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January 3, 1997

TERENCE BOYLE, Plaintiff, against McCANN-ERICKSON, INC., Defendant.

The opinion of the court was delivered by: BATTS


 DEBORAH A. BATTS, United States District Judge.

 Plaintiff brought this action pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq., alleging employment discrimination based on national origin, pursuant to the Age Discrimination in Employment Act, 29 U.S.C. §§ 621 et seq. ("ADEA"), and pursuant to Section 296 of the New York State Executive Law. Defendant now moves for summary judgment.


 Plaintiff was born on June 29, 1935, and is an American-born citizen. (Pl.'s & Def.'s 3(g) Stmts. PP 2-3.) *fn1" Defendant McCann Erickson, Inc. is the advertising agency, (Id. PP 5), where Plaintiff began working in 1981, doing freelance work. (Pl.'s 3(g) Stmt. P 6.)

 When Plaintiff was hired he signed a "Confirmation of Employment and Salary Agreement" which stated, "THE EMPLOYMENT PERIOD TO BE AT WILL." (Pl.'s & Def.'s 3(g) Stmts. PP 8.) When Plaintiff was hired he was a member of the International Team ("IT") and remained on the IT until December 1991, when he was transferred to McCann New York. (Id. PP 9.)

 The IT had four people on its team in 1979, which increased to 25 by 1991. (Id. PP 10.) Its purpose was to assist the local offices with international accounts, specifically to service a Coca-Cola account to apply advertisements to specific countries and their cultures. (Id. PP 11.) Most of Plaintiff's work was on the Coca-Cola account and he won awards for his work on Coca-Cola jingles. (Id. PP 13.)

 Several people supervised Plaintiff during his time with the IT, including Marcio Moreira ("Moreira") who supervised Plaintiff from 1981 until approximately 1986. In 1988, Moreira became Vice Chairman Chief Creative Officer International and was still responsible for the IT and continued to supervise Plaintiff, although not directly. (Id. PP 14.) During his tenure, Moreira wrote three of the four formal evaluations of Plaintiff's work, Plaintiffs salary rose from $ 65,000.00 to $ 115,000.00 in 1992, and Plaintiff received several bonuses which were tied to the company's profits. (Id. PP 15, 17-19.) However, Plaintiff was the only member of the IT who did not receive a bonus in 1991. (Id. PP 20.)

 Sometime in the late 1980s Arnold Blum became the Creative Director of the IT. (Id. PP 22.) Plaintiff complained to Blum about his use of ageist comments. (Id. PP 23.) Although Blum never apologized, such comments were never made again by Blum. (Id.) Plaintiff's other supervisor called Plaintiff's work "old fashioned" and "not fresh." (Id. PP 26.) Plaintiff asserts that these comments were ageist and commenced sometime before 1989 continuing beyond 1990. (Id. PP 27.)

 In February 1991, David Tutin, Geoff Nauss and Bob Nisbet were designated as co-creative directors of IT, (Id. PP 40), accordingly, IT was split into three groups, each group handling different clients or different aspects of Coca-Cola. (Id. PP 42.) Plaintiff felt, Tutin, who was born on March 27, 1952, in Britain, and who was Plaintiff's director, made ageist remarks and remarks regarding Plaintiff's national origin. (Id. PP 42, 46, 54.) Other people observed Tutin's behavior and supported Plaintiff's observations. (Id. PP 48.) Plaintiff was also unhappy with the nature of the work, in that it was not challenging enough for his capabilities. (Id. PP 43, 47, 49.) He attributed this to the tense relationship between him and Tutin. (Id. P 52.)

 Plaintiff complained to Moreira, who told him to resolve the situation with Tutin. (Id. PP 63-64.) Plaintiff felt that Tutin had permission to be abusive to pressure him to quit before vesting in his pension plan. (Id. PP 56.) *fn2"

 By the end of 1991, Coca-Cola shifted most of its account from the IT to McCann Erickson New York. (Id. PP 73-74.) At that time most of the IT members were transferred or quit. (Id. PP 76.) The creatives left on the IT included foreign nationals and one American. (Id.) Other Americans remaining on IT were members of production. (Id.) Plaintiff was transferred to McCann New York. (Id. PP 78-79). However, Plaintiff continued to feel that the lack of work or the work given to him did not match his capabilities. (Id. PP 80-81.) In January 1992, Plaintiff was assigned to a group headed by Paul Capelli, who Plaintiff claims made ageist comments. (Id. PP 81-82.) In April 1992, Plaintiff was assigned to Ken Domanski's group, at which time Plaintiff continued to get work which he felt was menial; he also continued to be the brunt of ageist comments. (Id. PP 84, 86, 89-95.) In November 1992, Domanski and the other creative directors were told to reduce their payroll, Domanski had to reduce his by $ 400,000.00 (Id. PP 102-03.) Domanski submitted four names, one of which was the Plaintiff's name. (Id. PP 104.) Plaintiff was terminated in December 1992, at the age of 57. (Id. PP 7, 109.)


 The principles applicable to summary judgment are familiar and well-settled. Summary judgment may be granted only when there is no genuine issue of material fact remaining for trial, and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986); Corselli v. Coughlin, 842 F.2d 23 (2d Cir. 1988). "The plain language of Rule 56(c) mandates the entry of summary judgment, . . . against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986).

 As a general rule, all ambiguities and all inferences drawn from the underlying facts must be resolved in favor of the party contesting the motion, and all uncertainty as to the existence of a genuine issue for trial must be resolved against the moving party. LaFond v. General Physics Servs. Corp., 50 F.3d 165, 171 (2d Cir. 1995). As is often stated, "viewing the evidence produced in the light most favorable to the nonmovant, if a rational trier could not find for the nonmovant, then there is no genuine issue of material fact and entry of summary judgment is appropriate." Binder v. LILCO, 933 F.2d 187, 191 (2d Cir. 1991); see also Bay v. Times Mirror Magazines, Inc., 936 F.2d 112, 116 (2d Cir. 1991).

 The Defendant has moved for summary judgment on all nine causes of actions brought by the Plaintiff.

 A. Plaintiff's Claims for Age Discrimination: First, Second and Fifth Causes of Action

 Plaintiff claims he was discriminated against based on his age, in violation of the ADEA (Compl. PP 51-54), and the New York State Executive Law. (Compl. PP 67-70.) Plaintiff also seeks liquidated damages upon a finding that Defendant's acts were willful. (Compl. PP 55-57.)

 Pursuant to the ADEA, an employer may not discharge or otherwise discriminate against its employees on the basis of their age. 29 U.S.C. § 623(a)(1). However, an employer may discharge an employee for reasons other than age, that could be associated with age. Hazen Paper Co. v. Biggins, 507 U.S. 604, 611, 123 L. Ed. 2d 338, 113 S. Ct. 1701 (1993); Bay v. Times Mirror Magazines, Inc., 936 F.2d 112, 117 (2d Cir. 1991). Thus, "it is incorrect to say that a decision based on years of service is necessarily 'age-biased,'" Hazen Paper, 507 U.S. at 611, or that a decision cannot be based on salary. *fn3" Bay, 936 F.2d at 117.

 An employee alleging discrimination pursuant to the ADEA has the burden on proving that age was a determinative factor in the employment decision. The employee does not have to show it was the principal factor but that it was a "significant contributing factor," Lowe v. Commack Union Free School Dist., 886 F.2d 1364 (2d Cir. 1989), cert. denied, 494 U.S. 1026, 108 L. Ed. 2d 608, 110 S. Ct. 1470 (1990), or a determinative factor considered by the employer in its decision to terminate the employee. Hazen Paper, 507 U.S. at 610.

 In order to make out a prima facie case for age discrimination pursuant to the ADEA, *fn4" a Plaintiff must show that 1) he is in the protected age group; 2) he is qualified for the job; 3) he was discharged; and 4) the discharge occurred under circumstances giving rise to an inference of age discrimination. Maresco v. Evans Chemetics, 964 F.2d 106, 110 (2d Cir. 1992); Montana v. First Fed. S&L Ass'n, 869 F.2d 100, 106 (2d Cir. 1989). If the plaintiff satisfies this burden, the burden of production *fn5" shifts to the defendant to state a legitimate, nondiscriminatory reason for the discharge. If the defendant succeeds in meeting this burden, then the burden shifts back to the plaintiff to show that the employer's reason is a pretext. Montana, 869 F.2d at 105.

 Plaintiff is a member of a protected class, *fn6" he was discharged, and for purposes of this motion, the parties seem to agree he was qualified. *fn7" The only issue for the Court is whether the circumstances surrounding the discharge give rise to an inference of age discrimination. The inference may be shown through direct, statistical or circumstantial evidence. Montana, 869 F.2d at 104; Piasecki v. Daughters of Jacob Nursing Home, Inc., 808 F. Supp. 1136, 1140 (S.D.N.Y. 1992).

 Plaintiff claims, based on the statements made by, and the actions of, his various supervisors, the statistics of those who worked for the Defendant and their ages, and the belief that he was replaced by a younger worker, that he was discharged based on his age. Plaintiff cites the following incidents in support of his claim of age discrimination:

 (1) Blum, who left the employ of the Defendant in 1990, at age 46, allegedly made the following comments to Plaintiff -- "still functioning at your age," "how can you write rock and roll at your age," "can you believe this is the work of a man that is 50 and a grandfather," and "not so bad for a guy in his fifties." (Pl.'s 3(g) Stmt. at 37-38; Pl.'s Responsive 3(g) Stmt P 42.) *fn8"

 (2) Sometime in 1989 and 1990, Moreira called Plaintiff's work old-fashioned. (Pl.'s 3(g) Stmt. P 45; Pl.'s Dep. 65-66.)

 (3) Jones, who left the employ of the Defendant in 1991, said Plaintiff was "a pain in the ass and an old woman." (Pl.'s Responsive 3(g) Stmt. P 21.) These statements were not made to Plaintiff but to Plaintiff's co-worker, Andrew Boncher. *fn9" In his deposition Plaintiff states, "Jones was a very benevolent creative director, and he didn't in any way refer to my age." (Pl.'s Dep. at 102-03.)

 (4) Beginning in 1991 Plaintiff claims he was continuously given lesser work which he considered to be a demotion. (Pl.'s & Def.'s 3(g) Stmts. PP 49.)

 (5) In February 1991, Plaintiff's supervisor, Tutin, made several statements Plaintiff considers to be evidence of age discrimination, including, "the only reason I have asked for you on my department is because I believe that old men are trainable . . . . You're style of writing is old-fashioned." Tutin criticized Plaintiff's writing as "passe," "below standards," and "poor." (Pl.'s 3(g) Stmt. P 22.)

 (6) After Plaintiff was transferred to McCann New York, he worked for Paul Capelli. Capelli made two comments that Plaintiff claims were ageist -- "even Boyle is able to do something contemporary," and Plaintiff's work is "sort of out of date." (Pl.'s & Def.'s 3(g) Stmts. PP 81-82.) However, Plaintiff did not complain about these comments and Capelli left soon thereafter. (Id. PP 83.)

 (7) When Plaintiff was assigned to work on Ken Domanski's *fn10" team, in April 1992, he was subject to "intense" supervision, which he considered to be a sign of discrimination. (Pl.'s & Def.'s 3(g) Stmts. PP 84, 86; Pl.'s Responsive 3(g) Stmt. P 43.) He complained of lack of work, which he also considered to be an act of discrimination. (Pl.'s Responsive 3(g) Statement P 44.) Plaintiff alleges the work Domanski did assign him was to failing or unprofitable accounts. (Pl.'s Mem. Law at 5.) On one occasion, Plaintiff's co-workers came to Domanski looking for assistance on a project. (Id. P 45.) When Plaintiff volunteered, the co-worker stated, "we want somebody younger to work on this brand." (Id. PP 46-48.) Domanski eventually assigned two people, other than the Plaintiff, one of whom was 48. (Pl.'s Mem. Law at 13.)

 (8) Finally, Plaintiff alleges that Moreira sanctioned the treatment of Plaintiff by refusing to act on his complaints. On one occasion Plaintiff complained to Moreira about Tutin. Plaintiff did not complain about age discrimination but about Tutin's abuse. (Pl.'s Dep. at 158-59.) Moreira cut Plaintiff off and said he had to work it out with Tutin.

 Taking these allegations together and at face value, they constitute the final element necessary for a prima facie case. *fn11" However, the Defendant has advanced a legitimate nondiscriminatory reason for Plaintiff's discharge. Sometime before Plaintiff was terminated, Domanski had divided his team into the A and B groups. There were six names on the B list, 3 of which were employees under the age of forty. (Turchin Aff. Ex. G; Def.'s Mem. Law at 23-24.) Domanski was then called on to reduce his payroll by $ 400,000.00 by letting those employees go who would not affect Defendant's ability to service clients. (Pl.'s & Def.'s 3(g) Stmts. PP 102-03.) Reductions thereafter occurred in November and December 1992. Five of those, including the three under 40 and the Plaintiff, on the B list left the employ of the Defendant. In 1993, Domingo Perez, age 37, was hired and assigned to the team and a 53-year-old was transferred to the team. (Domanski Dep. at 142.) The Court finds the Defendant has advanced a nondiscriminatory reason for Plaintiff's termination.

 Once a defendant has advanced a nondiscriminatory reason for the discharge, the plaintiff must show that the reason is a pretext "either directly by persuading the court that a discriminatory intent more likely motivated the employer, or indirectly by showing that the employer's proffered explanation is unworthy of credence." Piasecki, 808 F. Supp. at 1140-41 (quoting Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 256, 67 L. Ed. 2d 207, 101 S. Ct. 1089 (1981)). If the Plaintiff is unable to provide direct evidence of age discrimination, then the inference may be shown through statistical or circumstantial evidence. Fisher v. Vassar College, 70 F.3d 1420, 1450 (2d Cir. 1995); Montana, 869 F.2d at 104; Piasecki, 808 F. Supp. at 1140. Plaintiff must "produce sufficient evidence to support a rational finding that the legitimate, nondiscriminatory reasons. proffered by the employer were false, and that more likely than not the employee's age was the real reason for the discharge." Woroski v. Nashua Corp., 31 F.3d 105, 110 (2d Cir. 1994). The evidence Plaintiff advances has already been laid out above.

 Although ageist statements are an indication used to support a plaintiff's prima facie case that the discharge was based on age, Piasecki, 808 F. Supp. at 1141, they do not establish, on their own, direct evidence. Therefore, while they may be sufficient for a court to infer discrimination, they are not sufficient to satisfy Plaintiff's ultimate burden. Fisher v. Vassar College, 852 F. Supp. 1193, 1231 n.25 (S.D.N.Y. 1994), aff'd, 70 F.3d 1420, 1450-51 (2d Cir. 1995).

 Furthermore, the allegedly ageist statements made, must be scrutinized -- are they ageist statements or statements indicating something connected to age but not discriminatory. Haskell v. Kaman Corp., 743 F.2d 113, 120 (2d Cir. 1984) (calling employees "old ladies with balls" or "young turks" are not relevant to whether one was discriminated against on account of his age); Fisher, 852 F. Supp. at 1231 n.25 (statements indicating one is "not up to speed" in techniques in the field are not direct evidence); Getschmann v. James River Paper Co., 822 F. Supp. 75, 78 (D. Conn. 1993), aff'd, 7 F.3d 221 (2d Cir. 1993) (supervisor's comments -- "it is sometimes difficult to teach a dog new tricks," and plaintiff is "set in his ways" were not sufficient to meet plaintiff's burden); Fisher v. Asheville-Buncombe Tech. Community College, 857 F. Supp. 465, 469 (W.D.N.C. 1993), aff'd, 25 F.3d 1039 (4th Cir. 1994) (calling someone's work "outdated" found not to be discriminatory.)

  Many of the statements Plaintiff alleges were discriminatory indeed are not. The statements made by Jones and Moreira are not discriminatory. See Haskell, 743 F.2d at 120; Fisher, 857 F. Supp. at 469; Fisher, 852 F. Supp. at 1231 n.25. Nor are those made by Capelli. See Fisher, 852 F. Supp. at 1231 n.25; Getschmann, 822 F. Supp. at 78. Tutin's comments were not directed at Plaintiff's age but at the quality of his writing. *fn12" There is nothing to indicate that Tutin found Plaintiff's work to be unsatisfactory only because he was older than Tutin.

 Furthermore, most of the statements were made by those not involved in the discriminatory discharge. *fn13" Fisher, 852 F. Supp. at 1231 n.25; Getschmann, 822 F. Supp. at 78. Blum, Jones, Capelli and Tutin were not involved in the decision to terminate Plaintiff. None of them were even at McCann New York with the Plaintiff at the time of his termination. There is no connection between their comments, even if found to be ageist, and the resulting discrimination -- the termination. Accordingly, Plaintiff cannot rely on their comments as proof of age discrimination. See, e.g., Corcoran v. GAB Business Servs., Inc., 723 F. Supp. 966 (S.D.N.Y. 1989).

 Plaintiff claims that the statements made by supervisors who did not have a decision in his discharge, although they cannot be used regarding the discriminatory firing, can be used to show a hostile corporate attitude. (Pl.'s Mem. Law at 9.) Plaintiff does not claim he is asserting a constructive discharge cause of action, (Pl.'s Mem. Law at 10 n.3), however he argues that the various supervisors' statements show a hostile corporate attitude that would be admissible to show age discrimination. Plaintiff cites to two cases -- Malarkey v. Texaco, Inc., 983 F.2d 1204 (2d Cir. 1993); Chase v. J. Walter Thompson Co., 1992 U.S. Dist. LEXIS 1485, No. 89 Civ. 7989, 1992 WL 30934, at *4 (S.D.N.Y. Feb. 13, 1992) -- one which is a case of retaliatory failure to promote and one of discriminatory firing. In one case the plaintiff continued to work for the defendant during the time the discriminatory acts occurred. Here, the discriminatory act is the termination. Plaintiff was not forced to quit because of the treatment he received, he was fired. Accordingly, Plaintiffs circumstances do not come under a hostile corporate claim. Chase considered the comments of people who were in the "chain of command" and held that statements by those who had a role in the discriminatory decision can be considered. However, the Court fails to see how a supervisor's comments, who had no contact with the Plaintiff at the time of termination, show a discriminatory reason for termination. Although Plaintiff attempts to cure this by suggesting that Moreira knew about the age discrimination and did nothing, this contention is unsupported. Moreira did not know about Blum's comments because, as Plaintiff testified, once Plaintiff told Blum, he ceased making any comments to Plaintiff. Plaintiff testified Jones never made any comments. In addition, Plaintiff never complained to Moreira about any comments he had made and Plaintiff told Moreira that Tutin was abusive, not that he was ageist. Finally, Plaintiff told Moreira that Domanski was not giving him legitimate work, diminished his responsibilities, passed him up for a promotion, and put him under the strict supervision of a younger team member. *fn14" There is no mention however, that Plaintiff indicated to Moreira he believed the reason for this treatment was due to his age.

 Plaintiff also feels he was given lesser responsibilities at different times in his career with Defendant. However, this is not evidence of discrimination. In fact, the dissatisfaction expressed by the Plaintiff can be cause for termination. "[Plaintiff's] deposition testimony itself established that he was dissatisfied in the downgraded position both because of his diminished responsibilities and [who he had to] report to . . . . Dissatisfaction in a downgraded position is a legitimate reason for an employer to replace an employee with someone not distracted by such dissatisfaction." Bay, 936 F.2d at 118.

 Although being replaced with a younger employee lends itself to an inference of age discrimination, Montana, 869 F.2d at 105; Piasecki, 808 F. Supp. at 1141, Plaintiff has not shown that he was replaced with a younger employee. Plaintiff states his position was Vice President, Associate Creative Director. (Pl.'s Responsive 3(g) Stmt. P 51.) In January 1993, Domingo Perez, age 37, was hired as Vice President, Associate Creative Director. *fn15" (Id. P 52.) Defendant states that Perez was an art director and Plaintiff a copyrighter. Hence, they had different skills and one could not replace the other. (Def.'s Mem. Law at 24.) Plaintiff does not offer any evidence to rebut this. Therefore, although Perez was younger than Plaintiff, it has not been shown that he replaced Plaintiff.

 Hiring of new employees can also be used to infer age discrimination. Montana, 869 F.2d at 105. Plaintiff claims before the reductions occurred Domanski hired two people in their thirties and terminated three people over forty. (Pl.'s Responsive 3(g) Stmt. P 49.) Plaintiff does not provide documents to support the statistics on hiring. As to the firings, Defendant states that the three people over forty were terminated because the client they worked for, General Motors, left Defendant. *fn16" (Domanski Dep. at 146.) Plaintiff has not offered any evidence to the contrary. Furthermore, Plaintiff does not explain how he calculated who was and was not counted in the statistics advanced. Even a cursory look at the employees fired who were copyrighters or creatives shows more people under 40 who were "released" or otherwise terminated, than stated by Plaintiff. In the document cited by Plaintiff, his position is listed as "ACD" and the reason for termination is "released." (Pl.'s Aff. Ex. 15.) In 1992, at about the same time Plaintiff was terminated, there were 2 employees under 40 who were "ACD" and "released." One other "ACD" employee, under 40, was terminated for "staff reductions." There were two employees over 40, including Plaintiff, who were "ACD" and were "released." The other two employees over 40, cited by the Plaintiff, were "SRVPACD," and were terminated for "loss of business." Accordingly, these statistics do not show any discrimination by the Defendant. Plaintiff attempts to show discrimination by grouping employees into those who represented the Defendant to its clients on a regular basis and those who did not. (Id. PP 54-56.) He concludes that the number of people over 40 who had contact with clients decreased over the years. 1990 -- 83 out of 166, 50% 1993[sic] -- 69 out of 146, 47% 1993 -- 42 out of 146, 29%


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