Plaintiff has satisfied also, for summary judgment purposes, the second element of the prima facie case. Notwithstanding plaintiff's problems with bookkeeping and late titles, plaintiff's long history with Ticor, his continuation as an officer immediately after the acquisition of Ticor by Chicago Title, and his receipt of an integration bonus during his tenure at Chicago Title provide a basis for a trier of fact to conclude that he was generally qualified for the position he held before being terminated.
Plaintiff has failed, however, to raise a genuine issue with respect to the third element of the prima facie case, that plaintiff was discharged in circumstances giving rise to an inference of discrimination. Even on the view of the evidence most favorable to plaintiff, the record establishes that Cortellessa, Carter, and Zimmerman alone had knowledge of plaintiff's alleged disability. By plaintiff's own admission, however, Cortellessa responded sympathetically and encouragingly about plaintiff's need for treatment by a professional. Plaintiff conceded also that Carter and Zimmerman showed no shock or surprise or indication of hostility when he told them of his treatment for depression. Furthermore, there is no evidence that Carter or Zimmerman, neither of whom had anything to do with Fitzgerald's termination, repeated any conversation about plaintiff's depression to anyone who was involved.
Nor does plaintiff point to any comments, innuendo, or disparate treatment that indicate animus toward his disability, either before or at the time of the termination.
The heart of plaintiff's claim seems to be that the timing of the discharge -- shortly after he voluntarily revealed his disability -- establishes a basis for a fact finder to infer discrimination. The Court disagrees. While plaintiff's burden in establishing a prima facie case is not heavy, the absence of evidence showing underlying animus, as well as the sympathetic to neutral reactions of people he had informed, both undercut any assumption of animus based purely on timing.
Even if the timing of the discharge did permit an inference of discrimination sufficient to support the third element of plaintiff's prima facie case, defendant has met its burden of demonstrating a reasonable, independent, nondiscriminatory motive for the discharge. The discharge of more than fifty employees prior to plaintiff's termination, including people without disabilities, combined with the reorganization of the New York office, negates any presumption of discrimination established by the prima facie case. See Hicks, 113 S. Ct. at 2747 (explaining that "if the defendant carries this burden of [producing a legitimate, nondiscriminatory reasons for the discharge], the presumption raised by the prima facie is rebutted' . . . and 'drops from the case'") (citing Burdine, 450 U.S. at 255, n.10); cf. Piekielniak, 116 A.D.2d 839, 841, 497 N.Y.S.2d 510, 511 (substantial evidence supported the finding that employee was dismissed from her position because of budget cuts, rather than age or sex discrimination); Powe, 108 A.D.2d 997, 998, 485 N.Y.S.2d 147, 148 (plaintiff's race discrimination claim was undermined by evidence that plaintiff was one of fifteen employees discharged as a result of funding cuts and that the other fourteen individuals discharged were white).
Had plaintiff raised an issue of fact as to the existence of a prima facie case, he nevertheless has not met his next burden: raising a triable issue of fact about whether Chicago Title's stated premise for his discharge was a pretext. To begin with, plaintiff has offered no evidence that the downsizing in connection with restructuring was false or exaggerated. Plaintiff's generalized assertions that the decision to restructure and downsize should be regarded as a red herring or a coverup for what he believes to be the true reason does not amount to evidence. Goenaga, 51 F.3d at 18 (plaintiff cannot defeat a motion for summary judgment "through reliance on unsupported assertions" or "on conclusory statements or on contentions that the affidavits supporting the motion are not credible."). And again, plaintiff offered no evidence, beyond his employer's mere knowledge of his disability prior to termination, to show that discrimination was the real reason for the discharge.
Accordingly, plaintiff has failed to meet his burden of raising a genuine issue of material fact not only as to whether the stated reason for the discharge was false, but also as to whether it was more likely than not that a discriminatory reason motivated the employer, as required by Gallo and Hicks. Cf. Woroski, 31 F.3d at 109-10 (agreeing with the district court that the evidence overwhelmingly established a nondiscriminatory motive for plaintiffs' dismissals and holding that plaintiffs failed to present sufficient evidence to withstand defendant's motion for summary judgment); Wallis, 26 F.3d at 890-91 (holding that where evidence to refute defendant's legitimate explanation is totally lacking, summary judgment is appropriate, even though plaintiff may have established a minimal prima facie case).
Mixed Motive Analysis
Plaintiff's failure to produce evidence showing animus toward his disability, along with the absence of evidence supporting an inference of discrimination, does not rise to the level of focused proof of discrimination needed to trigger mixed motive analysis under Tyler, as modified by Ostrowski. Consequently, for many of the same reasons plaintiff has failed to meet his burden of raising a triable issue of fact about discriminatory motive under pretext analysis, plaintiff has failed to raise a jury question of mixed motive discrimination.
Defendant's motion for summary judgment dismissing the complaint is granted.
Dated: November 17, 1995
Lewis A. Kaplan
United States District Judge