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January 18, 1997

ANTHONY A. TANZINI, Plaintiff, against MARINE MIDLAND BANK, N.A., Defendant.

The opinion of the court was delivered by: MCAVOY


 Plaintiff Anthony Tanzini alleges that he was discriminated against on the basis of his age and disability by his former employer, defendant Marine Midland Bank. In addition, Plaintiff alleges that Marine Midland terminated him in violation of the Employee Retirement Income Security Act and in abrogation of his contract of employment.

 Tanzini, a white male who suffered from polio as a child, was a branch manager at Marine Midland's Union-Endicott branch in New York until he was laid off on February 10, 1993. At the time of his termination, Tanzini, who walks with a limp, was 46 years old and had completed approximately 25 years of service with Marine Midland.

 Tanzini was hired by Marine Midland on February 29, 1968, as an adjuster in the Mastercharge Department. In 1970, Marine Midland promoted Plaintiff to Credit Manager in the Mastercharge Department; in 1975, Tanzini became a Loan Interviewer. In 1978, he was Director of Training for the Binghamton area, and in 1982 he was a Commercial Credit Manager. In 1985, he was again promoted, this time to Branch Manager. In 1989, Tanzini was elevated to District Sales Manager. Finally, from 1991 until his termination, Tanzini was Branch Manager/Assistant Vice-President of the Union-Endicott branch.

 During Tanzini's tenure as a Marine Midland employee, he regularly received "good" to "very good" performance evaluations. (Tanzini Aff., Exhs. O & P). As Branch Manager in January 1988, Tanzini was selected to represent his region "at the 1988 Marine Valuable Performer (MVP) conference in St. Thomas, VI." (Tanzini Aff., Exh. U). In addition, less than a month prior to his termination, Tanzini received a "good" performance evaluation. (Tanzini Aff., Exh. O)

 A. The Claims

 Plaintiff Tanzini's Complaint asserts a claim for age discrimination in violation of the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et seq., and the New York Human Rights Law, N.Y. Exec. L. § 290 et seq. Additionally, Plaintiff alleges disability discrimination under the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. ("ADA"). Plaintiff also claims a violation of the Employee Retirement Income Security Act ("ERISA"), 29 U.S.C. § 1140, for discrimination in connection with his eligibility for pension benefits. Finally, Plaintiff asserts a cause of action for breach of employment contract and promise to consider for promotion.


 A. Summary Judgment Standard

 Pursuant to Fed. R. Civ. P. 56(c), a court may grant summary judgment if it appears "that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). Furthermore, it is the substantive law that will determine what facts are material to the outcome of a case. See Anderson, 477 U.S. at 250.

 Initially, the moving party has the burden of informing the court of the basis of its motion. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). If the moving party satisfies its burden, the burden then shifts to the non-moving party to come forward with "specific facts showing that there is a genuine issue for trial." Fed. R. Civ. P. 56(e). The Court must then resolve all ambiguities and draw all reasonable inferences against the moving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986). However, the non-moving party must do more than simply show "that there is some metaphysical doubt as to the material facts." Matsushita, 475 U.S. at 586. Only when the Court concludes that no rational finder of fact can find in favor of the non-moving party should summary judgment be granted. Gallo v. Prudential Residential, Servs., Ltd., 22 F.3d 1219, 1223 (2d Cir. 1994).

 B. ADEA Claim & ADA Claim

 Plaintiff brings a claim for age discrimination under the ADEA, 29 U.S.C. § 621 et seq., and for disability discrimination in violation of the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. Because the standards for liability under the ADEA and ADA are similar, they are easily analyzed together. See, e.g., Heilweil v. Mount Sinai Hosp., 32 F.3d 718, 721-22 (2d Cir. 1994). In fact, both standards are modeled upon the prohibitions of Title VII of the Civil Rights Act. See, e.g., McKennon v. Nashville Banner Pub. Co., 513 U.S. 352, 115 S. Ct. 879, 884, 130 L. Ed. 2d 852 (1995) ("The substantive, antidiscrimination provisions of the ADEA are modeled upon the prohibitions of Title VII.").

 Initially, the Court notes that although summary judgment is no longer a disfavored process for the elimination of groundless claims, see Celotex, 477 U.S. at 322 (summary judgment favored to dispose of meritless claims), a district court should be wary of granting summary judgment in a discrimination case because the device is generally inappropriate where, as is typical, an employer's state of mind is relevant. Gallo, 22 F.3d at 1224. This is not to say that summary judgment is wholly inappropriate; rather, as the Second Circuit has noted, "the summary judgment rule would be rendered sterile . . . if the mere incantation of intent or state of mind would operate as a talisman to defeat an otherwise valid motion. The purposes of summary judgment . . . apply no less to discrimination cases than to . . . other areas of litigation." Meiri v. Dacon, 759 F.2d 989, 998 (2d Cir.), cert. denied, 474 U.S. 829, 88 L. Ed. 2d 74, 106 S. Ct. 91 (1985). Considering the relative ease of bringing a suit alleging discrimination and the difficulty and expense of defending against such a suit, courts correctly find summary judgment proper where allegations of discriminatory intent are merely conclusory.

 i. Prima facie case under ADEA & ADA

 Under the ADEA, an employer is prohibited from discharging an employee "because of [the employee's] age." 29 U.S.C. § 623(a)(1). However, an employer may lawfully discharge an employee based on reasonable factors other than age. See 29 U.S.C. § 623(f)(1). Similarly, under the ADA an employer is prohibited from discriminating against an employee on the basis of an employee's disability. See 42 U.S.C. § 12132.

 In the Second Circuit, ADEA & ADA cases are analyzed under the familiar framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 36 L. Ed. 2d 668, 93 S. Ct. 1817 (1973), a Title VII case. See, e.g., Promisel v. First American Artificial Flowers, 943 F.2d 251, 259 (2d Cir. 1991), cert. denied, 502 U.S. 1060, 117 L. Ed. 2d 110, 112 S. Ct. 939 (1992). Under the test articulated in McDonnell Douglas,

a plaintiff has the burden of establishing a prima facie case of discrimination. This he can do by showing that [(1)] he was a member of a protected [ ] group, [(2)] that he was qualified for his position, [(3)] that he was discharged, [and (4) that he was discharged] under circumstances giving rise to an inference of discrimination. The employer then has the burden of articulating a legitimate, nondiscriminatory reason for its action . . . . The burden shifts back at that point to the plaintiff to prove that this reason is pretextual.

 Promisel, 943 F.2d at 259. Incidentally, this burden-shifting analysis also applies to discrimination claims under New York's Executive Law. See Charrette v. S.M. Flickinger Co., 806 F. Supp. 1045, 1054-55 (N.D.N.Y. 1992); Tyler v. Bethlehem Steel, 958 F.2d 1176 (2d Cir. 1992).

 The Court will now examine each of the steps in the burden shifting analysis in order to determine whether Plaintiff has put forth a viable cause of action. We must be mindful that regardless of how these burdens are described, Plaintiff retains the ultimate burden of persuading the fact finder. ...

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