statement is not direct evidence of discriminatory intent.
Plaintiff argues that the fact that Mr. Esposito may have
played no role in the decision to terminate him is irrelevant.
He cites Hagelthorn v. Kennecott Corp., 710 F.2d 76 (2d Cir.
1983) as support for its position. Indeed, the facts in
Hagelthorn are similar in that the employee who made the
statement was not the employee who made the decision. Although
Hagelthorn involved a claim under the Age Discrimination in
Employment Act, 29 U.S.C. § 621-634, the court finds it
sufficiently similar to apply to the present case. The court
notes, however, that the statement made in Hagelthorn
unequivocally indicated that age was a deciding factor. The
court feels that in circumstances such as the present one,
direct evidence of age discrimination is difficult to find.
Therefore, in deciding whether a Plaintiff has presented a
prima facie case the court should liberally interpret the
requirements of the fourth element.
While there is a question whether Mr. Esposito made this
statement, it is not within the court's power to make such a
determination on a motion for summary judgment. Therefore, the
court finds that Plaintiff's allegation regarding the statement
made by Mr. Esposito is sufficient to satisfy the fourth
element of a prima facie case of age discrimination.*fn2
Plaintiff has presented a prima facie case. Therefore, the
court must apply the shifting burden formula enunciated by the
United States Supreme Court in McDonnel Douglas Corp. v. Green,
411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). (See Ioele,
supra; and Matter of Miller Brewing Co. v. State Div. of Human
Rights, 66 N.Y.2d 937, 498 N.Y.S.2d 776, 489 N.E.2d 745
(1985)). This places the burden on Defendant to "rebut the
presumption of discrimination by clearly setting forth, through
the introduction of admissable evidence, legitimate
independent, and nondiscriminatory reasons to support its
employment decision [citations omitted]", Matter of Miller
Brewing Co., 66 N.Y.2d at 938, 498 N.Y.S.2d at 777, 489 N.E.2d
at 746. Once Defendant makes such a showing, the presumption
created by the prima facie case disappears and the burden
shifts back to Plaintiff to "prove by a preponderance of the
evidence that the legitimate reasons offered by the defendant
were not its true reasons, but were a pretext for
discrimination." Id. at 939, 498 N.Y.S.2d at 778, 489 N.E.2d at
Defendant has presented substantial evidence of corporate
restructuring following its acquisition of the Upstate
operation. Included in this restructuring was a shift of
Plaintiff's responsibilities to his former supervisor, Mr.
Osik. Such corporate restructuring constitutes an independent
and legitimate justification for discharging an employee
sufficient to rebut the presumption of a prima facie case.
See Brown v. General Electric, 144 A.D.2d 746, 534 N.Y.S.2d 743
(3d Dept. 1988); Keith v. Carrier International Corp.,
132 A.D.2d 926, 518 N.Y.S.2d 261 (4th Dept. 1987), appeal denied,
70 N.Y.2d 613, 524 N.Y.S.2d 431, 519 N.E.2d 342 (1987).
Plaintiff argues that this is merely a pretext for age
discrimination. The court recognizes that although Plaintiff
must show by a preponderance that such a justification is
merely a pretext, he need not demonstrate that such proffered
reasons are false. He must only show that age made a difference
in the decision. Hagelthorn, supra at 82. However, Plaintiff
has presented no such evidence.
Plaintiff points to the fact that approximately one year
after his discharge Defendant transferred Plaintiff's former
duties to a new employee, Roger Allen. Facially, this fact
might make Defendant's actions suspect. However, upon closer
the court finds that Mr. Allen is older than Plaintiff, and he
has more seniority with the Company.
The remainder of Plaintiff's argument attacks the wisdom of
Defendant's decision to discharge him. He argues that the
Albany Branch is much larger than the Syracuse Branch and that
just prior to his discharge Plaintiff was so busy that overtime
and weekend hours were common. This, Plaintiff contends, taken
in conjunction with the comments referred to above, creates a
question of fact dictating the denial of summary judgment. The
Whether Defendant's stated reasons for Plaintiff's discharge
are pretextual is clearly a material fact under the substantive
law of this case. However, even viewing the evidence in a light
most favorable to Plaintiff, the court finds that there is no
genuine issue as to Defendant's reasons for discharging
Plaintiff. Plaintiff has only come forward with a few isolated
remarks made by Defendant's employees. This evidence in no way
indicates that Defendant's articulated reasons were merely a
pretext for age discrimination.
Therefore, the court hereby grants Defendant's motion for
summary judgment, dismissing Plaintiff's cause of action.
IT IS SO ORDERED.