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April 19, 1983


The opinion of the court was delivered by: STEWART


STEWART, District Judge:

Plaintiff William G. Meschino ("Meschino"), a former employee of defendant International Telegraph Corporation (ITT"), brings this action for violation of the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq. (the "ADEA"). The gravamen of Meschino's claims is that in violation of the ADEA he was fired for reasons stemming from age discrimination. ITT contends that Meschino was not let go for reasons stemming from age discrimination, but rather was "terminated" along with other employees as part of a cost cutting effort by senior management. In support of its contentions, ITT has moved for summary judgment as to Meschino's age discrimination and willful age discrimination claims and for dismissal of his pendent state and compensatory damages claims.Discovery has been completed by both sides.


 At the time of his dismissal in July 1980, *fn1" Meschino was employed at ITT's corporate headquarters in New York as one of six persons holding the title "Manager-Staff Operations." At age fifty-eight, Meschino was the oldest executive in Staff Operations. In January 1979, John Foley, a Vice President of ITT, became director of the Operations Staff Department of which Staff Operations was one unit. That month, Foley formulated plans to reduce the number of executives in the Operations Staff Department. A year and a half later, Meschino was fired. There is no indication that any other Manager-Staff Operations was let go during the three year period in which Foley carried out his executive work force reduction plan for the Operations Staff Department. On or about July 1, 1980 Garet M. Romeo, then forty-one years old, was hired as a Manager-Staff Operations. *fn2"

 Summary Judgment

 To evaluate whether ITT is entitled to summary judgment, it is necessary to consider the burdens of proof borne by each side in an age discrimination suit. Under ADEA, the presentation of proof has three steps:

 First, the plaintiff has the burden of proving by the preponderance of the evidence a prima facie case of discrimination. Second, if the plaintiff succeeds in proving the prima facie case, the burden shifts to the defendant "to articulate some legitimate nondiscriminatory reason for the employee's rejection." Third, should the defendant carry this burden, the plaintiff must then have an opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination. Pena v. Brattleboro Retreat, No. 82-7598, slip op. at 2131 (2d Cir. Mar. 1, 1983) (quoting Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253, 67 L. Ed. 2d 207, 101 S. Ct. 1089 (1981)).

 The failure of a party at trial to meet its burden with regard to any of these steps is dispositive. See Stanojev v. Ebasco Services, Inc., 643 F.2d 914 (2d Cir. 1981).For purposes of defendant's summary judgment motion, the only difference occurs at step three where, to prevail on its motion, it "must show that no genuine issue of material fact exists as to its ability to establish a non-discriminatory reason [for Meschino's dismissal]." Reich v. New York Hospital, 513 F. Supp. 854, 860 (S.D.N.Y. 1981). See Fed. R. Civ. P. 56. In determining whether a genuine issue of material fact exists, the court is to resolve all ambiguities and draw all reasonable inferences against the moving party. Hill v. A-T-O, Inc., 535 F.2d 1349, 1354 (2d Cir. 1976); Sterling National Bank and Trust Co. of New York v. Fidelity Mortgage Investors, 510 F.2d 870, 875 (2d Cir. 1975). Following this approach, we conclude that summary judgment is inappropriate in this case.

 Meschino satisfies his initial prima facie case burden by demonstrating that (1) he was fifty-eight years old when fired and therefore within the protected age group, *fn3" (2) he was qualified for his job at the time of his dismissal, *fn4" and (3) a person considerably younger, age forty-one, was hired to assume his responsibilities. *fn5" See Stanojev v. Ebasco Services, Inc., 643 F.2d 914, 919-20 (2d Cir. 1981).

 ITT, in turn, has met its burden of articulating a nondiscriminatory reason for Meschino's dismissal by asserting and making some showing to the effect that Meschino's discharge was part of a reorganization plan aimed at economy and improved performance. Thus, the third step, whereby ITT as the moving party has the burden of showing there is no genuine issue as to its motive in firing Meschino, is crucial to the outcome of this motion.

 ITT claims it is entitled to judgment under Rule 56 insofar as the essential facts are not in dispute and necessarily compel the conclusion that Meschino was fired for nondiscriminatory business reasons. Under Local Rule 3(g) the following facts which ITT asserts to be of relevance may be deemed established. During a three year period from January 10, 1979 to December 31, 1981, the Operations Staff Department in which Meschino had been employed was reduced from 53 persons to 27 persons. During the same three years the average age of executives in this department increased. Meschino was fired in July 1980, during this period. Of the six persons holding "Manager-Staff Operations" positions on June 30, 1980, Meschino had the lowest rating on the most recent performance evaluation prior to his dismissal *fn6" and also had the lowest salary grade and salary. *fn7"

 There is no doubt that these facts create an inference that ITT's motive for discharging plaintiff was legitimate. The ADEA does not prohibit an employer from discharging an employee for genuine business reasons or for good cause. See 29 U.S.C. § 623(f). Thus, if plaintiff were at this point to put forward no evidence creating a contrary inference -- and thus a triable issue -- we would be constrained, as defendant urges, to grant defendant's motion. See, e.g., Nash v. Cochran, Inc., 548 F. Supp. 676 (S.D.N.Y. 1982).

 This is not the case, however. Primarily through the deposition of Jules Berke who was Vice President and Director of Operations Planning Review and Control at ITT when Meschino was fired, and who personally fired Meschino at the behest of John Foley, plaintiff shows that a triable issue as to ITT's motive does exist.

 In reaching this conclusion, we note at the outset that Meschino's case is not precluded by a finding that a work force reduction was indeed in progress. An ADEA plaintiff is "not required to show that age discrimination was the sole cause of [his] discharge." Geller v. Markham, 635 F.2d 1027, 1035 (2d Cir. 1980) (emphasis in original). All he must show is that age was the "determinative factor" in his being singled out for dismissal. See id. Here it is undisputed that within a few weeks of his taking office in January 1979, John Foley made a decision, which he later put into action, to cut his staff back. The question is whether in carrying out this plan ITT may have chosen Meschino as a candidate for discharge for reasons related to age bias.

 The testimony of Jules Berke permits an initial inference that in choosing who should stay and who should go Mr. Foley may have relied more on his impressions or feelings than on detailed evaluation. This inference is raised by the fact that Foley was able to decide on a group of people to let go within a rather short time after he assumed his new office. *fn8" The inference is supported with regard to Meschino by the following testimony from Berke:

 Q What was the discussion between yourself and Mr. Foley regarding Mr. Meschino being a candidate for reduction in staff?

 A Essentially Mr. Meschino was a sleepy kind of guy, droopy with no pizazz and he didn't think he was a particularly effective operation staff executive. My position was that it's true that Meschino gave that impression but, in fact, he was a rather competent fellow who had demonstrated his ability over the years and that surface impression was really misleading.

 Q At the time Mr. Foley expressed that opinion to you, do you have any knowledge of the extent to which Mr. Foley and Mr. Meschino had dealt with each other?

 A I don't think it was extensive ...

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