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GRAY v. ROBERT PLAN CORP.

January 9, 1998

MARTIN GRAY, Plaintiff, against THE ROBERT PLAN CORPORATION, Defendant.


The opinion of the court was delivered by: HURLEY

 HURLEY, District Judge:

 Pending before the Court in this employment discrimination action is Defendant The Robert Plan Corporation's ("RPC's") motion for summary judgment, pursuant to Rule 56 of the Federal Rules of Civil Procedure. For the reasons set forth below, the motion is granted.

 Plaintiff Martin Gray was hired by RPC as an insurance underwriter on March 1, 1993. (Compl. P 8.) Plaintiff was sixty-three years of age at the time of his hiring, and sixty-six years of age at the time of his termination on June 27, 1996. (Id. P 7; Finnegan Certification ("Certif.") Ex. D.)

 Upon commencing employment at RPC, Plaintiff, as an underwriting trainee, was rotated through various sections of the Underwriting Department. (RPC's Rule 3(g) Statement P 4; Finnegan Cert. P 3.) Other than being warned about his personal hygiene on three separate occasions during the first three months of his employment, (see Horowitz Certif. Exs. D, E, F), Plaintiff received positive evaluations from his supervisors over the next couple of years with respect to his job performance. (Pl.'s Answer to Def.'s Mot. for Summ. J. ("Pl.'s Answer") Exs. A, B, C, D.).

 In February 1996, after spending time in both the Customer Service and Telephone Interview Sections of the Underwriting Department, Plaintiff was assigned by Dawn Palumbo, the Manager of the Underwriting Department, to work in the Premium Review Section. (Pl.'s Statement at 1; Finnegan Certif. P 5.) The Premium Review Section reviews telephone interviews conducted with potential automobile insureds to ensure that an appropriate premium is being charged; additionally, the Section investigates insurance applications to "make sure [they] accurately reflect[] the facts surrounding each applicant." (Finnegan Certif. P 4.)

 On May 14, 1996, Plaintiff received a verbal *fn1" warning for unsatisfactory job performance. (Finnegan Certif. Ex. A.) The written record of the warning, which was processed and signed by Patricia Finnegan, Supervisor of the Premium Review Section, stated that Finnegan had "sat with [Plaintiff] and reviewed his errors with him." (Id.) Finnegan further recorded that Plaintiff's "quota was far below the department standards *fn2" and [contained] a substantial amount of errors," and that she would "continue checking all of [Plaintiff's] work." (Id.) On May 30, 1996, Plaintiff was issued a written warning for unsatisfactory job performance, again processed and signed by Finnegan. (Finnegan Certif. Ex. B.) In the written warning, Finnegan stated that since the verbal warning issued to Plaintiff on May 14, 1996, she had been checking all of Plaintiff's work, and that either herself or another underwriter had been meeting with Plaintiff to review his errors. (Id.) In conjunction therewith, Finnegan made the following observations:

 
To this date, [Plaintiff's] errors have not improved. *fn3" There are certain guidelines that [RPC] must follow that [Plaintiff] is not following. (see attached for examples)[.] After almost four months, [Plaintiff] has not yet grasped all the concepts, regulations, and requirements of Phase 1 training (on average, these tasks are learned in a two-month period and [the trainee] move[s] on to Phase 2 training).

 (Id.) The written warning concluded as follows:

 
Someone will be designated to sit with [Plaintiff] on a frequent basis to train and observe his work production. If [Plaintiff's] errors do not improve by June 27, [1997] (4 weeks), further disciplinary action will be taken up to and including termination.

 (Id.)

 Plaintiff commenced the instant action on October 4, 1996 pursuant to the Age Discrimination in Employment Act of 1967, (the "ADEA"), 29 U.S.C. § 621 et seq., alleging that he was discharged from his employment on account of his age.

 DISCUSSION

 I. Summary Judgment Standards

 The legal principles employed by the Court when ruling upon a motion for summary judgment are well-established. Summary judgment may be granted only when it is shown "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); see Celotex Corp. v. Catrett, 477 U.S. 317, 323, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986); Donahue v. Windsor Locks Bd. of Fire Comm'rs, 834 F.2d 54, 57 (2d Cir. 1987). The moving party bears the initial burden "of showing the absence of a genuine issue as to any material fact." Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 26 L. Ed. 2d 142, 90 S. Ct. 1598 (1970). The substantive law governing the case will determine those facts that are material, and "only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986).

 Once the moving party has come forward with support demonstrating that no genuine issue of material fact remains to be tried, the non-moving party "must come forward with affidavits, depositions, or other sworn evidence as permitted by Fed. R. Civ. P. 56, setting forth specific facts showing that there exists a genuine issue of material fact." Rule v. Brine, Inc., 85 F.3d 1002, 1011 (2d Cir. 1996). In reviewing these materials, the Court "is required to draw all factual inferences in favor of, and take all factual assertions in the light most favorable to, the party opposing summary judgment." Id.

 Nevertheless, "the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson, 477 U.S. at 247-48 (emphases omitted). Moreover, "conclusory allegations will not suffice to create a genuine issue. There must be more than a 'scintilla of evidence,'" Delaware & Hudson Ry. Co. v. Consolidated Rail Corp., 902 F.2d 174, 178 (2d Cir. 1990)(quoting Anderson, 477 U.S. at 252), and "more than 'some metaphysical doubt as to the material facts.'" Aslanidis v. United States Lines, Inc., 7 F.3d 1067, 1072 (2d Cir. 1993)(quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986)). Put another way, "the non-movant cannot escape summary judgment merely by vaguely asserting the existence of some unspecified disputed material facts, . . . or defeat the motion through mere speculation or conjecture." Western World Ins. Co. v. Stack Oil, Inc., 922 F.2d 118, 121 (2d Cir. 1990)(citations and internal quotations omitted). "When no rational jury could find in favor of the nonmoving party because the evidence to support its case is so slight, there is no genuine issue of material fact and a grant of summary judgment is proper." Gallo v. Prudential Residential Servs., 22 F.3d 1219, 1224 (2d Cir. 1994).

 II. ADEA Standards

 The ADEA makes it "unlawful for an employer . . . to discharge an individual . . . because of such individual's age." 29 U.S.C. § 623(a)(1). The ADEA protects only those employees who, like Plaintiff, are older than forty but less than seventy years of age. See 29 U.S.C. § 623(a)(1); Woroski v. Nashua Corp., 31 F.3d 105, 108 (2d Cir. 1994). ADEA claims are scrutinized under the burden-shifting analysis for Title VII claims articulated by the United States Supreme Court in McDonnell Douglas v. Green, 411 U.S. 792, 36 L. Ed. 2d 668, 93 S. Ct. 1817 (1973), and Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 67 L. Ed. 2d 207, 101 S. Ct. 1089 (1981). See, e.g., Raskin v. Wyatt Co., 125 F.3d 55, 60 (2d Cir. 1997); Woroski, 31 F.3d at 108.

 In order to establish a prima facie case of age discrimination, Plaintiff must show "1) that he was within the protected age group, 2) that he was qualified for the position at issue, 3) that he suffered an adverse employment decision, and 4) that the position was ultimately filled by a person not of the protected class." Raskin, 125 F.3d at 63-64; see Owens v. New York City Hous. Auth., 934 F.2d 405, 409 (2d Cir. 1991). "The burden of establishing a prima facie case is not onerous, and has been frequently described as minimal." Scaria v. Rubin, 117 F.3d 652, 654 (2d Cir. 1997)(per curiam); see Cronin v. Aetna Life Ins. Co., 46 F.3d 196, 204 (2d Cir. 1995)(characterizing plaintiff's initial burden as " de minimis "). ...


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