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February 8, 1990


The opinion of the court was delivered by: Walker, Circuit Judge[fn1]:


Plaintiff alleges that Mobil Oil Corporation ("Mobil") and its subsidiary Mobil Europe, Inc. ("MEI") discriminated against him on the basis of his age in violation of the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et seq. and New York Executive Law § 296 (McKinney 1988). Defendants move for summary judgment, pursuant to Fed.R.Civ.P. 56. For the reasons set forth below, the Court denies defendants' motion.


Certain facts are not in dispute. Plaintiff A.N. George was employed by Mobil from 1968 until his termination in 1986 at the age of 62. In 1973 he became General Manager of MEI's Greek affiliate.*fn2 From 1978 on, plaintiff served in MEI's London headquarters as Area Executive, the third highest MEI line position, supervising four and later seven of MEI's smaller European marketing affiliates. He reported to John Simpson, Vice President of MEI, who in turn reported to P.W. Wilson, MEI President. Each year, Mobil evaluated the performance of its employees. Throughout his tenure as Area Executive, plaintiff was rated "MR," meaning that he more than met job requirements, and received favorable comments.*fn3

In the early-to-mid-1980's, the oil industry experienced economic difficulty due to a precipitous fall in prices. In response, MEI undertook a restructuring in 1985 in order to, in part, "reduce unnecessary duplication of effort . . . and eliminate a level of staff management between the affiliate and the Division." D.Mem. Exh. B, p.1. Mobil made large cuts in MEI staff and rerouted certain responsibilities to either MRDI in New York or the affiliates. D.Mem. at 4. These changes affected George as Area Executive "basically in the planning area," by reducing his ability to depend upon staff assistance. George Dep. at 253. Although the 1985 reorganization was originally to be completed at year's end, in mid-August Wilson reported to Robert Swanson, Executive Vice President of MRDI, that "[by] September 1 revised communications and staff responsibilities will be in place . . . [B]y September 1 we will have converted to the new operating mode." P.Exh. M.

A further restructuring was planned and ultimately implemented in 1986. The MEI offices were to be relocated to New York, and all MEI functional departments were to be eliminated and replaced by a single small, non-specialized Administration Department. Specialized staff assistance would still be available from MRDI departments, although their personnel would also be cut.

On February 26, 1986, Simpson finalized George's 1985 Appraisal of Performance. Like all George's prior appraisals as Area Executive, the 1985 evaluation praised George — calling him "a results-oriented executive" — and rated him MR, at the time considered very good by some Mobil personnel managers, with a recommendation that he be retained in his position. P.Exhs. E, A pp. 50-52. The affiliates in his portfolio were profitable and outperforming projections. There was no negative comment or suggestion that plaintiff had trouble adjusting to the restructuring. Simpson indicated that plaintiff's "[j]ob responsibilities should be modified or expanded to provide for continuing challenge," and commented that his "[p]osition [as restructured] should continue to provide a challenge." Simpson gave George a copy of this appraisal on March 25, 1986, but did not discuss it with him. Nevertheless, Simpson later claimed that as of the time of the appraisal he had begun to doubt plaintiff's effectiveness under the restructuring. Simpson Dep. at 9-12, 20-30, 36.

In a memorandum to Wilson dated April 9, 1986, plaintiff detailed his progress in implementing the reorganization. The memorandum advised that "[o]n a staff basis, because of the increased delegation of authorities, we are coping," and recommended additional contact between the Planning Department and affiliates and the dedication of one planner to the needs of the seven smaller affiliates. D.Exh. D.

At a Mobil Career Development meeting held in Phoenix, Arizona on May 12-13, 1986, a recommendation by Wilson that plaintiff be replaced as Area Executive when the MEI office was moved to New York was adopted, and Wilson was directed to find a replacement. He instructed Simpson to review plaintiff and five other candidates to determine who was best qualified. Simpson employed a ranking form evaluating a number of criteria, all ostensibly free from age bias, each of which was valued numerically. P.Exh. W. Of the six, plaintiff received the lowest overall score, while Brian Davis, a younger employee and professional planner then serving as General Manager of the Portugal affiliate, scored highest. Davis subsequently became George's replacement as Area Executive. Simpson completed the ranking on or before June 6, 1986.

Paul J. Hoenmans, President of the Marketing and Refining Division, made the final decision to fire plaintiff. Hoenmans Dep. at 4. In a June 4, 1986 memorandum to Mobil's President, Hoenmans recommended separation of George and two other executives due to the restructuring. Hoenmans explained that plaintiff's prior success was predicated on the availability of "substantial staff support", and that without such support he would be hurt by his lack of "sufficient expertise in the position's substantial functions" and "analytic ability". D.Mem.Exh. I. On May 30, however, Patricia L. Arthur, Mobil Manager of Human Relations, had circulated a "placement request" describing George as "surplus" and requesting managers having or anticipating a suitable opening for him to respond by June 6. George was then "not [yet] aware of his redundant position." P.Exh. V.

On June 17, Wilson and Simpson told plaintiff that he would be removed as Area Executive effective September 1, 1986, when MEI would move. They explained that management considered Davis better qualified for the restructured position. Plaintiff was told that he would continue to receive his salary and benefits through December 31, 1986, and that he was entitled to a $477,100 retirement benefit and a termination allowance of approximately $99,000.

During the summer of 1986, George remained in contact with his superiors at Mobil, discussing, inter alia, the possibility of enhancing his retirement package with more money or a consultancy contract. George Dep. at 372-75, 385. Plaintiff claims he continually reminded them of his desire to be placed in another job commensurate with his skills and general pay level, George Aff. ¶ 48; George Dep. at 400ff, although his first written communication to this effect was a letter to Simpson on October 29. Three positions were submitted for his consideration. The one he agreed to consider, however, was ultimately unavailable.*fn4

In October 1986, plaintiff inquired of the Equal Employment Opportunity Commission ("EEOC") about his termination and the release required by Mobil in connection with his termination allowance. This release, which appears in a printed form entitled "TERMINATION ...

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