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BALUT v. LORAL ELEC. SYS.

December 17, 1997

RAMON BALUT, Plaintiff, against LORAL ELECTRONIC SYSTEMS and LORAL CORPORATION, Defendants.

William C. Conner, Senior United States District Judge.


The opinion of the court was delivered by: CONNER

Conner, Senior D. J.

 Plaintiff Ramon Balut brings this action against defendants Loral Electronic Systems ("LES") and Loral Corporation ("Loral"), alleging defendants terminated his employment on account of his age in violation of the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et seq.

 BACKGROUND

 From August 1979 to June 1994, Balut was employed by LES, first as Director of Programs, then as Program Director and ultimately, as Senior Production Program Manager on the company's ALQ-131 program. LES was one of Loral's three subsidiaries, until April, 1996, when LES was acquired by Lockheed Martin Fairchild Defense Systems.

 On or about May 20, 1994, Joseph Browdy, Balut's immediate supervisor, informed Balut that he was being laid off, effective July 15, 1994, due to a "general reduction in force" at LES. Balut alleges that during this meeting, Browdy stated, "in words or substance," "we are also letting Mr. T.K. Lee go. He is the older engineer with health problems. He is happy we are letting him go because he'll be able to draw unemployment and get his severance pay. Maybe you'll feel the same way." Pl.'s R. 56.1 Stmt. P 11. At the time Balut was notified of the layoff, he was fifty-seven years old. He had worked at LES for fifteen years, had achieved the title of Senior Production Program Manager, and had received consistent performance ratings of "commendable," "proficient," or "exceeded minimum requirements." Balut left LES in May 1994.

 In June, 1994, Balut's responsibilities on the ALQ-131 were assumed by Mike Hallisy, a Senior Production Program Manager who had worked on the ALQ-178. Hallisy was forty-seven years old. Also in 1994, LES hired Mike Pinto as Director of Program ALQ-178 and New Business. Pinto was then "trained to become the number one ALQ-178 director" and ultimately "headed the 178 program." Silverman Dep. at 86, PP 23-24; 87, PP 9-10. Pinto was forty-two years old. Also in 1994, but before Balut was laid off, Angelo Germani was hired as a Program Manager on the ALQ-131.

 On November 21, 1994, Balut filed a charge of age discrimination with the New York State Division of Human Rights, alleging that LES had "fired" him on account of his age and that his job "was filled by an employee . . . transferred from another program . . . who [was] significantly younger." Pl.'s Ex. Q at PP 3-4. LES answered the charge on December 6, 1994, denying that Balut was "fired," or discriminated against based on his age. Pl.'s Ex. O at § C, PP 3, 5-6. Rather, LES claimed that Balut's employment "ceased . . . due to a reduction in force . . . [which had reduced] Loral['s] labor force . . . by 44% [between] May 18, 1990 to November 25, 1994." Id., at P 4. The administrative charge was ultimately dismissed.

 Following the dismissal, Balut commenced this action on June 2, 1995. Balut alleged discrimination based on age in violation of the ADEA and also breach of contract against LES and Loral. Balut voluntarily withdrew his breach of contract claim on July 25, 1997. The parties now move for summary judgment pursuant to FED. R. CIV. P. 56.

 For the following reasons, defendants' motion is granted and plaintiff's motion is denied.

 DISCUSSION

 I. Summary Judgment Standard

 Summary judgment is appropriate if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show 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(d). A genuine issue for trial exists if, based on the record as a whole, a reasonable jury could find in favor of the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). On a motion for summary judgment, "the evidence of the nonmovant is to be believed, and all justifiable inferences are to be drawn in [his] favor." Id. at 255. The Court draws all inferences in favor of the nonmoving party only after determining that such inferences are reasonable considering the evidence presented. See, e.g., Apex Oil Co. v. DiMauro, 822 F.2d 246, 252 (2d Cir. 1987).

 The party seeking summary judgment bears the initial burden of "informing the district court of the basis for its motion" and identifying the matter "it believes demonstrate[s] 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). Upon the movant's satisfying that burden, the onus shifts to the nonmoving party to "set forth specific facts showing that there is a genuine issue for trial." Liberty Lobby, 477 U.S. at 250. At this stage, the nonmoving party "must do more than simply show that there is 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). Bald assertions or conjecture unsupported by evidence are insufficient to overcome a motion for summary judgment. Carey v. Crescenzi, 923 F.2d 18, 21 (2d Cir. 1991); Western World Ins. Co. v. Stack Oil, Inc., 922 F.2d 118, 121 (2d Cir. 1990).

 Summary judgment should be used sparingly in employment discrimination cases where the employer's intent, motivation, or state of mind is at issue. Gallo v. Prudential Residential Servs., 22 F.3d 1219, 1224 (2d Cir. 1994); Dister v. Continental Group, Inc., 859 F.2d 1108, 1114 (2d Cir. 1988) (citing Meiri v. Dacon, 759 F.2d 989, 998 (2d Cir. 1985)). A plaintiff "must nevertheless offer 'concrete evidence from which a reasonable juror could return a verdict in his favor,' . . . and is not entitled to a trial simply because the determinative issue focuses upon the defendant's state of mind." Dister, 859 F.2d at 1114 (internal citation omitted). Moreover, "the summary judgment rule would be rendered sterile . . . if the mere incantation of intent or state of mind would operate as a talisman to defeat an otherwise valid motion. Indeed, the salutary purposes of summary judgment -- avoiding protracted, expensive, and harassing trials -- apply no less to discrimination cases than to commercial or other areas of litigation." Meiri, 759 F.2d at 998. This is particularly true where, as here, discovery has taken place. Dister, 859 F.2d at 1114.

 Local Rule 56.1(a) provides that upon any motion for summary judgment, "there shall be annexed to the notice of motion a . . . statement of the material facts as to which the moving party contends there is no genuine issue to be tried. Failure to submit such a statement may constitute grounds for denial of the motion." Balut urges us not to consider defendants' motion, because they have failed to file a Rule 56.1 statement, formerly known as a Rule 3(g) statement. *fn1" While the Court may deny defendants' motion on this ground, we are not required to do so and may overlook the "technical deficiency" of a party's submission. Thaler v. Casella, 960 F. Supp. 691, 697 (S.D.N.Y. 1997); Zeno v. Cropper, 650 F. Supp. 138, 139 (S.D.N.Y. 1986) (citing Reisner v. General Motors Corp., 511 F. Supp. 1167, 1174-75 n.14-15 (S.D.N.Y.), aff'd, 671 F.2d 91 (2d Cir. 1982)). The Court notes that Balut has cross-moved for summary judgment and the parties have stipulated to consolidate their motions. Because Balut has submitted two such statements, defendants have responded to each one, and these motions have been consolidated for the purposes of this decision, we cannot say that Balut has been prejudiced by defendants' failure to file a Rule 56.1 statement. The Court also notes that the issues of fact which are in dispute are set forth in defendants' affidavits. We therefore "decline to use this procedural error as a means to deny defendants' otherwise meritorious motion." Thaler, 960 F. Supp. at 697.

 In their motion papers, defendants contend that the action should be dismissed against Loral, because Loral was not Balut's employer. Additionally, defendants argue that the case should be dismissed in its entirety, because Balut does not state a prima facie case for age discrimination, or alternatively, because defendants have proffered a legitimate, nondiscriminatory reason for Balut's discharge and Balut has failed to show pretext. We consider these points in turn.

 II. Employer Liability

 First, defendants argue that the case against Loral must be dismissed, because Loral was not Balut's employer. To establish a case for employment discrimination, plaintiff must set forth sufficient facts to show, inter alia, that defendants employed him. 28 U.S.C. § 623. Whether Loral may be held liable for any discrimination by LES against Balut depends on whether Loral was Balut's employer.

 The law allows a corporation to organize in ways that isolate liabilities among separate entities. Murray v. Miner, 74 F.3d 402, 404 (2d Cir. 1996) (citing Frank v. West, 3 F.3d 1357, 1362 (10th Cir. 1993)). Under the doctrine of limited liability, a parent is liable for the acts of its subsidiary only under "extraordinary circumstances." Id. The doctrine therefore creates a strong presumption that a parent is not the employer of its subsidiary's employees. Frank, 3 F.3d at 1362.

 The Court of Appeals for the Second Circuit has recently adopted a four-part test to determine a parent's liability for the acts of its subsidiary. In Cook v. Arrowsmith Shelburne, Inc., 69 F.3d 1235, 1240 (2d Cir. 1995), the court determined that a parent could not be held liable for its subsidiary's civil rights violations, unless the parent and subsidiary were a "single, integrated enterprise," namely, that the companies maintained (1) interrelated operations, (2) centralized control of labor relations, (3) common management, and (4) common ownership or financial control. Id. (citing Armbruster v. Quinn, 711 F.2d 1332, 1337 (6th Cir. 1983)). The court added that the one "'critical question'" was the following: "'What entity made the final decisions regarding employment matters related to the person claiming discrimination?'" Id. (quoting Trevino v. Celanese Corp., 701 F.2d 397, 404 (5th Cir. 1983)). The court then held that a plaintiff could satisfy the four-part test upon "'showing that there is an amount of participation [by the parent that] is sufficient and necessary to the total employment process [of the subsidiary], even absent total control or ultimate authority over hiring decisions.'" Id. (quoting Armbruster, 711 F.2d at 1338).

 In Cook, the Court of Appeals reversed an order granting summary judgment to the defendant where there existed "substantial evidence" that the parent had run the subsidiary "in a direct, hands-on fashion, establishing the [subsidiary's] operating . . . and management practices," screening the subsidiary's employment applications, approving all the subsidiary's personnel reports, and reviewing "all major employment decisions." 69 F.3d at 1241. The court stressed the second factor of the test -- centralized control of labor relations -- noting that the plaintiff "was herself hired" by the parent's vice president of human resources and "was fired directly" by an employee paid by the parent. Id. Finally, the court noted that the companies "maintained a common management structure," whereby the parent's president "operated out of" the subsidiary's office. Id.

 In Regan v. In the Heat of the Nite, Inc., 1995 U.S. Dist. LEXIS 9682, No. 93 Civ. 862, 1995 WL 413249, at *4 (S.D.N.Y. July 12, 1995), *fn2" the court denied defendant's motion for summary judgment where plaintiff had put forward undisputed evidence that "employees of the various taverns and restaurants . . . rotated informally among the . . . establishments," when they were "short-staffed," "employee records, payroll records, and bank deposits . . . [were] kept together," and the president, sole shareholder and principal shareholder of the ...


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