Opinion
00-CV-0908E(Sr).
August 7, 2002
MEMORANDUM and ORDER
This decision may be cited in whole or in any part.
Plaintiff ("Tinney"), a former employee of The Wm. Powell Company ("Powell"), brought this action against Powell for alleged violation of the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et seq., and the New York Human Rights Law ("HRL"), New York Executive Law § 290 et seq. Powell seeks summary judgment of dismissal. Such motion will be denied.
Powell manufactures industrial valves. Cowart Aff., at ¶ 2. Tinney, who was born October 26, 1935, worked for Powell as a salesman from 1983 until December 31, 1999. Id. at ¶ 3; Tinney Aff., at ¶¶ 2-3. Tinney's sales territory had been changed during his career but, at the time that he was terminated, his sales territory included Western New York, Northern Pennsylvania, the Province of Ontario, Northern Ohio, Northern Indiana, Northern Illinois, Michigan and Wisconsin. Def.'s Statement, at ¶ 6; Cowart Aff., at ¶ 4. In 1999 John Vargosko — a Powell salesman and Tinney's regional manager and supervisor — was responsible for a sales territory that generally extended from Maine's Canadian border south to Baltimore, Md. to North Dakota at the northwest and Kansas at the southwest. Tinney Aff., at ¶ 11. Powell hired Mark Matson from a competitor around October of 1999. Def.'s Statement, at ¶¶ 12, 18. Powell contends that it did so because Matson brought several clients with him that generated in excess of $2.6 million in sales. Id. at ¶ 22; Cowart Aff., at ¶¶ 7, 11. Effective November 1, 1999 Matson was assigned Wisconsin and Illinois as part of his sales territory — areas that had been serviced by Tinney. Tinney Aff., at ¶¶ 13-14. The remainder of Matson's sales territory had been previously serviced by Vargosko and Jerry Bradford. Id. at ¶ 14. A November 4, 1999 memorandum was distributed internally at Powell indicating the hiring of Matson and the scope of his sales territory — although Tinney never received this memo. Id. at ¶ 15; cf. Vargosko Dep., at 78.
See e.g., Pl.'s Statement, at ¶¶ 5, 7.
See Def.'s Statement, at ¶ 7.
The remainder of Matson's sales territory — which was previously serviced by Vargosko — included North Dakota, South Dakota, Minnesota, Iowa, Nebraska, Missouri, Kansas, Colorado and Oklahoma. See Def.'s Statement, at ¶ 20; Tinney Aff., at ¶ 14; Cowart Aff., at ¶ 10.
David R. Cowart, Powell's CEO, conducted a meeting with the sales force in Cincinnati on November 16-17, 1999 — to which Tinney was not invited. Tinney Aff., at ¶ 16. One subject allegedly discussed at this meeting was the loss of two large clients — Praxair and Sales Supply (a/k/a Grinnell) — from Tinney's sales territory. Pl.'s Statement, at ¶ 16. Cowart asserts that the decision to terminate Tinney was made at this sales meeting. Cowart Aff., at ¶ 1; Cowart Dep., at 140. At the end of the meeting, Cowart told Vargosko to terminate Tinney. Vargosko Dep., at 123-124. At that time, Vargosko reminded Cowart that Tinney was 64 years-old. Id. at 124. At the end of his conversation with Cowart, Vargosko told Cowart that he did not know what to say when terminating Tinney. Id. at 126. On November 18, 1999 Cowart told Vargosko to tell Tinney that he was being terminated because (1) Tinney was not part of Powell's plans for 2000, (2) that — factoring in the loss of Praxair and Grinnell — Tinney's sales territory could not sustain him, (3) that Cowart was still angry at Tinney for moving to Niagara Falls without Cowart's permission in 1990 and (4) that business was poor and Powell was restructuring the territories. Id. at 126-132; Tinney Aff., at ¶ 18; Cowart Aff., at ¶ 17 (the decision to terminate Tinney was a result of the inability to sustain Tinney's position in light of "the significant and continuing decline in sales volume in Tinney's territory" and the loss of two major clients in Tinney's territory). Tinney asked Vargosko when the termination would be effective and reminded him that he was 64 years old — which Vargosko relayed to Cowart. Id. at ¶ 19; Vargosko Dep., at 132-133. Tinney filed a charge of discrimination April 10, 2000 with the Equal Employment Opportunity Commission ("EEOC"), which issued a right to sue letter July 31, 2000. Tinney Aff., at ¶¶ 21, 23.
See Def.'s Statement, at ¶ 4.
Powell does not appear to contend that the loss of these clients was caused by Tinney. See Vargosko Dep., at 107-108.
Vargosko testified that Cowart responded by stating in substance that "age has nothing to do with it, age is not a factor, I'm not talking about age, I'm talking about productivity, I'm talking about a loss of business, that is why we are terminating him, not because of his age." Vargosko Dep., at 124.
The sales in Tinney's territory were $3,340,000 in 1997, $3,028,000 in 1998, and $2,534,000 in 1999. Cowart Aff., at ¶¶ 13-14; Def.'s Statement, at ¶¶ 26-27, 29. The loss of Praxair and Sales Supply amounted to a loss of over $1 million in sales from Tinney's sales territory and Cowart estimated that Tinney's sales territory would generate about $1 million in sales in 2000. Id. at ¶¶ 33-36; Cowart Aff., at ¶ 16.
Tinney concedes that Cowart had been upset regarding Tinney's unauthorized move from Pittsburgh (Vargosko's home) to Niagara Falls in 1990. Tinney Aff., at ¶ 6. Moreover, Cowart remained upset therefor for some years afterward. See Hernandez Aff., at Ex. 1; Cowart Aff., at ¶ 5.
Rule 56(c) of the Federal Rules of Civil Procedure ("FRCvP") states that summary judgment may be granted only if the record shows "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." In other words, after discovery and upon a motion, summary judgment is mandated "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Summary judgment is thus appropriate where there is "no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
Completion of discovery is not a sine qua non but a party who moves prematurely for summary judgment might well encounter a motion by the opposing party or movant pursuant to FRCvP 56(f) seeking a delay for purposes of further discovery.
Of course, the moving party bears the burden of showing that no genuine issue of material fact exists and that it is entitled to judgment as a matter of law. Goenaga v. March of Dimes Birth Defects Found., 51 F.3d 14, 18 (2d Cir. 1995) (citing Adickes v. S.H. Kress Co., 398 U.S. 144, 157 (1970)). If the moving party makes such a showing, the non-moving party must then come forward with evidence of specific facts sufficient to show that there is a genuine issue for trial in order to survive the summary judgment motion. Ibid.; FRCvP 56(e).
With respect to the first prong of Anderson, a genuine issue of material fact exists if the evidence in the record "is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, at 248. Stated another way, there is "no genuine issue as to any material fact" where there is a "complete failure of proof concerning an essential element of the nonmoving party's case." Celotex, at 323. Under the second prong of Anderson, the disputed fact must be material, which is to say that it "might affect the outcome of the suit under the governing law ***." Anderson, at 248.
See also Anderson, at 252 ("The mere existence of a scintilla of evidence in support of the [movant's] position will be insufficient; there must be evidence on which the jury could reasonably find for the [movant].")
Furthermore, "[i]n assessing the record to determine whether there is a genuine issue as to any material fact, the district court is required to resolve all ambiguities and draw all factual inferences in favor of the party against whom summary judgment is sought." St. Pierre v. Dyer, 208 F.3d 394, 404 (2d Cir. 2000) (citing Anderson, at 255). Nonetheless, mere conclusions, conjecture, unsubstantiated allegations or surmise on the part of the non-moving party are insufficient to defeat a well-grounded motion for summary judgment. Goenaga, at 18. Indeed, in order to survive a motion for summary judgment, plaintiffs in discrimination cases must offer more than "purely conclusory allegations of discrimination, absent any concrete particulars ***." Meiri v. Dacon, 759 F.2d 989, 998 (2d Cir.), cert. denied, 474 U.S. 829 (1985). Summary judgment is nonetheless appropriate in discrimination cases. Holtz v. Rockefeller Co., 258 F.3d 62, 69 (2d Cir. 2001).
In employment discrimination cases, district courts must be "especially chary in handing out summary judgment *** because in such cases the employer's intent is ordinarily at issue." Chertkova v. Conn. Gen. Life Ins. Co., 92 F.3d 81, 87 (2d Cir. 1996).
See footnote 11.
Turning to the governing substantive law, Tinney alleges that Powell discriminated against him on the basis of age by discharging him and hiring a 42-year-old to cover part of Tinney's former sales territory in violation of the ADEA and the HRL. See e.g., Am. Compl., at ¶¶ 14-21. Section 623(a) of the ADEA, in relevant part, makes it unlawful for an employer
See O'Connor v. Consolidated Coin Caterers Corp., 517 U.S. 308, 312 (1996) (holding that, under a "substantially younger" test, a 57-year-old plaintiff replaced by a 40-year-old was not barred from establishing a prima facie case simply because his replacement was also a member of the protected class under the ADEA).
The Second Circuit Court of Appeals has held that "age discrimination suits brought under the State HRL and City HRL are subject to the same analysis as claims brought under the ADEA [— which are analyzed] under the same burden shifting framework as claims brought pursuant to Title VII of the Civil Rights Act of 1964, as amended." Abdu-Brisson v. Delta Air Lines, Inc., 239 F.3d 456, 466 (2d Cir.) (citations omitted), cert denied, ___ U.S. ___, 122 S.Ct. 460 (2001). Accordingly, the undersigned considers plaintiff's age-based claims in tandem.
"(1) to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's age; ***" 29 U.S.C. § 623(a).
ADEA claims are reviewed under the framework promulgated by McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) and its progeny for Title VII cases. Holtz, at 76. Under the McDonnell Douglas framework,
See also Texas Dept. of Comm. Affairs v. Burdine, 450 U.S. 248, 253 (1981) ("[t]he ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff"); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 508 n. 3 (1993) (discussing the burden-shifting analysis established in McDonnell Douglas and construed in Burdine).
See also Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142 (2000) (applying McDonnell Douglas framework in ADEA context); Schnabel v. Abramson, 232 F.3d 83, 87 (2d Cir. 2000) (same).
"a plaintiff must first establish a prima facie case of age discrimination. Once the plaintiff has made out a prima facie case, the employer is required to offer a legitimate, non-discriminatory business rationale for its actions. If the employer articulates such a reason, 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 and that age discrimination was the true reason for the adverse employment action." Abdu-Brisson, at 466 (citations omitted).
See footnote 16, supra.
In establishing a prima facie case of age discrimination, a plaintiff must show that
"(1) he is a member of the protected class; (2) he is qualified for the position; (3) he has suffered an adverse employment action; and (4) the circumstances surrounding that action give rise to an inference of age discrimination." Id. at 466-467 (citing McDonnell Douglas).
This burden is de minimis. Id. at 467.
As applied here, Tinney establishes a prima facie case of age discrimination where (1) he was over forty years of age; (2) he was qualified for the position; (3) he was discharged on November 18, 1999 effective December 31, 1999; and (4) the circumstances of his dismissal give rise to an inference that he was discriminated against on the basis of age.
See 29 U.S.C. § 631(a).
Powell does not appear to contend that Tinney was unqualified and the record, construed in a light favorable to Tinney, leads this Court to conclude that Tinney was qualified to be an industrial valve salesman — a position he held for sixteen years.
Tinney concedes for purposes of this motion that Powell satisfies its intermediate burden of production under McDonnell Douglas where it proffers that the reason for Tinney's discharge was insufficient sales volume in Tinney's sales territory. Pl.'s Mem. Of Law, at 12. Accordingly, the presumption of discrimination disappears and Tinney must show that age was a motivating factor in the defendant's decision to discharge him. Reeves, at 143; Holtz, at 78-79. This burden "may often be carried by reliance on the evidence comprising the prima facie case, without more." Cronin v. Aetna Life Ins., 46 F.3d 196, 203 (2d Cir. 1995).
Once a defendant articulates a "legitimate, clear, specific and non-discriminatory reason" for discharging plaintiff, "the McDonnell Douglas framework *** disappear[s] and the sole remaining issue *** [is] discrimination vel non." Holtz, at 77 (quoting Reeves, at 142-143). In other words, the plaintiff has the "ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against [him]." Schnabel, at 90 (quoting Reeves, at 143).
Moreover, Reeves holds that "[p]roof that the defendant's explanation is unworthy of credence is simply one form of circumstantial evidence that is probative of intentional discrimination *** [and that,] [i]n appropriate circumstances, the trier of fact can reasonably infer from the falsity of the explanation that the employer is dissembling to cover up a discriminatory purpose." Reeves, at 147. In reviewing the record, this Court concludes that the record is sufficient for a trier of fact to doubt Powell's assertion about the timing of its decision to discharge Tinney and, therefore, to reasonably infer that, in light of the circumstances, Powell discriminated against Tinney on the basis of age. Indeed, Cowart stated in his deposition testimony and in an affidavit supporting Powell's motion for summary judgment that the decision to terminate Tinney was made at the November 16-17, 1999 sales meeting in Cincinnati. Cowart Aff., at ¶ 17; Cowart Dep., at 140. This assertion, however, seems at odds with the fact that Tinney, a salesman, was not invited to this meeting of salesmen. Moreover, Tinney did not receive the November 4, 1999 memo sent to other Powell salesmen wherein it was communicated that Matson was hired and that his sales territory — unbeknownst to Tinney — was to include part of Tinney's sales territory. Doubt that may be cast upon Cowart's assertion as to when Powell decided to terminate Tinney may also bear upon Cowart's assertion as to why Powell terminated Tinney. Inasmuch as there is a genuine issue of material fact as to whether age was a motivating factor in Tinney's discharge, summary judgment is inappropriate. See Reg'l Econ. Cmty. Action Program, Inc. v. Middletown, 294 F.3d 35, 49-50 (2d Cir. 2002) (reversing district court because evidence in the record was sufficient for a reasonable juror to conclude that the defendants' proffered reason for denying a special-use permit was a pretext for unlawful discrimination).
"In Schnabel, [the Second Circuit Court of Appeals] interpreted Reeves to reject any categorical rule requiring age discrimination plaintiffs to offer, in addition to their prima facie case and evidence of pretext, further evidence that age discrimination was the actual motivation in order to satisfy their burden. Once a plaintiff has made a showing that the defendant's asserted reason for the employment action was false, Reeves mandates a case-by-case approach, with a court examining 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.'" Abdu-Brisson, at 469-470 — see footnote 16 supra — (citations omitted).
Additional examples in the record further confirm the conclusion that there is a genuine issue of material fact as to the basis for Tinney's discharge. For example, the circumstances surrounding the delayed decision concerning Tinney's leased vehicle.
Accordingly, it is hereby ORDERED that the defendant's motion for summary judgment is denied and that the parties shall appear before Part III of this Court on the 6th day of September, 2002 at 3:00 p.m. (or as soon thereafter as they may be heard) to set a date for trial.