to improve ability to anticipate, evaluate and resolve problems (1988). Id.
Carpenter asserts that he was never happy with Kerber's work but that, before 1992, he felt the best way to promote improved performance by Kerber was to offer encouragement. Affidavit of Britt Carpenter ("Carpenter Aff't") at P 7. In 1992 Carpenter allegedly grew more frustrated with Kerber's poor performance, especially compared to other engineers who were doing considerably more work than Kerber. Id. at P 8. Other employees allegedly began to complain about Kerber's lack of responsiveness, failure to perform work on a timely basis, and errors. Id. at P 6.
Carpenter asserts that at various times throughout 1992 he assigned a variety of projects to Kerber.
With one possible exception, it appears that Kerber failed to work on any of them during the entire year.
Kerber Deposition at pp. 97 - 98.
On January 22, 1993, Carpenter discussed the outstanding projects with Kerber. Carpenter again discussed the projects with Kerber on two occasions in February 1993 and was told by Kerber that he hadn't had a chance to work on them. Kerber Deposition at 99, 103. Carpenter alleges that he emphasized to Kerber the importance of getting the projects finished. Carpenter Aff't at P 16. Kerber asserts that Carpenter merely "asked me how I was doing on them." Kerber Deposition at pp. 98, 99, 100, 103.
On February 9, 1993, Carpenter issued a written Employee Warning Notice to Kerber. The Warning was based upon "unsatisfactory work quality." Defs' Motion, Ex. L. It stated that Kerber had failed to perform tasks assigned 8 months earlier, despite several discussions about the importance of completing them. The Warning Notice further stated that Kerber's work frequently had mistakes, and that it took him considerably longer than his peers to accomplish the same tasks. Finally, the Notice reiterated a prior verbal warning that "a lack of immediate corrective action by [Kerber] to solve his productivity problems will result in termination." Id.
Kerber indicated disagreement with the assessment. He wrote on the Warning Notice form that "I did not think I was wasting any time in doing my job, also thread roll orders are checked for any errors." Id.
On days when Kerber was absent, another engineer would cover for him. According to Carpenter, this other engineer (Paul Allart) did Kerber's daily job in 2 to 3 hours, leaving Allart the rest of the day to do his own work. Carpenter Aff't at P 23. Kerber asserts that Allart did only the easiest parts of his job -- leaving the more complex parts for him. -- and that Allart's work was full of errors. Kerber Aff't at PP 22, 23.
Because Kerber's timeliness was one of Carpenter's concerns, Carpenter sought to determine more specifically how much time Kerber was spending on each task. Carpenter asked Kerber to provide this information but he allegedly found Kerber's report so messy and confusing that it was impossible to decipher. Carpenter Aff't at P 22. Accordingly, on two occasions in March 1993, Carpenter went to Kerber's work station and, with a stop watch, timed how long it took for Kerber to perform certain tasks. Id. at P 26. Carpenter determined that Kerber was inflating the amount of time he estimated to complete the tasks. Id.
During the period between February 1993 and July 1993, Kerber was assigned and completed a few additional projects. He also completed some of the projects assigned in 1992. Defs' Motion, Ex. O; Kerber Deposition at pp. 79 - 103.
In June 1993, Kerber received from Carpenter a performance evaluation from Carpenter in which his rating of overall performance was "below average." Defs' Motion, Ex P. Kerber was also ranked "below average" in the areas of accuracy, ability to understand and follow directions, quantity of work, quality of work, organization, and care in appearance. Carpenter commented that Kerber "averages over 7 hrs/day on routine tasks that should take only 3 to 4 hours." Carpenter further indicated that Kerber doesn't spend enough time on assigned projects. Finally, Carpenter noted that "organization and upkeep of Don's tasks, documentation & work area is very inefficient...." The evaluation stated that "significant improvements are mandatory." Id.
Kerber submitted a written response to the evaluation, disputing the criticisms and noting, inter alia, that he had worked at CJW without incident for 22 years, and for Carpenter specifically for 5 years, and that only recently had Carpenter become concerned with these performance issues. Kerber further asserted that prior to the performance evaluation he had begun organizing a filing system for manuals and data sheets. Defs' Motion, Ex. P.
Carpenter prepared written comments to Kerber's response. He defended his relatively recent criticism of Kerber as follows:
"It is true ... that I have not been consistent in my criticism of Don.... I came to the conclusion, rightly or wrongly, that he was incapable of much improvement. It just didn't make sense to criticize those weaknesses which, in my mind, he was unable to improve. It got to the point, however, that I could no longer tolerate this very weak link within an otherwise strong Engineering Department." Defs' Motion, Ex. Q, p. 1.
As for Kerber's assertion that he had begun to organize a filing system, Carpenter wrote "this was done only after his peers became extremely frustrated with the archaic and wasteful methods Don used." Id. at p. 3.
Based upon Kerber's response to his June 1993 performance evaluation, Carpenter determined that Kerber did not perceive any problem with his performance and would not make the necessary effort to improve. Carpenter Aff't at P 31.
Kerber was terminated on July 27, 1993. Subsequently, his job was absorbed by Paul Allart and one other employee (both of whom were significantly younger than Kerber). No new person was hired to replace Kerber. Defendants allege that by 1994, computer technology made Kerber's job totally obsolete.
A. Summary Judgment Standards:
Pursuant to Fed.R.Civ.P. 56(c), a moving party is entitled to a judgment as a matter of law if there is "no genuine issue as to any material fact" and where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986). The burden is on the moving party to inform the court of the basis for its motion and to demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). After the moving party has carried its burden, the non-moving party "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita, supra, at 586. "The non-moving party must come forward with 'specific facts showing that there is a genuine issue for trial.'" Id. at 587 (quoting Fed.R.Civ.P. 56(e) (alteration in original)). However, at the summary judgment stage, when perusing the record to determine whether a rational fact-finder could find for the non-moving party, all reasonable inferences must be drawn in favor of the non-moving party. See Murray v. National Broadcasting Co., 844 F.2d 988, 992 (2d Cir.), cert. denied, 488 U.S. 955, 102 L. Ed. 2d 380, 109 S. Ct. 391 (1988).
The general principles underlying a motion for summary judgment apply no less to this action simply because it is an employment discrimination case. It is true that courts exercise caution when considering whether to grant summary judgment in cases where an employees intent is at issue. See, e.g., Gallo v. Prudential Residential Servs., 22 F.3d 1219, 1224 (2d Cir. 1994). However, "summary judgment remains available to reject discrimination claims in cases lacking genuine issues of material fact." Chambers v. TRM Copy Centers Corp., 43 F.3d 29, 40 (2d Cir. 1994). For a plaintiff in a discrimination case to survive a motion for summary judgment, he must do more than present "conclusory allegations of discrimination," Meiri v. Dacon, 759 F.2d 989 (2d Cir.) cert. denied, 474 U.S. 829, 88 L. Ed. 2d 74, 106 S. Ct. 91 (1985); he must offer "concrete particulars" to substantiate the claim. Id., cited in Duprey v. Prudential Ins. Co., 910 F. Supp. 879 (N.D.N.Y. 1996).
B. Summary Judgment Analysis in ADEA Cases:
The ADEA provides that it "shall be an unlawful for an employer . . . to discharge any individual ... because of such individual's age. 29 U.S.C. § 623(a)(1). Specifically, this law applies to individuals who are between forty and seventy years of age. 29 U.S.C. § 631(a).
When analyzing a summary judgment motion in an ADEA case based upon circumstantial evidence, courts apply the same analytical framework applied in Title VII and other discrimination cases.
This three step framework was first set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 36 L. Ed. 2d 668, 93 S. Ct. 1817 (1973), and later refined by Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 67 L. Ed. 2d 207, 101 S. Ct. 1089 (1981). See Viola v. Philips Medical Systems of North America, 42 F.3d 712 (2d Cir. 1994); Woroski v. Nashua Corp., 31 F.3d 105 (2d Cir. 1994). The three steps are as follows:
first the plaintiff has the burden of proving by the preponderance of the evidence a prima facie case of discrimination. Second, if the plaintiff succeeds in proving the prima facie case, the burden shifts to the defendant to "articulate some legitimate, nondiscriminatory reason for the employee's rejection. . ." Third, should the defendant carry this burden, the plaintiff must then have an opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination.