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February 12, 1994

AGWAY, INC., Defendant.


The opinion of the court was delivered by: THOMAS J. MCAVOY

Plaintiff filed this action pursuant to federal and state sex and age discrimination statutes: Title VII of the Civil Rights Act of 1964 (hereinafter "Title VII"), as amended 42 U.S.C. § 2000(e) et seq., the Age Discrimination in Employment Act (hereinafter "ADEA"), 29 U.S.C. § 621 et seq., and the New York State Human Rights Law, Executive Law § 296 et seq. The plaintiff alleges that she was discharged from her position as a buyer with Agway, Inc. on the basis of her sex and age. The court invoked pendent jurisdiction on the corresponding state statute.

 The matter of Bartz v. Agway, 844 F. Supp. 106, was tried before the bench and the jury, and the jury found that there was no age or sex discrimination under the ADEA and corresponding state statute. All that remains is plaintiff's Title VII claim which requires a non-jury trial under the laws. This Memorandum - Decision and Order constitutes the court's findings of fact and conclusions of law pursuant to Rule 52(a) of the Federal Rules of Civil Procedure with respect to the plaintiff's Title VII claim.


 In the late fall of 1989, Patricia A. Bartz (hereinafter "plaintiff") was a 50 year old female employed as an associate buyer in the Farm-Home Division of Agway, Inc. located in DeWitt, New York. At that time, the said division was divided into two groups -- a marketing group and a buying group -- which resulted in each product line being handled by two different groups.

 The available positions in the reorganized division were first filled by employees with management experience. Next, senior buyers from the old divisions filled the positions. Special treatment was accorded to employees McCordick and Zimmer because they were part of a specialty sector of the company's business dealing with the procurement and marketing of lumber.

 The functions previously performed by plaintiff such as buying hardware and roofing materials and the like were assumed in part by two male employees, Taylor and Zimmer. Both of these employees were alleged by Agway to have the skills necessary to perform the said functions in the reorganized division.

 Prior to the reorganization, there were two female employees -- plaintiff and Susan Ransom. After the reorganization, plaintiff lost her job and Ransom remained in a new position. It is plaintiff's contention that Agway failed to follow a policy of affirmative action in not maintaining a balance of employees with regards to the ratio of female to male employees. Plaintiff further contends that Schoenberger discriminated against her by deliberately placing male employees who had worked for him previous to the reorganization into the available positions first, and concomitantly, excluding the plaintiff from these positions even though she was as qualified as the male employees. Plaintiff further argues that by reducing the number of female employees in the work force by fifty percent, Agway was deliberately indifferent to plaintiff's right to be free from sexually disparate treatment.

 Prior to plaintiff's termination from her position as buyer in the Farm-Home Division in January of 1990, she was told about certain employment policies and options that she should consider. In that connection, Agway's employees discussed the policy then in place to help any employee who were displaced from their jobs through no fault of their own. This policy afforded assistance to displaced employees by making office space equipped with telephones available for those looking for employment outside of Agway. Furthermore, any desired help on creating or updating resumes were offered by Agway. More importantly to plaintiff, because of her desire to remain in Agway's employ, was the policy which mandated that a displaced employee be interviewed for any open position for which he or she was qualified for before any others were given a chance to interview for the same position. Plaintiff contends that Agway violated this policy when jobs became open in other divisions and other non-displaced persons were interviewed first for those positions before plaintiff was considered and rejected. Specifically, David McDougal, who interviewed plaintiff for the food specialist positions admitted that he interviewed, among others, one of his current male employees, Tim Shatraw, prior to interviewing plaintiff. Shatraw was ultimately given the job. The facts do indicate that because of Shatraw's background and experience, it would appear that he was better qualified for the position of food specialist than plaintiff who was lacking in management and sales experience which was necessary for the position.

 The plaintiff was rehired by Agway in other capacities. More specifically, the proof showed that while plaintiff was seeking other positions within Agway, she was hired in a temporary capacity as an export specialist at about three quarters of her previous salary as a buyer. This position terminated at the end of June, 1990. Plaintiff was also offered a position as an administrative assistant -- a position which was secretarial in nature -- at about one half of her salary as a buyer. Plaintiff understandably rejected this offer stating that she would have difficulty performing secretarial duties for her former peers.

 The plaintiff filed a complaint with the Equal Employment Opportunity Commission on October 22, 1990. On September 18, 1991, the plaintiff commenced the instant action in federal court alleging sex and age discrimination.



 Actions brought pursuant to Title VII of the Civil Rights Act of 1964, as amended 42 U.S.C. § 2000e et seq.1 involve a burden shifting analysis. Russo v. Trifari, Krussman & Fishel, 837 F.2d 40, 43 (2d Cir. 1988). First, plaintiff must prove a prima facie case of discrimination by a preponderance of the evidence. Second, once plaintiff has presented such a prima facie case, the burden shifts to the defendant to "articulate" some nondiscriminatory reason for the alleged discriminatory action. Finally, if the defendant is able to meet its burden of articulating some nondiscriminatory reason, plaintiff must then be given the opportunity to prove by a preponderance of the evidence that the proffered reasons given are merely a pretext for discrimination. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253-254, 101 S. Ct. 1089, 1093, 67 L. Ed. 2d 207 (1981); McDonnell Douglas Corp. v. Green, 411 U.S. 792, 804, 93 S. Ct. 1817, 1825, 36 L. Ed. 2d 668 (1973); Lowe v. Commack Union Free School District, 886 F.2d 1364, 1369 (2d Cir. 1989). Recently, the Supreme Court has interpreted "pretext for discrimination" to mean not merely a showing of falsity, but a showing of true discriminatory intent by the employer. St. Mary's Honor Center v. Hicks, 125 L. Ed. 2d 407, 1993 U.S. Lexis 4401, at *25, 113 S. Ct. 2742 (June 25, 1993).

 Each of the steps in the burden shifting analysis must be examined in order to determine whether the plaintiff has put forth a viable cause of action pursuant to Title VII. We must be mindful that regardless of how these burdens are described, the plaintiff retains the ultimate burden of persuading the fact ...

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