The opinion of the court was delivered by: HURD
MEMORANDUM - DECISION and ORDER
Presently before the court is defendant Business Services Company of Utica's ("BSC") motion for summary judgment pursuant to Fed. R. Civ. P. 56, on the ground that there exists no genuine issues of fact warranting a trial. Plaintiff Robert Ogiba ("Ogiba") opposes the motion. Oral argument on the motion was heard on June 11, 1998, in Utica, New York. Decision was reserved.
On October 15, 1996, plaintiff filed a complaint alleging that defendant willfully discharged him from his position as a copier technician because of his age in violation of the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. §§ 623-634. Defendant alleges that plaintiff was terminated because of his unsatisfactory job performance in relation to coworkers during a time of company wide downsizing.
Ogiba was employed for nine years as a copier technician by BSC, a copier/facsimile sales and service dealer. He was interviewed and hired by Jim Abiusi ("Abiusi"), BSC's Vice President. Plaintiff was 41 1/2 years old at the time he was hired.
During his years at the company, plaintiff serviced copy machines for BSC's customers. Typically, he responded to customer service calls by driving to the customer's site and performing technical repairs or maintenance on their copy machines. In addition to technical work, plaintiff was responsible for completing relevant paperwork and maintaining good relationships with BSC's customers.
In 1992, BSC hired a consultant to analyze staffing patterns at the company. The consultant analyzed BSC's billing, number of contracts, and number of copiers in the Watertown area, and then compared these numbers to BSC's staffing. The consultant concluded that BSC was over staffed according to the industry standard of 150 copiers per technician. The consultant advised BSC that it needed to reduce its service employees by 1.2 employees in the Watertown office. At that time, there were four service technicians in the Watertown office along with one manager. The four service technicians were plaintiff, age 50; Richard Ames, age 51; Arthur Lull, age 48; and Warren Cronk, age 31.
BSC placed Abiusi in charge of implementing the consultant's recommendations and selecting which technician to discharge. Abiusi decided to terminate Ogiba, and the plaintiff was informed of the decision on April 27, 1992. Plaintiff alleges this decision was based on age discrimination. At the time he was terminated, plaintiff had an annual salary of $ 22,396.50, plus the use of a company car.
On September 21, 1992, plaintiff filed a charge with the New York State Division of Human Rights and the Equal Employment Opportunity Commission alleging age discrimination. Both the New York State Division of Human Rights and the Equal Employment Opportunity Commission held that the complaint was without merit. Plaintiff then commenced the instant suit.
A. Summary Judgment Standard
Summary judgment must be granted when the pleadings, depositions, answers to interrogatories, admissions and affidavits show that there is no genuine issue as to any material fact, and that the moving party is entitled to summary judgment as a matter of law. Fed. R. Civ. P. 56; Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). Facts, inferences therefrom, and ambiguities must be viewed in a light most favorable to the nonmovant. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986); Project Release v. Prevost, 722 F.2d 960, 968 (2d Cir. 1983). Once the moving party has met the initial burden of demonstrating the absence of a genuine issue of material fact, the nonmoving party "must set forth specific facts showing that there is a genuine issue for trial." Fed. R. Civ. P. 56; Liberty Lobby, Inc., 477 U.S. at 250; Celotex Corp. v. Catrett, 477 U.S. 317, 323, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986); Matsushita Elec. Indus. Co., 475 U.S. at 587. At that point the nonmoving party "must do more than simply show that there is some metaphysical doubt as to the ...