Category 2 of the EERP comprised partners who had at least 10
years of service at Peat Marwick and whose combined age and
years of service totalled at least 63. Partners in Category 2
were the partners who met the age and service requirements and
whose poor performance was such that they would be asked to
take early retirement. Partners retiring from either Category
1 or 2 would be entitled to receive substantial payments in
excess of their entitlement under Peat Marwick's existing
The Operating Committee also compiled a list of "marginally
performing partners subject to a continuing review of their
performance" whose names were not listed in Categories 1 and 2.
See Letter from Plaintiff's Counsel to the Court dated Mar. 13,
1991, Exh. A. Such partners, generally newer and younger
partners, might be asked to resign but unlike partners in the
Enhanced Early Retirement Program, were not entitled to receive
additional or enhanced benefits upon termination.*fn3
According to Mecklenburg, the marginally performing partners
were to receive counseling regarding their performance prior to
being asked to resign. Garcia Aff., Exh. Z at 59.
The Regional Vice-Chairmen were responsible for identifying
candidates for the EERP for his or her respective region.
Caruso was originally listed as a marginally performing partner
not qualified for enhanced benefits under the EERP upon
termination.*fn4 Hasler Aff., Exh. G. Thereafter, however,
Caruso was listed in Category 2 of the EERP because the
Operating Committee noticed that he met the combined age and
years of service requirement of 63. Id., Exh. H & I.
On February 22, 1985, prior to his 1985 Performance
Evaluation scheduled for June, Montgomery asked Caruso to
resign under Category 2 of the EERP. Montgomery Aff. ¶ 6. Peat
Marwick claims Caruso resigned voluntarily but has assumed for
purposes of this motion that Caruso was "discharged," one of
the elements required to state a claim for relief under the
ADEA. Memorandum of Law in Support of KPMG Peat Marwick's
Motion for Partial Summary Judgment (hereinafter "Def. Mem. in
Supp.") at 28 & 29 n. 15. When his employment terminated on
December 12, 1985, Caruso was 50 years old. The gist of
plaintiff's age discrimination claim is that the younger
partners on the list of marginally performing partners were
given the continued opportunity to maintain their employment
and improve their performance while older partners asked to
resign under Categories 1 and 2 of the EERP were not.*fn5
Summary judgment is appropriate if the evidence offered
demonstrates that there is no genuine issue as to any material
fact and the moving party is entitled to judgment as a matter
of law. Anderson v. Liberty Lobby, 477 U.S. 242, 106 S.Ct.
2505, 91 L.Ed.2d 202 (1986). The burden rests on the moving
party to demonstrate the absence of a genuine issue of material
fact, Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct.
1598, 1608, 26 L.Ed.2d 142 (1970), and the Court must view the
facts in the light most favorable to the non-moving party.
United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct.
993, 994, 8 L.Ed.2d 176 (1962).
The evidentiary framework applicable to Title VIP cases*fn6
also governs age
discrimination claims under the ADEA. See Grant v. Hazelett
Strip-Casting Corp., 880 F.2d 1564, 1568 (2d Cir. 1989).
Plaintiff must first demonstrate by a preponderance of the
evidence a prima facie case of age discrimination, consisting
of proof that he was a member of the protected class,*fn7 that
he was qualified for the job and that the discharge occurred
under circumstances giving rise to an inference of age
discrimination. See Pena v. Brattleboro Retreat, 702 F.2d 322,
324 (2d Cir. 1983). For purposes of this motion, Peat Marwick
assumes plaintiff can meet this initial burden. Def.Mem. in
Supp. at 28 & 29 n. 15.
Once plaintiff has established a prima facie case of age
discrimination, the burden shifts to the employer to articulate
some "legitimate, nondiscriminatory reason" for its actions.
McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. at 1824. In this
case, Peat Marwick justifies its demand for Caruso's
resignation based on his failure to achieve the required levels
of partner performance, including achieving sufficient
accountancy income and chargeability.
Once the employer has articulated a nondiscriminatory reason,
the burden shifts back to the plaintiff to demonstrate by a
preponderance of the evidence that the explanation offered by
the employer is "unworthy of credence," Texas Dep't of
Community Affairs v. Burdine, 450 U.S. 248, 256, 101 S.Ct.
1089, 1095, 67 L.Ed.2d 207 (1981), and is merely a "pretext"
for intentional discrimination on the basis of age. In order to
show pretext in an age discrimination case, the plaintiff is
not required to show that age was the only or even the
principal factor in the employer's decision or that the
employer's explanation was false. Rather, the plaintiff need
only show that the employer's articulated reason was not the
only reason and that plaintiff's age made a difference. See
Montana v. First Fed. Sav. & Loan Ass'n of Rochester,
869 F.2d 100, 105 (2d Cir. 1989); Paolillo v. Dresser Indus., Inc.,
865 F.2d 37, 40 (2d Cir. 1989).
When viewed in the light most favorable to him, Caruso's
evidence of pretext is sufficient to defeat summary judgment.
Although Peat Marwick argues strenuously that the EERP is a
lawful plan under Public Employees Retirement Sys. of Ohio v.
Betts, 492 U.S. 158, 109 S.Ct. 2854, 106 L.Ed.2d 134 (1989), an
issue the Court declines to reach, there is an issue of fact as
to whether age was in fact used as a basis for enforcing poor
performance reviews under the EERP, a program admittedly aimed
at older "tired" partners. Caruso's 1984 Performance Evaluation
shows that he had responded positively to counseling the
previous year and that his supervisor recommended continued
counseling. Without further evaluation of his performance,
however, Caruso's age (added to his years of service) permitted
Peat Marwick to remove him from a group of partners who were
being offered continued counseling prior to a demand for
resignation to a category of the EERP whose members received no
counseling prior to such a demand. Under these circumstances, a
reasonable jury could conclude that Peat Marwick's
performance-based reasons for demanding Caruso's resignation
were merely pretextual and that Caruso's age did make a
difference in the company's decision to seek his resignation.
See Fuller v. Gannett Co., 52 Empl.Prac.Dec. (CCH) ¶ 39,591,
1989 WL 146761 (S.D.N.Y. Nov. 28, 1989) (summary judgment
denied where jury could conclude that plaintiff's continued
outbursts after employer failed to discipline him according to
its stated policies were a pretext for discharging him).
Accordingly, defendant's motion for summary judgment dismissing
Count 1 of the complaint is denied.
Counsel are notified that the pretrial order is due Monday,
July 1, 1991. All counsel are to attend a final trial
Wednesday, July 10, 1991 at 9:00 a.m. in courtroom 302.
IT IS SO ORDERED.