to that comment purportedly made by Mr. Conklin.
Nevertheless, from the evidence of replacement by a younger person, taken in conjunction with plaintiff's satisfactory job performance, and his age at the time of discharge, it appears that Mr. Charrette is able to meet his burden on the fourth element of a wrongful discharge claim - an inference of discrimination. Accordingly, viewing the evidence offered by plaintiff cumulatively, and in a light most favorable to him, for purposes of this motion, the court finds that plaintiff Charrette has made out a prima facie case of discrimination under the ADEA.
B. EMPLOYER'S REBUTTAL
Having determined that Mr. Charrette has met his threshold burden of establishing a prima facie case, the court will engage in the next step of the McDonnell Douglas analysis: has Flickinger, as the employer, met its burden of production? In particular, the court will consider whether Flickinger can articulate a "legitimate, nondiscriminatory reason" for terminating plaintiff. McDonnell Douglas, 411 U.S. at 802-04, 93 S. Ct. at 1824. As detailed above, Flickinger has undoubtedly met that burden of proof. The evidence overwhelmingly establishes the existence of a nondiscriminatory motive for Mr. Charrette's discharge - his poor job performance. There is ample evidence in the record showing that plaintiff was below targeted sales goals, he was not adequately performing detail work such as advertising and the placing of purchase orders; he lacked self-control; and he was insubordinate.
Flickinger has shown, through well documented performance evaluations and affidavits, as well as the deposition testimony of plaintiff's supervisors, that plaintiff did not perform his job in a manner satisfactory to Flickinger.
Additionally, while not pivotal to the court's finding herein, it should be noted that plaintiff has admitted that no one at Flickinger ever told him that age was a factor in the decision to discharge him. Simet Affidavit, exh. E thereto at 116. In short, the court finds that defendant Flickinger has adequately dispelled any inference of discrimination raised by plaintiff in his prima facie case.
Because Flickinger has met its burden of production, the burden now shifts back to plaintiff Charrette to demonstrate that the nondiscriminatory reason advanced by Flickinger was but a mere pretext to disguise the true discriminatory basis for the termination. See Burdine, 450 U.S. at 253, 101 S. Ct. at 1093; Meiri, 759 F.2d at 997. In a case such as this where the employer does more than merely articulate a neutral reason for the employment decision, and actually substantiates that reason by providing a sound and factually supported basis, "the employee's task of showing that this reason was a pretext will be more difficult.'" See Halbrook v. Reichhold Chemicals, Inc., 766 F. Supp. 1290, 1295 (S.D.N.Y. 1991), aff'd without pub. opinion, 956 F.2d 1159 (2d Cir. 1992) (quoting Wade v. New York Telephone, 500 F. Supp. 1170, 1178 (S.D.N.Y. 1980) (citing in turn Lieberman v. Gant, 630 F.2d 60, 66 (2d Cir. 1980)). When an employer raises several nondiscriminatory reasons for discharging an employee, the employee, to defeat a summary judgment motion, must either raise an issue of material fact as to the pretextual nature of the proffered reasons or persuade the court that a discriminatory motive more likely motivated the employer's actions. Burdine, 450 U.S. at 256, 101 S. Ct. at 1095. In demonstrating pretext, a plaintiff is not required to show that age was the only factor in the employer's decision. Montana v. First Federal, 869 F.2d at 105 (citations omitted). Nor is plaintiff required to show that defendant's "proffered reason is false, but only that its stated reason was not the only reason and that age did make a difference." Id. (citation omitted). However, if, in the end, plaintiff is "unable to show evidence from which a jury could infer discrimination, . . ., then summary judgment may be granted." Diamantopulos v. Brookside Corp., 683 F. Supp. 322, 328 (D.Conn. 1988) (citations omitted).
That is exactly the position in which plaintiff Charrette now finds himself. The evidence upon which he relies to demonstrate pretext does not convince the court that Flickinger's proffered explanation for termination (plaintiff's poor job performance) is unworthy of credence. See Meiri, 759 F.2d at 997 (citing Burdine, 450 U.S. at 256, 101 S. Ct. at 1095). In other words, Mr. Charrette has simply failed to prove that Flickinger's reason for termination was pretextual.
Not surprisingly, there is no direct proof here of discrimination. Indeed, it is the rare case where such proof is available to a plaintiff. See Rosen, 928 F.2d at 533. Even the circumstantial evidence, however, is insufficient to allow Mr. Charrette to overcome Flickinger's showing of a legitimate, nondiscriminatory reason for its decision to discharge him. Mr. Charrette was undeniably replaced by a younger person, and while that could be enough for plaintiff to make out a prima facie case, it is insufficient to establish a discriminatory animus. For example, in Diamantopulos the court held that the fact that other interviewees were all substantially younger than plaintiff, and that each of them was offered employment, was insufficient, standing alone, to establish a discriminatory motive. 683 F. Supp. at 329. The court reasoned:
That several younger persons were offered a position while plaintiff was not is merely circumstantial, statistical evidence which alone, though supportive of an inference of discrimination, is an insufficient basis upon which to prove discrimination.
Id. (citing International Brotherhood of Teamsters v. United States, 431 U.S. 324, 339-41 n.20, 97 S. Ct. 1843, 1856-57 n. 20, 52 L. Ed. 2d 396 (1977)).
The court also does not find persuasive the proof pertaining to the discharge of Carl Hughes. First of all, plaintiff is entitled to use statistical evidence to establish a pattern or practice of discharging older employees, from which an inference of age discrimination may be drawn. Haskell v. Kaman Corp., 743 F.2d 113, 119 (2d Cir. 1984) (citing Stanojev, 643 F.2d at 921)). As the Supreme Court has stated, however, albeit in a slightly different context (Title VII action), "considerations such as small sample size, may of course, detract from the value of such [statistical] evidence, . . . ." International Brotherhood of Teamsters, 431 U.S. at 341 n. 20, 97 S. Ct. at 1856-57 n. 20 (citation omitted). Here, the statistical sample, such as it is, consists of only one person and thus is of practically no significance. The value of this evidence regarding Mr. Hughes is further reduced by the fact that Mr. Hughes left Flickinger in September, 1984 - 18 months prior to plaintiff's discharge. Thus, given that remoteness in time, it is even more difficult to see how Mr. Hughes' situation has any probative bearing on this case.
Plaintiff also tries to draw support for his position from the timing of the decision to discharge him. Specifically, according to Mr. Charrette, the termination decision was made shortly after April, 1984, when he had just received a rating of commendable on his job performance. In support of that assertion, Mr. Charrette relies upon the deposition testimony of Mr. Conklin. A careful reading of that testimony indicates, however, that what Mr. Conklin actually testified to was that "well over a year and a half before he [plaintiff] was terminated . . . we [Briggs and Conklin] knew that we had a problem." O'Hara Affirmation, exh. B thereto (Conklin Deposition) at 59. Mr. Conklin then went on to testify that he and Mr. Briggs "first discussed the salvaging of [plaintiff] because of his product knowledge. . . ." Id. Thus, Mr. Charrette mischaracterizes a portion of Conklin's deposition testimony regarding the timing of the termination decision. What Mr. Conklin in fact said at his deposition, and repeats again on this motion, is that the decision to discharge Mr. Charrette was not made until February or March, 1986 - a time well after Mr. Charrette had received only a fair appraisal and when he was purportedly having numerous difficulties on the job. Conklin Reply Affidavit at P 8, and exh. A (Conklin Deposition) thereto at 62-63. Therefore, the court finds the proof regarding the timing of the decision to discharge plaintiff of no consequence.
Finally, although plaintiff's proof with respect to younger employees does give the court pause, after carefully reviewing that evidence, the court is not convinced that it is enough to overcome Flickinger's articulated reason for discharging Mr. Charrette. First of all, this comparative evidence is of little, if any, probative value here in the absence of a proper foundation. There is nothing in the present record showing the manner in which Flickinger management interpreted those various evaluations. Nor is there anything in the record establishing a similarity between plaintiff and those younger employees, in terms of job responsibilities, positions held, supervisors, and geographic location. Thus, under these circumstances, it is impermissible for the court to engage in its own independent interpretation of the appraisals of the younger employees to determine the weight and relative merit to be afforded those appraisals. See Gibson v. American Broadcasting Companies, Inc., 687 F. Supp. 786, 792-93 (S.D.N.Y. 1988) (citations omitted). It is equally impermissible for the court to accept plaintiff's conclusions as to the weight and merit to be given to this comparative evidence. Id.
Secondly, even if the court could properly review those appraisals, it would have serious reservations about the probative value of that evidence because none of those employees worked at the Syracuse division of Flickinger, where Mr. Charrette worked. Simet Reply Affidavit at P 17. Furthermore, none of those employees were evaluated by Messrs. Conklin and Briggs - the supervisors who evaluated Mr. Charrette. Id. Moreover, the court observes that there is a common theme throughout those appraisals which is missing from Mr. Charrette's appraisals and the other proof offered by Flickinger as to his job performance. That common theme is that in the appraisals of the younger employees there is a pattern of improvement by the employees, which is absent from plaintiff's appraisals. In fact, just the opposite is true of this plaintiff. Not only did plaintiff Charrette not improve between his 1984 and 1985 appraisals, but there was a precipitous deterioration in his job performance. Consequently, this comparative evidence is of little assistance to plaintiff in establishing pretext; and the court finds that plaintiff Charrette has not met his ultimate burden on this motion of proving discrimination.
In conclusion, plaintiff's proffered evidence does not, in the court's opinion, meet the minimal requirement of creating a genuine issue of material fact as to Flickinger's offered reason for discharging plaintiff or as to a discriminatory motive. There is simply nothing in this record creating a genuine issue of fact as to whether Flickinger's articulated reason for discharging plaintiff was unworthy of credence. See Dister, 859 F.2d at 1118. In addition, plaintiff's evidence of discriminatory motive is scant. As the foregoing makes clear, lacking from the present record is "solid circumstantial" evidence to prove plaintiff's case. See Littman, 709 F. Supp. at 465 (citation omitted). Thus defendant Flickinger's motion for summary judgment must be granted. See id.
The motion for summary judgment by the defendant, S.M. Flickinger company, Inc. is hereby GRANTED; and the Clerk of the Court is directed to enter judgment in accordance with this memorandum-decision and order.
IT IS SO ORDERED.
DATED: November 12, 1992
Syracuse, New York
Neal P. McCurn
Chief, U.S. District Judge