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March 28, 1985


The opinion of the court was delivered by: CONNER



 This is an action commenced pursuant to the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et seq., by plaintiffs Daniel P. Corrigan ("Corrigan") and James McQuade ("McQuade") against the New York University Medical Center ("the Medical Center"). Corrigan and McQuade allege that they both applied for positions as nursing attendants/orderlies at the Medical Center, and that the Medical Center refused to hire them because of their ages. At the time of the alleged discrimination, Corrigan was fifty-one and McQuade was fifty-three; the ADEA establishes a class of protected individuals between the ages of forty and seventy.

 According to the complaint, both plaintiffs were interviewed by Kathleen Ames ("Ames"), the staffing coordinator in defendant's department of nursing, and both were asked their ages during the interview. Each "perceived a chilling in the interview climate" after he responded to this question, and several days later, each was rejected. Complaint at PP8, 13.

 The matter is now before the Court on the Medical Center's motion for summary judgment. Defendant contends that it had several reasons for refusing to offer plaintiffs employment, none of which was related to their ages. The Medical Center, through the affidavit of Kathleen Ames, denies that either plaintiff was asked his age during his interview. Ames Aff. at P2. It insists that neither plaintiff made a favorable impression, that each was vague about his previous employment history, and that both repeatedly expressed dissatisfaction with previous positions in which they were required to work with Filipinos who insisted on speaking Tagalog rather than English in plaintiffs' presence. Brantley Aff. at PP4, 5; Sanchez Aff. at PP4,5; Ames Aff. at PP 4,5,8,9. According to defendant, these factors rendered Corrigan and McQuade unqualified and undesirable for the position of nursing attendant. Ames Aff. at P13.

 Moreover, the Medical Center asserts that Kathleen Ames learned shortly after interviewing plaintiffs that the temporary position for which they had applied was no longer open; apparently, the woman whose position was to be filled temporarily had been on medical disability leave, and she unexpectedly announced she would be returning to work a few days later. Ames Aff. at P10. In further support of the motion, Ames avers that the next two openings for nursing attendants were filled by individuals over the age of forty. Id. at P9. Defendant argues, on the basis of all these facts, that plaintiffs cannot establish a prima facie case of age discrimination, and that defendant is therefore entitled to summary judgment. For the reasons below, I must agree.

 Legal Standards

 Summary judgment is appropriate only where the Court is satisfied there exists no genuine issue with respect to any material fact, and the moving party is entitled to judgment as a matter of law. Rule 56, F.R.Civ.P. Rule 56(e) provides for the submission of affidavits supporting and opposing summary judgment, made on personal knowledge and setting forth such facts as would be admissible in evidence. By considering these affidavits and other relevant documentary materials, the Court can determine whether the nonmoving party has any real support for its version of the facts. Rule 56(e) further provides:

When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him.

 Although these principles can be simply stated, they are not always easily applied in the context of employment discrimination actions. This is because the United States Supreme Court has established a three-step process for presenting proof and evaluating evidence at the trial of Title VII claims, see McDonnell Douglas Corp. v. Green, 411 U.S. 792, 36 L. Ed. 2d 668, 93 S. Ct. 1817 (1973), and a court's summary judgment analysis must therefore be tailored to reflect this framework.

 Under McDonnell Douglas, as applied to ADEA cases, a plaintiff has the burden of making out a prima facie case of discrimination by showing: (1) that he is in the protected age group; (2) that he applied and was qualified for a job for which the employer sought applicants; (3) that he was rejected; and (4) that after his rejection, the position remained open and the employer continued to seek applications with the same qualifications, or filled the position with someone outside the protected age group. Id. at 802; see also Reich v. New York Hospital, 513 F. Supp. 854, 859 (S.D.N.Y. 1981). The prima facie showing is designed to set forth "proof of actions taken by the employer from which we infer discriminatory animus because experience has proved that in the absence of any other explanation has proved that in the absence of any other explanation it is more likely than not those actions were bottomed on impermissible considerations." Furnco Construction Corp. v. Waters, 438 U.S. 567, 577, 57 L. Ed. 2d 957, 98 S. Ct. 2943 (1978).

 If the plaintiff makes out a prima facie case, the burden of production shifts to the defendant to come forward with some evidence of a legitimate, non-discriminatory reason for its employment decision. If the defendant succeeds in rebutting the prima facie case, the burden then shifts back to the plaintiff to demonstrate a preponderance of the evidence that the reason proffered is merely a pretext for discrimination. Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 256, 67 L. Ed. 2d 207, 101 S. Ct. 1089 (1981).


 As noted above, the principles governing summary judgment can be applied to claims brought under Title VII. However, it is necessary for a court considering such a motion to determine, as to each of the three steps in the McDonnell Douglas formulation, whether there exists a genuine issue with respect to any material fact. In the context of this particular case, then, defendant must establish the absence of any genuine issue with respect to whether Corrigan and McQuade can make out all the elements of a prima facie case. Reich, 513 F. Supp. at 860. Of course, the Court must draw all ...

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