49. Ellis is still employed as Provident's New York branch manager, and he is being paid at the same guaranteed salary he formerly received, to which appropriate incentive compensation was added when it became due. (R. 222.) He is Provident's highest paid branch manager. (R. 198.)
50. The articulated reason of Provident for the split was credibly established as being a genuine business reason and motive in the exercise of informed honest business judgment for the best business interests of Provident and was not a false pretext to hide an illegal motivation. Ellis did not establish by a preponderance of the credible evidence that he was intentionally discriminated against in violation of 29 U.S.C. § 623(a) and N.Y. Exec. Law § 296(1) "because of his age" by the split-off of the Nassau-Suffolk and Westchester district offices. No credible evidence was adduced of discrimination against Ellis by reason of his age or of a pattern and practice of Provident to reduce territories of its older branch managers by division, closure or forced retirement to reduce or otherwise compromise their incentive compensation. Ellis denied knowledge of the reasons and purposes for earlier territorial changes of other branch offices. (R. 204-06.)
51. Ellis alleged in his complaint, but did not establish by competent credible proof that Provident engaged in a "pattern and practice" of intentional age discrimination "by substantially reducing the size of the older branch managers' sales territories, and, in some instances, closing its offices in their territories." (Complaint, PP 37, 38.) In an attempt to support the alleged pattern and practice, plaintiff's expert, Gail N. Janowitz, a statistician, purported to analyze branch office splits and closures from May 1, 1988 through 1992, as well as "forced retirements" of branch managers, and formulated statistical opinions. Cross-examination contradicted and disposed of her insufficient samples, methods and theories.
52. To the extent any of Janowitz's analyses had any validity, her key regression analysis showed her that there was no statistically significant correlation between changes in age and territorial reductions. (R. 528-30.) She informed Ellis' counsel of this finding, but thereafter excluded and suppressed this finding from the report that she delivered to defendants. (Exh. SSS; R. 529-31.) Janowitz also acknowledged that none of her tests purport to determine whether the split-off of the suburbs in the New York branch was caused by age discrimination. (R. 298-99.)
53. Janowitz picked arbitrary compensation and age levels to define subclasses to reach her results. Although she examined other data, ultimately, only branch managers aged 50 and over who were managers of territories in the "black" (meeting their expenses) were considered in reaching her conclusion (based on her inadequate samples) that there was a statistically significant relationship between the age of branch managers and the split of their territories. (R. 298, 523, 540-43). This witness, presented under Rule 702 to assist the Court to understand the evidence, exhibited flawed analyses, insufficient samples from which to establish custom and illegal purpose to violate age discrimination law, tended to equivocate and quibble when parts of her testimony were challenged, was of questionable assistance to the Court at significant points of her testimony and resulted in the Court's finding made in the accompanying Opinion hereon to resolve her credibility in favor of the defendants on her part of the trial.
CONCLUSIONS OF LAW
1. Ellis did not establish by a preponderance of the credible evidence or by any credible testimony which he presented at the trial that he was intentionally discriminated against in violation of 29 U.S.C. § 623(a) and N.Y. Exec. Law § 296(1) "because of" his age when the New York branch territory was divided and a new branch was established from the Long Island and Westchester district office territories he formerly managed.
2. Regardless of the method of proof used, at all times Ellis retained the ultimate burden of proving by a preponderance of the evidence that he was the victim of intentional age discrimination. St. Mary's Honor Center v. Hicks, 509 U.S. 502, 125 L. Ed. 2d 407, 113 S. Ct. 2742 (1993); Hazen Paper Co. v. Biggins, 507 U.S. 604, 113 S. Ct. 1701, 1706, 123 L. Ed. 2d 338 (1993); Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253, 67 L. Ed. 2d 207, 101 S. Ct. 1089 (1981); Cabrera v. Jakabovitz, 24 F.3d 372, 382 (2d Cir.), cert. denied, 130 L. Ed. 2d 135, 115 S. Ct. 205 (1994); Tyler v. Bethlehem Steel Corp., 958 F.2d 1176, 1181, 1185 (2d Cir. 1992) cert. denied, 506 U.S. 826, 121 L. Ed. 2d 46, 113 S. Ct. 82 (1992); Bay v. Times Mirror Magazines, Inc., 936 F.2d 112, 116 (2d Cir. 1991).
3. Provident articulated a legitimate and truthful business reason for establishing a new branch office on Long Island out of the suburban district offices in the New York branch office territory. Provident's competitors had separate branch offices in both New York and Long Island before Provident created its own Long Island branch office, and there was good reason for Christiana to believe that splitting the district offices in that suburban area from the New York branch office territory would be beneficial. Ellis admitted that Christiana believed that the Long Island district office, which was larger than most Provident branch offices, had outgrown the district office system and that Christiana assumed sales would increase because of the split. The presence of a branch manager in a given territory was a significant factor in increasing the growth of sales in such territory.
4. The credible evidence did not establish that Provident's articulated reason for its actions was a false pretext to cover up an illegal motive to intentionally discriminate against Ellis because of his age.
5. Provident created the Long Island branch office to provide for more concentrated management and branch office services in the territory and not to reduce Ellis's compensation, although Provident was privileged, if it so chose, to reduce Ellis' compensation for reasons other than his age. As stated by the Second Circuit:
. . . We have stated that "nothing in the ADEA prohibits an employer from making employment decisions that relate an employee's salary to ... the responsibilities entailed in particular positions and concluding that a particular employee's salary is too high. " Bay, 936 F.2d at 117. SwissRe was not required to continue [plaintiff] in a salary that was not commensurate with his responsibilities simply because he was over forty.