Opinion
00 Civ. 3309 (GEL)
February 5, 2002
Daniel H. Greenberg, New York, NY, for Plaintiff Thomas M. Bluight
Mary Schuette, New York, NY, for Defendant Consolidated Edison Company of New York, Inc.
OPINION AND ORDER
Plaintiff Thomas M. Bluight brings this action against his former employer, Consolidated Edison Company of New York, Inc. ("Con Ed"), charging age discrimination in violation of federal Age Discrimination in Employment Act ("ADEA") as amended by the Older Workers Benefit Protection Act, 29 U.S.C. § 621 et seq., and the New York Human Rights Law ("NYHRL"), N.Y. Exec. L. §§ 290, et seq., and § 296, subd. 1(a). Con Ed has moved for summary judgment. For the reasons stated below, the motion is granted, and judgment will be entered for the defendant.
BACKGROUND
Bluight began working for Con Ed on April 26, 1962. He held various positions at the company until June 30, 2001. The period in dispute runs from approximately June 1995 until Bluight's retirement in 2001.
On June 18, 1996, Bluight received a performance review for the prior fiscal year. (Vafegh Aff. Ex. 1.) At that time, Bluight was a Senior Analyst in the Brooklyn Financial Planning/Operations Analysis group. Mordchai Preiserowicz, the Section Manager, conducted the review. After citing Bluight's accomplishments, the review concluded, "Mr. Bluight's performance has been satisfactory. However, the focus of the Operations Analysis section has changed dramatically in 1996, with much less emphasis on annual audits. As a result, Mr. Bluight's value added to the Company has decreased." (Id.) The review also noted that Bluight "is somewhat inflexible in pursuing other venues," "has been slow to adapt to the new environment," and "has been slow to react to this transition." (Id.) Bluight objected to these comments, and a slightly revised review was produced on June 18, 1996. (Id.) Bluight signed this revised review' on July 12, 1996. As a result of the performance review, he was denied a merit pay increase.
The following changes were made: "As a result, Mr. Bluight's value-added to the Company has decreased" was changed to "As a result, the function's value added to the Company has decreased." "[I]nflexible in pursuing other venues" was changed to "inflexible in pursuing other avenues." He "has been slow to adapt to the new environment" was replaced with "has not shown initiative in adapting to the new environment." He "has been slow to react to this transition" was changed to "has to react quicker to this transition." (Id.)
Over the next five years, Bluight received seven more performance reviews; these reviews included similar observations describing Bluight's difficulty adapting to changes at Con Ed. On May 12, 1997, Bluight's review stated that he was "slow in tackling new initiatives." (Vafegh Aff Ex. 2.) In his March 2, 1998, review, Bluight "rank[ed] in the bottom third of the group." (Id. Ex. 3.) In an interim report on December 1, 1998, his "performance [was] ranked in the low 15%." (Id. Ex. 4.) By the review on March 25, 1999, Bluight's standing at Con Ed was in serious jeopardy. He was given "until the end of June 1999 to meet all expectations and bring his performance to a fully satisfactory level"; failure do so would result in "a formal warning." (Id. Ex. 5.) After this threat, Bluight's June 22, 1999, performance review noted "significant improvement," with performance "at a satisfactory level." (Id. Ex. 6.) Despite this improvement, Bluight continued to rank in the bottom third of all employees in the Brooklyn and Queens Operations Services in his March 6, 2000, and March 1, 2001, reviews. (Id. Ex. 7; Pl. Aff Ex. 6.) On the basis of these poor reviews, Bluight did not receive merit pay increases for any of these years.
Noting some improvement in his performance, Bluight's supervisors recommended him for a merit pay increase after his March 6, 2000, review. (Def's Mem. Supp. Summ. J. at 7.) According to Con Ed, this increase was denied because the compensation guidelines prohibited increases in salary for employees in the bottom third of their department and/or the bottom 15% of the organization. (Id. at 8-9.) Bluight claims the denial was in retaliation for his filing an employment discrimination charge with the EEOC in 1999.
Bluight claims that his poor performance reviews were part of an age discrimination policy initiated by Eugene R. McGrath, Chief Executive Officer and President of Con Ed, in the early part of 1995. (Compl. ¶¶ 22-25.) He argues that these reviews were designed "to cheat, defraud, deprive and deny compensation increases to plaintiff, to try to force or compel him to put in for early retirement, so as to comply with the announced practice and policy of Eugene R. McGrath, to terminate, eliminate and cause senior long-time management employees to accept early retirement." (Id. ¶ 41.) Plaintiff describes his supervisors as "good soldiers" carrying out McGrath's discriminatory policy. (Pl. Dep. at 90, 106, 169; Pl's Mem. Opp'n. Summ. J. at 8-9.) Supervisors alleged to be part of this conspiracy include: Mordchai Preiserowicz, Section Manager in 1996 and 1997 (Def.'s Reply Mem. at 16), Anthony McQuade, Acting General Manager in 1996 (id. at 15), Edward Foppiano, General Manager in 1997 and 1998 (id. at 16), Sia Vafegh, Manager of Operations Analysis since 1998 (Vafegh Aff. ¶ 4); Bruce Anderson, Section Manager in 1998 (id.); and David Gedris, Vice President of Brooklyn/Queens Operations since 1999 (Gedris Aff. ¶ 5).
On July 26, 1999, Bluight filed a charge of employment discrimination with the Equal Employment Opportunity Commission ("EEOC"), alleging that Con Ed had discriminated against him on the basis of his age, race, sex, and disability. On February 1, 2000, the EEOC issued a Dismissal and Notice of Rights letter. Bluight filed a complaint in this action on May 1, 2000. Con Ed moved for summary judgment on May 15, 2001.
Bluight claims he filed an earlier charge, on April 9, 1999. (Pl. Aff. Ex. 4.) Con Ed disputes this assertion. (Def's Mem. Supp. Summ. J. at 9.) In view of the disposition of the case, nothing turns on this disagreement.
After initiating this lawsuit, plaintiff gave notice to Con Ed in a letter dated May 31, 2001, that he intended to retire effective June 30, 2001, at age 61 and described that retirement as involuntary." (Pl. Aff Ex. 5.) Plaintiff does not claim in his amended complaint that he was fired by Con Ed. Rather, he charges that the negative performance reviews and denials of pay increases constitute discriminatory adverse employment actions, and suggests that the discrimination he suffered was intended to bring about his retirement. Any claim by Bluight of constructive discharge on the basis of age depends on a showing that the performance reviews and denials of raises were themselves discriminatory. Accordingly, there is no need to parse more finely the precise nature of the discriminatory action charged by Bluight.
DISCUSSION
I. Standard for Summary Judgment
Under the Federal Rules, summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). To defeat a motion for summary judgment, "an adverse party may not rest upon the mere allegations or denials of [his] pleading, but . . . must set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e). The non-moving party "must do more than simply show that there is some metaphysical doubt as to the material facts."Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986) (citing DeLuca v. Atlantic Refining Co., 176 F.2d 421, 423 (2d Cir. 1949), cert. denied, 338 U.S. 943 (1950)). "[I]f the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50 (1986) (citations omitted). Similarly, the non-moving party cannot defeat summary judgment by offering purely conclusory allegations of discrimination," Meiri v. Dacon, 759 F.2d 989, 998 (2d Cir. 1985), or by offering evidence in opposition that is merely speculative. See Dister v. Continental Group, Inc., 859 F.2d 1108, 1116-17 (2d Cir. 1988). Accordingly, to defeat summary judgment, the opposing party must set forth "`concrete particulars'" showing the need for a trial. R.G. Group, Inc. v. Horn Hardart Co., 751 F.2d 69, 77 (2d Cir. 1984) (quoting SEC v. Research Automation Corp., 585 F.2d 31, 33 (2d Cir. 1978)).
In an age discrimination case, the three-part, burden-shifting framework articulated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), applies. See Abdu-Brisson v. Delta Air Lines, Inc., 239 F.3d 456, 466 (2d Cir. 2001). In this scheme, the plaintiff establishes a prima facie case and then the employer offers legitimate, nondiscriminatory reasons for the contested actions. If such reasons are given, "the presumption of age discrimination dissolves, and the burden shifts back to the plaintiff to prove that the employer's stated reasons are merely pretextual." Id. In James v. New York Racing Assoc., 233 F.3d 149 (2d Cir. 2000), the Court of Appeals considered the effect of Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133 (2000), on the Second Circuit's analysis of this burden-shifting framework as articulated in Fisher v. Vassar College, 114 F.3d 1332 (2d Cir. 1997) (en banc). The Court of Appeals concluded that Reeves was consistent withFisher, finding that "both opinions essentially stand for the same propositions." James, 233 F.3d at 156.
Claims under the NYHRL are also analyzed pursuant to this same framework. See Cruz v. Coach Stores, 202 F.3d 560, 565 n. 1 (2d Cir. 2000). Accordingly, conclusions reached on the federal claim will also resolve the corresponding state claim.
Under this scheme, a successful prima facie showing "`creates a presumption that the employer unlawfully discriminated.'" Fisher, 114 F.3d at 1335 (quoting Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 254 (1981)). This presumption places a burden on the defendant to "`produc[e] evidence' that the adverse employment actions were taken `for a legitimate, nondiscriminatory reason.'" Id. (quoting St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 506-507 (1993), and Burdine, 450 U.S. at 254). If the employer fails to articulate such a reason, plaintiff prevails. If the employer offers evidence of legitimate reasons, the "`presumption drops out,'" and plaintiff must show that the employer's purported reasons are false. Id. (quoting St. Mary's, 509 U.S. at 510-11). At that point, "the employer will be entitled to summary judgment . . . unless the plaintiff can point to evidence that reasonably supports a finding of prohibited discrimination." James, 233 F.3d at 154 (citations omitted). Evidence casting doubt on the employer's proffered justification "may — or may not — be sufficient" to provide this support. Fisher, 114 F.3d at 1333. Thus, when the employer has proffered an explanation and the plaintiff has attempted to refute it, the Court's responsibility is to "examin[e] the entire record to determine whether the plaintiff could satisfy his `ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff.'" Schnabel v. Abramson, 232 F.3d 83, 90 (2d Cir. 2000) (quoting Reeves, 530 U.S. at 143).
II. The Standard Applied
Con Ed claims that it is entitled to summary judgment, arguing that many of plaintiffs claims are time-barred, that plaintiff has failed to make out a prima facie case of discriminations that Con Ed had nondiscriminatory reasons for denying the pay raises, and that plaintiff offered no evidence of pretext or retaliation. (Def.'s Mem. Supp. Summ. J. at 12-21.) Con Ed also claims that summary judgment should be granted because plaintiff failed to comply with Rule 56.1 and the rules of evidence. (Def.'s Reply Mem. at 1.) Since the motion can be disposed on the merits of the age discrimination claim, there is no need to address the statute of limitations issue or Con Ed's procedural objections. For the reasons stated below, Con Ed's summary judgment motion will be granted.
A. Bluight's Prima Facie Case
The burden on plaintiff to establish a prima facie case of age discrimination is de minimis. See Abdu-Brisson, 239 F.3d at 468. Plaintiff must show: "(1) he is a member of a protected class; (2) he is qualified for his position; (3) he has suffered adverse employment action; and (4) the circumstances surrounding that action give rise to an inference of age discrimination." Id. at 467 (citing McDonnell Douglas, 411 U.S. at 802). Con Ed concedes that Bluight is within the protected age category, but claims that Bluight failed to satisfy the remaining three elements of the prima facie case.
In arguing that Bluight was not qualified for his position, Con Ed points to Bluight's performance reviews from the time period in dispute. (Def.'s Mem. Supp. Summ. J. at 13.) Defendant characterizes these reviews as showing that Bluight "continuously ranked in the bottom 15% of his department or the bottom third of his group. . . . [H]e demonstrated no flexibility or initiative in the performance of his duties and failed to improve his performance over several years." (Id.) Con Ed adds that these "performance deficiencies were noted by several different supervisors in the course of four years and in spite of remedial programs created for plaintiff" (Id.) Though these deficiencies are well-documented, Con Ed admits that Bluight showed "modest improvements" in the year ending March 2000. (Def.'s Mem. Supp. Summ. J. at 7.) To recognize those improvements and to give Bluight "an incentive . . . to continue to improve," Bluight's supervisors recommended him for a merit pay increase, suggesting the possibility of further improvement. (Id.)
Bluight points, moreover, to his long history with Con Ed before 1995, when he received consistently excellent or satisfactory reviews. (Pl. Aff. ¶ 8.) Several of these reviews considered Bluight's performance in the Brooklyn Operations Analysis group. (Pl. Aff Ex. 1 at 86-109.) These reviews indicate that Bluight was qualified for his position during that period. One notes, for example, that "Bluight readily adapts to changing conditions and attempts to make the best of his experience." (Id. Ex. 1 at 88.) Though Con Ed asserts that the department "`changed dramatically'" in 1996 (Def.'s Mem. Supp. Summ. J. at 3) (quoting Vafegh Aff Ex. 1), some of Bluight's responsibilities remained the same. Given the minimal burden on Bluight to establish his qualification, the record contains enough evidence for a reasonable jury to conclude that Bluight was sufficiently qualified to satisfy the second element of his prima facie case.
In 1996, Bluight continued to have some responsibilities that he performed satisfactorily in 1995. These included the annual audit plan, reports on theft of service billings, and reports on street and noise complaints. (Compare Vafegh Aff. Ex. 1, with Pl. Aff Ex. 1 at 86.)
The record documents several denials of merit pay increases. These constitute adverse employment actions, satisfying the third requirement for a prima facie case. See, e.g., Suggs v. Port Auth. of N.Y. N.J., No. 97 Civ. 4026, 1999 WL 269905, at *4 (S.D.N.Y. May 4, 1999) (describing denial of pay increases as adverse act).
To satisfy the final element, Bluight must show that the circumstances surrounding the adverse employment actions give rise to an inference of age discrimination. Little about the denials of pay increases gives reason to believe that the denials were discriminatory. Each denial was in accord with the company's merit pay policy, being based on a ranking system carried out by Bluight's supervisors. There is no evidence in the record that older employees received lower rankings on average than younger ones, and all of the supervisors who evaluated Bluight were themselves within the age category protected by the ADEA. (Def.'s Mem. Supp. Summ. J. at 13; Def's R. 56.1 Statement §§ 6, 9, 12, 16.) To establish an inference of discrimination, Bluight focuses on comments made by Con Ed's CEO McGrath in late 1995 or early 1996 at a meeting Bluight attended at Kingsborough College. (Pl. Dep. at 104-107.) Bluight claims that McGrath announced that the company needed "new, young thinking and technologically expert people," commenting that "`there will be no more cradle to grave type employees.'" (Id. at 105-106.) McGrath allegedly made these statements in a speech before approximately 250 people. (Id. at 107.) Bluight claims that these comments reflect a policy of age discrimination at Con Ed, which his supervisors subsequently carried out against him. Describing his supervisors Preiserowicz, McQuade, and Foppiano as "good soldiers," Bluight characterizes his poor performance reviews as part of a conspiracy to force him into early retirement. (Pl. Dep. 90, 106, 169.)
For reasons that will be elaborated below, McGrath's remarks are at best weak evidence of age discrimination. Nevertheless, "at this stage in the analysis . . . a plaintiffs burden is de minimis." Abdu-Brisson, 239 F.3d at 468. It is unnecessary to decide whether these remarks, and others discussed below, would be sufficient to make out a prima facie case had Con Ed offered no legitimate justification for denying raises to Bluight. Since defendant has presented evidence of weak performance as a legitimate, nondiscriminatory reason for its decisions, the probative force of the comments relied on by Bluight is more appropriately analyzed in discussing the question of pretext, and the Court will assume for present purposes that Bluight has successfully established a prima facie case of age discrimination. See, e.g., Taylor v. Polygram Records, No. 94 Civ. 7689, 1999 U.S. Dist. LEXIS 2583, at *23 (S.D.N.Y. Mar. 8, 1999) (assuming arguendo that prima facie case established, to turn directly to "the third and crucial stage in the burden-shifting analysis") (citation omitted).
B. Con Ed's Legitimate, Nondiscriminatory Reasons
Con Ed argues that Bluight did not receive merit pay increases because of his poor work performance. From 1998 forward, the denials were mandated by the compensation guidelines that prohibited merit increases to employees in the bottom third their groups or the bottom 15% of their departments or organizations. (Def's Mem. Supp. Summ. J. at 14; Gedris Aff Ex. 1.) Con Ed claims that these guidelines applied with the same force to all employees. (Def's Mem. Supp. Summ. J. at 14.)
Con Ed focuses on the most recent years because the company argues that incidents prior to September 26, 1998, are barred by the 300 day statute of limitations. (Def's Mem. Supp. Summ. J. at 12.) Since the events in the earlier years are similar to the events of 1999 and 2000, essentially the same arguments regarding poor performance apply to the entire period.
Con Ed has met its burden of articulating nondiscriminatory reasons for denying pay increases. Bluight's reviews — conducted by different supervisors, all themselves members of the protected age group, over a period of several years — show a consistent concern with Bluight's flexibility and initiative starting in 1995-1996. (Vafegh Aff Exs. 2-7; Pl. Aff. Ex. 6.) They also suggest concrete steps necessary for improvement, such as computer classes. (See, e.g., Vafegh Aff. Ex. 5 (recommending self-study and in-house training classes to develop computer skills).) The events of 2000 illustrate the strength of Con Ed's evidence of nondiscriminatory evaluations. In that year, Bluight's supervisors Vafegh and Anderson, both of whom were aware of his age (Def.'s Mem. Supp. Summ. J. at 14 (immediate supervisors aware of plaintiff's age)), actually recommended Bluight for a merit pay increase despite his poor performance. (Vafegh Aff. ¶¶ 25-27.) They wanted to recognize his "modest improvement" and offer an "incentive" for continued growth. (Id.) The increase, however, was denied by Vice President Gedris. Gedris, who (as Bluight does not dispute) did not know Bluight and had no information about his age, denied the pay increase because the guidelines prohibited increases for poor performers. (Gedris Aff. ¶¶ 23-33.)
Ironically, Bluight uses this incident to allege retaliation for the filing of an EEOC charge. The facts do not support such an allegation. To establish a prima facie case of retaliation, a plaintiff must show "`[1] participation in a protected activity known to the defendant; [2] an employment action disadvantaging plaintiff; and [3] a causal connection between the protected activity and the adverse employment action.'" Slattery v. Swiss Reinsurance America Corp., 248 F.3d 87, 94 (2d Cir. 2001) (quoting Holt v. KMI Continental, Inc., 95 F.3d 123, 130 (2d Cir. 1996)). Even on a de minimis standard, Bluight fails to establish a prima facie case of retaliatory denial of a merit increase. Though filing an EEOC charge is a protected activity, plaintiff has not shown any causal connection between the filing and the denial. Bluight might rely on proximity in time — he was denied an increase in March 2000 after filing on April 9, 1999 and again on July 26, 1999 — but such evidence is weak. Temporal proximity in the absence of other evidence is often insufficient to prove a prima facie case of retaliation. See, e.g., Hollander v. American Cyanamid Co., 895 F.2d 80, 85-86 (2d. Cir. 1990). Here, the March 2000 evaluation was not even very close in time to the filing of the charge almost a year earlier. When weighed against a positive recommendation for the increase by supervisors who knew plaintiffs age, the connection is not persuasive.
C. Pretext
In opposing defendant's motion, Bluight relies on speculative claims that the poor performance reviews were part of a "subtle" discriminatory policy, documented by the comments of CEO McGrath set forth above, and not an accurate representation of his performance. Bluight's case must stand or fall with the alleged evidence of a discriminatory policy adopted from on high. Though Bluight's claims of adequate performance may raise a factual issue about his competence, the essential question for a court determining pretext is not whether Bluight in fact performed poorly, but rather, whether Con Ed believed that he performed poorly. See, e.g., Taylor, 1999 WL 124456 at *10 ("subjective belief . . . is not evidence that . . . supervisors' appraisals were a sham, invented to mask discrimination"). Bluight has not presented any evidence suggesting that Con Ed did not believe that he merited poor performance reviews, and offers only his own conclusory assertions to dispute the consistently poor assessment of a number of supervisors who are not themselves alleged to have harbored any discriminatory bias. Under these circumstances, Bluight's minimal evidence raising a factual issue about his performance cannot suffice to permit a reasonable juror to find that the poor evaluations were a pretext for discrimination.
Neither can the comments of McGrath and others cited by Bluight. The Second Circuit has held that "stray remarks of a decision-maker, without more, cannot prove a claim of employment discrimination." Abdu-Brisson, 239 F.3d at 468 (citing Woroski v. Nashua Corp., 31 F.3d 105, 109-110 (2d Cir. 1994)). However, "when `other indicia of discrimination are properly presented, the remarks can no longer be deemed `stray,' and the jury has a right to conclude that they bear a more ominous significance.'" Id. (citing Danzer v. Norden Systems, Inc., 151 F.3d 50, 56 (2d Cir. 1998)). Bluight has not shown other indicia of discrimination, such as an employer's "all-consuming interest in the [employees'] age."Abdu-Brisson, 239 F.3d at 468 (pointing to the company's focus on age and retirement rates as an indicia of discrimination).
Bluight attempts to show other indications of discrimination by including in the record depositions of plaintiffs represented by his attorney in two unrelated cases that also involved Con Ed. (Pl. Aff. Exs. 2-3.) In both these depositions, plaintiffs testified about being fired for an "incident" at Con Ed and suggested that their terminations were connected to their age. (Id. Ex. 2 at 14; id. Ex. 3 at 71, 79.) The plaintiffs described comments by Con Ed management about the need for change (id. Ex. 2 at 23-24) and younger employees (id. Ex. 3 at 200-201). Both plaintiffs were terminated at the beginning of 1996. (Id. Ex. 2 at 12; id Ex. 3 at 68.) Bluight seems to claim that the discriminatory policy that led to his poor performance reviews was the same policy that led to the termination of these other plaintiffs. (Id. ¶ 3 (claiming that the depositions contain "a more complete record of the age discrimination policy of Con Edison, as created and developed by Mr. McGrath").) The situations of these plaintiffs, however, are distinguishable from Bluight's; they were terminated for a specific incident that did not involve Bluight (id. Ex. 2 at 27; id. Ex. 3 at 71), from a different office than Bluight (id. Ex. 2 at 8, Ex. 3 at 40-41), and by different supervisors (id. Ex. 2 at 12-13; id. Ex. 3 at 68). The allegations in those depositions are not evidence of discrimination in this case.
The comments cited, moreover, are not even discriminatory on their face. McGrath's rejection of the idea of "cradle to grave type employees" (Pl. Dep. at 106) does not express a preference for employees who are closer to the former than to the latter, but rather rejects the idea that employees will be given lifetime tenure regardless of performance. Such a rejection of lifetime employment for loyal, long-serving employees may be harsh, and may or may not be an effective labor policy, but it is not discriminatory. Neither is a preference for "young thinking" employees the same as a preference for the merely young. When a prominent soft drink company advertised its product as "for those who think young," it was not eschewing sales to those over 40, any more than Frank Sinatra's singing the praises of the "young at heart" (expressly including some who "survive to 105") was an endorsement of the younger generation. Likewise, enthusiasm for downsizing is not the same as a discriminatory termination policy. Bluight asserts that Michael Evans, then President of Con Ed, proudly boasted at a 1995 meeting, "We had nineteen thousand employees and I am happy now, we're down to thirteen thousand. Wow, six thousand gone." (Pl. Dep. at 180-81.) Bluight does not link these comments to a policy of age discrimination. (Id. at 181-82.)
Bluight alleges that Preiserowicz stated that he could get plaintiff a "good retirement package" (Pl. Aff. ¶ 11), and that McQuade responded to plaintiffs complaints about one poor review by stating "Why don't you move to customer operations? Why don't you leave?" (Pl. Aff. ¶ 7). While these remarks certainly suggest that his supervisors wanted to be rid of him, they do not indicate that their desire was in any way based on his age.
Bluight offers no evidence to connect McGrath's comments — which were remote in time and place to his performance reviews — to any concrete policy. He offers no other evidence of widespread discrimination or anything else to suggest that a discriminatory plan was put into place, nor any proof suggesting that his supervisors were aware of or part of such a conspiracy. There is no evidence that anyone at Con Ed made derogatory remarks about Bluight, or anyone else, because of their age. In fact, Bluight acknowledged in his deposition on multiple occasions that no such comments were ever made. (Pl. Dep. at 89-90, 92-94, 109-10.)
Bluight also cites a document predicting his future pension benefits, arguing that its projections prove that Con Ed planned on keeping his salary at a fixed level regardless of performance. (Pl. Aff. ¶ 8; id. Ex. 1 at 162-71.) This argument, however, misrepresents the document. The exhibit predicts future pension benefits, not salary; the normal calculation assumes that salary remains fixed at its current rate unless the employee requests pension projections based on an increasing salary. (Gonzalez Aff., Def's Reply Mem. Ex. C.)
When the employer has proffered an explanation and the plaintiff has attempted to refute it, the Court's responsibility is to "examin[e] the entire record to determine whether the plaintiff could satisfy the `ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff'" Schnabel, 232 F.3d at 90 (quoting Reeves, 530 U.S. at 143). The record here will not support such a finding; on this record, no reasonable fact finder could determine that Con Ed intentionally discriminated against Bluight on the basis of his age.
CONCLUSION
Defendant's motion for summary judgment is granted; the Clerk is respectfully directed to enter judgment for defendant.
SO ORDERED.