The opinion of the court was delivered by: McAVOY, District Judge.
MEMORANDUM DECISION & ORDER
This case comes before the court upon Defendant, The
Coca-Cola Bottling Company of New York, Inc.'s (hereinafter
referred to as Defendant) renewed motion for summary judgment.
Since Plaintiff, Joseph Camillo (hereinafter referred to as
Plaintiff) has failed to preserve his federal age
discrimination claim by filing a charge with the Equal
Employment Opportunity Commission, the only claim pending
before the court is under the New York State Human Rights Law,
McKinney's Consolidated Laws of New York, Executive Law,
sections 290-301, vol. 18.
As will be explained below, the court finds that Plaintiff
has presented a prima facie case of age discrimination under
New York State Law. However, the court also finds that
Defendant has set forth a legitimate and independent,
non-discriminatory reason to support its employment decision.
Plaintiff has set forth no facts which tend to show that
Defendant's legitimate nondiscriminatory reason was pretextual.
Accordingly, the court finds that there are no genuine issues
of material fact to be decided.
Plaintiff worked as an employee of the Coca-Cola Company from
1961 until August 15, 1988, at which time he was 48 years of
age. He became Defendant's employee in October of 1987 upon
Defendant's purchase of the Upstate New York operation.
Plaintiff was a Food Service Manager at the time of his
termination and his direct supervisor was Peter Osik, the
Albany Branch Area Food Service Manager. Mr. Osik's direct
supervisor was Robert Emhoff, the Vice President of Food
Service, who was based in Greenwich, Connecticut. At the time
of Plaintiff's termination, the Albany Branch Manager was Ed
Esposito. Although Mr. Esposito had no direct supervisory
authority over the Albany Food Service Operation, he was the
individual who ultimately discharged Plaintiff on August 15,
Mr. Esposito initially stated that he did not know why
Plaintiff was being released. Plaintiff contends that Mr.
Esposito later informed him that the Company was looking for
aggressive men, and as the conversation progressed, that
Plaintiff was being let go because the Company was looking for
"young", aggressive men. Although Defendant does not deny Mr.
Esposito's statement, it argues that Mr. Esposito informed
Plaintiff that the decision to discharge him was made by
Michael Crane, the Upstate Region Vice-President, and that Mr.
Esposito had nothing to do with that determination.
Finally, Plaintiff alleges that at the time Defendant took
over the Albany branch, there were a total of ten managers,
three of whom were discharged by Mr. Esposito. These
individuals, Thomas Trombley, Plaintiff and Alvin Zempko, were
ages 31, 48 and 50, respectively. Plaintiff points to this,
along with the fact that there are presently ten managers at
the Albany branch, as support for his position.
Soon after its purchase of the Upstate operations, Defendant
examined ways to streamline the organization in order to reduce
costs and increase profitability and efficiency. As part of
this process, the Albany production facility was closed and all
production operations for the Upstate region were handled by
the Hartford, Connecticut plant. This shift in operations
resulted in the lay-off of 25-35 employees. Further
consolidation efforts took place in the Accounts Payable and
Cost Accounting Departments, again resulting in lay-offs.
Messrs. Crane and Emhoff were responsible for analyzing the
Upstate Food Service operation. At that time, the Syracuse
Branch, which was also part of the Upstate operation, had one
Food Service manager. Under consideration was the necessity of
having two Food Service managers in Albany in light of the
reorganization of the Upstate Region. Plaintiff and Peter Osik
were the two managers in Albany. Defendant concluded that in
order to streamline the Upstate Food Service operations, Albany
and Syracuse would each need only one Food Service manager. Mr.
Osik was retained over Plaintiff because Mr. Osik had been in
charge of the entire Albany Food Service operation. Defendant
maintains that Plaintiff's discharge had nothing to do with his
age, but rather was due to the corporate restructuring.
On this motion for summary judgment it is Defendant's burden
to demonstrate that there are no genuine issues of material
fact. The substantive law determines which facts are material,
and an issue is genuine if "the evidence is such that a
reasonable jury could return a verdict for the non-moving
party". Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106
S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986) The court's function is
not to weigh the facts but to merely make this determination.
In order to establish a prima facie case of age
discrimination under New York State Law, Plaintiff must show:
(1) that he was a member of the class protected by the statute,
(2) that he was discharged, (3) that he was qualified to hold
the position, and (4) either (a) show that he was replaced by
a younger person, (b) present direct evidence of discriminatory
intent or, (c) present statistical evidence of discriminatory
conduct. See Ashker v. International Business Machines,
168 A.D.2d 724, 563 N.Y.S.2d 572 (3d Dept. 1990); Ioele v. Alden
Press, Inc., 145 A.D.2d 29, 536 N.Y.S.2d 1000 (1st Dept. 1989);
Mayer v. Manton Cork Corporation, 126 A.D.2d 526, 510 N.Y.S.2d
649 (2d Dept. 1987).
There is no indication of any dispute over the first three
elements. Plaintiff was qualified for his position, he was a
member of the class protected by statute, and he was
discharged. However, Defendant contends that: (a) Plaintiff was
not replaced by a younger person, (b) there is no direct
evidence of discriminatory intent and, (c) there is no
statistical evidence of discriminatory conduct. Plaintiff was
not replaced by a younger person. ...