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July 16, 1997


The opinion of the court was delivered by: POOLER

 Plaintiff Michael H. Donovan brought this action claiming that defendants breached his employment contract and discharged him in violation of the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. §§ 621 et seq., and New York Human Rights Law, N.Y. Exec. Law §§ 290 et seq. Defendants filed a motion for summary judgment and Donovan filed a cross-motion seeking to dismiss eleven of defendants' fifteen affirmative defenses. Dkt. Nos. 24, 27. Because genuine issues of material fact exist, I deny defendants' motion for summary judgment. However, I grant in part Donovan's motion and dismiss defendants' second, third, fourth, eighth and fourteenth affirmative defenses. Moreover, although plaintiff does not specifically address six affirmative defenses on which he seeks summary judgment dismissal, defendants' sixth, seventh, ninth, tenth, eleventh and twelfth affirmative defenses are dismissed to the extent consistent with my holding in Section II. B. herein.


 Defendant Eastern Milk Producers Cooperative Association, Inc. ("Eastern") is a cooperative association that assists its members in marketing and selling agricultural products. Dkt. No. 31, Ex. A, at 7. Defendant Milk Marketing, Inc. merged with Eastern in March 1995. Am. Compl. P 12. *fn1" Eastern's eleven-member Board of Directors (the "Board") hired Donovan as its general manager in 1981 and renewed Donovan's contract five times. Am. Compl. P 19; Def. Mem., Dkt. No. 26, at 1-2. Donovan's last contract covered his employment from October 1992 through March 1995. Am. Compl. Ex. D. According to defendants, Donovan's performance declined during his last contract period, and in October 1994 the Board voted unanimously to (1) not renegotiate Donovan's contract; (2) immediately relieve Donovan of his duties and responsibilities; and (3) appoint a new general manager. Dkt. No. 24, Ex. G.; Def. Mem., Dkt. No. 26, at 10-12. At the time of the Board's decision, Lewis Gardner was the President and Edwin Schoen was the Vice-President of the Board. Am. Compl. PP 15-16.

 On April 27, 1995, Donovan filed his complaint against Eastern and Milk Marketing, Inc., alleging that the Board breached his employment contract and terminated him based on his age. Compl., Dkt. No. 1. On October 10, 1995, Donovan filed an amended complaint adding defendants Gardner and Schoen. Am. Compl., Dkt. No. 10.


 I. Legal Standard

 Summary judgment shall enter if, when viewing the evidence in the light most favorable to the nonmovant, the court determines that "there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). A party seeking summary judgment must 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). If the movant satisfies this initial burden, then the "burden shifts to the nonmovant to proffer evidence demonstrating that a trial is required because a disputed issue of material fact exists." Weg v. Macchiarola, 995 F.2d 15, 18 (2d Cir. 1993) (citation omitted). The nonmovant must do more than show "some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986). In short, the nonmovant must demonstrate to the court that issues of fact exist that must be decided by a factfinder because "they may reasonably be decided in favor of either party." Thompson v. Gjivoje, 896 F.2d 716, 720 (2d Cir. 1990) (citation omitted).

 II. Defendants' Motion for Summary Judgment

 A. Age Discrimination

 In their motion for summary judgment, defendants argue that Donovan failed to raise genuine issues of material fact with respect to his age discrimination claim. Specifically, defendants argue that they terminated Donovan's employment for legitimate, non-discriminatory business reasons. Donovan responds that direct and circumstantial evidence establishes an inference of discrimination sufficient to withstand defendants' motion.

 Donovan's ADEA claim is governed by the "burden shifting McDonnell Douglas-Burdine framework for analyzing pretext claims." *fn2" Equal Employment Opportunity Commission v. Ethan Allen, Inc., 44 F.3d 116, 119 (2d Cir. 1994) (citations omitted). Accordingly, Donovan first must establish "(1) that he was within the protected age group, (2) that he was qualified for the position, (3) that he was discharged, and (4) that the discharge occurred under circumstances giving rise to an inference of age discrimination." Woroski v. Nashua Corp., 31 F.3d 105, 108 (2d Cir. 1994) (quotation and citation omitted). Donovan's burden in establishing this prima facie case is modest. Id. at 109. Defendants concede the first and third elements but maintain that Donovan failed to establish that he was qualified for his general manager position or that an inference of discrimination can be drawn from his termination. *fn3" Def. Mem., Dkt. No. 26, at 14 n.19. However, because they recognize Donovan's modest burden at this stage, defendants correctly focus on the second and third steps of the McDonnell Douglas-Burdine analysis. Id.

 Because Donovan's "evidentiary proffer meets the McDonnell Douglas test for a prima facie case, the burden of production to offer a legitimate non-discriminatory reason for the discharge falls on the employer, while the burden of persuasion on the whole case remains with the plaintiff." Cook v. Arrowsmith Shelburne, Inc., KDT, 69 F.3d 1235, 1239 (2d Cir. 1995). Donovan acknowledged that defendants articulated legitimate, nondiscriminatory reasons for his discharge. *fn4" Pl. Mem., Dkt. No. 30, at 15. Having offered legitimate, nondiscriminatory reasons for the adverse employment action the court's factual inquiry "proceeds to a new level of specificity," requiring that Donovan "produce sufficient evidence to support a rational finding that the legitimate, nondiscriminatory reasons proffered by [defendants are] false, and that more likely than not [his] age was the real reason for the discharge." Viola v. Philips Med. Sys., 42 F.3d 712, 717 (2d Cir. 1994) (emphasis in original) (citing Woroski, 31 F.3d at 110). Donovan relies on four alleged incidents as circumstantial proof of age discrimination: (1) defendant Gardner's statement in 1993 that Donovan and other staff members close to retirement lacked vision; (2) defendant Schoen's 1993 note to Donovan expressing Schoen's belief that Eastern should prepare for the future by acquiring a "young aggressive assistant" general manager; (3) a document allegedly from Gardner or Schoen containing a similar reference to a "younger aggressive assistant" general manager, and (4) Schoen's deposition testimony in which he stated that the Board's executive committee "wanted a younger, aggressive" general manager. Donovan Aff., Dkt. No. 28, PP 56, 59, 60, 61.

 The defendants argue that, notwithstanding these alleged incidents the alleged discriminatory animus of Gardner and Schoen cannot be imputed to the eleven-member Board's unanimous decision to discharge Donovan. See Def. Mem., Dkt. No. 26, at 17-18. I disagree. Donovan produced sufficient evidence to create a question of fact whether the alleged discriminatory animus of Gardner and Schoen infected the Board's decision making process. In his deposition, Gardner testified that when John Siglow, the employee whom the Board hoped to retain and who ultimately replaced Donovan as general manager, indicated his desire to leave Eastern, Gardner initiated conversations in the fall of 1994 with the Board about not renewing Donovan's contract. Gardner Dep., Dkt. No. 39, at 58-59. When Siglow decided to leave Eastern, Gardner telephoned the officers of the Board and specifically discussed terminating Donovan's contract. Id. at 63-64. The officers then contacted other members of the Board to discuss Donovan's termination. Id. at 64-66. On the day that the Board met and voted to end Donovan's affiliation with Eastern, the Board conducted its conversations about Donovan in executive session, and no minutes of the Board's conversations exist. Id. at 92, 94. Schoen testified that the Board members "all kept in contact with each other and we all kind of understood where we were all coming from." Schoen Dep., Dkt. No. 35, Ex. CC, at 36. Schoen also testified that while considering whether to hire Siglow to replace Donovan, the Executive Committee of the Board met with Siglow. In response to questioning by plaintiff's counsel, Schoen described part of that meeting as follows:

Q. What was said during that meeting?
A. We listened specifically to what John [Siglow] -- He wanted it right up front that he did not want to take Mr. Donovan's job, and we at the executive committee made it perfectly clear whether John took it or didn't take it, Mr. Donovan was history, and we wanted a younger, aggressive -- I shouldn't say young. We wanted an aggressive ...

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