In or about November and December 1986, Cronin, along with
other employees who were to be discharged, or who resigned or
retired, was provided with a Separation Agreement by ITT.
Defendant's 3(g) Statement at 9; Defendant's Motion for
Summary Judgment, Exh. H. The Separation Agreement contained
a provision that released ITT from any claim the employee
might have in connection with his or her discharge. For those
departing employees with ten or more years of ITT service who
signed it, the Separation Agreement provided a "special award"
in the amount of three months salary over and above any
compensation or severance entitlement.
Cronin refused to sign the Separation Agreement and did not
receive the "special award." He received, however, normal
severance pay, which was not conditioned on signing the
Separation Agreement. Cronin Dep. at 135-137. Cronin testified
that in a telephone conversation, Mackey told Cronin that he
would not be employed until October 1987 because of his
failure to sign the waiver of age discrimination claims.
Cronin Dep. at 137. Cronin was fired as of December 31, 1986,
and his salary payments ceased as of September 11, 1987.
Cronin Dep. at 11.
On August 7, 1987, Cronin filed a charge with the Equal
Employment Opportunity Commission and the New York State
Division of Human Rights alleging age discrimination and
retaliation. The action before the New York State Division of
Human Rights was dismissed for administrative convenience.
Shoemaker Affid. Exh. B.
Under the ADEA it is "unlawful for an employer to discharge
an employee because of that employee's age." Hollander v.
American Cyanamid Co., 895 F.2d 80, 83 (Cir. 1990). This
protection extends to employees who are at least 40 years old.
29 U.S.C. § 631(a). Because the substantive prohibitions under
the ADEA mirror those under Title VII of the Civil Rights Act
of 1964, the Second Circuit has held that the "the evidentiary
framework measuring discrimination under the ADEA borrows from
Title VII case law." Id. In considering a disparate treatment
claim, as represented here, courts follow the three-step
analysis initially set forth in McDonnell Douglas Corp. v.
Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973)
(Title VII). Id. Under that analysis, the plaintiff bears the
initial burden of establishing a prima facie case of
discrimination. The burden then shifts to the employer to
counter the prima facie case by advancing a legitimate,
nondiscriminatory reason for the termination. The plaintiff in
turn may attack the employer's explanation by showing evidence
that the purported non-discriminatory reason was pretextual.
A. Cronin's Age Discrimination Claim
1. Establishing a prima facie case
In an action under the ADEA, the plaintiff establishes a
prima facie case by showing that "(1) he was within the
protected age group; (2) he was qualified for the job; (3) he
was discharged; and (4) the discharge occurred under
circumstances giving rise to an inference of age
discrimination." Hollander, at 83. The Second Circuit has
recognized that the McDonnell Douglas standard is not a rigid
one and that the "`central question is whether [the] plaintiff
has presented sufficient evidence to permit a reasonable
fact-finder to conclude that age was a determinative factor in
the employer's decision.'" Montana v. First Federal Savings &
Loan, Assoc. of Rochester, 869 F.2d 100, 104 (2nd Cir. 1989)
(quoting Hagelthorn v. Kennecott Corp., 710 F.2d 76, 81 (2nd
It is undisputed that Cronin, age 49 at the time of his
discharge, was within the protected age group of forty and
above, that he was qualified for the position he held, and
that he was discharged. The parties' dispute centers on
whether he was discharged under "circumstances giving rise to
an inference of age discrimination."
In reduction-in-force cases, a plaintiff meets the fourth
element of the prima facie case if he establishes that some
evidence exists from which a fact-finder might reasonably
conclude that the employer intended
to discriminate against older employees. See, e.g., Pena v.
Brattleboro Retreat, 702 F.2d 322, 324 (2nd Cir. 1983). The age
discrimination claim essentially turns on whether the plaintiff
can prove that "but for" his age, and the employer's desire to
discriminate on that basis, plaintiff would not have been
discharged. Id. at 323.
Cronin does not dispute that there was a significant
reduction in force and reorganization at ITT and that, as a
result, far less work to be performed at headquarters. Nor
does he dispute that there was a need to reduce staff given
the reduction in workload. The patent department lost half of
its attorneys, and of those remaining all were over forty
years old, and three were over fifty.*fn5 Significantly, the
average age of the attorneys in the patent department
following the reorganization was fifty-two. Prior to
reorganization, the average age was just under fifty. Mackey
Affid. ¶ 4. Moreover, three of the five attorneys who remained
were making a higher salary than was Cronin at the time he was
discharged, and most of the attorneys affected by the
reorganization were younger than Cronin and were earning less.
Mackey Affid. ¶ 5.
In addition, there was little litigation work left for
Cronin to do after the divestiture. Although Cronin attests
that the bulk of his projects remained at ITT after
divestiture, of the six matters remaining with ITT which
Cronin claims were suitable work for him to perform, four
ended prior to Cronin's departure. Moreover, a significant
portion of the other two matters were being handled by ITT's
regional operating units, with supervision from headquarters.
Mackey Supplemental Affid. ¶¶ 12-13. Cronin relies on the fact
that litigation involving the Qume Corporation, sold by ITT as
part of the CGE transaction, continued after December 31, 1986.
However, all proceedings in that case had been stayed well
before Cronin left and responsibility for settlement was with
outside counsel and Qume representatives. Mackey Supplemental
Affid. ¶¶ 6, 8-10. Furthermore, whatever of Cronin's
responsibilities that were left were handled by attorneys in
the department, both of whom were over forty and one who was in
As such, none of the factors which supported a reasonable
inference of age discrimination in Montana are present here. In
Montana, the majority of the fifty-six year old plaintiff's
responsibilities were not eliminated; they were transferred to
a twenty-six year old worker who had been hired less than a
year before the reorganization and who earned a lower salary.
869 F.2d at 102, 105. Moreover, because the twenty-six year old
employee was already overworked, an additional twenty-six year
old employee was hired to help handle the plaintiff's prior job
Nor does the fact that Cronin was the first attorney from
his department to leave give rise to an inference of age
discrimination. Other attorneys soon followed, and Cronin was
certainly not the first ITT employee to be let go as a result
of the divestiture. Moreover, at least two of those attorneys
who left after December 31, 1986 had, unlike Cronin, specific
responsibilities in connection with the CGE transaction that
necessitated an extension of their departure dates.
See October 6, 1986 Memorandum of Leonard B. Mackey, attached
to Rohback Affid., Ex. I.
Because Cronin has not shown sufficient facts from which a
reasonable jury could find that ITT's actions were motivated
by age discrimination, summary judgment is appropriate.
See Dister v. Continental Group, Inc., 859 F.2d 1108, 1117 (2nd
Cir. 1988). In the context of a motion under Fed.R.Civ.P. 56, a
"genuine" dispute over a material fact only arises if the
evidence would allow a reasonable jury to return a verdict for
the nonmoving party. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). The
nonmoving party "must do more than simply show that there is
some metaphysical doubt as to the material
facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 586, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986). A
plaintiff must offer "concrete evidence from which a reasonable
juror could return a verdict in his favor" to defeat summary
judgment, Liberty Lobby, 477 U.S. at 256, 106 S.Ct. at 2514,
and "is not entitled to a trial simply because the
determinative issue focuses upon the defendant's state of
mind." Dister v. Continental Group, Inc., 859 F.2d 1108, 1114
(2nd Cir. 1988) (McDonnell Douglas analysis appropriate in
context of discriminatory discharge cases brought under § 510
The "salutary purposes of summary judgment — avoiding
protracted, expensive and harassing trials — apply no less to
discrimination cases than to commercial or other areas of
litigation." Meiri v. Dacon, 759 F.2d 989, 998 (2nd Cir.),
cert. denied, 474 U.S. 829, 106 S.Ct. 91, 88 L.Ed.2d 74 (1985).
This is particularly true where, as here, full discovery has
taken place. Dister, 859 F.2d at 1114.
Cronin has not shown, direct, statistical, or circumstantial
evidence supporting an inference of age discrimination.
See Morser v. AT & T Information Sys., 703 F. Supp. 1072
(S.D.N.Y. 1989) (fifty-eight year-old employee laid off as part
of reduction in force did not establish prima facie case
notwithstanding that portion of his duties were reassigned to a
younger employee and that decision was based in part on lack of
"future potential"). Indeed, when Cronin was asked at his
deposition what specific facts his listed witnesses could
supply to suggest that he was discharged because of age, he
answered "[n]ot particularly." Cronin Dep. at 216. Cronin has
therefore failed to establish a prima facie case of age
discrimination and that portion of his complaint is
Because an age discrimination claim under the New York Human
Rights Law is analogous to an action under the ADEA and the
same elements and burden of proof apply, Cronin's state claim
is also dismissed. See Vaughn v. Mobil Oil Corp., 708 F. Supp. 595,
599 (S.D.N.Y. 1989).
Cronin also alleges that ITT retaliated against him for
complaining about his ineligibility for the ERP and refusal to
sign the Separation Agreement containing the waiver. He points
to four instances of alleged retaliatory action by ITT: (1)
the termination of his employment with ITT (2) the
acceleration of his departure date; (3) the denial of the
"Special Award" of three months pay; and (4) ITT's attempts to
prevent him from obtaining other employment.
To state a claim for retaliation, an employee must show that
"he was engaged in
a protected activity; that there occurred an employment action
adverse to the employee; and that there existed a causal
connection between the protected activity and the adverse
employment action." Hollander, at 85.
1. Cronin's discharge
From the uncontested facts, Cronin has no basis for
maintaining that his discharge was retaliatory. The requisite
causal connection for retaliation claims may be established
only if the protected action alleged to have caused the
retaliation preceded the claimed retaliation. Cronin's
discharge could not have been caused by ITT's retaliation for
his failure to sign the Separation Agreement containing the
release because only those employees who were already
identified for separation from ITT were asked to sign it.
Cronin was told he was to be discharged in October 1986, well
before he was presented with the Separation Agreement for
signature in December 1986. Likewise, Cronin made his written
request for benefits under the ERP in November 1986, obviously
after he was told that he was to be discharged. As such, his
claim of retaliatory discharge is without merit.
2. Acceleration of departure date
Cronin also argues that his departure date was accelerated
from October 1987 to December 31, 1986 because of his refusal
to sign the Separation Agreement.
Even assuming that Cronin's discharge date was extended
until October 1987, Cronin has not submitted sufficient
evidence giving rise to an inference of retaliation. The
acceleration of his departure date could not have been caused
by Cronin's subsequent failure to sign the Separation
Agreement. Cronin testified that the first time that he
learned that his discharge date was changed from October 1987
to December 31, 1986 was in November 1986. Cronin Dep. at
102-3, 109-10. Cronin was not presented with the Separation
Agreement for signature until December 1986. Complaint ¶¶
Nor is there any indication that Cronin's discharge date was
changed due to his request for benefits under the ERP.
According to Cronin's recitation of the facts, no one had
threatened to retaliate against him for asking for ERP
benefits prior to November 1986. He has not offered any
evidence of a hostile reaction to this request. To the
contrary, according to Cronin people at ITT were trying to
help him to obtain these benefits and their attitude was
"mostly solicitous and uniform in agreeing that ITT was
wrong." Cronin's Memorandum in Opposition at 11. Even Mackey
stated that, to the extent that he could help Cronin obtain
ERP benefits, he would. Cronin Dep. at 47-48. As ITT points
out, it is illogical to argue that the very people who were
trying to help Cronin get ERP benefits in December would have
retaliated against him in November for seeking those benefits.
Absent concrete particulars from which a causal connection can
be inferred, Cronin does not establish the requisite "but for"
causation. Failing to show a nexus between the two, there
cannot be the "retaliation" which Cronin alleges.
Moreover, ITT stated a valid business reason for discharging
Cronin on December 31, 1986. That was the closing date for the
CGE transaction and was the general date for discharge; ITT
had no reason to keep him beyond that date. The Voluntary
Separation Program also provided that termination "generally
will occur by year end, unless management identifies a
specific business need for continuing employment to a later
date . . ." See Rohback Affid. Exh. G at 1-2. In addition,
Cronin did not receive one of the letters from Ralph Pausig,
Senior Vice-President and Director of Administration for ITT,
dated October 9, 1986 to those individuals whose employment was
extended to assist with transition matters relating to the CGE
transaction. Cronin Dep. at 390-94. Cronin stated that he did
not previously work on the CGE transaction, that he had no
identifiable role to play in the transition, and that he did
not know what job he was supposed to perform after December 31,
1986. Cronin Dep. at 49-50.
3. Denial of three month's pay
Cronin also contends that ITT's refusal to pay him three
month's salary was
motivated by a desire to retaliate against him because of his
refusal to sign the Separation Agreement and his filing of a
claim of age discrimination against ITT. However, there is no
indication on the record before me that Cronin's denial of a
special award in the amount of three month's pay was
retaliatory. Cronin did not fulfill the conditions necessary
for him to become eligible to receive the award. As part of
both the Voluntary and Involuntary Separation Plan, departing
employees were offered an option to elect a cash award in
addition to their notice and severance pay by signing a
Separation Agreement that contained a release clause.
See Separation Agreement Form, received by M. Cronin, Rohback
Affid, Exh. H. Cronin admitted that the special award was
separate and apart from the severance pay to which he was
entitled, and that he was paid his full severance pay. Cronin
Dep. at 134-37. Cronin did not receive the special award simply
because he did not sign the Separation Agreement. As such, his
retaliation claim is without basis and is dismissed.
4. ITT prevented employment
Finally, although not alleged in his complaint, Cronin
claims that ITT interfered with Cronin's efforts to find new
employment in an attempt to retaliate against Cronin because
of his refusal to sign the release and his complaints that the
ERP was discriminatory. Specifically, Cronin testified that
ITT sought to prevent his employment by Qume, a subsidiary of
Alcatel, or Siemens. Cronin Dep. at 131, 218. Cronin testified
that he was told by George Graf, patent counsel for an ITT
subsidiary in Germany, that people in the Siemens patent
department in Germany had spoken about giving Cronin a job
offer but that Graf told them that Cronin was "unsuited for
the job." Cronin Dep. at 186-188. Further, in the summer of
1987 Cronin testified that he was working for Alcatel, a
company in which ITT was a substantial stockholder, and that
ITT "asked Mr. Graf to try to convince the president of Qume
to cease using my [Cronin's] services." Cronin Dep. at 197-98.
Cronin has not set forth any evidence that ITT tried to
prevent him from getting another job. Cronin has not submitted
affidavits from any witness to sustain his theory that ITT
attempted to thwart his employment possibilities. The only
evidence submitted by Cronin in support of this assertion is
his own testimony. He does not present an affidavit from
anyone he names as involved in his post-ITT employment
history. ITT, however, has submitted an uncontradicted
affidavit from George Graf, which states: "No one at ITT told
me to give Mr. Cronin a bad recommendation, and no one at ITT
has ever told me to do anything to prevent Mr. Cronin from
gaining or retaining employment." Graf Affid. ¶ 4.
Although not asserted in his complaint0, Cronin also avers
that ITT's General Counsel, Howard Aibel, told Cronin in
February 1987 that if Cronin filed an age discrimination case
against ITT, Cronin would never work in the United States
again. However, from Cronin's own testimony it is apparent
that ITT offered Cronin placement assistance, both before and
after he left ITT, which he refused. Cronin Dep. at 334-37.
Moreover, other ITT employees offered Cronin placement
assistance and referred Cronin to possible job opportunities.
Cronin Dep. at 192, 209, 351-52, 356-368. Indeed, in April
1988, after the complaint in this action was filed, Cronin was
hired at the request of ITT to assist in a litigation.*fn7
Cronin Dep. at 357-59. Cronin has thus presented no facts
supporting his charge that ITT, and Aibel in particular,
prevented him from obtaining employment.
It is instructive to note that the Second Circuit in
Hollander v. American Cyanamid recently upheld summary
dismissal of a retaliation claim on arguably stronger facts
than are presented here. In Hollander, a fifty-seven year-old
plaintiff, after being discharged from defendant employer,
brought age discrimination claims with the
Equal Employment Opportunity Commission and the Connecticut
Commission on Human Rights and Opportunities. Plaintiff then
sought employment with a rival medical device manufacturer.
The plaintiff offered to show the rival company a film of
scientific processes that was disputably proprietary
information belonging to the defendant. The rival company then
contacted the defendant regarding both the film and the
plaintiff's application. The defendant wrote a letter to the
plaintiff warning him that his attempt to secure employment
with the rival violated his non-competition covenant with the
defendant and that his offer to show the film violated the
defendant's proprietary interests. The rival company did not
hire the plaintiff. The Second Circuit found that no evidence
on the record "tends to show that a retaliatory motive"
explained the defendant's letter to the plaintiff and that the
rival did not attribute its hiring decision to any actions
undertaken by the defendant. Hollander, at 85-86. Likewise,
Cronin has not offered any evidence that would fulfill the
final requirement of a causal nexus between his voicing
complaints about the ERP, on the one hand, and his purportedly
thwarted attempts to seek other employment, on the other.
In sum, ITT's motion for summary judgment is granted and the
complaint is dismissed in its entirety.