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May 27, 1998

ALAN L. JENSEN, Plaintiff,
GARLOCK, INC., Defendant.

The opinion of the court was delivered by: LARIMER


 This is a discrimination case brought pursuant to the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq., (ADEA) and the New York Human Rights Law, Executive Law § 290 et. seq. (HRL). Plaintiff Alan L. Jensen (Jensen) asserts that he was unlawfully terminated from his employment with defendant Garlock, Inc. (Garlock) because of his age.

 Presently before me is Garlock's motion for summary judgment dismissing the complaint in its entirety. For the reasons stated below, the motion is granted.


 Jensen first was employed by Garlock in 1970 and was continuously employed there until his termination on July 28, 1995. Garlock's first position was as a hydraulic press operator. Over the years he was promoted twice and, in 1986, was promoted again to Production Supervisor of the "Expansion Joint Department." He received at least two satisfactory performance reviews and several merit pay increases.

 In September 1994 Nanci Malin-Peck became Jensen's immediate supervisor. She was not satisfied with Jensen's performance. In early April 1995, Malin-Peck drafted a Performance Appraisal of Jensen in which she criticized Jensen's job performance as unacceptable and placed him on a sixty-day probation period. Among other criticisms, Malin-Peck stated that Jensen was responsible for missed customer deliveries, failures to notify the customer when a delivery was going to be late, missed shipping dates, customer complaints and internal staff complaints. Malin-Peck contends that she met twice with Jensen to discuss his Performance Appraisal: once shortly after she prepared it in handwritten form, and once again several days later with Garlock's Vice President of Human Resources, Richard Hasenauer. Jensen disputes the manner and adequacy of notice regarding his alleged performance deficiencies.

 Toward the end of the sixty-day probationary period Malin-Peck apparently decided that Jensen's performance had not adequately improved. Following another meeting between Malin-Peck, Jensen and Hasenauer, Jensen's employment was terminated on July 28, 1995. Jensen was forty three years old. He was replaced by John Leisenring who was forty years old. After roughly one year, Leisenring was promoted out of the position and replaced by Steve Baker, age forty-nine. Malin-Peck herself was forty-four at the time Jensen was terminated, fifteen months older than Jensen.

 On or about May 22, 1996 Jensen filed an administrative charge with the EEOC and subsequently received a right to sue letter. This lawsuit was filed on February 13, 1997.


 A. 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, 475 U.S. at 586. "The non-moving party must come forward with 'specific facts showing that there is a genuine issue for trial.'" Id. at 587 (quoting Fed.R.Civ.P. 56(e) (alteration in original)).

 The general principles underlying a motion for summary judgment apply no less to this action simply because it is an employment discrimination case. It is true that courts exercise caution when considering whether to grant summary judgment in cases where an employer's intent is at issue. See, e.g., Gallo v. Prudential Residential Servs., 22 F.3d 1219, 1224 (2d Cir. 1994). However, "summary judgment remains available to reject discrimination claims in cases lacking genuine issues of material fact." Chambers v. TRM Copy Centers Corp., 43 F.3d 29, 40 (2d Cir. 1994). For a plaintiff in a discrimination case to survive a motion for summary judgment, he must do more than present "conclusory allegations of discrimination," Meiri v. Dacon, 759 F.2d 989 (2d Cir. 1985); he must offer "concrete particulars" to substantiate the claim. Id., cited in, Duprey v. Prudential Ins. Co., 910 F. Supp. 879 (N.D.N.Y. 1996).

 B. Summary Judgment Analysis in ADEA Cases:

 The burdens and order of proof in an ADEA case (and a NYHRL case) are the same as those applied in the Title VII context -- i.e., the well-established three-step scheme originally set forth in McDonnell Douglas v. Green, 411 U.S. 792, 36 L. Ed. 2d 668, 93 S. Ct. 1817 (1973) controls. Accordingly, the plaintiff has the initial burden of proving a prima facie case of wrongful termination under the ADEA and NYHRL. To do so, a plaintiff must show that: (1) he is at least forty years of age; (2) he was qualified for his position (i.e., his job performance was satisfactory); (3) he was terminated; and (4) the termination occurred under circumstances giving rise to an inference of age ...

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