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.
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.
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.
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.
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.
(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.
(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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