The opinion of the court was delivered by: LARIMER
These fifteen cases arise out of the fifteen plaintiffs' terminations from employment by defendant Xerox Corporation ("Xerox") in 1994. Plaintiffs assert claims under the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et seq., Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq., and certain other anti-discrimination laws. Xerox has moved for summary judgment, and it has also moved in limine to exclude the testimony of plaintiffs' expert, Philip A. Smethurst, Ph.D. Because these cases involve many of the same facts and legal issues, for purposes of these motions and 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 ..."
In December 1993, Xerox announced that for financial reasons, it was going to implement a worldwide reduction in force ("RIF") beginning in 1994, which would reduce Xerox's 97,500-employee workforce by some 10,000 employees. Although plaintiffs dispute some of Xerox's assertions about the method by which Xerox determined which employees would be laid off, at least ostensibly each organization within Xerox would determine the number of employees within that organization that would be terminated, and the method of doing so.
In the divisions in which plaintiffs worked, employees were to be ranked by their managers in four areas: work quality, work speed, work orientation, and work skills. The scores were entered onto a form known as a Contribution Assessment Form ("CAF"). When this process was completed, the employees would be stack-ranked against each other, and in general, the lowest-ranking employees would be terminated.
According to defendant, Xerox put in place a number of safeguards to ensure that the RIF was carried out fairly and without disparately affecting any protected categories of employees. Xerox states that senior managers would review employees' contribution assessments for consistency and fairness, and that Xerox's legal department also conducted analyses of the termination recommendations to make sure that they would not have a discriminatory effect.
Plaintiffs deny most of these allegations. Plaintiffs allege that the RIF process was essentially a sham. They contend that their contribution assessment scores were deliberately manipulated by Xerox management in order to achieve Xerox's goal of terminating certain categories of employees, including older employees, for discriminatory and unlawful reasons.
I. Disparate Impact Claims Under the ADEA
First, defendant contends that the disparate impact ADEA claims must be dismissed because such claims are not cognizable under the ADEA. Xerox argues that the Supreme Court's decision in Hazen Paper Co. v. Biggins, 507 U.S. 604, 123 L. Ed. 2d 338, 113 S. Ct. 1701 (1993), though not directly addressing this issue, by its reasoning implicitly calls into question the continued validity of prior Second Circuit case law holding that disparate impact claims may be brought under the ADEA.
An extensive analysis of the implications of Hazen Paper is unnecessary, however, because after Xerox filed its motion, the Second Circuit handed down its decision in District Council 37, AFSCME v. New York City Dep't of Parks and Recreation, 113 F.3d 347 (2d Cir. 1997). In District Council 37, the court noted that "the Supreme Court has not decided whether a disparate impact claim could be made under the ADEA," id. at 351 (citing Hazen Paper, 507 U.S. at 610), but added that since the Second Circuit had recognized such an action in Maresco v. Evans Chemetics, 964 F.2d 106, 115 (2d Cir. 1992), "despite the Parks Department's argument to the contrary, plaintiffs can make a disparate impact claim under the ADEA." Id.
The Second Circuit's holding in District Council 37 clearly forecloses Xerox's argument in the case at bar. Therefore, I will proceed to consider the merits of plaintiffs' disparate impact ADEA claims.
II. Requirements for Establishing a Disparate Impact Claim
A disparate impact claim is one that alleges a facially neutral policy that affects one class of employees more harshly than another and cannot be justified by business necessity. Maresco, 964 F.2d at 115. Proof of discriminatory intent is unnecessary. See Diehl v. Xerox Corp., 933 F. Supp. 1157, 1164 (W.D.N.Y. 1996).
To establish a prima facie case of unlawful discrimination by showing disparate impact, each plaintiff "must first identify a specific employment practice having an adverse impact upon members of the protected class, i.e., 'that the practice excluded him or her, as a member of a protected group, from a job or promotion opportunity.'" Maresco, 964 F.2d at 115 (quoting Waisome v. Port Auth. of New York and New Jersey, 948 F.2d 1370, 1375 (2d Cir. 1991)) (citations omitted). Statistical evidence may be used to establish a disparate impact claim, provided that it "reveals a disparity so great that it cannot be accounted for by chance ..." Waisome, 948 F.2d at 1375. In other words, "the statistical disparity must be sufficiently substantial to raise an inference of causation." NAACP v. Town of East Haven, 70 F.3d 219, 225 (2d Cir. 1995).
If the plaintiff establishes a prima facie case, the employer then has the burden of coming forward with evidence to "show that the challenged practice had a legitimate purpose. If the employer meets this burden, the plaintiff must prove that the proffered purpose is pretextual." District Council 37, 113 F.3d at 352.
III. Plaintiffs' Disparate Impact Claims
In support of their disparate impact claims, plaintiffs rely entirely upon statistical analysis reports prepared by their expert, Dr. Smethurst. He concludes that the RIF resulted in a statistically significant disparity between the percentages of employees who were laid off in the 40-and-over group and those who were laid off in the below-40 group (and between males and females, with respect to some of the sex discrimination claims).
The Court in Daubert held that the Rules of Evidence require the trial judge to "ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable." Id. at 589. In particular, the Court noted, Rule 702 requires that "the subject of an expert's testimony must be 'scientific ... knowledge,'" and that the expert's testimony must "assist the trier of fact to understand the evidence or to determine a fact in issue." Id. at 589-91. When faced with a proffer of expert scientific testimony, then, the Court stated, the trial judge must make a "preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and of whether that reasoning or methodology properly can be applied to the facts in issue." Id. at 592-93. In addition, the Court observed that "in the event the trial court concludes that the scintilla of evidence presented supporting a position is insufficient to allow a reasonable juror to conclude that the position more likely than not is true, the court remains free to ... grant summary judgment," even if the evidence is deemed admissible. Id. at 596.
Defendant bases its challenge to Smethurst's findings and conclusions on several grounds. First, Xerox contends that Smethurst failed to take into account possible nondiscriminatory factors (such as job performance) that might have accounted for the allegedly higher likelihood of termination for employees in the relevant protected categories. Second, Xerox asserts that Smethurst based his statistical analysis based on the wrong employee groupings. Xerox states that the correct method would have been to look at each plaintiff against the backdrop of the group of employees with whom that plaintiff was compared by Xerox for purposes of the RIF. Instead, Xerox states, Smethurst added or pooled data about other groups of employees to whom plaintiffs were not compared. Third, Xerox asserts that Smethurst's opinion is not probative of disparate impact discrimination because he failed to identify any specific employment practice that was allegedly responsible for any statistical disparity.
Having reviewed Smethurst's reports, I am not convinced of their admissibility. I agree with defendant that the reports are flawed in several significant respects, and that they are of little or no probative value. There is authority that would support exclusion of the reports for those reasons. See, e.g., Raskin v. Wyatt Co., 125 F.3d 55, 67-68 (2d Cir. 1997); Sheehan v. Daily Racing Form, Inc., 104 F.3d 940, 942 (7th Cir.), cert. denied, 138 L. Ed. 2d 989, 117 S. Ct. 2480 (1997); Martincic v. Urban Redevelopment Auth., 844 F. Supp. 1073, 1075-76 (W.D.Pa.), aff'd, 43 F.3d 1461 (3d Cir. 1994). I find it unnecessary to decide this issue, however, because even if Smethurst's testimony and reports were admissible, they would not suffice to create a triable issue of fact on plaintiffs' disparate impact claims.
First, it is true, and highly significant, that Smethurst failed to account for possible nondiscriminatory reasons for the disparities that he found. At his deposition, Smethurst was asked whether in his analysis he "controlled at all for the different performance and skills ratings of the employees[.]" He responded:
No. The reason I didn't is that this performance and skills rating was the tool used by Xerox to determine whether the person was to be laid off or not.
In other words, Xerox managers were directed, I believe, to come out with a performance and skill rating and use that as a basis for determining who would be laid off or not. So I don't know how I would control for that performance and skill rating.
Smethurst Deposition ("Depo.") at 79. Smethurst was also asked what his conclusion would be if the employees' performance assessments were valid and accurate, but there was nevertheless a disparity between the over-40 and under 40-group. He stated that based on "just the difference in rates," he believed that would be evidence of age discrimination because he believed that it would be "extremely unlikely" for anything but past discriminatory treatment to have caused the two age groups to have such different skills and performance levels. Smethurst Depo. at 95-96, 100.
As stated, however, the failure to account for possible nondiscriminatory reasons for statistical disparities can render an expert's opinion practically worthless. In Raskin, for example, the Second Circuit held that the district court did not err when, in granting summary judgment for the employer in an ADEA case, it disregarded the report of the plaintiff's expert, in part on the ground that the "report assumed that any anomalies in the ... data must be caused by age discrimination, and made no attempt to account for other possible causes." Raskin, 125 F.3d at 67-68 (citing Wards Cove Packing Co. v. Atonio, 490 U.S. 642, 657, 104 L. Ed. 2d 733, 109 S. Ct. 2115 (1989)). Because of this omission, the court said, the "report did not serve to make it more or less likely that [the employer] engaged in any age discrimination ..." 125 F.3d at 68.
Similarly, in Diehl, Judge Telesca of this district held that the plaintiffs' expert's conclusion, based solely on statistical disparities, that the plaintiffs' dismissals and redeployments were likely caused by age and sex discrimination was "inadequate as a matter of law," in part because the expert "failed to conduct further statistical tests to determine what other factors could have accounted for those disparities." 933 F. Supp. at 1169, 1167. Judge Telesca stated that "without conducting any other statistical tests to rule out factors other than age or gender and by relying solely on age and gender ratios, [the expert's] testimony is fatally flawed pursuant to Wards Cove." Id. at 1168.
There is authority from other circuits in accord with this view. In Sheehan, 104 F.3d at 943, for example, the Seventh Circuit found "important" the plaintiff's "expert's failure to correct for any potential explanatory variables other than age." Id. at 942. The court concluded that this failure was so serious that it rendered the expert's opinion inadmissible and "entitled to zero weight in considering whether to grant or deny summary judgment." Id. Likewise, in Doan v. Seagate Technology, Inc., 82 F.3d 974 (10th Cir. 1996), cert. denied, 136 L. Ed. 2d 609, 117 S. Ct. 684 (1997), the Tenth Circuit reversed a verdict on a jury verdict for the plaintiff in an ADEA case, in part on the ground that evidence that a greater percentage of older workers was selected for a RIF while a greater percentage of younger workers was hired afterwards, standing alone, was insufficient to raise a jury question regarding the issue of pretext. The court found the plaintiff's statistical evidence flawed because it "failed to eliminate nondiscriminatory reasons for the numerical disparities. ... Statistical evidence which fails to properly take into account nondiscriminatory explanations does not permit an inference of pretext." Id. at 979.
I also note that plaintiffs attempt to distinguish Diehl on the ground that Judge Telesca relied in part on the plaintiffs' expert's failure in that case to perform a regression analysis to take into account variables other than age. See 933 F. Supp. at 1169. Plaintiffs state that after the Diehl decision was issued, Smethurst, in response to a request by plaintiffs' counsel, undertook a regression analysis in the three cases "wherein in [Smethurst's] judgment it may have been necessary." Plaintiffs' Joint Memorandum of Law at 20.
The reasons for Smethurst's belief that possible nondiscriminatory reasons, such as performance assessments, could not or should not be taken into account in these cases, however, points to a very fundamental flaw in plaintiffs' disparate impact claims: regardless of the label plaintiffs attach to their claims, they are at bottom disparate treatment claims only. In effect, what Smethurst stated at his deposition was that he did not take the performance assessments into account precisely because those assessments were the ostensible basis for plaintiffs' terminations. In other words, if the numerical ratings assigned to plaintiffs had been deliberately downgraded, they could not be taken into account for statistical purposes because they were themselves discriminatory, and did not reflect plaintiffs' actual performance levels.
If this were true, it would mean that plaintiffs' terminations were not the result of a facially neutral policy, but of intentional discrimination.
In two recent cases, Renaldi v. Manufacturers & Traders Trust Co., 954 F. Supp. 614 (W.D.N.Y. 1997), and Hunt v. Tektronix, Inc., 952 F. Supp. 998 (W.D.N.Y. 1997), this court has granted summary judgment for defendants on disparate impact claims that were based on allegations that the defendants had deliberately discriminated against the plaintiffs. The reasoning of those decisions applies here as well. Even if plaintiffs can show some statistical disparities between termination rates of workers age 40 and over and workers under 40, the gist of plaintiffs' factual allegations is that this disparity was the result of Xerox's conscious decision to terminate older employees. This is therefore not comparable to a case in which a company decides which employees to terminate based on a facially neutral criterion that, when actually applied as intended, tends to favor one group of persons over another. For example, an employer's policy of firing all employees who could not bench-press 100 pounds would likely favor male employees over females, without the need for the employer to resort to any subterfuge or deception in the implementation of the policy. In contrast, plaintiffs in the cases at bar claim that Xerox's pronouncements about the procedures for conducting the RIF were nothing more than a cover for behind-the-scenes, intentional discrimination. "It is clear, then, that plaintiffs are not alleging that application of a facially neutral policy had a disparate impact, but that [Xerox] deliberately singled out older employees for termination or transfer. That does not state a disparate-impact claim." Renaldi, 954 F. Supp. at 620. See Maresco, 964 F.2d at 115 (dismissing disparate impact claim because plaintiff's "facially neutral employment practice ... coalesces with the discharge which he claims to have constituted disparate treatment").
I recognize that a plaintiff may proceed under alternative theories of liability, but there still must be factual allegations to support both theories for both claims to survive a motion for summary judgment. Plaintiffs' allegations in the case at bar simply do not support a disparate impact claim.
I. Requirements for Establishing a Disparate Treatment Claim
The standards applicable to claims of disparate treatment under the ADEA and Title VII have long been well established. The analysis to be applied 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):
First, the plaintiff has the burden of proving by the preponderance of the evidence a prima facie case of discrimination. Second, if the plaintiff succeeds in proving the prima facie case, the burden shifts to the defendant "to articulate some legitimate, nondiscriminatory reason for the employee's rejection." Third, should the defendant carry this burden, the plaintiff must then have an opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination.
Burdine, 450 U.S. at 252-53 (quoting McDonnell Douglas, 411 U.S. 792 at 802).
To establish a prima facie case of individualized disparate treatment under this analysis, a plaintiff must show: (1) membership in a protected class; (2) that the plaintiff satisfactorily performed the duties required by his position; and (3) that the plaintiff was subjected to some adverse job action; (4) under circumstances giving rise to an inference of discrimination. See Viola v. Philips Medical Systems of North America, 42 F.3d 712, 716 (2d Cir. 1994); Woroski v. Nashua Corp., 31 F.3d 105, 109 (2d Cir. 1994). The plaintiff's burden to establish a prima facie case is de minimis. Chambers v. TRM Copy Centers Corp., 43 F.3d 29, 37 (2d Cir. 1994).
In the cases at bar, Xerox has proffered legitimate, nondiscriminatory reasons for plaintiffs' terminations: that all the plaintiffs were validly and accurately given relatively low performance assessment ratings that justified their terminations as part of the economically-justified RIF. In addressing each plaintiff's claims, then, I will assume that he or she has made out a prima facie case, and proceed to consider whether the plaintiff has presented sufficient evidence to create a triable issue of fact about whether Xerox's proffered reason is a pretext for discrimination. 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. Individual Plaintiff's Claims
Plaintiff John S. Bernhard alleges that he was terminated on account of his age, in violation of the ADEA, the Civil Rights Act of 1991, Pub. L. No. 102-166, 105 Stat. 1071 (1991), and the New York State Human Rights Law ("HRL"), N.Y. Exec. L. § 296. Prior to his termination in January 1994 at the age of 55, Bernhard was employed as an engineer in Xerox's Document Production Systems ("DPS") department. In December 1993, Bernhard's manager, Brendan Casey, filled out a CAF for several employees who reported to him, including Bernhard. Although Casey initially wrote "11" (out of a possible 20) on Bernhard's form, he later crossed it out and gave Bernhard a 9. At his deposition, Casey testified that he wrote down the 11 because at the time, Bernhard's wife was on the staff of the Vice President/General Manager where Casey worked, and Casey was afraid that if he gave Bernhard a 9, Bernhard would be laid off, with possible adverse consequences for Casey's own career. He testified that Bernhard then moved to a different group, and that James Riley, one of plaintiff's managers in that group, called Casey and told him, "This isn't fair. We're going to lay off some people who performed better than John, and it isn't fair that these ratings are not consistent." Casey Depo. (Margaret A. Clemens Aff. Ex. E) at 24-25. Casey stated that after he had "agonized over it a long time," he agreed out of fairness to change Bernhard's rating to a 9. Casey Depo. at 25. Xerox states, and Bernhard does not deny, that Bernhard's 9 rating was among the lowest in DPS, and he was notified of his termination on January 18, 1994, effective that day.
As evidence of disparate treatment, Bernhard alleges the following. First, he contends that the change in his rating from 11 to 9 shows that his score was manipulated to justify his termination. He also alleges that beginning around January 1993, he was moved three times to various jobs within Xerox, and that during his final year of employment he worked under six supervisors but was given little supervision. He alleges that this course of events was "a contrived set of circumstances designed to reduce [his] so-called contribution assessment score and thereby justify [his] lay-off." Bernhard Aff. P 10(E). He states that in December 1993, his skill code was changed from System Engineer to Mechanical Engineer without his knowledge or consent, and that he had not had any mechanical engineering experience since 1982 and had no intention of moving into mechanical engineering. Bernhard also states that to his knowledge he was the second oldest employee in the group from which he was terminated, and that the only other employee terminated from that group was about 61 years old.
I find that, taken together, these allegations fail to create a genuine issue of fact about whether Xerox's proffered reason for Bernhard's termination is a pretext for age discrimination. First, the fact that he was initially given an 11 rating by Casey is not probative of anything other than the fact that Casey changed his mind about what score Bernhard deserved. There is no proof at all that Bernhard's age had anything to do with the change from an 11 to a 9. Plaintiff may believe that his 9 rating was unjustified, but an employee's personal disagreement with his employer's evaluation of him is not enough to create an inference of discrimination. "Dismissals are often preceded by adverse performance reviews. Were we to view this pattern as suspect, without more, many employees would be able to appeal their personnel evaluations to a jury." Viola, 42 F.3d at 718. See also Shapolia v. Los Alamos Nat'l Lab., 992 F.2d 1033, 1039 (10th Cir. 1993) (employee's own assessment of his job performance is inadequate to raise issue of fact for trial); Billet v. Cigna Corp., 940 F.2d 812, 825 (3d Cir. 1991) ("The fact that an employee disagrees with an employer's evaluation of him does not prove pretext"); Jimoh v. Ernst & Young, 908 F. Supp. 220, 226 (S.D.N.Y. 1995) (to prove discrimination claim, "plaintiff must do more than simply disagree with his employer's business decisions").
Likewise, there is no evidence to support Bernhard's assertion that his repeated reassignments during 1993 were "contrived" to lay the groundwork for his termination. At Bernhard's deposition, he conceded that these reassignments were necessitated by external events. For example, he stated that in January 1993, he was asked to transfer to a certain division "to head up a special project, because they couldn't get the subsystem to work." Bernhard Depo. at 32. He makes no allegation that Xerox's stated reason for this transfer was false, nor is there any indication that this transfer was designed to "set him up to fail" by sending him into a job he was not qualified for; in fact, plaintiff alleges in his affidavit that he "quickly accomplished his objectives" in the new position. Bernhard Aff. P 10(B).
Similarly, Bernhard testified that in August 1993, the project that he had been working on "was winding down, and so we were told to look for jobs. And an opportunity came up" in another program, and he accepted an offer to work on that program. Bernhard Depo. at 34. He further stated that later that "program was canceled," so he was transferred to a different unit. Id. at 35. That program, too, was canceled, and Bernhard was terminated about a week later. Id. Nowhere is there any suggestion that the reasons for Bernhard's transfers were pretextual.
Plaintiff's allegation that he was the second-oldest person in his group, that the oldest employee was also terminated, and that Xerox retained younger, less experienced employees, in the absence of any other evidence of discrimination, is also insufficient to give rise to a genuine issue of fact for trial. "Plaintiff's age, standing alone, is insufficient to satisfy his burden of proof." Williams v. Brooklyn Union Gas Co., 819 F. Supp. 214, 225 (E.D.N.Y. 1993). If it were, any employer who terminated one of the oldest employees in any particular unit could be forced to litigate an ADEA claim all the way to trial. See Suttell v. Manufacturers Hanover Trust Co., 793 F. Supp. 70, 74 (S.D.N.Y. 1992) (mere fact that younger, less-experienced employee assumed plaintiff's former duties after plaintiff was terminated in RIF was insufficient to give rise to inference of discrimination).
Aside from Bernhard's own allegations, the only evidence he offers in support of his claim is the statistical evidence by Dr. Smethurst. Although statistical evidence can be used to support a disparate treatment claim, see Hollander v. American Cyanamid Co., 895 F.2d 80, 84 (2d Cir. 1990), I find that Smethurst's testimony and reports have no more probative value on Bernhard's disparate treatment claim than they do on his disparate impact claim, for the reasons already stated. The same is true as to the other plaintiffs, and I will not repeat those reasons in my discussion of every plaintiff. It should be pointed out, however, that Smethurst stated at his deposition that he did not do a statistical analysis of the group against which Bernhard was stack-ranked because that group of "40 or 50" employees was so small that the fact that the two employees who were laid off in that group "would not be statistically significant." Smethurst Depo. at 133, 140. Instead, he analyzed a much larger group of 1253 employees, which means that about 1200 of those employees were not included in the stack-ranking for Bernhard's group. That analysis is not probative of whether Bernhard was discriminated against. See Maddox v. Claytor, 764 F.2d 1539, 1554-56 (11th Cir 1985) (district court did not err in concluding that plaintiffs failed to make out prima facie case of disparate impact based on statistical analysis that improperly lumped together different promotion opportunities); cf. Raskin, 125 F.3d at 67 (plaintiff's expert's method rendered "general population" group an unrepresentative sample for his comparison with defendant's employees, and expert's analysis was therefore not probative of age discrimination).
Plaintiff Judith Caruana alleges that she was terminated on account of her age and sex, in violation of the ADEA, Title VII, and the HRL. Prior to her termination in January 1994 at the age of 50, Caruana was employed as a quality specialist in Xerox's Convenience Copier Focus Factory ("CCFF") in the Corporate Strategic Services ("CSS") unit. In December 1993, Caruana's manager, Peter Cook, filled out plaintiff's CAF, giving her a total score of 14 out of a possible 20. After a group of managers reviewed Caruana's and other employees' CAFs, Caruana's score was lowered to 12. Out of the forty employees in Caruana's skill group against whom she was ranked, the bottom ten, including Caruana, were terminated.
None of these allegations gives rise to a genuine issue of material fact regarding either of Caruana's claims. The alleged statements by a friend of Caruana and by "someone" in the personnel department about women being "sacrificial lambs" are rank hearsay, and one of the speakers is not even identified. A party "cannot rely on inadmissible hearsay in opposing a motion for summary judgment, absent a showing that admissible evidence will be available at trial." Burlington Coat Factory Warehouse v. Esprit De Corp., 769 F.2d 919, 924 (2d Cir. 1985) (citations omitted). Caruana has made no such showing here.
Caruana's age discrimination claim fares no better. Cook's alleged questions about why Caruana did not retire after she received her settlement funds is insufficient to show pretext for several reasons. First, it is at best barely probative of discriminatory animus. That someone who receives a very large enough sum of money
should be asked by a coworker why she does not retire hardly seems remarkable, since many workers would probably retire early if they could afford it. Furthermore, Caruana herself, when asked at her deposition whether anyone at Xerox ever spoke to her about voluntarily retiring, responded, "No. It was just one of those jokes that Pete used to come up with that said with all the money I've got I should retire." Caruana Depo. (Defendant's Motion for Summary Judgment Ex. E) at 184.
Beyond that, however, this evidence suffers from the same problem as the rape allegation: Cook was not the one who gave Caruana a score of 12, nor were these remarks, which were allegedly made in the Spring of 1993, in any way related to the decisionmaking process with respect to the RIF in January 1994. See Philipp v. ANR Freight Sys., Inc., 61 F.3d 669, 674 (8th Cir. 1995) (no link between supervisor's reference to plaintiff as "the old man" and plaintiff's termination); Kriss v. Sprint Communications Co., Ltd. Partnership, 58 F.3d 1276, 1281-82 (8th Cir. 1995) (supervisor's rude comments about certain female employees, including calling one of them a "bitch," were little more than statements by decisionmakers unrelated to the decisional process); Nawrocki, 1997 WL 211338 *3 (supervisor's references to plaintiff as a "Polack" "were not temporally proximate to the discharge and were unrelated to the decisional process itself," and hence did not support claim of discriminatory discharge).
There is also no evidence to support plaintiff's allegation that her unfavorable performance review in the Summer of 1993 was in retaliation for her refusal to retire. As stated before, an employee's subjective belief that her employer's assessment of her is unjustified is insufficient to give rise to an inference of discrimination. Viola, 42 F.3d at 718; Shapolia, 992 F.2d at 1039. Cook's "jokes" about Caruana retiring, and Caruana's belief that the unfavorable review was unjustified, do not add up to enough to support plaintiff's allegation of retaliation.
Caruana's allegation that Cook began removing some of her duties from her in the Fall of 1993 similarly fails to support an inference of pretext. Plaintiff has not explained how that action was causally related to the decision to terminate her, or how it contributed to her score of 12 on the CAF. Moreover, when asked at her deposition whether she had any reason to believe that Cook's desire to shift some of Caruana's duties elsewhere "was due to either [her] age or gender," Caruana replied, "No." Caruana Depo. (Defendant's Motion for Summary Judgment Ex. E) at 186.
The allegation that after Caruana's termination, Xerox hired two people in their early twenties to assume Caruana's former duties is also insufficient to defeat Xerox's motion. First, the only basis for this allegation is the fact that after her termination, Caruana met two men she used to work with, both of whom still worked at Xerox. They allegedly told Caruana that "they were both training people that were to take [Caruana's] place, take [her] responsibilities," and that the trainees were new hires. Caruana Depo. at 42, 50. Caruana admitted, however, that she had no firsthand knowledge of whether that was true. Id. at 50. This evidence, too, then, is pure hearsay and cannot be considered on this motion. Furthermore, with no evidence of the circumstances of these alleged replacements' hiring, their qualifications, or the full range of their duties, this unsubstantiated allegation is simply not enough to indicate that Caruana was terminated because of her age. See In re Western Dist. Xerox Litigation, 850 F. Supp. 1079, 1089 (W.D.N.Y. 1994) ("It is difficult to imagine a corporation this large never having to hire new employees in some areas, even during an overall reduction in force").
As already stated, I find that Caruana's statistical evidence is also not probative of discrimination. I also note, however, that Smethurst stated at his deposition that the CCFF group from which she was terminated was too small to "enable you to draw a statistical conclusion." Smethurst Depo. at 219. He also agreed, however, that if a statistical analysis were performed on that group, there was no statistical significance between the rates of termination of the 40-and-over group and the under-40 group. Id. at 220. In addition, Caruana was one of the three plaintiffs with respect to whom Smethurst performed a regression analysis, and concerning that test, he was asked at his deposition, "So basically, the bottom line is you found no statistical evidence of gender discrimination in Ms. Caruana's case?," to which he responded, "Right." Id. at 504.
Plaintiff Robert Gusciora alleges that he was terminated on account of his age, in violation of the ADEA, the Civil Rights Act of 1991, and the HRL. Prior to his termination in January 1994, Gusciora was employed as a Technical Specialist/Project Manager in Xerox's Office Document Systems ("ODS") unit. In December 1993, Gusciora's manager, Larry Wood, filled out Gusciora's CAF, giving him a score of 11 out of a possible 20. The lowest-ranked eighteen employees, including Gusciora, were terminated.
In support of his claim, Gusciora alleges the following. He states that at the time of his termination, he was just a few months short both of thirty years of service with Xerox and of his fifty-second birthday. He states that had he reached both those marks, his retirement benefits would have greatly increased. He alleges that Xerox terminated him in part to deny him those benefits. He also alleges that, at Xerox's urging, he voluntarily served as the Electronics Division Chairman of the American Society for Quality Control ("ASQC"), but that he received a negative comment about spending too much time on that position in his 1992 performance evaluation. Gusciora states that when he asked one of his supervisors, George Baker, about why he had received a relatively low raise in 1992, Baker said that "there was no money for older employees who'd been making 'bigger bucks.'" Gusciora Aff. P 14. Gusciora states that in March 1993, another supervisor showed him a stack of documents that Gusciora had produced in 1992, and told him that "this wasn't very much" to justify Gusciora's "large" salary. Id. PP 15, 16. Gusciora responded that he had been working on a project that did not generate many documents. Despite Gusciora's efforts to demonstrate that he earned every penny he got from Xerox, his supervisors continued to believe that he was overpaid. Gusciora also states that in December 1993, one month before he was terminated, he received an award for his work on a certain project, with an accompanying letter stating, "It was the best issue ever," and "We don't know what we would've done without you." Id. P 20.
These allegations do not give rise to an issue of fact about whether Xerox's proffered reason for Gusciora's termination was a pretext for discrimination. First, Gusciora's claim that he was terminated because he close to the point when he would have had a "bridge to retirement," id. P 4, besides being completely unsubstantiated, is not suggestive of age discrimination. "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.' Thus, decisions motivated by economic concerns do not violate the ADEA." Criley v. Delta Air Lines, Inc., 119 F.3d 102, 105 (2d Cir. 1997) (quoting Hazen, 507 U.S. at 609).
There is also no evidence that the negative comment about Gusciora's spending time on his ASQC position in 1992 was in any way related to his age. Furthermore, the complaint itself alleges that "when Plaintiff questioned his immediate supervisor, George E. Baker, about the negative comment it was struck from the appraisal." Complaint P 18(c).
As to the allegations concerning Baker's alleged "bigger bucks" comment, and Gusciora's supervisors' demanding that he justify his salary, they too relate only to economic concerns, not to Gusciora's age. The fact that age may have some correlation with salary does not mean that an employer's concerns about high-salaried employees is indicative of age discrimination. Schiltz v. Burlington Northern R.R., 115 F.3d 1407, 1411-12 (8th Cir. 1997); Anderson v. Baxter Healthcare Corp., 13 F.3d 1120, 1125-26 (7th Cir. 1994); Hamilton v. Grocers Supply Co., 986 F.2d 97, 99 (5th Cir.), cert. denied, 508 U.S. 960, 124 L. Ed. 2d 679, 113 S. Ct. 2929 (1993).
Gusciora's receipt of an award in December 1993, and his claim that he always performed his work satisfactorily, are of little significance. First, whether Gusciora was able to perform his duties well is not the issue, since he was not fired for cause, but terminated in a RIF. "Because this was a RIF, what mattered was not whether [Gusciora] was able to do his job, but how well he did it compared to his coworkers." Coleman v. Prudential Relocation, 975 F. Supp. 234, 247 (W.D.N.Y. 1997). Moreover, if Xerox had indeed been looking for an excuse to terminate Gusciora because of his age, it would make little sense to give him an award only a month before his termination.
Aside from the overall deficiencies in plaintiffs' statistical evidence, Gusciora is also one of the subjects of Smethurst's three regression analyses. At his deposition, Smethurst stated that when he ran this analysis, he could not find a statistically significant difference between the termination rates of employees 40 and older and those under 40, and that therefore he could not rule ...