relocations. Moreover, the individual with whom Conroy was comparing herself in terms of disparate treatment was a subordinate who was offered a non-supervisory position similar to a position she herself rejected. The EEOC also stated that the evidence showed that other employees who had been similarly affected by departmental relocations included people both in and out of the protected age group.
Conroy requested a review of the Determination by the Commission's Determination Review Program in Washington, D.C. This agency issued a Determination of Review and Dismissal of the ADEA charge on September, 13, 1990 affirming the determination originally rendered by their field office. After exhausting her administrative remedies, Conroy commenced this action in November, 1990. Conroy alleges that Anchor discriminated against her on the basis of age when they offered the position of Department Specialist to Kissoon because she claims that she possessed the same skills as Kissoon. Alternatively, Conroy claims that positions were available in the Payroll Department two weeks before the layoff which Anchor should have given her since Anchor knew of the eventual transfer of her department.
A. Summary Judgment
A court may grant summary judgment only when there is no genuine issue of material fact remaining for trial and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. Rule 56(c); Bay v. Times Mirror Magazines, Inc., 936 F.2d 112, 116 (2d Cir. 1991); Binder v. Long Island Lighting Company, 933 F.2d 187, 191 (2d Cir. 1991). As a general rule, all ambiguities and inferences to be drawn from the underlying facts should be resolved in favor of the party opposing the motion, and all doubts as to the existence of a genuine issue for trial should be resolved against the moving party. Bay, 936 F.2d at 116 (citing Brady v. Town of Colchester, 863 F.2d 205, 210 (2d Cir. 1988)). Where the nonmoving party will bear the burden of proof at trial, however, "Rule 56 permits the moving party to point to an absence of evidence to support an essential element of the nonmoving party's claim." Bay, 936 F.2d at 116 (citing Celotex v. Catrett, 477 U.S. 317, 325, 106 S. Ct. 2548, 2553, 91 L. Ed. 2d 265 (1986)). Viewing the evidence produced in the light most favorable to the nonmovant, if a rational trier of fact could not find for the nonmovant, then there is no genuine issue of material fact and entry of summary judgment is appropriate. Bay, 936 F.2d at 116 (citing Binder, 933 F.2d at 191); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52, 91 L. Ed. 2d 202, 106 S. Ct. 2505, 2511-12, (1986).
B. Burdens and Order of Proof
ADEA provides that it will be unlawful for an employee "to discharge or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's age . . . ." 29 U.S.C. § 623(a). The statute protects employees between the ages of forty and seventy. In an age discrimination case, courts have applied the burden shifting three-step analysis for Title VII cases set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S. Ct. 1817, 1824, 36 L. Ed. 2d 668, (1973) and Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 252-53, 101 S. Ct. 1089, 1093-94, 67 L. Ed. 2d 207 (1981), which also applies to ADEA actions. Taggart v. Time, Inc. 924 F.2d 43, 46 (2d Cir. 1991). Under this test, plaintiff has the initial burden of proof to establish a prima facie case of unlawful discrimination. If that burden is met, the defendant then has the burden of articulating a legitimate, non-discriminatory reason for its action in rejecting plaintiff. Should defendant meet this burden, then plaintiff, upon whom the ultimate burden of persuasion rests, must show that the proffered reasons were not defendant's true reason and that age was a factor in the employer's decision not to hire him. Taggart v. Time, Inc. 924 F.2d at 46; Burdine, 450 U.S. at 252-53, 101 S. Ct. at 1093; McDonnell Douglas, 411 U.S. at 802-804, 93 S. Ct. at 1825.
The mere termination of a competent employee when an employer is making cutbacks due to economic necessity is insufficient to establish a prima facie case of age discrimination. LaGrant v. Gulf and Western Mfg. Co, Inc., 748 F.2d 1087, 1090 (2d Cir. 1984). To make a prima facie case of age discrimination, plaintiff must show that (1) she belongs to the protected age group, (2) she was qualified for the position sought, (3) she was not hired despite her qualifications, and (4) the position was ultimately filled by a younger person. Taggart v. Time, Inc. 924 F.2d at 46 (citing Stanojev v. Ebasco Services, Inc., 643 F.2d 914, 919-20 (2d Cir. 1981)).
Conroy must therefore show by a preponderance of the evidence that she was qualified for the Department Specialist position but was rejected under circumstances giving rise to an inference of unlawful discrimination. Taggart v. Time, Inc. 924 F.2d at 46 (citing Burdine, 450 U.S. at 253, 101 S. Ct. at 1093-94). The inference of discrimination may be shown by direct evidence, statistical evidence, or circumstantial evidence such as documentation of preference for younger workers, all of which is aimed at persuading the trier of fact directly that the more likely reason for plaintiff not being hired was because of his age and that the employer's proffered reason was pretextual and not worthy of belief. Taggart v. Time, Inc. 924 F.2d at 46 (citing Dister v. Continental Group, Inc. 859 F.2d 1108, 1112 (2d Cir. 1988)).
1. Prima Facie Case
In the present action, Plaintiff succeeds in making out a prima facie case. First, Conroy clearly falls within the age group protected by ADEA because she was 56 years old at the time of her termination. Second, the position of Department Specialist was filled by a employee twenty-two years younger than Conroy. Third, Conroy has made a showing sufficient to establish that she was qualified for the position. The Department Specialist position required personal computer knowledge, including knowledge of Data Base III, Lotus 1-2-3, and Multi Mate software as well as excellent typing skills. In her affidavit, Conroy avers that she had full knowledge of personal computers, Database III and Lotus 1-2-3 because she had taught herself how to use them by means of in-house tapes. (Conroy Aff. P 14) Conroy also testified at her deposition that she was familiar with Lotus 1-2-3 but "had no reason to use it in the department." She also knew how to do data entry on Database III. (Conroy Dep. at 84). Based on the foregoing, the Court finds that Conroy has succeeded in establishing a prima facie case.
2. Age as a Determinative Factor
Anchor claims that it is entitled to summary judgment because Conroy will be unable to establish by a preponderance of evidence at trial that age was a determinative factor in Anchor's decision not to offer Conroy the Department Specialist position. Under the Douglas test, once Conroy establishes a prima facie case, the burden shifts to Anchor to articulate a legitimate reason for its decision. If Anchor proffers a legitimate, nondiscriminatory reason for its decision to offer the Department Specialist position to Kissoon over Conroy, the burden shifts back to Conroy to establish that Anchor's reasons are pretextual. Conroy has the burden of proving that age was a causative or a determinative factor in deciding whether the plaintiff should be employed. Montana v. First Federal S. & L. of Rochester, 869 F.2d 100, 104 (2nd Cir. 1989) Parcinski v. Outlet Company, 673 F.2d 34, 36 (2d Cir. 1982). On this motion for summary judgment, the evidence must create a genuine issue of fact a to Anchor's proffered reasons or as to a discriminatary motive. Based upon the record, the count fails to find anything creating a genuine issue of fact that anyone was motivated by a discrimatory purpose.
In relocating the Records Management Department, Anchor offered Conroy, Kissoon and Wilson several alternatives in compliance with the bank's policy of providing options to employees affected by transfers. Anchor offered all three employees the following options: transfers to Albion, another position within the company, and layoff with severance. Anchor's affidavits demonstrate that it attempted to find the affected employees alternative positions for which they were best qualified.
Anchor contends that it offered the position to Kissoon over Conroy because Kisson was better qualified for the position. The Department Specialist position required personal computer knowledge, including knowledge of Data Base III, Lotus 1-2-3, and Multi Mate software as well as excellent typing skills. According to Leonard Alpert, Anchor's Assistant Human Relations Regional Manager, Kissoon's personnel file indicated that she had completed computer courses including "Introduction to IBM PC/DPS" and "Introduction to Lotus 1-2-3" at the American Banking Institute. (Alpert Aff. P 4). In addition, Kissoon had regularly worked with a personal computer as a Department Clerk in the Records Management Department. Kissoon's file also noted that she was capable of typing 50 words per minute. While the Court accepts Conroy's assertion that she had full knowledge of personal computers including Database III and Lotus 1-2-3 for the purpose of establishing a prima facie case, Conroy's personnel file made no mention of these skills. Therefore, Anchor decided to offer the position to Kissoon because she was better qualified.
Conroy has produced no evidence that age was a motivating factor in Anchor's decision to offer the Department Specialist position to Kissoon. Conroy has failed to produced any direct evidence, such as statements Anchor that age was the reason for not offering Conroy the position or proof of circumstances from which an inference of age discrimination may be drawn. Haskell v. Kaman Corp., 743 F.2d 113, 119 (2d Cir. 1984). Nor has Plaintiff established a pattern or practice of age discrimination by Anchor. See Watson v. Fort Worth Bank and Trust, 487 U.S. 977, 108 S. Ct. 2777, 2784, 101 L. Ed. 2d 827 (1988). Having demonstrated an absence of evidence to support Conroy's claim that Anchor's proffered reasons are pretextual, Anchor is entitled to summary judgment.
D. Rule 56(g) Sanctions
In its Reply Memorandum, Anchor moved for costs and attorney fees pursuant to Rule 56(g). Rule 56 (g) provides as follows:
(g). Affidavits Made in Bad Faith Should it appear to the satisfaction of the court at any time that any of the affidavits presented in bad faith or solely for the purpose of delay, the court shall forthwith order the party employing them to pay to the other party reasonable expenses with the filing of the affidavits caused the other party to incur, including reasonable attorney's fees, and any offending party or attorney may be adjudged guilty of contempt.
Anchor claims that Rule 56(g) sanctions are appropriate because the preparation of Ms. Guyatri Kissoon's affidavit by Conroy's counsel constituted bad faith. Anchor's alleges that plaintiff's counsel led Kissoon to believe that she would not need to testify in court if she made the affidavit.
There is little case law applying Rule 56 (g). In the rare instances in which courts have imposed Rule 56(g) sanctions, the conduct has been particularly egregious. See, e.g., Alart Associates, Inc. v. Aptaker, 402 F.2d 779 (2nd Cir. 1968) (reasserting substantially the same grounds for summary judgment after the court had already twice rejected the theory); Acrotube, Inc. v. J.K. Financial Group, Inc., 653 F. Supp. 470, 478 (N.D.Ga. 1987) (affidavit clearly at odds with facts indisputably within affiant's knowledge). The question for this Court is whether there is sufficient evidence of bad faith by Conroy's counsel warranting the imposition of sanctions. While the Court is concerned by allegations that Conroy's counsel misled Kissoon in eliciting a signed statement from her, it is reluctant to credit Ms. Kissoon's statement given her status as an employee of Anchor. Therefore, in the absence of any other evidence of bad faith, the Court declines to sanction Plaintiff's attorney.
Defendant Anchor Savings Bank's summary judgment motion is granted and motion for costs and attorney's fees pursuant to Rule 56(g) is hereby denied.
Sterling Johnson, Jr.
United States District Judge
Dated: Brooklyn, New York
January 13, 1993