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SORENSON v. BURNS CASCADE CO.

September 23, 1996

JAMES A. SORENSON, Plaintiff, -vs- BURNS CASCADE CO., a Division of Burns Brothers Manufacturing Co., Inc., Defendant.

JOHN T. CURTIN, United States District Judge


The opinion of the court was delivered by: CURTIN

CURTIN, District Judge

 BACKGROUND

 Plaintiff James A. Sorenson was 54 years old when he was fired by the defendant Burns Cascade, a division of Burns Brothers Manufacturing, Inc. Plaintiff commenced this action on March 15, 1995 alleging age discrimination under the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq. ("ADEA"), and the New York Human Rights Law (N.Y. Executive Law § 290 et seq.) ("NYHRL"). Before commencing this action, plaintiff filed a charge of discrimination with the EEOC on or about October 31, 1994, which the EEOC cross-filed with the New York State Division of Human Rights. Item 8, Ex. A.

 Defendant now moves for summary judgment. Plaintiff cross-moves for summary judgment as to defendant's affirmative defenses.

 Burns Cascade was formed in September 1991 to sell certain industrial pipes and valves to the Buffalo market. These products were manufactured by the Neles Jamesbury Company. In order to gain immediate access to Neles Jamesbury customers, David Pollack, the president of Burns Cascade, asked Neles Jamesbury representatives for recommendations. These representatives suggested that Pollack hire plaintiff and William Jennings, who were then working for Great Lakes Plumbing and Supply, a company already selling Neles-Jamesbury products in the Buffalo area. Item 14, pp.4-5.

 Plaintiff and Mr. Jennings were subsequently hired to start the Burns Cascade operation in Buffalo. Jennings was hired as manager of the Pipe, Valve and Fittings Group of the Buffalo office at an annual salary of $ 83,000. Plaintiff was hired as a sales representative at a salary of $ 66,500 per year. Item 7, p.4. Both Jennings and plaintiff were 52 years old on the date they were hired. Item 7, p.3.

 DISCUSSION

 I. Plaintiff has not shown that employer's age-neutral explanation is a pretext.

 To establish a claim under the ADEA, plaintiff must first present a prima facie case of age discrimination. Woroski v. Nashua Corp., 31 F.3d 105, 108 (2d Cir. 1994). To establish a prima facie case, plaintiff must show: "'(1) that he was within the protected age group, (2) that he was qualified for the position, (3) that he was discharged, and (4) that the discharge occurred under circumstances giving rise to an inference of age discrimination.'" Id. (quoting Spence v. Maryland Casualty Co., 995 F.2d 1147, 1155 (2d Cir. 1993). Once the plaintiff has established a prima facie case, the employer must offer a legitimate, non-discriminatory business rationale for its actions. Id. If the employers gives an age-neutral reason for the termination, plaintiff must bear the burden of proving that the employee's age was the actual reason for the discharge. Id. The burden of establishing a prima facie case is a modest one, "but it has substance nevertheless." Viola v. Philips Medical Systems of North America, 42 F.3d 712, 716 (2d Cir. 1994).

 Plaintiff satisfies the prima facie requirement: he was 54 on the date he was fired, defendant does not dispute that plaintiff was qualified for the position, plaintiff was discharged, and his replacement was just 32 years old. Although plaintiff does not offer much support for his theory, these facts taken together could permit a reasonable inference of age discrimination.

 A. Defendant's explanation

 Defendant maintains that plaintiff was terminated because (1) plaintiff was unsuccessful in meeting the goals he was hired to achieve, (2) given his high salary, it was not economically beneficial for the company to employ him and (3) the company was changing the focus of its sales efforts outside plaintiff's area of experience. Item 7, p. 9. Defendant's production of a non-discriminatory reason for its ...


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