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December 29, 1994

JOAN McFADDEN-PEEL, Plaintiff, against STATEN ISLAND CABLE, Defendant.

The opinion of the court was delivered by: JOHN R. BARTELS

 Defendant Staten Island Cable ("SIC") moves under Rule 56 of the Federal Rules of Civil Procedure for summary judgment. SIC seeks dismissal of the complaint on the grounds that plaintiff has failed to set forth any evidence from which a reasonable jury could find that SIC's proffered reasons for eliminating her position and failing to offer her alternative positions were a pretext for age and sex discrimination.


 SIC began in 1986 as a joint venture between Gilbert Communications Co., L.P., and Cox Cable Communications ("Cox"). Until that time, there was no cable system on Staten Island.

 Peter Gilbert, general partner of Gilbert Communications, was assigned full responsibility for managing SIC's operations. Plaintiff, as Director of Administration and Marketing, was one of four senior managers at SIC. She had oversight responsibility for customer service, sales, marketing, production, advertising, computers, and some installation functions. In addition to plaintiff, the senior management team consisted of: Henry Schwab, who was responsible for construction; Peter Schwab, who was responsible for service, facilities, the warehouse, and the remaining installation functions; and Charlie Simon, the comptroller. The team reported to Peter Gilbert, General Manager of SIC.

 When Peter Gilbert died in 1989, his daughter Ruth Gilbert replaced him as General Manager. Shortly thereafter, Ruth Gilbert decided to sell her interest in SIC. In 1991, an entity owned by Time Warner Entertainment, L.P. ("TWE") entered into an agreement to acquire the 50% of SIC then owned by the Gilberts, as well as to manage the system in the Gilberts' place.

 Richard Aurelio, President of the TWE New York City Cable group, decided to hire a new general manager for SIC. It was his choice whom to appoint to that position, subject to the right of Cox representatives to interview the final two candidates after Aurelio had screened out the rest. In response to an internal posting for candidates from within the TWE organization, twenty applications were generated. Additionally, Aurelio decided to consider members of the existing management team of SIC. The field was narrowed to five or six semi-finalists, including McFadden, who Aurelio interviewed *fn1" Cox representatives interviewed the two finalists selected by Aurelio, both men, and concurred in Aurelio's selection of Stephen Pagano.

 In his deposition, Aurelio testified that he had sought Pagano's application. Prior to hiring him as SIC's General Manager, Aurelio had known Pagano for a number of years. At the time of his interview, Pagano was the Vice President in charge of marketing of the TWE-owned cable system serving Brooklyn and Queens. He had also served as president of the "Metro Cable Co-op", an affiliated group of cable systems in the New York metropolitan area that cooperates in marketing efforts.

 Pagano began work at SIC on May 11, 1992. That same day, Pagano informed McFadden that her position would be eliminated as of July 31, 1992. SIC was to be restructured so that department heads who had been reporting to McFadden as Director of Administration and Marketing would report directly to the General Manager.

 Shortly after Pagano began at SIC, he caused the position of Vice President of Marketing to be posted. (The position of Marketing Manager had been vacant since 1991 when TWE hired away SIC's previous marketing manager. At the request of Cox representatives, plaintiff had taken on those responsibilities in the interim.) SIC received ten resumes in response to the posting. Pagano interviewed candidates from within SIC, and McFadden was asked to interview the three candidates from outside SIC. McFadden herself was not considered for the position, although she testified that she had expressed interest in it to Pagano *fn2" She further testified that he had refused to consider her, saying that the position was "beneath" her. Pagano hired Chris Van Name, with whom he previously had worked at the TWE Brooklyn-Queens cable system.

 McFadden left SIC on July 31, 1994, at the age of 53. The duties of her former position were divided between that of General Manager and Vice President of Marketing. Stephen Pagano was 40 at the time he became SIC's General Manager. Chris Van Name was in his thirties when he was hired as Vice president of Marketing for SIC. Additionally, both of McFadden's male colleagues at the management team level, Peter Schwab and Henry Schwab (men in their forties), retained their positions following the restructuring.


 I. Subject Matter Jurisdiction

 The Court addresses first the threshold question as to whether plaintiff was an "employee" within the meaning of the Age Discrimination in Employment Act, 29 U.S.C. §§ 621 et seq. ("ADEA") and Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. ("Title VII").

 Under both the ADEA and Title VII, an employee is defined as "an individual employed by an employer." 29 U.S.C. § 630(f); 42 U.S.C. § 2000e(f). The protections of the ADEA and Title VII do not extend to independent contractors. Frankel v. Bally, Inc., 987 F.2d 86, 88-89 (2d Cir. 1993); see also Hyland v. New Haven Radiology Assocs., P.C., 794 F.2d 793, 796 (2d Cir. 1986). In order to determine whether McFadden was an employee or an independent contractor for purposes of the ADEA and Title VII, common-law agency principles are applicable. Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318, 112 S. Ct. 1344, 1348, 117 L. Ed. 2d 581 (1992) (where a statute containing the term "employee" does not helpfully define it, the court should conclude "'that Congress intends to describe the conventional master-servant relationship as understood by common-law agency doctrine.'" (quoting Community for Creative Non-Violence v. Reid, 490 U.S. 730, 739-40, 109 S. Ct. 2166, 2172, 104 L. Ed. 2d 811 (1989)); Frankel, 987 F.2d at 90 (adopting common law agency test to determine who is an "employee" under ADEA).

 The existence of a master-servant relationship is based on a flexible analysis of the "totality of the circumstances". Frankel, 987 F.2d at 90. The following ...

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