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DEUTSCH v. CARL ZEISS

December 8, 1981

Alice DEUTSCH, Plaintiff,
v.
CARL ZEISS, INC., Defendant



The opinion of the court was delivered by: CANNELLA

MEMORANDUM AND ORDER

Defendant's motion for summary judgment is denied. Fed.R.Civ.P. 56.

Defendant's motion to dismiss plaintiff's claim for physiological and psychological damages is granted. Fed.R.Civ.P. 12(b)(6).

 FACTS

 Plaintiff Alice Deutsch commenced this action pursuant to the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. §§ 621-634, and New York's age discrimination statute, N.Y.Exec.Law §§ 296-301 (McKinney 1972 & Supp.1980), alleging that defendant Carl Zeiss, Inc. ("Zeiss") unlawfully terminated her employment because of her age. In addition to seeking lost wages, pension rights and other job-related benefits, plaintiff seeks to recover damages for physiological and psychological harm which she claims she has suffered as a result of her termination.

 Defendant hired plaintiff in November of 1972 as a bilingual secretary (English/German) at its Fifth Avenue office. On October 1, 1974, plaintiff was appointed secretary to Ernst Frahm, defendant's Order Service Manager. As Mr. Frahm's secretary, plaintiff was responsible for processing purchase orders for four departments at Zeiss-Photography, Electron Microscopes, Analytical Instruments and Industrial Measurement Equipment-and general office work. Plaintiff remained in this position until she was terminated on August 30, 1979.

 Sometime in early 1979 defendant decided to relocate the Industrial Measurement department and "phase-out" the Analytical Instruments department, both of which plaintiff was responsible for servicing. As part of this reorganization process, defendant circulated a questionnaire asking employees if they would accept relocation, and their preferences in the event the company decided to leave New York City and relocate in another area. In her response, plaintiff stated a preference for Westchester County as opposed to Connecticut, Virginia or New Jersey.

 In the summer of 1979, Zeiss finalized its decision to relocate the Industrial Measurement department and eliminate the Analytical Instrument department. As a result, the workload and responsibilities of the Order Service department were reduced and plaintiff's position as secretary was eliminated.

 On August 30, 1979, defendant informed plaintiff that her position had been eliminated. Although defendant offered plaintiff a position in the relocated Industrial Measurement department, plaintiff declined the offer because she claims the daily commute would have entailed a five-hour round trip between Elmsford and her home in Syosset. Plaintiff asserts that she would have moved her home to Westchester if defendant had given her ample time to sell her house on Long Island and find a new residence in Westchester. She claims that all the executives involved in the relocation were given such an opportunity. Plaintiff asserts that she was the only person who was terminated by defendant as a result of the elimination and relocation of the two departments. She claims that all the other secretaries *fn1" affected by the reorganization were shifted to different departments within the Fifth Avenue office and that her age was the only reason she was not likewise reassigned. At the time, plaintiff was sixty-one years old.

 Defendant denies plaintiff's allegations that her termination was based on age. Defendant argues that not only are plaintiff's comparisons to the other employees affected by the reorganization inaccurate but that defendant made substantial efforts to reassign plaintiff within the company. Defendant asserts that plaintiff was (1) offered a job in the relocated Industrial Measurement department, (2) interviewed for a position as secretary to the manager of another department, and (3) informed that there was an opening as a catalog clerk-typist in the Fifth Avenue office which plaintiff declined to pursue. Defendant also argues that as a matter of law, plaintiff cannot establish a prima facie case of age discrimination because she cannot prove that after she was terminated, her position remained open and her employer continued to seek applications from persons of the same qualifications.

 DISCUSSION

 Defendant's motion for summary judgment must be denied because the Court believes that in a "reduction-in-force" case, such as the case at bar, to require a plaintiff to establish as a part of her prima facie case that the position she formerly held remained open after she was terminated would be inconsistent with the purpose of the ADEA. See Douglas v. Anderson, 656 F.2d 528, 532 n.4 (9th Cir. 1981); Williams v. General Motors Corp., 656 F.2d 120, 127-28 (5th Cir. 1981); Wade v. New York Telephone, 500 F. Supp. 1170, 1174 (S.D.N.Y.1980). To establish a prima facie case of age discrimination in the instant action plaintiff must (1) show that she was within the age group protected by the ADEA and that she was adversely affected by defendant's employment decision; (2) show that she was qualified to assume another position at the time of her discharge; and (3) produce evidence that the employer intended to discriminate in making the employment decision. See Williams v. General Motors Corp., supra, 656 F.2d at 129. See also Marshall v. Arlene Knitwear, Inc., 454 F. Supp. 715, 723 (E.D.N.Y.1978).

 Defendant does not contest the fact that plaintiff is a member of the class protected by the ADEA, or that plaintiff was adversely affected by defendant's employment decision. Moreover, because defendant admits that it interviewed plaintiff for another secretarial position and offered her employment in two other positions, the Court finds that plaintiff was qualified for another position at the time of her discharge. Finally, as explained below, the Court finds that there is sufficient circumstantial evidence to support a determination that defendant intended to discriminate when it terminated plaintiff. *fn2"

 Viewing the facts and circumstances surrounding plaintiff's termination in a light most favorable to her, as the Court must do for the purposes of the instant motion, the Court finds that the logical inference to be drawn is that plaintiff was dismissed because of her age. See Stanojev v. Ebasco Services, Inc., 643 F.2d 914, 924 (2d Cir. 1981); Geller v. Markham, 635 F.2d 1027, 1031 (2d Cir. 1980) ("Proof of discriminatory motive ... can be inferred in some situations from the mere fact of differences in treatment.") (quoting Teamsters v. United States, 431 U.S. 324, 336 n.15, 97 S. Ct. 1843, 1844, 52 L. Ed. 2d 396 (1977)). Plaintiff was the only employee in either of the two departments affected by the reorganization to be terminated. Furthermore, it appears that ...


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