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BUSCEMI v. PEPSICO

April 16, 1990

CARL J. BUSCEMI, PLAINTIFF,
v.
PEPSICO, INC. AND PEPSI-COLA, U.S.A., DEFENDANTS.



The opinion of the court was delivered by: Robert L. Carter, District Judge.

Plaintiff Carl J. Buscemi brings this age discrimination action against defendant PepsiCo, Inc.*fn1 pursuant to the Federal Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 (1985) et seq., and the New York Human Rights Law, N.Y. Exec. Law §§ 296 (1982 & Supp. 1990) et seq. The background and procedural history of this case are adequately described in previous opinions and need not be recounted here. See Buscemi v. PepsiCo, 50 Emp.Prac.Dec. (CCH) ¶ 38,954 at 57,121 (S.D.N.Y. March 27, 1989) [1989 WL 31685] (Carter, J.), later proceeding, 726 F. Supp. 99 (S.D.N.Y. 1989). This case is ready to proceed to trial and presently before the court are two motions by defendant. Defendant first moves the court in limine to bar any reference at trial by plaintiff to certain allegedly non-probative but highly prejudicial evidence. Defendant also moves pursuant to Rule 42(b), F.R.Civ.P., that plaintiff's state law claim be tried separately.*fn2

I.

Broadly speaking, two categories of evidence are at issue in defendant's motion in limine. First, defendant requests barring statements published in a June, 1987 article in Business World magazine entitled "Pepsico's Fast Track" and a letter in response to the article written by Joe Roger King, PepsiCo's Senior Vice-President of personnel ("King"). The "Fast Track" article focuses on the defendant's attempt to recruit and develop qualified executives who are perceived as being potential candidates for top management positions. King was interviewed by the article's author and was quoted as saying, inter alia, "[w]e're looking for the most aggressive youngsters. . . ." and "[w]e don't want unpromotable fifty year-olds around. They become bitter and frustrated and are better off leaving." The letter written by King in response to the article was published in a subsequent edition of Business Month and states that his quote regarding "unpromotable fifty year-olds" was published out of context.

Second, defendant requests that the court ban various kinds of evidence relating to defendant's hiring and discharge practices. Included in this category is a listing of all hiring and discharge decisions made over a three year period in the department in which plaintiff worked. The list contains entries for 65 employees: 50 under the age of forty and 15 over the age of forty. Defendant admits to eliminating the positions of five of the listed employees, all of whom were over the age of 40. Also included in this category is statistical evidence relating to defendant's hiring decisions, and evidence of specific instances of its allegedly discriminatory treatment of other employees.

A.

As to the "Fast Track" article, defendant argues that the statements quoted do not speak to the issue of discriminatory intent. Defendant further asserts that the statements were not made by anyone who participated in the decision to end plaintiff's employment and do not concern plaintiff's level of employment (salary grade 06). Finally, defendant argues that the article addressed PepsiCo's hiring policies and as such is irrelevant to a claim of discriminatory discharge.

With regard to the statistical evidence proffered by plaintiff, defendant argues that the statistics which plaintiff offers are invalid because of the small sample size and because they do not make a meaningful comparison between the age of persons hired and the age of qualified persons in the pool of applicants. Defendant further argues that any evidence regarding defendant's hiring practices is irrelevant to a discharge case. Defendant also asserts that evidence about forced resignations is likewise irrelevant in a case about age discrimination, absent evidence of a connection between forced resignations and age.

Defendant likewise contends that individual employment histories of other employees cannot be offered into evidence to support plaintiff's claim. Defendant argues that plaintiff has no knowledge of these other employees' performance or of its business considerations, and that plaintiff's anecdotal evidence is highly prejudicial, but not probative of an alleged pattern of age bias.

Plaintiff responds that, irrespective of the admissibility of the proffered evidence in isolation, when viewed in totality, each item of evidence is relevant to the employment decision at issue and is otherwise admissible.

B.

As a general matter, defendant is correct that evidence of recruitment and hiring policies is irrelevant in an ADEA discharge case. See, e.g., Baez v. American Cyanamid Co., 685 F. Supp. 303, 308 (D.P.R. 1988) (citing Larson, 3A Employment Discrimination, § 102.44 (1990)). Plaintiff's central proposition, however, is that, taken together, the evidence at issue bespeaks an overarching policy by defendant of eliminating older employees and bringing in younger ones, based upon the age of those employees. Plaintiff is said to be a victim of this policy.

As plaintiff has the burden of proving that "age was the determining factor in his discharge in the sense that, `but for' his employer's motive to discriminate against him because of age, he would not have been discharged," Pena v. Brattleboro Retreat, 702 F.2d 322, 323 (2d Cir. 1983) (quoting Loeb v. Textron, Inc., 600 F.2d 1003, 1019 (1st Cir. 1979)), his "discriminatory personnel philosophy" or "fast track" thesis is clearly relevant to this case. The issue then is whether the proffered evidence, viewed in its totality, is probative of such a policy. Graefenhain v. Pabst Brewing Co., 827 F.2d 13, 19-20 (7th Cir. 1987) (in assessing plaintiff's showing of age discrimination, trial court should view the proffered evidence "in its totality" rather than in isolation); Poklitar v. CBS, Inc., 652 F. Supp. 1023, 1027 (S.D.N.Y. 1987) (Walker, J.) (same).

As regards the Business Month article, there are two statements attributed to King which are at issue: "We're looking for the most aggressive youngsters. . . ." and "[w]e don't want unpromotable fifty year-olds around. They become bitter and frustrated and are better off leaving."*fn3 These statements certainly set the groundwork for plaintiff's theory. They express not only a preference for younger employees in the hiring process, but also an aversion by management ("we") for older established workers which could reasonably be ...


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