reason that Orisek was not selected was her approach to management. She also mentions that Orisek's writing was not acceptable for external communication without heavy editing, but that Purdy had written the library component of a proposal for his prior employer and had submitted a draft journal article for her review. Finally, Purdy's resume suggests that he had at least the minimal qualifications for the job.
Again, although Orisek may have disagreed with Lawrence's choice and believed that she was the most qualified applicant, this Court is not permitted to second-guess the wisdom of Lawrence's selection. See Lieberman, 630 F.2d at 67 ("Title VII does not require that the candidate whom a court considers most qualified for a particular position be awarded that position; it requires only that the decision among candidates not be discriminatory. When a decision to hire . . . one person rather than another is reasonably attributable to an honest even though partially subjective evaluation of their qualifications, no inference of discrimination can be drawn."). The mere fact that a younger, American man was selected is not a reasonable basis on which to conclude that Orisek was passed over because of her age, gender or national origin. Such speculation, without more, is insufficient to support her claim that the Institute's reorganization or reduction-in-force was pretextual. See Arnell, 62 Fair Empl. Prac. Cas. (BNA) 1715, 1986 WL 11455, at *5.
As to the disparaging remarks, Orisek argues that they are characteristic of the discriminatory environment at the Institute following the reorganization in 1991. In her affidavit, Orisek claims that she heard one American male employee tell another foreign female employee in the presence of Worton, Orisek's supervisor, "Go back to Russia!" and that she heard Tony Lenti, Manager of Processing and Production, exclaim "Those foreigners!" and "Those niggers!" In addition, Orisek has offered the deposition testimony of another employee, Danny Luce, in which he states that he also heard the American male employee say "Go back to Russia!" and the deposition testimony of another employee, Maria Sellas, stating that she heard Lenti say "Bitch!" but does not know at whom the remark was directed.
There is no evidence, however, that any of these comments were directed at Orisek. Nor is there evidence that the people responsible for the decision to terminate Orisek -- Worton and Lawrence -- made such remarks or tolerated such remarks. The American male employee that Orisek claimed said "Go back to Russia!" in the presence of Worton was terminated within two months of the incident for poor work performance and for making such comments. "Isolated comments, unrelated to the challenged action, are insufficient to show discriminatory animus. [Plaintiff] must demonstrate a nexus exists between these allegedly discriminatory statements and the [defendant's] decision to terminate her." Cone v. Longmont United Hosp. Ass'n, 14 F.3d 526, 531 (10th Cir. 1994); accord Santa Mantione v. Ted Bates Advertising, 38 Fair Empl. Prac. Cas. (BNA) 1457, 1985 WL 2516, at *7 (S.D.N.Y. Sept. 10, 1985) (finding comments by someone other than decision-maker irrelevant).
As to the Institute's reorganization, Orisek argues that she and other older, foreign women were forced out of management positions, presumably to clear the way for later termination. She claims that before 1991, three of the nine management level employees, which included herself, were women, seven were of foreign origin and eight were over 40 years old. She claims that after 1991 the new management group of five employees consisted primarily of younger American men; none was a woman, two were of foreign origin and three were over 40 years old. Orisek's showing in this regard is insufficient, however, for two reasons.
Although a plaintiff may show pretext by presenting demotion statistics, for statistical evidence to be probative, the sample must be large enough to permit an inference that age, gender or national origin was a determinative factor in the employer's decision. See Haskell v. Kaman Corp., 743 F.2d 113, 121 (2d Cir. 1984). The sample here of four demotions out of nine employees is not statistically significant, particularly in light of the reduction-in-force of over two-thirds of the Institute's staff between 1991 and 1995. There is no evidence that older, foreign women were dismissed disproportionately in any of the several waves of terminations or overall.
Moreover, "statistical evidence is significant only if it is trustworthy . . ." Beers, 1992 U.S. Dist. LEXIS 240, 1992 WL 8299, at *7 Here, the only evidence supporting Orisek's claims regarding the composition of management before and after the reorganization is the deposition testimony of Bogolubsky, the Institute's Technical Director and Orisek's supervisor until 1991 when she retired, who states that before the reorganization she invited Orisek to meetings of department heads and that Orisek, in addition to the department heads of document processing, indexing, abstracting and document analysis reported directly to her. Orisek, however, has not offered any evidence, such as job descriptions, showing that these employees, including herself, are appropriately grouped as management. See Cone, 14 F.3d at 532 ("To made a comparison demonstrating discrimination, a plaintiff must show that the employees were similarly situated."). Moreover, she has not offered any evidence that the two other, older, foreign women in alleged management positions -- Irene Bogolubsky and Patricia Marshall -- were forced out. In her deposition testimony, Bogolubsky states that she took early retirement, and that there was no litigation nor did she have an attorney representing her in connection with her retirement. The only evidence in the record regarding Marshall's departure, (charts prepared by and attached to the affidavit of Shirley Jacobson, the Institute's Director of Human Resources, depicting the names, ages, gender, national origin, date of hire, and the date and reason for departure of all Institute employees between January 1989 through December 1995), indicates that Marshall also retired in May of 1991.
As to the Institute's failure to notify Orisek of job vacancies while notifying other employees, the Institute has proffered uncontradicted evidence that it notified only employees laid off in its third reduction-in-force, because those terminations were not associated with poor work performance. Orisek was terminated during the second reduction-in-force not only because her position was eliminated but also because of what the Institute perceived as her unsatisfactory work performance.
Having reviewed the evidence offered by Orisek, I conclude that the circumstances of her termination were consistent with a broad-based program of downsizing and restructuring, effected according to standards that were related to business needs and that did not discriminate against older, female and foreign employees. I also find that Orisek has not met her burden of proffering evidence from which a rational jury could find that the Institute's decision to terminate her was motivated by age, gender or national origin. Accordingly, the Institute's motion for summary judgment is granted, and I need not reach the question of whether Orisek's damage claims are tenable.
In conclusion, defendant's motion for summary judgment is granted. The Clerk of the Court is directed to close the case.
Dated: White Plains, N.Y.
September 3, 1996
Barrington D. Parker, Jr.
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