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STEIN v. MCGRAW-HILL

January 8, 1992

KENNETH J. STEIN, Plaintiff against McGRAW-HILL, INC., Defendant

MARTIN, JR.


The opinion of the court was delivered by: JOHN S. MARTIN, JR.

JOHN S. MARTIN, JR., District Judge:

 Defendant moves for summary judgment dismissing this age discrimination action brought under the Age Discrimination Act of 1987, as amended, 29 U.S.C. §§ 621 et seq. ("ADEA") and the New York Human Rights Law, N.Y. Exec. Law § 296 et seq.. Defendant also seeks summary judgment dismissing plaintiff's contract claim for severance pay and his claim for severance pay, liquidated damages and attorneys' fees pursuant to Section 198 of the New York Labor Law.

 FACTS

 Plaintiff began working for Aviation Week Magazine (subsequently renamed Aviation Week & Space Technology), a weekly publication of McGraw-Hill, Inc in its New York City office. After a brief stint as Copy Desk Editor in 1963, plaintiff held the position of Avionics Editor until his termination from employment on May 31, 1988 at age sixty-four. His primary duties as an Avionics Editor consisted of generating topics and writing articles about air traffic control, navigation, radar systems, flight control systems, related military and civilian technology, and other issues in the field of avionics (the airborne application of electronics). Additionally, he was required to prepare and edit items for the magazine's Filter Center Column, a regularly appearing column consisting of a number of short newsworthy items each week, and to prepare periodic special reports and technical surveys. He also performed editorial duties in addition to his reporting and writing tasks.

 Plaintiff began receiving negative evaluations in 1986. His 1985 Performance Appraisal (dated 4/2/86) stated that his overall performance "minimally met expectations." It included constructive criticism designed to help him increase his productivity. Additional negative performance reviews and warnings followed. These evaluations focused on the plaintiff's tardiness and low output. On January 30, 1987 the Editor-in-Chief, Mr. Fink, issued the plaintiff a written warning stating that the plaintiff's productivity has declined, and that he had received reports concerning plaintiff's tardiness and failure to meet deadlines. The warning expressly advised the plaintiff that Mr. Fink would take action if his expectations were not met within 30 days. On April 6, 1987 plaintiff sent Mr. Fink a memorandum, stating that he disagreed with Mr. Fink's prior comments, and requesting additional constructive criticism and time to correct any problems.

 Mr. North, plaintiff's direct supervisor, issued a "final warning" on January 29, 1988, which required the plaintiff to submit two publishable feature articles each month and contribute at least two publishable filter center items each week. On March 14, 1988 plaintiff responded to the final warning in a memorandum stating that his story output was greater than had been reported and that he had experienced various difficulties in researching and preparing stories.

 Mr Fink terminated plaintiff's employment "for cause" on May 31, 1988. Plaintiff was not replaced by any employee after his termination. The company distributed plaintiff's workload among the other Avionics Editors.

 Plaintiff, while acknowledging the receipt of the warnings and evaluations discussed above, asserts that his productivity, as measured by the total number of by-line stories, was the same for the period of 1984 to 1987 as from 1978 until 1981. Additionally, he contends that his output, if measured by the number of columns published, was close to average when compared to similarly situated writers located outside of Washington, D.C.. He also claims that the defendant had no defined productivity standards.

 I. Age Discrimination

 The ADEA prohibits an employer from discharging or otherwise discriminating against an individual because of his or her age. 29 U.S.C. § 623(a)(1). *fn1" In a disparate treatment case, such as the one here, the employee has the ultimate burden of proving to the trier of fact that age made a difference in the decision to terminate his employment. See Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253, 101 S. Ct. 1089, 1093, 67 L. Ed. 2d 207 (1981)("The ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all time with the plaintiff."). 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)(citations omitted). Under this "but for" standard, plaintiff need not show that age was the "principal reason" for his discharge. Instead, plaintiff must prove that age was a "significant contributing factor." Lowe v. Commack Union Free School Dist., 886 F.2d 1364, 1375 (2d Cir. 1989), cert. denied, 494 U.S. 1026, 110 S. Ct. 1470, 108 L. Ed. 2d 608 (1990); cf. Paolillo v. Dresser Indus., Inc., 865 F.2d 37, 40 (2d Cir. 1989)(plaintiff is "required to show only that the reasons offered by [the employer] were not its only reasons and that the age of [the plaintiff] 'made a difference' in its decision"), modified, 884 F.2d 707 (2d Cir. 1989); Benjamin v. United Merchants and Mfrs., Inc., 873 F.2d 41, 43 (2d Cir. 1989)("Age need not be the sole reason for discharge in order to find an ADEA violation.").

 The Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-05, 93 S. Ct. 1817, 1824-26, 36 L. Ed. 2d 668 (1973), and Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 252-53, 67 L. Ed. 2d 207, 101 S. Ct. 1089 (1981) established a three-step inquiry for the order and allocation of proof under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et. seq.. The courts apply the same analysis to cases arising under the ADEA. See, e.g., Hollander v. American Cyanamid Co., 895 F.2d 80, 83 (2d Cir. 1990); Pena v. Brattleboro Retreat, 702 F.2d 322, 323 (2d Cir. 1983). First the plaintiff must establish a prima facie case of discrimination. Next, if this is established the burden shifts to the employer to articulate a "legitimate, nondiscriminatory reason for its action." The employee in order to meet his burden of proof must then demonstrate that the employer's stated reason was actually "a pretext for discrimination." Hollander, 895 F.2d at 83. Although the burden of production shifts, the burden of persuasion remains with the employee throughout. Burdine, 450 U.S. at 253, 101 S. Ct. at 1093.

 In the absence of a "smoking gun," an employee may establish a prima facie case of discrimination by meeting a four pronged test. Under this test, an employee must prove that: (1) he was a member of a protected class; (2) he was qualified for the position from which he was discharged; (3) he was discharged; and (4) he was terminated or discharged under circumstances which give rise to an inference of age discrimination. *fn2" Hollander, 895 F.2d at 83. Both parties agree that Stein was over the age of 40 and that he was discharged. The controversy concerns whether he was qualified for the job, and whether he was terminated or discharged under circumstances which give rise to an inference of age discrimination.


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