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BARTH v. CBIS FED.

April 20, 1994

FRANCIS T. BARTH, Plaintiff,
v.
CBIS FEDERAL, INC., Defendant.



The opinion of the court was delivered by: LEONARD D. WEXLER

 WEXLER, District Judge

 Plaintiff Francis T. Barth brings this action alleging that his former employer defendant CBIS Federal Inc. ("CBIS Federal") discriminated against him on the basis of age in violation of the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. §§ 621 et seq., and New York's Human Rights Law ("HRL"), N.Y. Exec. Law §§ 290 et seq. In addition, plaintiff brings a claim for breach of employment agreement based on diversity jurisdiction. *fn1" Presently before this Court is defendant's motion for summary judgment seeking to dismiss all of plaintiff's claims. For the reasons below, defendant's motion is granted.

 I. BACKGROUND

 For purposes of this motion, the evidence can be summarized briefly as follows. In February of 1986, plaintiff was hired by Vanguard Technologies Corp. ("Vanguard"), the predecessor of CBIS Federal, to work on a task order (service contract) Vanguard had with the Internal Revenue Service ("IRS"). Plaintiff executed a written employment agreement with Vanguard. At the time, plaintiff was 43 years old. In mid-1988, Vanguard was acquired by the parent of CBIS Federal, Cincinnati Bell Information Systems, Inc. ("CBIS"). Vanguard subsequently changed its name to CBIS Federal Inc., and plaintiff continued as an employee of CBIS Federal.

 Under its task order with the IRS, Vanguard provided two telecommunication technicians at each of ten different locations throughout the United States. Plaintiff was employed at the Brookhaven Service Center, which was near his home on Long Island, along with a younger technician. Other technicians were hired in other cities to serve as technicians at the IRS Service Centers in their areas. When the work on this contract was completed, the company laid off all the technicians, except for plaintiff.

 Defendant, by its Director of Human Resources, Donald M. Laing ("Laing"), asserts that such layoffs are not uncommon since the company generally fills full-time positions on its various government service contracts by hiring from the local work force, and then, when the work on a particular contract or task order is completed, the company lays off the workers at the site rather than transfer them to another geographic location. Defendant claims that, although it is rare, the company has staffed work on contracts with employees from other geographic locations, but that this has occurred only in limited circumstances. Such circumstances exist where the location was remote and no qualified employees existed at the geographic location of the work, where the company already employed a worker uniquely qualified for a specific task and the employee was able to relocate, or where the company bid contracts that allowed for existing employees to travel at government expense to remote sites for temporary assignments and it would not make sense to hire from the local workforce for such assignment. Defendant further explains that it is not unusual for the company to lay off hundreds of employees at locations where work is ending while hiring hundreds of employees at other geographic locations where work is beginning. Declaration of Donald M. Laing ("Laing Decl."), PP 4-5.

 In September 1989, CBIS-NT, an affiliate of CBIS Federal, obtained task orders (fixed price contracts) with the IRS. CBIS Federal, as an inter-company subcontractor of CBIS-NT, provided various automated data processing services to the IRS pursuant to these task orders. Pursuant to proposals submitted by CBIS Federal to the IRS, CBIS Federal agreed to provide developmental maintenance of a data communications system and data communications assistance at, among other places, an IRS Service Center in Andover, Massachusetts (the "Andover Contract"). Under the Andover Contract, CBIS Federal was required to deliver a variety of services, including software design, programming, systems documentation and help desk type support, and a single on-site "Telecommunication Specialist." Plaintiff was assigned to work full time as the "Telecommunication Specialist" at Andover. The price proposal for the task order included funding to support plaintiff's travel between his home on Long Island and the IRS Service Center in Andover on a weekly basis. He was the only CBIS Federal employee assigned to work full time on this task order at Andover.

 Around April or May of 1990, CBIS Federal's then-Program Manager, Susan Hunt ("Hunt"), determined that CBIS Federal would lose money on the Andover Contract if it continued to provide plaintiff's services under the Andover Contract, in addition to the other services required under the contract. Hunt states that she determined that the scope of the design, programming and documentation that the IRS wanted exceeded that anticipated when the task was bid, and the requirements for plaintiff's work in Andover decreased and were less than anticipated. Declaration of Susan Hunt ("Hunt Decl."), P 5. In May 1990, Hunt proposed to the IRS that CBIS Federal increase the design, programming and documentation services and eliminate plaintiff's services. Hunt Decl. P 6. She asserts that plaintiff's age had nothing to do with her decision to eliminate his job. Hunt Decl. P 8. Thereafter, defendant received oral approval from the IRS to eliminate plaintiff's job from the Andover Contract. The defendant and the IRS entered an amended task order in August 1990, reflecting elimination of plaintiff's job.

 Because Hunt had no need for a telecommunications or data communications specialist on any other task order she managed, she referred plaintiff's name to CBIS Federal's Human Resources function. Hunt Decl. P 7. As CBIS Federal's then-Manager of Human Resources, Laing concluded that there were no openings in plaintiff's geographic location nor elsewhere that would justify relocating plaintiff, and plaintiff did not possess unique skills needed on another project. Laing Decl. P 11. As a result, plaintiff was laid off. Plaintiff was advised of his termination by letter dated May 21, 1990 (the "May 21 Termination Letter"). He was 48 years old at that time. Plaintiff purportedly was one of 135 employees laid off by the company during the period from March 1, 1990 through September 30, 1990, and none was offered the opportunity to relocate to accept a job in another city. Laing Decl. P 12.

 Plaintiff contends that the real reason for his discharge was not a "funding issue," but to enable defendant to restructure hours on the Andover Contract in favor of younger employees. Plaintiff maintains that certain of the functions previously performed by him on the Andover Contract were, after his termination, allocated to two project managers -- Hunt and John Shields, plaintiff's immediate supervisor -- and a research analyst, Carolyn Andrews. At the time plaintiff was terminated, Hunt was 44 years old, Shields was 39 years old, and Andrews was 37 years old. Plaintiff argues that "an employer cannot be allowed to discharge a protected person, reallocate the work load and argue that a position was eliminated to defeat the case." Plaintiff's Memorandum of Law ("Pl. Mem."), at 12.

 Plaintiff relies primarily on a comparison of the original Andover proposal of September 1989, originally accepted by the IRS and the amended proposal of August 1990, later accepted by the IRS. Plaintiff contends that a comparison of these proposals demonstrates that while the Telecommunication Specialist's hours were reduced from 2460 hours to 1236 hours (a total of 1224 hours), the project managers and the research analyst were reallocated an additional 390 hours and 1035 hours, respectively. Plaintiff focuses on the change in hours for the service identified as "SAT Testing" -- elimination of 220 hours for the Telecommunication Specialist, and increases of 147 hours for the project leader, 200 hours for the research analyst, and 94 hours for the renowned expert -- and claims that this "reallocation pattern exists through the contract." Declaration of Plaintiff Francis T. Barth ("Barth Decl."), at P 14.

 According to defendant, a comparison of the September 1989 and August 1990 proposals demonstrates, however, that only 269 of the 1224 hours eliminated from the hours originally contemplated for plaintiff in the Andover Contract went to increase the proposed hours of other CBIS Federal employees. See Supplemental Declaration of Susan Hunt ("Hunt Supp. Decl."), P 6 & Ex. D. Of these 269 hours, 220 hours were the hours eliminated from the Telecommunication Specialist for the "SAT Testing." Thus, contrary to plaintiff's contention, there is no "pattern" of reallocation throughout the contract. According to defendant, the August 1990 proposal reflects that the hours proposed for the Telecommunication Specialist were reduced beginning in June 1990 and reduced to zero beginning in July 1990. Although defendant admits that a "very small portion" of work initially assigned to plaintiff may have been performed by Hunt and Shields, defendant offers time records and summaries indicating that after plaintiff's termination Hunt and Shields did not experience any material increase in actual hours worked on the Andover Contract. In addition, these records show that Andrews performed little work at all on the Andover Contract after plaintiff's termination. Rather, Gerry Goodale was the research analyst with the greatest number of hours on the Andover contract after plaintiff's termination. Goodale was approximately 43 years old at the time plaintiff was terminated. Defendant maintains that any meaningful portion of the work initially assigned to plaintiff under the Andover Contract that remained after he was laid off would have been performed by John Slupski, a consultant who worked for a subcontractor of CBIS Federal. Hunt Supp. Decl. P 5. Slupski is slightly older than plaintiff. This contention is supported by the August 1990 proposal, which indicates that the majority of hours eliminated from the Telecommunication Specialist position were allocated to the "Renowned Expert." The Renowned Expert was the consultant, Slupski.

 Plaintiff alleges as further evidence of age discrimination: (1) that Shields' predecessor, James Hobson, and a supervisor named James Kline, referred to plaintiff as the "senior man"; (2) that Shields wrote in a memorandum that plaintiff "brought much maturity and technical support to the EFS effort"; and (3) that Shields told plaintiff that plaintiff was "making too much money." When viewed in context, none of these statements reflects age discrimination. Plaintiff admitted in his deposition that Hobson and Kline used the term "senior man" to communicate that plaintiff was the person with the greatest experience or skills. As for Shields' reference to plaintiff's "maturity," this memorandum was written in support of a bonus for plaintiff praising Plaintiff's performance. Lastly, Shields made the statement that plaintiff was "making ...


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