The Honorable Mark R. Kravitz, of the United States District Court *

for the District of Connecticut, sitting by designation.

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09-2025-cv

Pacenza v. IBM Corporation

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

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 day of February, two thousand and ten. nd

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.
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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 fifty20 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
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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 non19 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
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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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