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August 25, 1997


The opinion of the court was delivered by: LARIMER

 These five actions were commenced by five individual plaintiffs against defendant Prudential Relocation ("Prudential"). All five actions arise out of a reduction in force ("RIF") at Prudential in January 1995, which resulted in the termination of plaintiffs' employment. Plaintiffs allege that they were terminated on account of their age and for other discriminatory reasons. Prudential has moved for summary judgment. Because these cases involve many of the same facts and legal issues, for purposes of this Decision and Order I am consolidating these cases pursuant to Rule 42(a) of the Federal Rules of Civil Procedure, which permits consolidation "of any or all the matters in issue" in "actions involving a common question of law or fact ..."


 Prudential is a business that provides various services to individuals and institutions relating to the relocation process. For example, Prudential assists persons who are relocating in finding new homes, moving their household goods, and so on.

 In 1993, Eastman Kodak Company ("Kodak"), which until then had maintained its own in-house relocation department, decided to out source its relocation functions. Kodak selected Prudential to take over its relocation functions.

 When it announced its decision to out source these functions, Kodak gave its employees who had been in its in-house relocation department two options: either attempt to obtain other employment within Kodak; or apply to Prudential for employment. Plaintiffs all chose the latter course, and did obtain positions at Prudential. Plaintiffs Frances I. Coleman, Willie M. Brown and Anne M. Stromick accepted positions as relocation counselors in November 1993, at which time they were fifty-one, forty-nine and forty-two years old respectively. Plaintiffs David W. Balcer and Donald C. Bowen accepted positions as team leaders in November and December 1993, at which times they were forty and thirty-nine years old respectively.

 In June 1994, Kodak announced that it intended to divest itself of certain divisions so that it could concentrate on its "core" business. As a result, the number of relocations of Kodak employees dropped dramatically, and Prudential's business correspondingly decreased as well. Eventually Prudential's management decided that it would be necessary to reduce its staffing at its Kodak relocation center ("the center") from nineteen to ten employees.

 A plan for deciding who would be terminated was developed by Carolyn Roth, Prudential's Vice President of Client Services; James Mayer, the Director of the center; and Marcia Mains Garcia, a team leader at the center. Employees were to be ranked based upon four criteria: quality of customer service; focus on results; ability to complete tasks under pressure and work in a timely fashion; and adherence to core values and company policy.

 The RIF plan was finalized in late 1994. Nine employees, including all five plaintiffs, were selected for termination out of a total workforce of nineteen employees. Defendant contends that plaintiffs were selected for discharge because they scored lower than other employees in the ranking process. The terminations were effective in January 1995.

 Plaintiffs filed these actions on September 1, 1995. All five plaintiffs assert causes of action under the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et seq., and the New York State Human Rights Law ("HRL"), N.Y. Exec. L. § 296. *fn1" In addition, plaintiff Brown, who is African-American, asserts a claim of race discrimination under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and the HRL. Plaintiffs Balcer and Bowen, who are both males, assert claims of sex discrimination under Title VII. Plaintiff Bowen also asserts a claim of retaliation under the Family and Medical Leave Act of 1993 ("FMLA"), 29 U.S.C. § 2601 et seq., and a claim under New York law for intentional infliction of emotional distress.


 I. General Principles

 Except for Bowen's claim for intentional infliction of emotional distress, all the claims here are subject to a similar mode of analysis, which is that set forth by the Supreme Court in McDonnell Douglas v. Green, 411 U.S. 792, 36 L. Ed. 2d 668, 93 S. Ct. 1817 (1973), and Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 67 L. Ed. 2d 207, 101 S. Ct. 1089 (1981). Plaintiffs must first establish a case of discrimination (or retaliation). The burden of production then shifts to defendant to articulate a legitimate, lawful reason for its action. Plaintiffs then have the burden of proving that defendant's stated reason is in fact a pretext for discrimination or retaliation. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 113 S. Ct. 2742, 2746-47, 125 L. Ed. 2d 407 (1993); Fisher v. Vassar College, 114 F.3d 1332, 1335-36 (2d Cir. 1997) (en banc). Once the party moving for summary judgment has met its burden, then, plaintiffs "must do more than present 'conclusory allegations of discrimination,'" 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), and must offer "concrete particulars" showing that there are genuine issues of material fact concerning their claims. Id. ; Viola v. Philips Med. Systems of North America, 42 F.3d 712, 716 (2d Cir. 1994).

 To make out a prima facie case of discriminatory discharge under the ADEA, Title VII, or the HRL, plaintiffs must show four elements: (1) that they belonged to a protected class; (2) that they were qualified for their positions; (3) that they were discharged; and (4) that the discharges occurred in circumstances giving rise to an inference of discrimination. Fisher, 114 F.3d at 1335; Woroski v. Nashua Corp., 31 F.3d 105, 108 (2d Cir. 1994). To establish a prima facie case of retaliation under the FMLA, a plaintiff must show that he engaged in activity protected by the FMLA, that he was subjected to an adverse employment action, and that there is a causal connection between the protected activity and the adverse action. Morgan v. Hilti, Inc., 108 F.3d 1319, 1325 (10th Cir. 1997); Tomka v. Seiler Corp., 66 F.3d 1295, 1308 (2d Cir. 1995) (Title VII case).

 In the cases at bar, all five plaintiffs belong to a protected class. They were all at least forty years old when they were terminated, and they are also protected under Title VII based on their sex and race. They were also all discharged. Whether they were qualified for their positions, or whether the circumstances surrounding their discharges were suggestive of discrimination, is in dispute. Defendant also contends that Bowen did not engage in activity protected by the FMLA. Since defendant has proffered legitimate, nondiscriminatory reasons for discharging plaintiffs, however, I will assume that plaintiffs have made out a prima facie case of discrimination and retaliation and proceed to analyze their allegations of pretext. See United States Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 715, 75 L. Ed. 2d 403, 103 S. Ct. 1478 (1983) ("Where the defendant has done everything that would be required of him if the plaintiff had properly made out a prima facie case, whether the plaintiff really did so is no longer relevant. The district court has before it all it needs to decide whether 'the defendant intentionally discriminated against the plaintiff'") (quoting Burdine, 450 U.S. at 253); EEOC v. Ethan Allen, Inc., 44 F.3d 116, 119 (2d Cir. 1994).

 II. Coleman's Claim

 Plaintiff Coleman asserts a single claim of age discrimination under the ADEA. She alleges that defendant subjected her to harassment during the year prior to her termination in an effort to induce her to resign voluntarily. When plaintiff did not do so, she alleges that defendant gave her an unjustified negative rating during the RIF process in order to justify terminating her.

 Because of these ongoing problems, defendant states that Coleman was put on probation effective July 13, 1994. On that date, Mayer informed Coleman in a memorandum that he was concerned that Coleman was "carrying around the baggage of frustration stemming from the transition from Kodak to Prudential," and that this "produced continuing negative attitudes and [would] lead to less than satisfactory service evaluations." Defendant's Ex. S.

 Coleman's problems continued, however, to the point that on October 15, 1994, she wrote a ten-page memo to Rosemary Moreno in Prudential's Human Resources department admitting that her "emotions rise right to the surface and [she could] not control them," but that she felt compelled to "state [her] case in [her] defense." Defendant's Ex. N.

 In November 1994, Mayer prepared Coleman's 1994 performance appraisal, which was approved by Coleman's supervisor Carolyn Roth. Mayer stated that plaintiff needed to improve in several areas, particularly client satisfaction. Many of his comments were positive, but he noted that Coleman could be "abrupt at times" and tended to "get flustered under pressure." Her overall rating was two out of five, which translated to "needs improvement." Defendant's Ex. X.

 When Prudential decided to implement the RIF, Mayer and Mains Garcia worked together in ranking the employees. Mayer then forwarded the recommendations to Roth, who in turn submitted them to Charles Morris, Prudential's President for the Northeast Region. Morris approved the plan.

 The employees were ranked by numbers assigned to them from one to five for a number of criteria, with five being the best score. Coleman's total was thirty-seven, which put her sixteenth out of the eighteen employees evaluated. *fn2" Defendant's Ex. F. Defendant contends that this appraisal system was fair and honest, and that plaintiff's termination was solely the result of her poor score relative to the other employees.

 Defendant having proffered a legitimate, nondiscriminatory reason for its actions, the burden is upon plaintiff to demonstrate that there exist genuine issues of material fact about whether defendant's stated reason is a pretext for age discrimination. I find that she has failed to do so.

 Plaintiff's chief argument in response to defendant's contentions is that the factors relied upon by Prudential are subjective and inaccurate. Even if true, however, this largely conclusory assertion is not probative of age discrimination. The laws prohibiting discrimination in employment were "not intended to transform the courts into personnel managers." Thornbrough v. Columbus and Greenville R.R. Co., 760 F.2d 633, 647 (5th Cir. 1985). The Second Circuit has reminded district courts that they do not have a "roving commission to review business judgments," Montana v. First Fed. Savings and Loan Ass'n of Rochester, 869 F.2d 100, 106 (2d Cir. 1989) (quoting Graefenhain v. Pabst Brewing Co., 827 F.2d 13, 21 n.8 (7th Cir. 1987)), and that they "must refrain from intruding into an employer's policy apparatus or second-guessing a business's decision-making process." Meiri, 759 F.2d at 995. Thus, the mere fact that some of the criteria on which plaintiff was evaluated may have been subjective or subject to inaccuracies does not in any way suggest that defendant was motivated by a discriminatory animus.

 Plaintiff also asserts that defendant has made contradictory assertions about whether Coleman was terminated because of her performance. Plaintiff bases this contention on a single statement made by Roth at her deposition, that "nobody was terminated for performance." Plaintiff's Ex. 4 at 48. Plaintiff, however, has taken this statement out of context. It is clear from the transcript that all Roth meant was that had it not been for the RIF, none of those who were terminated would have been fired, and that "they would all be eligible" for rehire. Id. To the extent that plaintiff's performance relative to that of her coworkers affected her ranking during the RIF selection process, however, it was a factor in the decision to terminate her. That is not contradicted by Roth's statement.

 Plaintiff also states that prior to the RIF, Prudential employed eight non-managerial employees over the age of forty, and that after the RIF, Prudential retained two employees over the age of forty. Considering that only nineteen employees were involved in the first place, however, and that only ten remained after the RIF, this small sample size renders this statistical evidence practically meaningless. See Mayor of City of Philadelphia v. Education Equality League, 415 U.S. 605, 621, 39 L. Ed. 2d 630, 94 S. Ct. 1323 (1974) (statistics regarding racial composition of thirteen-member school board nominating panel were meaningless); Pitre v. Western Elec. Co., 843 F.2d 1262, 1268 (10th Cir. 1988) (sample sizes ranging from two to twenty-four people were too small to produce meaningful use of statistics); Haskell v. Kaman Corp., 743 F.2d 113, 121 (2d Cir. 1984) (ten terminations over eleven-year period too small to permit inference of discrimination); Pace v. Southern Ry. Sys., 701 F.2d 1383 (11th Cir.) (affirming summary judgment for defendant in ADEA case, citing lack of probative value of plaintiff's statistics due to small sample size), cert. denied, 464 U.S. 1018, 78 L. Ed. 2d 724, 104 S. Ct. 549 (1983).

 When asked at her deposition why she believed that she had been discriminated against on account of her age, plaintiff responded: "The fact that I'm no longer there, the fact that I believe that I was one of the highest paid people in there, and with pay and age, they are synonymous. They often go together." Defendant's Ex. D at 148. Aside from the fact that plaintiff has presented no evidence to support her subjective belief that her salary was a factor, the Second Circuit has recently noted that "under Hazen Paper Co. v. Biggins, 507 U.S. 604, 611-12, 123 L. Ed. 2d 338, 113 S. Ct. 1701 (1993), an employer's concern about the economic consequences of employment decisions does not constitute age discrimination under the ADEA, even though there may be a correlation with age. Hazen made clear that employment decisions driven by factors that are empirically intertwined with age are not discriminatory so long as they are motivated by 'some feature other than the employee's age.' Id. at 609. Thus, decisions motivated by economic concerns do not violate the ADEA." Criley v. Delta Air Lines, Inc., 119 F.3d 102, 1997 WL 381319 *3 (2d Cir. July 11, 1997).

 Plaintiff also stated that she was told by plaintiff Bowen at one point that at a meeting with him, Mayer and Morris, Morris expressed a desire to demote Coleman, and that Mayer stated, "'What can we do with Fran at her age,' or 'What can Fran do at her age,' that sort of thing." Defendant's Ex. D at 149. It does not appear that this meeting was in any way connected with or temporally close to the RIF, however, and as virtually the only evidence of discriminatory animus, it is simply too little to preclude summary judgment. See Philipp v. ANR Freight Sys., Inc., 61 F.3d 669, 674 (8th Cir. 1995) (agreeing with district court that the record was "devoid of evidence showing a 'specific link ...'" between supervisor's reference to plaintiff as "the old man" and plaintiff's termination) (quoting Stacks v. Southwestern Bell Yellow Pages, Inc., 996 F.2d 200, 201 n. 1 (8th Cir. 1993)); Thomson v. Saatchi & Saatchi Holdings (USA), Inc., 958 F. Supp. 808, 824 (W.D.N.Y. 1997) (single remark by supervisor about plaintiff's coworker that supervisor was going to "get rid of the old guy because he was over the hill" was insufficient to raise issue of fact about whether plaintiff was terminated on account of his age); Waldron v. SL Indus., Inc., 849 F. Supp. 996, 1004 n.11 (D.N.J. 1994) (comment by supervisor that plaintiff should lose weight because it would make him feel better and "look younger" "in no way indicated that plaintiff's termination was motivated by age," since it was made five months before termination and was not tied in any way to his continued employment).

 It should also be noted that not only has plaintiff not presented any significant evidence of pretext, but that the facts of this case in some ways affirmatively indicate the lack of any discriminatory animus on Prudential's part. For one thing, plaintiff began her employment with Prudential in December 1993, and was terminated about thirteen months later, in January 1995. The complaint alleges that "in the one (1) year period prior to Plaintiff's termination, Plaintiff underwent a course of harassment directed against her by the Defendant which Plaintiff believes was intended to cause Plaintiff dissatisfaction with her employment so that she would quit her position with the Defendant." Complaint P 24. ...

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