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November 25, 1997


The opinion of the court was delivered by: LARIMER


 Plaintiff, Zbigniew S. Petrykiewicz ("Petrykiewicz"), filed a complaint on June 17, 1996 against Xerox Corporation ("Xerox") alleging violations of the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. ยงยง 621 et seq. Petrykiewicz alleges that Xerox failed to hire him because of his age and terminated his employment as a contract employee in retaliation for his complaining about age discrimination.

 Pending before the court is a motion for summary judgment filed by Xerox. For the reasons discussed, infra, Xerox' motion is granted and the complaint is dismissed.


 Petrykiewicz was born on August 15, 1931. Starting in approximately 1983, Petrykiewicz began working in Xerox' Webster, New York facility as a contract employee through CDI Corporation, a company that supplies contract workers to Xerox and other businesses.

 Petrykiewicz' first assignment at Xerox was as an "estimator/planner." In 1987, he became an "electrical engineer" whose duties included testing the electrical equipment at a new building that was being constructed for Xerox. After construction of the building was completed, Petrykiewicz remained a contract employee at the plant and continued to service the plant's electrical equipment.

 During his tenure as a contract worker, Petrykiewicz made it known to his supervisors that he was interested in obtaining full-time employment directly with Xerox. However, it is conceded that, although he had worked at Xerox since 1983, the only time Petrykiewicz actually completed an employment application at Xerox for an available position was sometime in 1991.

 Petrykiewicz was never hired as a direct employee by Xerox. In April 1993, Xerox hired three contract employees, significantly younger than Petrykiewicz, as full time employees. Shortly thereafter, Petrykiewicz complained, through counsel, to Xerox regarding the company's failure to hire him as a direct employee. Thereafter, in June 1993, Petrykiewicz received a letter from his supervisor regarding the "degradation" of Petrykiewicz' job performance and informing him that he was being placed on probation. In December 1993, Petrykiewicz was terminated from his position as an engineering contract worker.

 On April 30, 1994, Petrykiewicz filed a charge of age discrimination with the New York State Division of Human Rights relating to the three individuals that had been hired by Xerox in April, 1993. According to Petrykiewicz' charge, when he asked management why he was not hired for the available positions, Petrykiewicz was informed that a bachelor's degree, which he did not possess, was a prerequisite for the positions. Although acknowledging that he lacked a bachelor's degree, Petrykiewicz claimed in his charge that he was qualified for the positions because he had three years of electrical engineering and installation training and approximately forty years of field experience. Petrykiewicz also alleged in his charge that the three people hired only had associate degrees *fn1" and that, in the past, a Xerox employee was made project engineer even though he did not have an engineering degree.

 On October 25, 1995, the State Human Rights Division issued a determination of "no probable cause" to believe that Xerox engaged in unlawful discrimination. Thereafter, on April 25, 1996, the Equal Employment Opportunity Commission ("EEOC") issued a determination that the evidence did not establish a violation of the employment discrimination statutes.


 I. 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, supra 475 U.S. at 586. "The non-moving party must come forward with 'specific facts showing that there is a genuine issue for trial.'" 475 U.S. 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 ...

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