within the bank's branches abroad, obviously to maintain Swiss control and to continue its practices of favoring the Swiss over Americans." Pl.'s Memo. Opp'n Def.'s Summ. J. at 10.
Conversely, defendant contends that it maintains a policy of "staffing local branches primarily with local employees." Def.'s Exhibits, Thompson Aff. P 2. Accordingly, during the years plaintiff was employed by the bank, the number of Swiss employees ranged from nine to twelve percent of the bank's total New York workforce. Currently, the number of Swiss employees averages six percent of its New York workforce. Def.'s Exhibits, Thompson Aff. P 6, 7.
Recognizing the difficulties inherent in proving discrimination cases under ADEA and Title VII, courts have allowed plaintiffs to use statistical evidence to establish their prima facie case. For instance, the Supreme Court has held that statistical proof alone may be sufficient to establish a prima facie case in certain circumstances. International Brotherhood of Teamsters v. United States, 431 U.S. 324, 339, 52 L. Ed. 2d 396, 417, 97 S. Ct. 1843 (1977). However, while it is clearly appropriate for plaintiff to rely on statistical evidence, Stanojev v. Ebasco Services, Inc., 643 F.2d 914, 920 (2d Cir. 1981), the mere existence of such evidence does not preclude summary judgment. As the Second Circuit has aptly stated: "where . . . the statistical evidence . . . leads to an indisputable result, the judge is justified in taking the evaluation of statistics from the jury." Geller v. Markham, 635 F.2d 1027, 1034 (2d Cir. 1980).
Based upon the evidence submitted by plaintiff, there is no Proof of age discrimination by any statistical showing of adverse impact. Plaintiff was forty-nine years old when he was discharged and the "statistical evidence" submitted does not show adverse impact against employees over forty years old. Moreover, this court is hard-pressed to find from the list of involuntary terminations submitted by plaintiff that defendant has terminated a disparate number of Americans. At any given point in time, over eighty percent of the bank's employees are American. As defendant has already stated, the overwhelming majority of Swiss employees are expatriates and trainees. Due to the temporary nature of their assignments, they remain employees of the parent bank in Zurich. It therefore follows that if any Swiss employees are involuntarily terminated, it would probably be reported on the records of the Zurich bank and not those of the New York branch. Thus, the evidence submitted by plaintiff actually harms his case and heavily weighs in favor of a judgment for defendant.
For these reasons, plaintiff has failed to establish a prima facie case of discrimination and defendant is entitled to summary judgment as a matter of law.
B. Defendant has articulated a legitimate business reason for plaintiff's discharge.
Since the Court has granted defendant's motion because of plaintiff's failure to establish his prima facie case, it is unnecessary to discuss the two remaining burdens under the McDonnell test. However, it should be noted for the record that defendant has clearly articulated a legitimate business reason for its decision which is supported by documentary evidence.
As a financial institution, defendant contends that it became "increasingly dissatisfied with the degree of its involvement in serving the housing needs of expatriates and trainees." Def.'s Memo. Supp. Summ. J. at 11. Accordingly, a senior-level employee conducted an extensive study of the bank's current housing policies, outlined several alternative proposals for handling the housing needs of expatriates and trainees, and ultimately recommended that all housing matters be handled by an independent real estate agency. Def.'s Exhibits, Ex. 2E. Thus, Mr. Rovtar's position in the Premises Section was effectively eliminated when defendant accepted the recommendation of Mr. Beat Bucher to transfer all housing matters to Acocella and Company.
Based on the evidence submitted by defendant, this court is persuaded that it has "clearly set forth . . . the reasons for plaintiff's rejection," and that such reasons are "legally sufficient to justify a judgment for . . . defendant." Burdine, 450 U.S. at 255, 67 L. Ed. 2d at 216. Plaintiff has simply failed to offer any direct or circumstantial evidence from which the Court may infer that defendant's reason was a pretext and that its decision to terminate him was motivated by discrimination. Without more, his claims are merely "speculative, conclusory allegations . . . mere denials [which] are not enough to raise genuine issues of fact" and defeat defendant's motion for summary judgment. Anderson, 477 U.S. at 248, 91 L. Ed. 2d at 211-12.
This court has indulged plaintiff's repeated requests and allowed extensive discovery in this case.
Yet, in spite of the mountains of paper which plaintiff has produced, he has offered no reliable evidence to support his claim nor has he persuaded this court that defendant's stated reason is a pretext for discrimination. Accordingly, defendant's motion for summary judgment on plaintiff's claims under ADEA and Title VII is granted.
III Breach of Contract Claim
Plaintiff also claims that by discharging him, defendant breached his contract of employment with the bank. To support his contract claim, plaintiff relies on various oral statements allegedly made by senior-level employees concerning job security as well as similar written statements contained in an employee reference manual.
"It is well-settled law in New York that, absent an agreement establishing a fixed duration, an employment relationship is presumed to be a hiring at will, terminable at any time by either party." Arledge v. Stratman Systems, Inc., 948 F.2d 845, 847-48 (2d Cir. 1991) (quoting Sabetay v. Sterling Drug, Inc., 69 N.Y.2d 329, 333, 514 N.Y.S.2d 209, 211, 506 N.E.2d 919 (1987) (citations omitted)). Courts have also held that oral assurances and statements in employment manuals regarding employment stability do not alter an employer's ability to terminate an employee at will. Cucchi v. New York City Off-Track Betting Corp., 818 F. Supp. 647, 653 (S.D.N.Y. 1993) (citing Paolucci v. Adult Retardates Ctr., Inc., 182 A.D.2d 681, 582 N.Y.S.2d 452, 453 (1992); Diskin v. Consolidated Edison Co. of New York, Inc., 135 A.D.2d 775, 522 N.Y.S.2d 888, 890 (1987); Kotick v. Desai, 123 A.D.2d 744, 507 N.Y.S.2d 217, 219 (1986)).
The alleged oral employment contract, providing that if "plaintiff did the right job and just did what [defendant] needed . . . [he] would have a job for as long as he lived," is without doubt, a contract for an indefinite period. Teleisha Aff., Ex. GG, Rovtar Depo. at 42. Likewise, defendant's alleged statements in the employment manual inferring that "longevity at the bank was based upon an employee's performance" does not specify a time period. In fact, plaintiff has failed to make one allegation or produce one shred of credible evidence from which this court could infer that plaintiff's employment contract was of a fixed duration. Thus, in accordance with established law on this issue, plaintiff's employment contract was terminable at will by either party and does not give rise to a cause of action. For this reason, defendant's motion for summary judgment on plaintiff's breach of contract claim is granted.
January 14, 1994
New York, New York
Constance Baker Motley