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February 5, 1997

TEKTRONIX, INC., Defendant.

The opinion of the court was delivered by: LARIMER

 This is an age discrimination case brought pursuant to the Age Discrimination in Employment Act, 29 U.S.C. § 621, et seq. ("ADEA") and New York's Human Rights Law, New York Executive Law § 290, et seq. ("NYHRL"). Presently before me is defendant's motion for summary judgment and defendant's motion for sanctions. For the reasons set forth below, the motion for summary judgment is denied in part and granted in part. The motion for sanctions is denied.


 Defendant Tektronix manufactures and supplies, inter alia, electronic testing and measuring products and systems. Plaintiffs are former employees in Tektronix' Test and Measurement ("T&M") Division, who sold test and measurement equipment in Western New York and Northern Pennsylvania. Plaintiffs were laid off as part of a firm-wide reduction in force in the spring of 1992.

 Plaintiff Raymond A. Hunt ("Hunt") was hired by Tektronix in June 1982. At the time he was laid off he was the Rochester Area Sales Manager and was 51 years old. He supervised the other plaintiffs, each of whom serviced clients within his geographic area.

 Plaintiff Jerome Bambach ("Bambach") was hired by Tektronix in April 1975. At the time he was laid off, Bambach was Senior Sales Engineer and was 50 years old. His primary client was Kodak, located in Rochester, New York.

 Plaintiff Steven G. Erickson ("Erickson") was hired by Tektronix in August 1988. At the time he was laid off, he was Sales Engineer and was 47 years old. His primary clients were General Electric and Xerox, also located in Rochester, New York.

 Plaintiff Roger R. Williams ("Williams") was hired by Tektronix in April 1967. At the time he was laid off he was a Consulting Sales Engineer and was 51 years old. Williams' sales responsibilities were divided between several geographic accounts in Northern Pennsylvania and IBM, in New York.

 In the late 1980's and early 1990's, the volume of Tektronix' T&M business steadily declined due to a variety of circumstances including decreasing demand for products because of reduced defense spending and increased competition and expenses. In an effort to respond to these circumstances, the company went through several restructurings, including some staff reductions.

 During this period, Jim Koehn ("Koehn") was Tektronix' National Sales Manager. He was charged with making whatever changes were necessary to reverse the downward slide in sales. As part of his effort, in early 1991 Koehn hired Sherm Willows ("Willows") to be the Eastern Region Sales Manager. At this time, Koehn was 50 and Willows was 54 years old.

 Koehn effected a restructuring of the T&M Division in late 1991. The company's fiscal performance continued to deteriorate and in January 1992 senior management determined that further workforce reductions would be required, including approximately one hundred T&M employees nationwide.

 In late January 1992, Koehn directed Willows to determine how best to consolidate sales areas and staff within his region in order to achieve the necessary cost savings. Faced with this directive, Willows decided to eliminate the Rochester Area. In March 1992, Willows informed Hunt, the Rochester Area Sales Manager, that he was being laid off and that his territory was going to be divided between the New England, the NY/NJ/PA, and the Mid-Atlantic Sales Areas. Thus, plaintiffs Bambach and Erickson's sales territories were absorbed into the Mid-Atlantic Area, and plaintiff Williams' sales territory was divided between the New England and the NY/NJ/PA Sales Areas.

 At this time Willows further delegated the responsibility for deciding who would be laid off to the Area Sales Managers for those sales areas. The Area Sales Manager for the New England Area was Sue Miner ("Miner"); the Area Sales Manager for NY/NJ/PA was Michael Oliveri ("Oliveri"); and the Area Sales Manager for the Mid-Atlantic Area was Scott Bausback ("Bausback").

 Subsequent to an Area Sales Managers meeting in March 1992, Bausback determined that Bambach and Erickson would be laid off, and informed them of his decision. Minor and Oliveri determined that Williams would be laid off, and Oliveri informed him of their decision.

 Plaintiffs allege that Tektronix deliberately sought to eliminate older salesmen and hire new, younger persons into its sales force. Thus, plaintiffs allege that their termination was the result of Tektronix' intent to discriminate against them due to their age, in violation of the ADEA and the New York Human Rights Law. Plaintiffs also assert that their termination was the result of a neutral policy causing disparate impact on them, in violation of the ADEA.

 Tektronix asserts that age had nothing to do with the plaintiffs' terminations and that the 1992 layoffs were driven by legitimate business needs. Tektronix moves for summary judgment on the grounds that plaintiffs have failed to meet their burden of establishing unlawful discrimination in violation of the ADEA and/or the New York Human Rights Law. Additionally, Tektronix asserts that plaintiffs' disparate impact claim -- under the ADEA -- cannot be sustained as a matter of law.


 A) Summary Judgment Standards

 Pursuant to Fed.R.Civ.P. 56(c), a moving party is entitled to a judgment as a matter of law if there is "no genuine issue as to any material fact" and where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986). The burden is on the moving party to inform the court of the basis for its motion and to demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). After the moving party has carried its burden, 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. "The non-moving party must come forward with 'specific facts showing that there is a genuine issue for trial.'" Id. at 587 (quoting Fed.R.Civ.P. 56(e) (alteration in original)). However, at the summary judgment stage, when perusing the record to determine whether a rational fact-finder could find for the non-moving party, all reasonable inferences must be drawn in favor of the non-moving party. See Murray v. Nat'l Broad. Co., 844 F.2d 988, 992 (2d Cir.), cert. denied, 488 U.S. 955, 102 L. Ed. 2d 380, 109 S. Ct. 391 (1988).

 The general principles underlying a motion for summary judgment apply no less to this action simply because it is an employment discrimination case. It is true that courts exercise caution when considering whether to grant summary judgment in cases where an employer's intent is at issue. See, e.g., Gallo v. Prudential Residential Servs., 22 F.3d 1219, 1224 (2d Cir. 1994). However, "summary judgment remains available to reject discrimination claims in cases lacking genuine issues of material fact." Chambers v. TRM Copy Ctrs. Corp., 43 F.3d 29, 40 (2d Cir. 1994). For a plaintiff in a discrimination case to survive a motion for summary judgment, he must do more than present "conclusory allegations of discrimination," Meiri v. Dacon, 759 F.2d 989 (2d Cir.) cert. denied, 474 U.S. 829, 88 L. Ed. 2d 74, 106 S. Ct. 91 (1985); he must offer "concrete particulars" to substantiate the claim. Id., cited in, Duprey v. Prudential Ins. Co., 910 F. Supp. 879 (N.D.N.Y. 1996).

 B) Summary Judgment Analysis in ADEA Cases

 The ADEA provides that it "shall be unlawful for an employer . . . to discharge any individual or otherwise discriminate against any individual ... because of such individual's age." 29 U.S.C. § 623(a)(1). The ADEA also provides that it shall be unlawful for an employer "to limit, segregate, or classify his employees in any way which would deprive... any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's age." 29 U.S.C. § 623(a)(2). Specifically, this law applies to individuals who are at least forty years of age. 29 U.S.C. § 631(a).

 C) Disparate Treatment - Pretext Theory

 When analyzing a summary judgment motion in an ADEA case based upon circumstantial evidence, courts apply the so-called McDonnell-Douglas analysis:

first the plaintiff has the burden of proving by the preponderance of the evidence a prima facie case of discrimination. Second, if the plaintiff succeeds in proving the prima facie case, the burden shifts to the defendant to "articulate some legitimate; nondiscriminatory reason for the employee's rejection..." Third, should the defendant carry this burden, the plaintiff must then have an opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination.

  Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 252-53, 67 L. Ed. 2d 207, 101 S. Ct. 1089 (1981) (quoting McDonnell Douglas v. Green, 411 U.S. 792, 802, 804, 36 L. Ed. 2d 668, 93 S. Ct. 1817 (1973)). See also St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 125 L. Ed. 2d 407, 113 S. Ct. 2742 (1993).

 To establish a prima facie case of wrongful termination under the ADEA, a plaintiff must show that: (1) he is a member of the protected category; (2) he was qualified for his position; (3) he was terminated; and (4) the termination occurred under circumstances giving rise to an inference of age discrimination. See Viola v. Philips Medical Systems of North America, 42 F.3d 712, 716 (2d Cir. 1994). In establishing this prima facie case a plaintiff's burden is de minimis. Chambers, 43 F.3d at 37.

 In cases where a plaintiff articulates a prima facie case and the defendant proffers a legitimate reason for the termination, the analysis often turns on the last prong of the McDonnell-Douglas test, i.e., whether a plaintiff can establish that the rationale offered was a mere pretext for discrimination. See Viola, 42 F.3d at 716. In such cases, to defeat the employer's motion for summary judgment, the "plaintiff must show that there is a material issue of fact as to whether (1) the employer's asserted reason for discharge is false or unworthy of belief and (2) [it is] more likely than not that the employee's age was the real reason for the discharge." Id. (citing Woroski v. Nashua Corp., 31 F.3d 105 (2d Cir. 1994) and St. Mary's Honor Center, 509 U.S. at 515). "At all times the burden of persuasion remains with the plaintiff, who must prove by a preponderance of the evidence that any seemingly legitimate reason proffered by the employer is, in reality, a pretext for unlawful discrimination." De La Cruz v. New York City Human Resources Admin. Dep't of Soc. Serv., 82 F.3d 16, 20 (2d Cir. 1996).

 In this case, plaintiffs have presented sufficient evidence to establish a prima facie case *fn1" , and Tektronix has offered a legitimate, nondiscriminatory reason for the plaintiffs' layoffs. Thus, my analysis turns on the last prong of the McDonnell-Douglas test. I will examine the plaintiff's proof to determine whether it satisfies the higher burden of establishing a material issue of fact as to whether Tektronix' asserted reason for their layoffs is false or unworthy of belief, and it is more ...

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