Deshais" and that Conrail arbitrarily changed employees' performance evaluations. (Sanocki Aff. PP 5-11).
However, a close examination of John Sanocki's affidavit reveals its deficiency. First, Mr. Sanocki does not state the basis of his knowledge concerning his assertions. Second, the affidavit generically identifies "Conrail management" without specifying any particular individuals. Third, Sanocki does not identify any decision-maker at Conrail who had a role in the decision to abolish Plaintiffs' positions. Finally, Sanocki does not connect Conrail's asserted "age animus" to Conrail's decision to abolish Plaintiffs' positions.
It is well settled that affidavits of persons without personal knowledge of the facts, inadmissible hearsay statements, and conclusory allegations are not sufficient to defeat a properly supported summary judgment motion. See, e.g., Fed. R. Civ. P. 56(e); Matsushita, 475 U.S. at 586 (stating that conclusory affidavits are not sufficient to withstand summary judgment); H. Sand & Co. v. Airtemp Corp., 934 F.2d 450, 454-55 (requiring personal knowledge); Davis v. United Artists, Inc., 547 F. Supp. 722, 728 (S.D.N.Y. 1982) (disallowing multiple hearsay statements).
Moreover, even assuming that Sanocki has personal knowledge of every allegation in his affidavit, and assuming that his affidavit makes specific reference to individuals in Conrail management who had a role in the decision to abolish Plaintiffs' positions, Sanocki's affidavit nevertheless fails to state that Conrail's decision to discharge Plaintiffs was due to Plaintiffs' age. For this reason, the Sanocki affidavit fails raise a genuine issue of material fact as to Conrail's motive for discharging Plaintiffs.
Because Conrail has offered a legitimate nondiscriminatory reason for discharging Plaintiffs, the burden is squarely on Plaintiffs to show not only the falsity of the proffered reasons given by Conrail, but also that discriminatory motive was the true reason for Plaintiffs' discharge. See St. Mary's Honor Ctr., 113 S. Ct. at 2753. In other words, even if Conrail improperly altered Plaintiffs' performance appraisals this alone is not enough. Plaintiffs must still show that a discriminatory motive was behind their discharge. Perhaps Conrail management simply did not like Deshais and Stieg; this may be a lamentable reason to discharge them, but it does not rise to an ADEA violation. See Burger, 94 F.3d at 833. Consequently, Plaintiffs' conclusory allegations of age bias are not sufficient to oppose summary judgment.
On the other hand, Conrail's undisputed evidence supports the conclusion that Conrail's decision was unrelated to age. Of the 73 supervisors evaluated, only 9 were younger than forty on June 30, 1992, and Conrail retained fifteen supervisors who were older than plaintiff Deshais and twenty-two supervisors who were older than plaintiff Stieg. (Def's Rule 7.1(f) Statement PP 16, 21). Furthermore, three of the four oldest employees whose positions were abolished in the June 1992 workforce reduction were subsequently placed in non-agreement management positions equal to or higher in job level than their former positions. (Def's Rule 7.1(f) Statement P 19).
After an examination of the entire record, there is nothing to indicate that Conrail's reason for discharging Plaintiffs was anything but truthful. Plaintiffs have submitted insufficient evidence to indicate that reasons other than what has been proffered by Conrail played a role in the decision process. Accordingly, Plaintiffs have not met their burden in showing that a triable issue of fact exists as to whether Conrail's proffered reasons for their discharge were merely pretext. And, for this reason, Plaintiffs' age discrimination claim must be dismissed.
C. Common Law Fraud
Plaintiffs' second cause of action alleges that Conrail committed fraud in connection with the EEOC's investigation of Plaintiffs' charges of discrimination. Specifically, Plaintiffs allege that Conrail submitted performance appraisals with forged signatures and alterations to the EEOC and that Conrail represented to the EEOC that it would "rehire the aforesaid ten supervisors who were laid off for the purpose of halting the investigation." (Amended Complaint at P 34).
Under New York law, to recover for common law fraud a plaintiff must demonstrate that "(1) the defendant made a material false representation, (2) the defendant intended to defraud the plaintiff thereby, (3) the plaintiff reasonably relied upon the representation, and (4) the plaintiff suffered damage as a result of such reliance." Banque Arabe et Internationale D'Investissement v. Maryland Nat. Bank, 57 F.3d 146, 153 (2d Cir. 1995); see also Albert Apartment Corp. v. Corbo Co., 182 A.D.2d 500, 582 N.Y.S.2d 409 (1st Dep't 1992).
Addressing the first prong of Plaintiffs' fraud claim, Conrail avers that it did not submit any performance appraisals, let alone altered performance appraisals, to the EEOC in response to the EEOC's investigation. In fact, Plaintiffs themselves admit that they do not know if any performance appraisals were submitted by Conrail to the EEOC. For example, in Stieg's deposition he states:
Q. Do you know if Conrail ever submitted [a performance appraisal?]
A. I have no idea what Conrail did.