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CLARKE v. CARLUCCI

October 19, 1993

DORIS E. CLARKE, Plaintiff,
v.
DAVID R. CARLUCCI, et al., Defendants.



The opinion of the court was delivered by: JOHN E. SPRIZZO

 SPRIZZO, D.J.,

 Defendant International Business Machines Corp. moves for partial summary judgment dismissing plaintiff's claim that it discriminated against her on the basis of age in violation of the Age Discrimination in Employment Act, 29 U.S.C. §§ 621 et seq. ("ADEA"). For the following reasons, defendant's motion is granted.

 BACKGROUND

 Plaintiff Doris E. Clarke ("Clarke") began her employment with defendant International Business Machines Corp. ("IBM") in 1970 as a keypunch operator. IBM 3(g) Statement dated November 2, 1992 P 1. Since that time, she has received several promotions, and as of June 20, 1986, Clarke's fortieth birthday and the beginning of the period relevant for this lawsuit, she has been employed as an account marketing representative in the New York Media branch office. Id. P 1, 3, 4.

 At various times during the course of Clarke's employment with IBM, she has challenged her training, promotions, territory assignments, quota requirements, and compensation. First, on March 29, 1985, Clarke filed a charge with the New York State Division of Human Rights ("NYSDHR") and the Equal Employment Opportunity Commission ("EEOC"), alleging that IBM engaged in discrimination against her based on her race, color, national origin and sex by denying her National Accounts Division ("NAD") training equivalent to the training her male and Caucasian counterparts received (the "1985 EEOC Charge"). See Second Amended Verified Complaint, annexed EEOC Charge dated March 29, 1985. Clarke eventually withdrew this charge when she signed a release of liability in exchange for IBM's promise to conduct an investigation pursuant to its internal grievance procedure. Plaintiff's Statement Pursuant to Local Rule 3(g) dated October 10, 1990 P 7,9. After the investigation, Clarke and IBM reached a settlement (the "1985 settlement"), which included a cash payment and a promotion. Id. P 26, 28.

 On July 28, 1987, Clarke filed a second charge with the NYSDHR and the EEOC, in which she alleged that IBM discriminated against her based on her race, color, national origin, and sex, and retaliated against her for her 1985 EEOC Charge by assigning her a less lucrative account territory than other similarly situated employees received (the "1987 EEOC Charge"). See Second Amended Verified Complaint, annexed EEOC Charge dated July 28, 1987. On July 8, 1988, Clarke amended this charge to include claims of age discrimination (the "amended 1987 EEOC Charge"). See Second Amended Verified Complaint, annexed Amendment to the Complaint (ADEA) dated July 8, 1988. Thereafter, the EEOC concluded its investigation of Clarke's amended 1987 EEOC Charge and, on September 28, 1988, issued a right-to sue letter. See Second Amended Verified Complaint, annexed Notice of Right to Sue.

 On October 28, 1988, Clarke filed a complaint in this Court against IBM and four individuals, David R. Carlucci, Edith A. Cassidy, Mark J. DeViney and Steven C. Solazzo, who were her supervisors at various times. Based upon the same facts alleged in the amended 1987 EEOC Charge, she alleged violations of 42 U.S.C. § 1981 (1988), Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. ("Title VII"), and the Age Discrimination in Employment Act of 1967, 29 U.S.C. § 621 et seq. (the "ADEA"). Clarke also alleged various state law claims including fraud, claiming that she had not been promoted to the position of advisory marketing representative as promised verbally in the 1985 settlement.

 By order dated August 23, 1989, on defendant's motion this Court dismissed Clarke's age claims against the individual defendants because Clarke did not name any of the individual defendants in her amended 1987 EEOC Charge, as required by 29 U.S.C. § 626(d), and because none of the individuals were served with a copy of the age discrimination charge. In addition, by order dated January 14, 1991, this Court dismissed the § 1981 claims against all of the defendants because Clarke's allegations did not meet the standard for § 1981 claims established in Patterson v. McLean Credit Union, 491 U.S. 164, 105 L. Ed. 2d 132, 109 S. Ct. 2363 (1989).

 The remaining Title VII claims were adjudicated in a four-day bench trial (the "Title VII bench trial"). On September 17, 1991, the Court dismissed Clarke's Title VII claims, finding that Clarke failed to establish a prima facie case of discrimination or retaliation because "on the entire record in this case . . . the plaintiff has not carried the burden of proving it is more probable than not that she was adversely treated either because she filed a complaint or because of her race and or her sex." Trial Tr. 638-39. At that time, the Court also dismissed the pendent state law claims because the evidence did not support them.

 On November 4, 1992, IBM moved for summary judgment on Clarke's remaining claim of age discrimination based upon alleged unfavorable treatment in the promotional opportunities, territory assignments, quota requirements, training, compensation and appraisals provided to her by IBM.

 DISCUSSION

 The Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 623(a)(1), provides that it is unlawful for an employer to "discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's age." Id. This protection is provided to employees who are at least forty years old. 29 U.S.C. § 631(a).

 ADEA cases are analyzed by applying the same well-established burden and order of proof standards that were developed for Title VII cases in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04, 36 L. Ed. 2d 668, 93 S. Ct. 1817 (1973) and Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 252-53, 67 L. Ed. 2d 207, 101 S. Ct. 1089 (1981). See Pena v. Brattleboro Retreat, 702 F.2d 322, 323-24 (2d Cir. 1983); Stanojev v. Ebasco Servs., Inc., 643 F.2d 914, 919-20 (2d Cir. 1981); Geller v. Markham, 635 F.2d 1027, 1032, 1034-35 (2d Cir. 1980), cert. denied, 451 U.S. 945, 68 L. Ed. 2d 332, 101 S. Ct. 2028 (1981). The Supreme Court has stressed that the primary focus of the McDonnell Douglas test is whether an employer treated an employee less favorably than other employees for an ...


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