James C. PACENZA, Sr., Plaintiff-Appellant, v. IBM CORPORATION, Defendant-Appellee, 363 F. App'x 128

SUMMARY ORDER Plaintiff, James C. Pacenza, Sr., commenced this action under the Americans with Disability Act of 1990 (“ADA”), the Age Discrimination in Employment Act of 1967 (“ADEA”), and the New York State Human Rights Law (“NYSHRL”). He alleges that Defendant (“IBM”) discriminated against him on the basis of his age and his disability when it terminated him. On April 2, 2009, the United States District Court for the Southern District of New York (Gardephe, J.) granted

summary judgment to IBM and dismissed Plaintiffs claims in their entirety. Plaintiff now appeals. He contends that the district court erred by granting in

part IBM’s motion to strike Plaintiffs motion papers, as well as for subsequently granting IBM’s motion for

summary judgment. We presume the parties’ familiarity with the underlying facts, the procedural history of the case, and the issues on appeal. On May 29, 2003, IBM fired Plaintiff— then fifty-four years old — after nineteen years of employment on the grounds that he violated certain IBM policies by accessing sexual materials on the internet while at work. Plaintiff alleges that he was actually fired because of his disability, Post Traumatic Stress Disorder (“PTSD”), and his age.

He contends that his condition manifests itself in a variety of addictive disorders, including a compulsion to access sexually-oriented material on the internet. Plaintiff maintains that IBM is using his internet abuse as a pretext for its real reason for terminating him. “We will not disturb a district court’s grant of a motion to strike unless manifestly erroneous.” Hollander v. Amer. Cyanamid Co., 172 F.3d 192, 198 (2d Cir.1999), abrogated on other grounds by Schnabel v. Abramson, 232 F.3d 83, 84 (2d Cir.2000). While a court is obliged not to consider inadmissible evidence at the

summary judgment stage, it remains in that court’s discretion whether to strike the inadmissible portions or simply disregard them. See, e.g., Rus, Inc. v. Bay Indust. Inc., 322 F.Supp.2d 302, 307 (S.D.N.Y.2003). Portions of documents submitted by Plaintiff in support of his

summary judgment motion included legal conclusions and arguments, as well as assertions not based on personal knowledge. The lower court determined that those extraneous arguments constituted an attempt by the Plaintiff to circumvent page-limit requirements placed on legal memoranda submitted to the court. We cannot say that the district court abused its discretion in striking those portions. On the merits, we have conducted a de novo review of the district court’s

summary judgment disposition, and we affirm. Because Plaintiff did not adduce evidence that his supervisor had knowledge of his disability, he failed to make a prima facie showing of discrimination under the ADA. See Raytheon Co. v. Hernandez, 540 U.S. 44, 54 n. 7, 124 S.Ct. 513, 157 L.Ed.2d 357 (2003). Moreover, even if Plaintiff had established a prima facie case, he nonetheless failed to satisfy his burden of persuasion to overcome

summary judgment by producing evidence “that would tend to show that the proffered reason [for termination] was merely a pretext for discrimination.” See Sista v. CDC Ixis North Am., Inc., 445 F.3d 161, 173 (2d Cir.2006) (internal quotation marks and citation omitted). Plaintiffs conduct was a clear violation of IBM’s policies, and we see no reason to conclude that Plaintiff was singled out or treated more harshly than similarly situated non-disabled employees who violated those policies. See Hargett v. Nat’l Westminster Bank, USA 78 F.3d 836, 839 (2d Cir.1996). Finally, the district court was correct in granting

summary judgment to IBM on Plaintiffs age discrimination claim. Plaintiff failed to demonstrate that he was terminated on account of his age, instead of his accessing a sexually-oriented chat room on his work computer. The mere fact that Plaintiffs work duties were partially assumed by younger individuals following his termination was insufficient to survive

summary judgment. See Fagan v. New York State Elec. & Gas Corp., 186 F.3d 127, 134 (2d Cir.1999). Because Plaintiff did not satisfy his burden of persuasion under the ADEA his claims were properly dismissed. The Court has reviewed Plaintiffs remaining arguments and finds them to be without merit. Accordingly, the judgment of the district court is hereby AFFIRMED.