The Honorable Mark R. Kravitz, of the United States District Court * for the District of Connecticut, sitting by designation. 1 09-2025-cv Pacenza v. IBM Corporation

UNITED STATES COURT OF APPEALS FOR THE 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 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.2

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 DECREEDthat 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 accessing3 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 say4 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 was5 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 15 16 17