(6) Arcata ultimately hired a thirty-five year old person to fill the position held by the plaintiff;
(7) There is no hard evidence that the criteria now articulated by Arcata was in fact used at the time of the plaintiff's discharge.
This Court will address these facts seriatim and the defendant's counter-arguments to each.
The plaintiff claims that statements by Zimmer that he was looking for new blood and fresh blood imply that he was looking to bring young people into the company. Arcata counters that such statements only indicate that Zimmer was looking for new ideas and new methods. While the statements could be interpreted as Arcata suggests, they also could be seen as "metaphors for youth." Nobler v. Beth Israel Medical Center, 702 F. Supp. 1023, 1029 (S.D.N.Y. 1988). In fact, the former Human Resources Manager interpreted them in just that way. See Plaintiff's Affidavit in Opposition to Motion for Summary Judgment, Exhibit B, Affidavit of Frank O'Connor, at P13. Obviously a single statement in the workplace could not be enough to imply a discriminatory motive, but repeated statements, especially by those involved in the decision as to who will be discharged, can imply such.
The same multiple interpretation problem obtains in discussing the language of McCready's memo. It states that Arcata should ferret out employees who have peaked and leveled out in their careers. Ross interprets "ferret out" as discharge and "peaked" and "leveled out" as old, thereby concluding that the memorandum indicates that older persons should be removed from the company. Arcata argues that McCready simply meant that individuals who were not performing up to par, were in the wrong positions or were performing at their maximum capabilities should be identified. Again these statements can be interpreted by a reasonable person as indicating either or both of the proffered meanings.
Next the plaintiff points to various actions by Arcata that indicate discriminatory intent. Ross claims that she and Kuzon, an executive secretary, were the oldest exempt and non-exempt employees in their department and that both were fired. While this Court notes that an industrial nurse, age 60, is listed on the defendant's list of employees in the department, the plaintiff's point is valid. The fact that three people were removed from the department and that the two who were discharged were among the oldest in the department while the third, a younger employee, was transferred can imply that Ross was treated differently because of her age.
In addition, the plaintiff points out that ultimately a thirty-five year-old man was hired in the plaintiff's position. Technically Ross's job was merged into Rath's job and it was Rath who was replaced by the thirty-five year old. However, form cannot take precedence over substance and it would be reasonable for a factfinder to conclude that such a series of events indicated disparate treatment based on age, especially in light of the fact that Ross was discharged because Rath was better qualified and Rath was, in turn, discharged because of poor job performance.
Ross also points to Zimmer's request for a list of people over fifty-five years of age and a list of people who are stable in their career as an indication of Arcata's discriminatory motives. Arcata claims that such lists were used to consider the effects of pension benefits on their planned restructuring. While there can be no inference of discrimination drawn from the consideration of pension plans -- see Stanojev v. Ebasco Services, Inc., 643 F.2d 914, 922 (2d Cir. 1981) --, it is not clear from the evidence that the lists were generated for the purpose of considering pension benefits. In Stanojeu, the company had prepared figures on pensions to be paid to the plaintiff using different retirement dates. In the present case, Arcata generated a list of employees over fifty-five years of age and a list of persons stable in their careers. These lists did not indicate accumulated benefits but were merely lists of employees and their years of service. Thus it is not the consideration of pension benefits that is at issue in the present case but the generating of the lists. A reasonable jury could find that the lists were generated to ascertain the impact of pension benefits on the cost of discharging an employee, but it could also find that generating the lists was a way of ascertaining the names of older employees. In addition, while Arcata said it generated the list as part of its plan to reduce employees through voluntary retirements, there is a question whether the lists were generated during the same period in which Arcata was considering the early retirement plan.
Lastly Ross points out that, while Arcata has argued that it acted according to certain criteria in deciding on which jobs would be eliminated, it has produced no written documentation from 1986 establishing the criteria which were used, justifying an inference that Arcata has only recently articulated the criteria to cover its earlier criteria-less decisions. Obviously Arcata denies such but it is unable to produce any contemporaneous documents outlining its contemporary criteria but merely argues that the criteria were developed and applied orally.
Based on the totality of the evidence that Ross has presented, this Court finds that a reasonable jury could find that she was discharged because of her age. In light of this finding, this Court must now address whether Arcata has established as a matter of law that it would have taken the same action regardless of Ross's age. Because Arcata would have the burden of proving this affirmative defense at trial, as the party moving for summary judgment it carries the heavy burden of establishing that the evidence would necessitate the directing of a verdict in its favor. See Anderson v. Liberty Lobby, Inc., supra, at 250-251. Arcata has argued that Ross was fired as part of a reduction in work-force and the elimination of Ross's job title. It can be inferred from this argument that because the job title was eliminated Ross would be discharged no matter what her age was. However, the elimination of a specific job title does not necessarily result from a reduction in work-force. The burden to show that Arcata would have taken the same action regardless of the plaintiff's age cannot be met by simply showing that the job title was eliminated by a work-force reduction. To allow, as a matter of law, such a reason to defeat a plaintiff's claim would make it impossible to bring a successful ADEA claim. Arcata has failed to offer other persuasive evidence that would convince this Court that, as a matter of law, it would have taken the same action regardless of the plaintiff's age and, therefore, there is a question of material fact as to this issue that cannot be resolved on a motion for summary judgment.
Arcata has requested that Ross's state law claim be dismissed because she elected her remedy under Exec.L. § 297 or, alternatively, that this Court refuse to exercise jurisdiction over such a claim. Ross's state law claim and her ADEA claim clearly arises out of "a common nucleus of operative fact" and, therefore, hearing both claims together is favored. Mine Workers v. Gibbs, 383 U.S. 715, 725, 16 L. Ed. 2d 218, 86 S. Ct. 1130 (1966). Her state law claim is not barred by Exec.L. § 297 because New York's Division of Human Rights dismissed her complaint on the grounds of administrative convenience. See Exec.L. § 297 subdivision 9. Therefore, Ross's state law claims will not be dismissed. However, Ross's claim for punitive damages will be stricken because such are not available under Exec.L. § 297. See Tyler, supra, at 2143.
Accordingly, it is hereby ORDERED that Arcata's motion for summary judgment is granted as to Ross's claim for discrimination based on national origin, granted as to Ross's claim for punitive damages and denied as to Ross's claims under ADEA and Exec.L. § 296.
DATED: Buffalo, N.Y.
March 31, 1992
John T. Elfvin