his discharge, the reduction in force brought about by a company restructuring and his lack of qualifications for the job, are a pretext for intentional age discrimination. In the summary judgment context, this burden requires plaintiff to establish a genuine issue of material fact "either through direct, statistical or circumstantial evidence as to whether [defendant's] reason for discharging [him] is false and whether it is more likely that a discriminatory reason motivated the employer to make the adverse employment decision."
Gallo v. Prudential Residential Services, Limited Partnership, 22 F.3d at 1224. Plaintiff may show pretext by relying on the same evidence used to establish his prima facie case, or by presenting additional evidence to show that defendant's reasons for his discharge were false. Id. at 1226.
To rebut defendant's contention that he was unqualified for his position or for any position within the restructured company, plaintiff relies on the same evidence that he used to establish his prima facie case, i.e., evidence of his qualifications, seniority, and experience. In addition, he relies on evidence of a discriminatory atmosphere as well as evidence that the lay-off had a disparate impact upon older employees. In support of these allegations, he submits: 1) the affidavit of Gordon J. Stred, the former vice president, in which Mr. Stred states that defendant "wanted to focus more on youth in the structure of the company" (Stred Aff. P 3); 2) the testimony of defendant's assistant secretary and the administrator, manager, coordinator and vice-president of human resources, each of whom testified in another case involving defendant that age was considered in determining which employees were to be laid-off; and 3) a memorandum from the director of human resources that states that only 40% of the work-force at defendant's Binghamton, New York facility was over 40 years old, while 69% of the laid-off employees were over 40.
Plaintiff also testified in his deposition that there seemed to be a "very high percentage of older people" who were affected by the lay-off, and that a retirement package was offered only to employees who were more than 55 years old, both during the May/June 1989 lay-off and also in December 1988. (Babcock Dep. at 207). In support of this assertion, plaintiff produced a list of eleven older men who were dismissed at the same time plaintiff was discharged, who apparently were replaced by younger employees. (Babcock Dep. at 303). Plaintiff also claims that one of the younger ILS managers who was discharged was rehired into the same department, but that plaintiff was not offered the opportunity to interview for that position.
Hence, plaintiff has presented evidence to show that defendant's reasons for discharging him were pretextual, notwithstanding defendant's legitimate reduction-in-force. As the Second Circuit has held, "although an employer is certainly entitled to reduce its force . . . it may not discharge an employee 'because' of [his] age." Gallo v. Prudential Residential Services, Limited Partnership, 22 F.3d at 1226; see also Maresco v. Evans Chemetics, 964 F.2d 106, 111 (2d Cir. 1992). Here, plaintiff has established, through direct, circumstantial and statistical evidence, that a genuine issue of material fact exists as to whether it is more likely than not that a discriminatory reason motivated defendant to discharge him. See Gallo, 22 F.3d at 1224; see also Maresco, 964 F.2d at 113 (circumstantial evidence provided basis for plaintiff to establish pretext). A reasonable jury could conclude based on the record before this Court that defendant's actions were motivated at least in part by plaintiff's age. Accordingly, summary judgment is inappropriate and defendant's motion for summary judgment dismissing the complaint is denied.
C. The Claims for Punitive and Liquidated Damages
Defendant moves in the alternative for partial summary judgment dismissing plaintiff's claims for punitive and liquidated damages. Plaintiff's counsel states in his affidavit in opposition to the motion for summary judgment that plaintiff "stipulates to an order dismissing plaintiff's claims for punitive damages." Defendant, however, asserts that plaintiff is still seeking punitive damages for his Human Rights Law claim. To the extent that assertion is correct, the motion for partial summary judgment dismissing plaintiff's claims for punitive damages is granted, since punitive damages are not available in an action commenced under New York's Human Rights Law. Tyler v. Bethlehem Steel Corp., 958 F.2d 1176, 1190-91 (2d Cir. 1992) (citing Conan v. Equitable Capital Mgmt. Corp., 774 F. Supp. 209, 211 (S.D.N.Y. 1991)).
Defendant's request for dismissal of plaintiff's claim for liquidated damages, however, is denied. In light of the evidence discussed above in my ruling denying defendant's motion for summary judgment dismissing the complaint, and drawing all reasonable inferences in plaintiff's favor, genuine issues of material fact exist as to whether defendant's conduct was willful.
D. The Breach of Contract Claim
Defendant moves for summary judgment dismissing plaintiff's breach of contract claim based on the employment manual. Plaintiff does not discuss this portion of the motion in his opposition papers, and apparently does not oppose it. Accordingly, defendant's motion for partial summary judgment dismissing the breach of contract claim is granted.
4. The Motion to Amend the Complaint and Stipulation
A. The Complaint
Plaintiff seeks to amend his complaint to more particularly state a claim for liquidated damages. Plaintiff initially brought this action in state court and his original complaint requested that the court "award plaintiff liquidated damages as provided for in the ADEA."
Defendant opposes the motion on the grounds that it is untimely and the plaintiff is guilty of undue delay. A stipulated order dated June 28, 1993 required that applications to amend pleadings or any motions "be made on or before March 1, 1994." Plaintiff filed the motion to amend on February 28, 1994, but omitted the return date, which he provided on March 2, 1994. Defendant contends that the motion was therefore not "made" until March 2, 1994, one day after the cut-off date. Defendant also maintains that plaintiff knew that his liquidated damages claim was insufficiently pled but failed to take any action until after discovery had closed.
Motions to amend should be liberally granted, unless there has been undue delay, bad faith, dilatory motives or undue prejudice to the opposing party. See Fed. R. Civ. P. 15(a); see also Guinness Mahon Cayman Trust Ltd. v. Windels, Marx, Davies & Ives, 684 F. Supp. 375, 381 (S.D.N.Y. 1988) (citing Foman v. Davis, 371 U.S. 178, 182, 83 S. Ct. 227, 230, 9 L. Ed. 2d 222 (1962)). There is no undue prejudice to defendant in this case. Defendant was given adequate notice of plaintiff's intention to seek liquidated damages. While there may have been some delay in bringing the instant motion, mere delay is insufficient to deny a motion to amend. See Journal Pub. Co. v. American Home Assur. Co., 771 F. Supp. 632, 637 (S.D.N.Y. 1991) (citing Richardson Greenshields Securities, Inc. v. Lau, 825 F.2d 647. 653 n.6 (2d Cir. 1987)). Moreover, the motion in fact was filed before the March 1, 1994 deadline, and defendant's hypertechnical argument that it was not is rejected. Accordingly, plaintiff's motion to amend the complaint to more particularly state a claim for liquidated damages is granted.
B. The Stipulation
Plaintiff also moves to amend a stipulation for partial discontinuance dated December 21, 1991 (the "Stipulation"). The Stipulation discontinued plaintiff's claims for compensatory damages that were contained in his first and second causes of action. Plaintiff seeks to amend the Stipulation to clarify that the compensatory damages claims are discontinued only as they relate to claims for damages for mental anguish, humiliation, pain and suffering, and not for lost wages, benefits, etc. Defendant does not oppose this portion of the motion. Accordingly, plaintiff's motion to amend the stipulation is granted.
5. Plaintiff's Motion to Compel Discovery
Plaintiff moves to compel defendant to respond to certain outstanding discovery requests served on defendant on December 30, 1993, the cut-off date for discovery. The discovery deadline in this case, originally set for December 31, 1991, was extended four times at plaintiff's request. Plaintiff failed to ask for an extension of the December 30, 1993 deadline, however, and instead chose to wait until the last day of discovery to serve his requests. Under the circumstances, the motion to compel discovery is denied.
Defendant's motion for summary judgment dismissing the complaint is denied, except that it is granted with respect to plaintiff's claim for breach of contract. The alternative request for partial summary judgment dismissing plaintiff's claim for liquidated damages is also denied; the request for partial summary judgment dismissing the claim for punitive damages is granted. Defendant's motion to strike the affidavits is denied.
Plaintiff's motion to amend the complaint and stipulation is granted. Plaintiff's motion to compel discovery is denied.
Dated: New York, New York
February 15, 1995
United States District Judge