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October 30, 1996

RAYMOND BERN, Plaintiff,

The opinion of the court was delivered by: RAKOFF


 This is an action alleging violations of the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. ยงยง 621-634. Following discovery, both sides moved for summary judgment. On September 26, 1996, the Court granted summary judgment in favor of the remaining defendant in this action. *fn1" See Order of Sept. 26, 1996. This memorandum will briefly elaborate the reasons for that determination.

 The material facts that were properly placed before the Court on the summary judgment motions and not disputed by any contrary admissible evidence show the following.

 Defendant United Mercantile Agencies ("UMA") is engaged in the business of debt collection. Plaintiff Raymond Bern was hired by UMA as a trainee in October 1972, shortly after which he became a full-time collector. See Plaintiff's 3(g) Statement at P1. In June of 1973, Bern was promoted to head of a "unit," a defined geographic area. Id. In 1979, he was promoted to Assistant Vice President, in charge of supervising ten to fifteen employees. In this position, he spent more time on administrative tasks. Id. In 1980, he was promoted to Vice-President/Manager, a job with still greater administrative duties. Finally, in 1987, plaintiff received a final promotion, to manager of UMA's White Plains office. Id. Bern was 60 years old at the time. As the administrative manager of the White Plains office, Bern no longer personally handled collections. See Deposition of Raymond Bern, December 22, 1994, at 117.

 At the time of plaintiff's last promotion in 1987, the president of UMA, Michael Puckett, thought the job should go to another employee, Alan Cozzi. Deposition of Michael Puckett, March 15, 1995, at 53-54. Cozzi, a full-time collector, was also employed in the White Plains office. He was one of UMA's most effective collectors, ranking first or second nationally in terms of dollars collected in recent years. Nevertheless, at least partly out of a feeling that Bern's loyalty and tenure with the company should be rewarded, the chairman of the company, John Hoeck, overrode Puckett's recommendation of Cozzi, and the promotion went to Bern. Id.

 Between 1991 to 1993, UMA suffered a significant decline in revenues, forcing it to cut costs. See Transcript of Oral Argument Before the Court, June 4, 1996, at 7. An outside review was conducted (the "Porter Henry Report"), which recommended, inter alia, that the White Plains office concentrate more on the areas of sales and marketing, areas in which UMA executives believed that Bern was particularly weak and Cozzi particularly strong. See Defendant's 3(g) Statement at P9, 11, 12, 16. Additionally, in light of the company's falling revenues, UMA concluded that it could no longer afford a full-time administrative manager like Bern. Accordingly, UMA's Executive Committee decided to eliminate Bern's administrative position and consolidate those administrative duties with the duties of a full-time collector. Id. at P8.

 Prior to the implementation of this decision, Puckett called Bern, in the summer of 1992, and inquired about his age; after Bern responded that he was 66, Puckett asked him, as a cost-cutting measure, to withdraw from the company's health plan and enroll in Medicare. Affidavit of Raymond Bern, sworn to January 30, 1996, at P7. Although Bern was displeased at losing the life insurance benefits that had been provided under the company's plan, he agreed to Puckett's request. Id. P8. Later, Bern was told that two other men had done the same thing, including the chairman of the company, John Hoeck, who is the same age as Bern. Defendant's 3(g) Statement at P21.

 In October 1992, Puckett again asked Bern his age, and Bern responded that he was 66. See Plaintiff's 3(g) Statement at P5. Puckett asked Bern when he planned to retire, and Bern told him that his plan was to continue working and contributing to his 401K plan until he was 70 1/2 years old. Id. In the same conversation, Bern asked Puckett what the Porter Henry report had recommended, and Puckett replied "nothing earth-shattering." Id. at P6. At no time during this or any other conversation did Puckett indicate to Bern that UMA was considering eliminating Bern's position, or that it had decided that the White Plains office had to concentrate more on marketing.

 Also during October 1992, Puckett visited the White Plains office for several days. During that time, a number of the collectors in that office who worked under Bern's supervision complained to Puckett about Bern's job performance. See Affidavit of John Hay, sworn to October 12, 1995; Affidavit of Peter Zonnenveld, sworn to October 10, 1996; Puckett Dep., Exh. 23. The complaints about Bern alleged that he was forgetful, was disorganized in terms of handling telephone messages, improperly handled the files of other collectors when they were on vacation, and spent most of his time on clerical tasks like sorting the mail and ordering office supplies. Cozzi and another colleague, John Hay, told Puckett that, in their opinion, Bern "had really slipped over the past year," a comment Puckett memorialized in a memorandum dated October 15, 1992. Id.

 On June 25, 1993, Puckett and Hoeck jointly called Bern. See Puckett Dep., Ex. 11. Puckett and Hoeck told Bern that UMA had decided to take the White Plains office in a new direction, which would include putting Cozzi in charge of the office. The two men suggested that it was time for Bern to step aside and let Cozzi take over. Bern asked whether he was being fired, and was told that he should consider whether he would like to retire. At that point, Hoeck asked Bern what his retirement intentions had been. Bern told Hoeck that he had intended to continue working until he was 70 1/2 years old, at which point Hoeck replied that this would have given Bern the "longevity record." Id. Hoeck and Puckett then gave Bern the weekend to consider whether he wanted to retire. A few days later, Bern spoke to Puckett about a number of issues and, in the course of that conversation, indicated that he wanted his departure from the company announced as his retirement. Id.

 In July 1993, Bern's administrative duties were reassigned to Alan Cozzi, who was thirty-eight years old at the time and had been with the company for approximately twelve years. In addition to undertaking Bern's administrative duties, Cozzi was required to maintain his full complement of collection duties. Bern left UMA's employ on September 30, 1993, at which time the company paid to fly Bern and his wife to Louisville, Kentucky (where UMA's headquarters are located) for a retirement dinner. See Puckett Dep., Ex. 24. Bern filed a complaint with the EEOC in November 1993 alleging that his termination had been the result of unlawful age discrimination. After receiving his right to sue letter, Bern commenced this lawsuit.


 It is obvious even from the brief account above that plaintiff has met the de minimis requirements of a prima facie case under the ADEA, see Cronin v. Aetna Life Ins. Co., 46 F.3d 196, 204 (2d Cir. 1995), but that defendant, in turn, has shown facially non-discriminatory reasons for plaintiff's termination. Accordingly, plaintiff bears the burden of showing that there are disputed issues of material fact that, if resolved in his favor, could lead a reasonable juror to find that the defendant's proffered reasons for Bern's discharge -- cost-cutting, reorganization, and complaints about his performance -- were merely a pretext for discrimination. Gallo v. Prudential Residential Servs., Ltd. Partnership, 22 F.3d 1219, 1225 (2d Cir. 1994). Specifically, plaintiff must show that the proferred reasons were false and that, more likely than not, the ...

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