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November 12, 1992

S.M. FLICKINGER, CO., INC., Defendant.


The opinion of the court was delivered by: NEAL P. MCCURN



 Plaintiff, Bertmond W. Charrette, commenced the present action against his former employer, the defendant, S.M. Flickinger Company, Inc. ("Flickinger") on March 17, 1988. Mr. Charrette alleges unlawful termination on the part of Flickinger, in violation of section 4(a) of the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 623(a), *fn1" as well as in violation of section 296(1)(a) of the New York Executive Law. *fn2" For the past four years, the parties have been conducting discovery and on June 30, 1992, discovery was finally completed. Defendant Flickinger is now moving for summary judgment seeking dismissal of the complaint in its entirety.

 Second, Flickinger asserts that plaintiff Charrette cannot meet his burden of showing that his termination occurred under circumstances giving rise to an inference of age discrimination. Flickinger contends that Mr. Charrette was terminated because of a long term pattern of poor or sub-standard performance. And, according to Flickinger, plaintiff Charrette is unable to rebut that legitimate, non-discriminatory reason for discharging him. Basically, plaintiff Charrette responds that there are genuine issues of material fact as to his job performance, thus rendering summary judgment wholly inappropriate.

 On October 13, 1992, the court heard oral argument and granted Flickinger's motion for summary judgment. The court will now fully address the parties' respective arguments; but before doing so, a fairly detailed recitation of the facts upon which this motion is based is necessary.


 In May, 1983, when he was 57 years old, Mr. Charrette began working for Flickinger as a meat merchandiser. Affidavit of Anne Simet (July 31, 1992), exh. D (interhouse correspondence announcing Mr. Charrette's appointment) thereto. His starting salary was $ 23,000.00 per year. Id., exh. F (plaintiff's wage history document) thereto. Approximately one year later, in April, 1984, Mr. Charrette received an offer to work for a competitor at a higher salary. Reply Affidavit of Anne Simet (October 2, 1992), exh. E (Deposition of Bertmond Charrette (March 14, 1991) thereto at 36-37 and 40-41. After informing Dale Conklin, Flickinger's vice president at the time, of that job offer, apparently to entice Charrette to stay with Flickinger, Mr. Charrette was offered a $ 4,000.00 raise, as well as an offer to pay the closing fees on the sale of his Buffalo home. Mr. Charrette claims that after accepting Flickinger's offer, Mr. Conklin, perhaps "jokingly," told him that "For the amount of money I [defendant] put out," Mr. Charrette should plan on working for Flickinger for a long time. Simet Affidavit, exh. E thereto at 39. Mr. Charrette further claims that Mr. Conklin also told him then that, "You better work for me [Flickinger] for ten years." Id., exh. E thereto at 38-39.

 Mr. Charrette received that $ 4,000.00 raise around April, 1984, at the time of his first performance appraisal, which was done by the merchandising manager, Steve Treat. In the appraisal, Mr. Charrette received a rating of "commendable" - the second highest rating possible. Commendable is defined on the appraisal form as: "Performance exceeds most requirements associated with the job; accomplishment generally above job demands; typically achieved by the best of seasoned incumbents." Affirmation of Dennis O'Hara (September 8, 1992), exh. A thereto at 1. The appraisal did specify, however, in the category of development needs:

 To monitor on an individual basis each salesman's sales & work toward a consitant [sic] contribution from each. Develop additional "work with" days to stimulate sales. Work on improving turns. *fn4"

 Id. at 4. The appraisal form also mentioned that plaintiffs's "turns need work, well below budget." Id. at 2. Finally, the appraisal recommended "Bert [plaintiff] should concentrate on ride with program for sales staff & work with Head Buyer on monitoring individual meat sales." Id. at 4.

 Even with those constructive criticisms, Mr. Charrette's first appraisal was basically positive; and concluded by stating, in the word's of Mr. Conklin, *fn5" "Bert has become an extremely valuable asset to the SM Flickinger Co." Id. at 4. Not surprisingly, on the appraisal form, Mr. Charrette checked the box indicating that he thought his performance was satisfactory, *fn6" and he made no comments in the space provided for an employee who disagrees with his or her appraisal. See id. at 4.

 One year later, in April, 1985, Mr. Charrette was again evaluated; this time by Bruce Briggs, the Head Merchandiser at the time. On this appraisal, Mr. Charrette fell two notches to a rating of "fair" - one ranking above the lowest ranking of marginal. Simet Affidavit, exh. H thereto at 1. A fair performance is defined as, "meeting many but not all basic requirements associated with the job; accomplishment not up to job demands; some improvement is necessary." Id. This appraisal, as did the first one, emphasized Mr. Charrette's superior knowledge of the meat industry. Five specific areas of concern were outlined in that appraisal, however, regarding certain aspects of Mr. Charrette's job performance. Those criticisms were aimed primarily at sales goals. Some concern was also expressed regarding deficiencies in the area of "detail work," such as price review and advertising. Specifically, Mr. Briggs testified that plaintiff's "detail work" was "bad." Simet Affidavit, exh. I thereto at 73. As an example, Mr. Briggs mentioned plaintiff's handling of purchase orders, stating that at times plaintiff would order a product without submitting the requisite purchase order to the receiving department. Id., exh. I thereto at 74. The end result would be that delivery trucks would get backed up and, on occasion, they would leave because there were no purchase orders to receive the product when it arrived. Id.

 Furthermore, Mr. Briggs questioned Mr. Charrette's motivation to the sales force, although he also specifically recognized, "not all to Berts' [sic] doing." Id. exh. H thereto at 3. At his deposition, Mr. Briggs explained that the sales force had "totally lost faith in Bert." Id., exh. I thereto at 88. Mr. Charrette's sales were falling below budget and behind the previous year, whereas the rest of the company was growing. Id.

 At this second performance review, Mr. Charrette's "development needs" were again evaluated and the first element listed in that category was "self control." Id. at 4. Mr. Briggs explained at his deposition that Mr. Charrette had a "very short fuse," and that he did not accept criticism in the proper frame of mind. Id., exh. I (Deposition of Bruce Briggs (March 14, 1991)) thereto at 106-107. Along those same lines, Mr. Conklin avers that Mr. Charrette "was repeatedly insubordinate and repeatedly disturbed the operation at Flickinger, and he was advised of this in his 1985 appraisal, when I stated that his failure to improve would result in his discharge." Affidavit of Dale Conklin (October 1, 1992) ("Conklin Reply Affidavit") at P 20. Consistent with those averments by Mr. Conklin, the 1985 appraisal closed by stating, "He [Mr. Charrette] must understand: improve greatly for good career/no improvement will result in termination." Simet Affidavit, exh. H thereto at 4. As he did on the prior appraisal form, Mr. Charrette rated his own job performance as satisfactory, and made no comments on his supervisor's evaluation of him. Id. Mr. Charrette did acknowledge at his deposition though that he was advised by Mr. Conklin that he could lose his job unless his performance improved. Id., exh. E thereto at 97-98.

 Mr. Charrette's explanation for this undeniably poor appraisal focuses on the fact that many of the items about which he was criticized during that appraisal, such as "the issues of profits, policies, procedures, quality of products and self control were not discussed by Mr. Briggs and myself." Affidavit of Bertmond Charrette (September 2, 1992) at P 25; see also id. at P 12. In furtherance of that position, Mr. Charrette relies upon selective portions of the depositions of Messrs. Conklin and Briggs wherein they testify, in Charrette's view, about the lack of formal policies, procedures and job description. See O'Hara Affirmation at PP 12 and 13 (and exhibits referenced therein). Mr. Conklin is adamant, however, that even though Mr. Charrette's job expectations might not have been in writing, Mr. Charrette was personally made aware of those expectations on several occasions. See, e.g., Conklin Reply Affidavit at P 15.

 In any event, Mr. Charrette further avers that he was "especially upset by the 1985 evaluation because it was totally contrary to what Briggs had communicated verbally throughout the few months he was my supervisor, and because the alleged concerns had not previously been discussed with me or brought to my attention." Charrette Affidavit at P 24. Finally, with respect to the 1985 appraisal, Mr. Conklin explained that he signed it "because Conklin said I had to, not because I agreed with it. In fact, I indicated my disagreement with the evaluation by writing that I felt I was performing satisfactorily in the position." Id. at P 26.

 In Flickinger's view, Mr. Charrette did not improve his performance in the ensuing months; and thus he was discharged on March 18, 1986 - almost one year after his fair performance appraisal. In connection with plaintiff's discharge, a performance appraisal form was again completed by Mr. Briggs. There is conflicting evidence regarding this appraisal form. Mr. Briggs signed and dated the appraisal form on March 17, 1986, one day before Mr. Charrette's termination. Simet Affidavit, exh. K thereto at 4. The front page of that form denotes April 5, 1986, as the review date however. Id. at 1. Interestingly, that appraisal was not, as had been the previous ones, signed by Mr. Charrette. In fact, Mr. Charrette avers that he was not even advised of that appraisal until after the commencement of this litigation. Charrette Affidavit at P 27.

 For purposes of this motion, the court, as it must, will accept as true Mr. Charrette's averment that he did not see the 1986 appraisal until sometime after the commencement of this litigation. Nonetheless, the 1986 appraisal is not without significance to this motion; the comments thereon mirror many of those in the previous year's appraisal in the areas of sales goals, detail work, and motivation. More important is the fact, however, that the appraiser noted, among other things, "Appraisal is no better than last year's." Simet Affidavit, exh. K thereto at 4.

 Mr. Charrette further maintains that not only was he not advised of the "shortcomings" alleged in the 1986 appraisal, but he was not even given an opportunity to address those allegations. Charrette Affidavit at P 27. Indeed, according to Mr. Charrette, he "was consistently advised that the defendant [Flickinger] was fully satisfied with my work performance." Id. at P 28. Mr. Charrette also avers that, "Approximately one month before I was terminated, Briggs praised the gross profits I was producing as 'exceptional' in the meat business." Id. at P 29. Although not articulated as such, Mr. Conklin clearly believes that Mr. Charrette simply took that comment out of context. Mr. Conklin explains:

 I recall that the salesmen [sic] and Mr. Charrette were complimented as a group in regard to increased sales in the prior month, but because the increase in sales was due to everyone's efforts, I would not have made such a comment in regard to plaintiff specifically.

 Conklin Reply Affidavit at P 18.

 However, Mr. Charrette's assertions that Flickinger was fully satisfied with his job performance stand in stark contrast to the testimony of Mr. Conklin indicating that, on at least two dozen occasions, he talked to Mr. Charrette in an effort to "rehabilitate" him. Conklin Reply Affidavit at P 6 and exh. A thereto (Deposition of Dale Conklin (June 11, 1991)) at 60. In that regard, Mr. Conklin explains that he further attempted to rehabilitate plaintiff at the time of the 1985 appraisal by advising him:

 There is no question of Bert's potential -- if applied. He must alter his attitude-goals 180 [degrees] in order to improve his standing with S.M.F. [defendant]. He must understand: improve greatly for good ...

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