Defendant's argument focuses primarily on the fourth element. According to defendant, any inference of age discrimination that might arise under the circumstances of plaintiff's discharge is offset by the fact that plaintiff was almost 49 years old when he was hired. Defendant cites several cases, including Suttell v. Manufacturers Hanover Trust Co., 793 F. Supp. 70 (S.D.N.Y. 1992), in support of this position.
The Suttell case is instructive on this point. In that case, the plaintiff was 56 years old at the time he was hired by Manufacturers Hanover Bank as an account administrator. He alleged that he was terminated because of his age, and that he was replaced in his position by a younger, less-experienced employee. The court granted the bank's motion for summary judgment. According to the court, the record indicated that plaintiff's termination resulted from a "reduction-in-force" by which plaintiff's accounts were redistributed among several employees, rather than "replacement" of plaintiff by any one particular employee. In "reduction-in-force" cases, "a plaintiff alleging age discrimination satisfies the fourth element required for a prima facie case 'if he establishes that some evidence exists from which a fact-finder might reasonably conclude that the employer intended to discriminate against older employees.'" Id. at 73 (quoting Morser v. AT & T Information Systems, 703 F. Supp. 1072, 1081 (S.D.N.Y. 1989)). The court found that because plaintiff had not produced such evidence, any inference of age discrimination raised by the fact that a younger employee took over some of plaintiff's accounts was "undercut" by the fact that plaintiff was 56 years old at the time he was hired by the bank. 793 F. Supp. at 73-74.
Defendant cites other cases on this point as well. See, e.g., Turner v. North American Rubber, Inc., 979 F.2d 55, 58-59 (5th Cir. 1992)(absent "hard evidence," fact that discharged employee was 52 when hired offsets inference of age discrimination raised by younger replacement); Libront v. Columbus McKinnon Corp., 832 F. Supp. 597, 627-34 (W.D.N.Y. 1993) (court considered fact that several plaintiffs were over 40 when hired as a factor in determining of motion for judgment as a matter of law after plaintiffs rested their case at trial); Zaleski v. Customized Transportation, Inc., 1991 U.S. Dist. LEXIS 15965, at *6, 1991 WL 353847, at *2 (E.D.Mich. May 2, 1991)(absent any direct, statistical, or circumstantial evidence, fact that plaintiff was 51 when hired rebuts any presumption of age discrimination). These cases support the principle that in order to establish the existence of circumstances giving rise to an inference of age discrimination, a plaintiff who was a member of the protected class (i.e., over 40) when hired cannot simply rely on the fact that he or she was replaced by a younger employee, or that a younger employee took over some of his or her duties as a result of a reduction-in-force. Instead, the plaintiff must produce some evidence from which the trier of fact could reasonably conclude that the employer intended to discriminate against older employees.
In this case, plaintiff has submitted the report of its expert witness, Professor James M. Holmes, entitled "Statistical Analysis of the Relationship Between Age and Lay Offs of Executives at Marine Midland Bank" (Item 18, Ex. A). Professor Holmes' report contains the conclusion that, during the relevant time period, defendant terminated the employment of "a statistically significant higher percentage of their older than their younger executives . . ." (id., p. 7). Defendant has submitted the report of its own expert witness to refute Professor Holmes' analysis and conclusions (Item 18, Ex. B). This evidence demonstrates the existence of a factual issue not presented to or discussed by the court in the Suttell case.
In addition, plaintiff alleged in both his complaint in this action and in his EEOC charge that he was replaced by Mr. Robert Engel, who was 38 years old at the time. In its response to the EEOC charge, defendant stated that at the time of plaintiff's discharge, the bank was in the process of eliminating or realigning "certain layers of management," and that as part of that process, Mr. Engel "assumed the essential functions of managing down the REID project. That process is now complete, and among others, the position of Officer-in-charge of REID [plaintiff's former position] has been eliminated" (Item 13, Ex. I, p. 2). Mr. Engel's appointment as plaintiff's "successor" was also discussed in the January 24, 1992 memorandum from Mr. Martyn to Mr. Whitson (see Item 20, Ex. B), suggesting that a younger, less-experienced employee would be assuming plaintiff's duties as manager of REID (id.). This is the same memorandum in which Mr. Martyn referred to plaintiff as "dead wood."
Considered as a whole, this evidence is sufficient enable a trier of fact to conclude that Marine Midland Bank intended to discriminate against plaintiff because of his age. This inference is not rebutted by the fact that plaintiff was a member of the protected class when he was hired by defendant. Plaintiff has therefore met his de minimis burden of demonstrating prima facie age discrimination. Under the McDonnell Douglas framework, the burden of production now shifts to defendant to articulate a legitimate, non-discriminatory reason for terminating plaintiff's employment.
B. Defendant's Articulated Reasons for Discharging Plaintiff.
Once a plaintiff demonstrates a prima facie case of age discrimination, the defendant is obligated to produce evidence "which, taken as true, would permit the conclusion that there was a nondiscriminatory reason for the adverse action." St. Mary's Honor Ctr. v. Hicks, supra, 509 U.S. at 509 (emphasis in original); Gallo v. Prudential Residential Services, supra, 22 F.3d at 1226. This evidence must be "clear and specific." Meiri v. Dacon, 759 F.2d 989, 997 (2d Cir.), cert. denied, 474 U.S. 829, 88 L. Ed. 2d 74, 106 S. Ct. 91 (1985).
Upon review of the affidavits and exhibits submitted in support of this motion, I find that defendant has met its burden of production in this regard. In his January 24, 1992 memorandum to David Penketh, Brian Robertson articulated and specifically enumerated several "concerns over plaintiff's performance" (Item 14, Ex. E). Based on these concerns, Robertson concluded that plaintiff's "impact upon the division has been at best, neutral," that plaintiff "has failed to live up to expectations," and that "his contribution to the institution" was not "commensurate with his cost to it" (id.). These conclusions, are supported by the affidavit of Mr. William Flannery, Senior Vice President, Human Resources Services (Item 13, P 14)("[Plaintiff] was terminated, plain and simple, for poor performance"), as well as defendant's response to the EEOC charge (Item 13, Ex. I)("There is clear and unmistakable evidence that [plaintiff] failed to perform at a level commensurate with the position for which he was hired").
Taking these statements as true, I find sufficient evidence to permit the conclusion that defendant had a legitimate, nondiscriminatory reason for discharging plaintiff. The inquiry thus turns to whether plaintiff has met his burden of showing that this reason was in fact a pretext for discrimination.
At the third stage of the McDonnell Douglas analysis, the plaintiff has the burden of persuading the trier of fact both that the reason articulated by defendant was false, and that discrimination was the real reason for the employment action taken. St. Mary's Honor Ctr. v. Hicks, supra, 509 U.S. at 516; Gallo v. Prudential Residential Services, supra, 22 F.3d at 1225. As stated by the Second Circuit in the Gallo case:
What this means in the summary judgment context is that the plaintiff must establish a genuine issue of material fact either through direct, statistical or circumstantial evidence as to whether the employer's reason for discharging her is false and as to whether it is more likely that a discriminatory reason motivated the employer to make the adverse employment decision.
Gallo, supra (citing Saulpaugh v. Monroe Community Hosp., 4 F.3d 134, 142 (2d Cir. 1993), cert. denied, 510 U.S. 1164, 127 L. Ed. 2d 539, 114 S. Ct. 1189 (1994), and Taggart v. Time, Inc., 924 F.2d 43, 46 (2d Cir. 1991)).
As set forth above, plaintiff has submitted several memoranda pertaining to the OCC audit conducted in August through October of 1991 indicating that REID management had improved significantly during the time that he was employed by Marine (Item 15, Exs. F-I). Also as set forth above, Mr. Martyn's January 24, 1992 memorandum to Mr. Whitson suggests that plaintiff's termination was "not what is locally termed a severance 'for cause'" (Item 20, Ex. B). This direct evidence raises a genuine issue of fact as to the truth or falsity of Marine's explanation that plaintiff was terminated based solely on his "poor performance."
In addition, the statistical analysis and critique thereof in the parties' expert witness reports raise a genuine issue of fact with respect to the likelihood that plaintiff's discharge was the result of Marine's efforts to "downsize" by eliminating their older, higher-paid executives. In short, the record before the court suggests an impending "battle of the experts" on the significance of the statistical evidence regarding Marine's hiring and firing of executives during the relevant time period. Under prevailing caselaw, this alone is sufficient to preclude summary judgment, "without any additional evidence being required . . . ." Gallo, supra, 22 F.3d at 1226 (citing St. Mary's Honor Ctr. v. Hicks, supra, 509 U.S. at 511).
Accordingly, I find that defendant has failed to establish that there are no genuine issues of material fact and that it is entitled to judgment as a matter of law on the age discrimination claims against it. I also find that plaintiff has made a sufficient showing on the essential elements of his age discrimination case to avoid summary judgment. I therefore recommend that defendant's motion for summary judgment be denied to the extent it seeks dismissal of the age discrimination claims in the complaint.
III. Breach of Employment Contract.
Defendant's summary judgment motion also seeks dismissal of plaintiff's breach of employment contract claim. It is well-established in New York that, absent an express agreement establishing a fixed duration of employment, the employment is presumed to be "at will" and "may be freely terminated by either party at any time for any reason or even for no reason." Murphy v. American Home Prods. Corp., 58 N.Y.2d 293, 300, 461 N.Y.S.2d 232, 448 N.E.2d 86 (1983). However, New York courts have also recognized that the "at will" rule is no more than a rebuttable presumption. Weiner v. McGraw-Hill, Inc., 57 N.Y.2d 458, 466, 457 N.Y.S.2d 193, 443 N.E.2d 441 (1982); Jones v. Dunkirk Radiator Corp., 21 F.3d 18, 22 (2d Cir. 1994). In determining whether the plaintiff has overcome the presumption, the trier of fact must consider "the totality of the circumstances, including the writings, the situation, the course of conduct of the parties and their objectives." Jones, supra (citing Weiner, supra at 466-67); see also Gorrill v. Icelandair/Flugleidir, 761 F.2d 847, 852-53 (2d Cir. 1985).
Thus, in order for an at-will employee to state a cause of action for breach of employment contract in New York, the employee must show the existence of circumstances indicating (1) an express limitation on the employer's right to terminate the employment, and (2) reliance upon that limitation. Awan v. Bank Bumi Daya, 1996 U.S. Dist. LEXIS 7295, at *5, 1996 WL 284946, at *2 (S.D.N.Y. May 29, 1996)(citing Howley v. Newsday, Inc., 215 A.D.2d 729, 627 N.Y.S.2d 85, 86 (2nd Dept. 1995); Charyn v. National Westminster Bank, U.S.A., 204 A.D.2d 676, 612 N.Y.S.2d 432, 433 (2nd Dept. 1994); Preston v. Champion Home Builders Inc., 187 A.D.2d 795, 589 N.Y.S.2d 940, 941 (3rd Dept. 1992)).
In this case, plaintiff claims that the following communications establish an express limitation on Marine's ability to terminate him at will:
(1) The March 26, 1991 fax and draft offer letter, sent by Mr. Martyn to Mr. Griffin, in which Mr. Martyn promised "to engage [plaintiff] on a longterm career basis" and to "progress him" within the company if the position in the real estate department did not work out (Item 13, Ex A);
(2) The April 5, 1991 formal offer letter from Mr. Martyn to plaintiff (Item 13, Ex. B);
(3) The April 12, 1991 "addendum" in which Marine agreed to pay plaintiff a severance benefit of a minimum of six months pay in the event his employment with was terminated "for reasons other than cause" (Item 13, Ex. D); and,
(4) The May 1, 1991 letter from Mr. Martyn offering plaintiff the position of Executive Vice President in charge of REID (Item 13, Ex. E).
Nothing in these writings indicate an intent on the part of Marine to expressly limit its ability to terminate plaintiff's employment at will. Indeed, several New York courts, and federal courts interpreting New York law, have found as a matter of law that statements similar to those relied upon by plaintiff in this case "are not sufficiently definitive to rise to the level of employment contracts." Kelly v. Chase Manhattan Bank, 717 F. Supp. 227, 234 (S.D.N.Y. 1989)("you will have a good career with Chase"); see also Awan v. Bank Bumi Daya, supra, 1996 U.S. Dist. LEXIS 7295, 1996 WL 284946, at *2 (promise of "permanent" employment upon completing probationary period); Pancza v. Remco Baby, Inc., 761 F. Supp. 1164, 1170-71 (D.N.J. 1991)(applying New York law; "as long as you performed well, you would always have a job with this company"); Hunnewell v. Manufacturers Hanover Trust Co., 628 F. Supp. 759, 762 (S.D.N.Y. 1986)(promises of employment for "full working life" and "through retirement age"); Diskin v. Consolidated Edison Co., 135 A.D.2d 775, 522 N.Y.S.2d 888, 890 (2nd Dept. 1987)(oral assurances that plaintiff would be discharged only for cause); Dalton v. Union Bank of Switzerland, 134 A.D.2d 174, 520 N.Y.S.2d 764, 765 (1st Dept. 1987)(promise of employment "for the longer term").
In addition, Mr. Martyn's statement in his fax to Mr. Griffin regarding Marine's "intention to engage [plaintiff] on a longterm career basis," when read in context with the remainder of the statement, reveals that Marine did not intend limit its ability to discharge plaintiff at will. As Mr. Martyn stated to Mr. Griffin:
We are not however prepared to offer a formal "golden parachute" arrangement; our intention is to become the most successful regional bank in the USA, and [plaintiff] must buy into that vision, accepting the inevitable residual risk which is inherent in any business venture.
(Item 13, Ex. A).
Furthermore, the April 12, 1991 "addendum" provided that in the event plaintiff's employment was "terminated for reasons other than cause," plaintiff would receive six months' severance pay. The clear implication of this provision is that defendant did not intend to limit its ability to discharge plaintiff without cause. Finally, there is nothing contained in the May 1, 1991 letter that can reasonably be interpreted as a promise of any sort.
These communications must also be read in conjunction with the express language in Marine's employee handbook, which provides:
Since there is no contractual employment agreement between the Company and its employees, employment is for no definite duration and is at will, and therefore, employees may resign at any time. Furthermore, because employment is at will, and is of no set duration, an employee may be terminated at any time without notice for reasons determined solely by Marine's management.