Rights Law (“NYSHRL”).      He alleges

 8   that Defendant (“IBM”) discriminated against him on the

 9   basis of his age and his disability when it terminated him.

10   On April 2, 2009, the United States District Court for the

11   Southern District of New York (Gardephe, J.) granted summary

12   judgment to IBM and dismissed Plaintiff’s claims in their

13   entirety.     Plaintiff now appeals.   He contends that the

14   district court erred by granting in part IBM’s motion to

15   strike Plaintiff’s motion papers, as well as for

16   subsequently granting IBM’s motion for summary judgment.

17       We presume the parties’ familiarity with the underlying

18   facts, the procedural history of the case, and the issues on

19   appeal.     On May 29, 2003, IBM fired Plaintiff – then fifty-

20   four years old – after nineteen years of employment on the

21   grounds that he violated certain IBM policies by accessing


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 1   sexual materials on the internet while at work.     Plaintiff

 2   alleges that he was actually fired because of his

 3   disability, Post Traumatic Stress Disorder (“PTSD”), and his

 4   age.    He contends that his condition manifests itself in a

 5   variety of addictive disorders, including a compulsion to

 6   access sexually-oriented material on the internet.

 7   Plaintiff maintains that IBM is using his internet abuse as

 8   a pretext for its real reason for terminating him.

 9          “We will not disturb a district court’s grant of a

10   motion to strike unless manifestly erroneous.”     Hollander v.

11   Amer. Cyanamid Co., 172 F.3d 192, 198 (2d Cir. 1999),

12   abrogated on other grounds by Schnabel v. Abramson, 232 F.3d

13   83, 84 (2d Cir. 2000).     While a court is obliged not to

14   consider inadmissible evidence at the summary judgment

15   stage, it remains in that court’s discretion whether to

16   strike the inadmissible portions or simply disregard them.

17   See, e.g., Rus, Inc. v. Bay Indust. Inc., 322 F.Supp.2d 302,

18   307 (S.D.N.Y. 2003).     Portions of documents submitted by

19   Plaintiff in support of his summary judgment motion included

20   legal conclusions and arguments, as well as assertions not

21   based on personal knowledge.     The lower court determined

22   that those extraneous arguments constituted an attempt by

23   the Plaintiff to circumvent page-limit requirements placed

24   on legal memoranda submitted to the court.     We cannot say


                                     3
 1   that the district court abused its discretion in striking

 2   those portions.

 3       On the merits, we have conducted a de novo review of

 4   the district court’s summary judgment disposition, and we

 5   affirm.   Because Plaintiff did not adduce evidence that his

 6   supervisor had knowledge of his disability, he failed to

 7   make a prima facie showing of discrimination under the ADA.

 8   See Raytheon Co. v. Hernandez, 540 U.S. 44, 54 n.7 (2003).

 9   Moreover, even if Plaintiff had established a prima facie

10   case, he nonetheless failed to satisfy his burden of

11   persuasion to overcome summary judgment by producing

12   evidence “that would tend to show that the proffered reason

13   [for termination] was merely a pretext for discrimination.”

14   See Sista v. CDC Ixix North Am., Inc., 445 F.3d 161, 173 (2d

15   Cir. 2006) (internal quotation marks and citation omitted).

16   Plaintiff’s conduct was a clear violation of IBM’s policies,

17   and we see no reason to conclude that Plaintiff was singled

18   out or treated more harshly than similarly situated non-

19   disabled employees who violated those policies.    See Hargett

20   v. Nat’l Westminster Bank, USA, 78 F.3d 836, 839 (2d Cir.

21   1996).

22       Finally, the district court was correct in granting

23   summary judgment to IBM on Plaintiff’s age discrimination

24   claim.    Plaintiff failed to demonstrate that he was


                                    4
 1   terminated on account of his age, instead of his accessing a

 2   sexually-oriented chat room on his work computer.    The mere

 3   fact that Plaintiff’s work duties were partially assumed by

 4   younger individuals following his termination was

 5   insufficient to survive summary judgment.   See Fagan v. New

 6   York State Elec. & Gas Corp., 186 F.3d 127, 134 (2d Cir.

 7   1999).   Because Plaintiff did not satisfy his burden of

 8   persuasion under the ADEA his claims were properly

 9   dismissed.

10       The Court has reviewed Plaintiff’s remaining arguments

11   and finds them to be without merit.   Accordingly, the

12   judgment of the district court is hereby AFFIRMED.

13                               For the Court
14                               Catherine O’Hagan Wolfe, Clerk
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