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July 29, 1998


The opinion of the court was delivered by: SOTOMAYOR



 Plaintiff Thomas Lanahan alleges in this suit that the defendant, his former employer, discharged him after twenty years of employment because of his age and in order to avoid payment of certain retirement benefits. Defendant Mutual Life Insurance Company of New York has moved for summary judgment on all claims. For the reasons to be discussed, the Court grants the defendant's motion.


 The Mutual Life Insurance Company of New York (MONY) is a national insurance agency headquartered in New York City. MONY first hired plaintiff Thomas D. Lanahan in 1976 as an Agency Manager in charge of its Woodbury, New York office. From there plaintiff moved on to various positions, including Vice President for Marketing, and was ultimately appointed as manager of MONY's Northern New Jersey agency in 1989, a position he held until his termination on January 31, 1996. Lanahan was 55 years of age at the time of his discharge.

 MONY claims, and provides supporting evidence, that Lanahan was fired as agency manager because of his agency's severely declining performance and Lanahan's failure to meet various performance targets for recruiting, sales, and expenses. Lanahan, on the other hand, contends that any failure of his agency to meet performance targets was because of an overall decline in MONY's business and a lack of support from management (including the transfer of high-producing employees and failure to offer Lanahan certain training opportunities); moreover, Lanahan contends the performance targets imposed upon him were contrived to be unrealistically high so has to create an excuse for firing him.

 Lanahan brought this suit alleging age discrimination in violation of the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 621 et seq., the New York Human Rights Law (NYSHRL), N.Y. Exec. Law § 290 et seq., and the New Jersey Law Against Discrimination (NJLAD), N.J.S.A. § 10:5-1 et seq., as well as violations of the Employment Retirement and Income Security Act of 1974 (ERISA), 29 U.S.C. § 1101 et seq., and breach of contract. MONY has moved this Court for summary judgment on all claims.


 I. Summary Judgment Standard

 Summary judgment may be granted "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(c); see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-50, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). The moving party has the burden of identifying the evidence that it believes demonstrates the absence of a genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). In determining whether summary judgment is appropriate, the Court resolves all ambiguities and draws all reasonable inferences against the moving party. See Schwapp v. Town of Avon, 118 F.3d 106, 110 (2d Cir. 1997). The Second Circuit has also cautioned that courts must be "particularly cautions about granting summary judgment to an employer in a discrimination case when the employer's intent is in question. Because direct evidence of an employer's discriminatory intent will rarely be found, 'affidavits and depositions must be carefully scrutinized for circumstantial proof which, if believed, would show discrimination.'" Id. at 110 (quoting Gallo v. Prudential Residential Servs., 22 F.3d 1219, 1224 (2d Cir. 1994)).

 II. Age Discrimination Claims

 The ADEA prohibits any employer from "discharging any individual or otherwise discriminating against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's age." 29 U.S.C. § 623(a)(1). The NJLAD and the NYSHRL, insofar as is relevant here, prohibit the same conduct and are subject to the same analysis as the ADEA claim. See Keller v. Orix Credit Alliance, 130 F.3d 1101, 1114 n.5 (3d Cir. 1997) (NJLAD); Lightfoot v. Union Carbide Corp., 110 F.3d 898, 913 (2d Cir. 1997) (NYSHRL).

 In the summary judgment context, claims under the ADEA are analyzed under the same McDonnell Douglas framework as those under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. See Renz v. Grey Advertising, Inc., 135 F.3d 217, 221 (2d Cir. 1997). The plaintiff first must establish a prima facie case of discrimination; upon doing so, the burden shifts to the defendant to produce "reasons for its actions which, if believed by the trier of fact, would support a finding that unlawful discrimination was not the cause of the employment action." Grady v. Affiliated Cent., Inc., 130 F.3d 553, 559 (2d Cir. 1997). If the defendant does so, the presumption of discrimination raised by the prima face case "drops out of the picture," id. at 559-60, and "the burden then returns to the plaintiff, who must adduce sufficient evidence to allow a rational fact finder to infer that the employer was motivated in whole or in part by age discrimination." Norton v. Sam's Club, 145 F.3d 114, 1998 U.S. App. Lexis 10643, at *9-10, 1998 WL 272630, at *3 (2d Cir. 1998). The plaintiff need not show that "age was the only or even the principal reason for the complained-of employment action," only that "age played a motivating role in, or contributed to, the employer's decision." Renz, 135 F.3d at 222.

 Despite the fact that the parties dispute whether Lanahan has established a prima facie case, the Court sees no need to address that issue. Since the Second Circuit's decision in Fisher v. Vassar College, 114 F.3d 1332 (2d Cir. 1997), the only purpose served by the prima facie case is to force the defendant to articulate a non-discriminatory reason for the termination, and thus I agree with my colleague Judge Chin that since it is the rare case in which a defendant will not have proffered such a reason, it is simpler and more straightforward to move directly to the ultimate question. See Lapsley v. Columbia Univ.-College of Physicians & Surgeons, 999 F. Supp. 506, 514-15. At the very least, this Court will assume that Lanahan has established the prima facie case and move on to the ultimate question: has he produced evidence from which a rational factfinder could determine that age was a motivating factor in his discharge? The Court finds that Lanahan has failed to do so.

 As made clear in Fisher, a plaintiff may not survive a motion for summary judgment simply by creating a fact issue as to the pretextual nature of the defendant's proffered reasons for his discharge. Rather, even if MONY's reasons were rejected completely, Lanahan must nevertheless produce evidence from which a reasonable factfinder could infer that a discriminatory motive played a part in his discharge. See Fisher, 114 F.3d at 1346-47. Thus, despite the amount of argument Lanahan devotes to disputing MONY's view of his performance, these arguments will not help him, because even were it assumed that he has produced evidence that MONY's criticism of his performance is pretextual, he has produced no evidence from which it could be inferred that these reasons are a pretext for age discrimination.

 Lanahan proffers essentially three pieces of evidence that he claims demonstrate a practice of targeting older employees for termination by MONY. First, he claims that various statements made by MONY executives during depositions indicate a "corporate philosophy of '55 and out,'" Pl. Mem. Opp. at 13. Lanahan's evidence, however, does not support his assertions.

 Lanahan first points to the deposition of his immediate supervisor, Robert Mayberry, claiming that Mayberry "admitted that Lanahan was targeted for termination upon reaching age 55." Pl. Mem. Opp. at 11. No reasonable reading of Mayberry's deposition testimony supports this conclusion. The key passage upon which Lanahan apparently relies is as follows:

Q: Did you ever advise Tom [Lanahan] to retire at 55?
A [Mayberry]: I had discussions with Tom based on the fact that the agency wasn't doing well on a number of issues where I said the minimum you've got to do is get to 55. . . . I wanted him to know how important that last year was. And the end result of that is you need to do your job so you can get to 55.
. . .
Q: When -- did you make a recommendation or a decision with respect to the termination, Tom's ...

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