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.
Caruana's complaint also alleges that Xerox discriminated against her on the basis of her sex by "consistently giving preference to male candidates for promotion and/or hiring solely on the basis of gender." Complaint P 32. Caruana stated at her deposition that the basis for this claim was that she was passed over for promotion in 1987 and 1989. Caruana Depo. at 197. Those events, however, occurred more than 300 days prior to Caruana's filing her EEOC charge on September 21, 1994. Under Title VII, a claimant must file a charge of discrimination with the EEOC within 300 days after the alleged discriminatory event. 42 U.S.C. §§ 2000e-5(e). When a plaintiff has not done so, the claim is time-barred. Butts v. City of New York Dep't of Housing, 990 F.2d 1397, 1401 (2d Cir. 1993). Caruana's claims regarding denial of promotion are therefore time-barred.
C. Robert Gusciora
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 out the possibility that Gusciora's age was not a factor in his termination. Smethurst Depo. at 402.
D. George Hamann
Plaintiff George Hamann alleges that he was terminated because of his age in violation of the ADEA, the Civil Rights Act of 1991, and the HRL. Hamann was terminated from his position as a Model Shop Supervisor in CSS in January 1994 at the age of 58. In December 1993, Hamann's manager, Thomas Gargana, after meeting with two other managers, gave Hamann a score of 8 out of a possible 20 on Hamann's CAF. Hamann had the lowest score of the twenty-two employees who were rated in his group, and he was terminated in the RIF.
In support of his claims, Hamann makes the following allegations. He states that throughout his employment with Xerox, he consistently received favorable performance reviews, and was never advised of any problems with his work. Nevertheless, in September 1993, he was removed from his supervisory position. He was not told the reason, but "off the record" he was told that he "had not seen 'eye to eye' with management." Hamann Aff. P 11. He was told that he would be put in a new position, but that did not happen and he was left with no work to do. He was also asked to train his replacement as Model Shop Supervisor, Don Picotte, a "much younger" man with much less experience than Hamann. Id. P 13. He claims that there were numerous positions which he could have been given that were instead filled by contract workers.
These allegations fall far short of what is needed to defeat Xerox's motion for summary judgment. There are two problems with Hamann's allegation that he had always performed well. First, as already stated, an employee's subjective view of his own performance is insufficient to create a triable issue of fact on the issue of pretext. Viola, 42 F.3d at 718; Shapolia, 992 F.2d at 1039. Second, even if Hamann had been a good employee, that is beside the point, since he was not fired for cause, but only because of his score compared to his coworkers'. Coleman, 975 F. Supp. at 247.
The allegation about being removed from his position because he did not see "eye to eye" with management also fails to give rise to an issue of fact. First, this is utter hearsay, and plaintiff does not even allege who made the statement. Second, even if the statement were made, being removed from a position because one does not see "eye to eye" with management does not constitute age discrimination. Third, Hamann himself, when asked at his deposition why he believed his age was a factor in his removal from the supervisory position, said,
I base it on, mainly, about the computers and the ability to adapt to these. What can I say, maybe to adjust to the new way of doing business. Everything is computerized. It's not one of my fortes. I think Don Picotte may have been more proficient in the computer part of the business. I think that part of the age discrimination, [sic] I think that was against me.