The opinion of the court was delivered by: Spatt, District Judge.
MEMORANDUM OF DECISION AND ORDER
This matter arises from the claims of the plaintiff, Anthony
Scelza ("Scelza" or the "plaintiff"), under the Age
Discrimination in Employment Act of 1967, as amended,
29 U.S.C. § 621 et seq. ("ADEA"). The plaintiff, who was 63 years of age at
the time of his termination, was discharged from a high-level
position with Extebank when it merged into the defendant, North
Fork Bank ("North Fork"), and announced a reduction in work
force. For the reasons that follow, the Court finds that there is
no probative proof of age discrimination. In fact, the plaintiff
has offered little by way of evidence, aside from the bare
circumstance of his discharge at the age of 63. This is
insufficient as a matter of law to support an ADEA claim; "a jury
cannot infer discrimination from thin air." Norton v. Sam's
Club, 145 F.3d 114, 120 (2d Cir. 1998). Accordingly, the Court
concludes that North Fork's motion for summary judgment
dismissing the complaint must be granted.
The following facts are derived from the parties' affidavits
and deposition testimony. Except where otherwise indicated, such
facts are not in dispute.
Extebank was a New York banking corporation wholly owned by
Banco Exterior de Espana, S.A. ("Banco Exterior"). The plaintiff
had been employed by Extebank since 1972 in various positions,
ultimately culminating in his promotion to the senior management
position he held at the time of his discharge: Senior Vice
President. As a Senior Vice President, the plaintiff was
responsible for Extebank's compliance with state and federal laws
and regulations (Scelza Aff., ¶¶ 3-4; Scelza Dep., p. 6).
The defendant North Fork is a New York bank with executive
offices in Melville, New York. Prior to March 15, 1996, North
Fork employed two individuals who performed duties similar to
those the plaintiff performed in his capacity as Senior Vice
President at Extebank, namely, Anthony Abate, Senior Vice
President of the Bank who had been employed there for 23 years,
served as Corporate Secretary, and "was responsible for
compliance with community reinvestment and other state and
federal laws'; and Mary Hannabury, a Vice President of the Bank
who had been employed there for 33 years, was a Compliance
Officer, and `was responsible for compliance with state and
federal laws and regulations with respect to deposits, loans and
other transactions with customers'" (Seelig Aff., ¶¶ 7-8).
On March 15, 1996, pursuant to an agreement between North Fork
and Banco Exterior, Extebank was merged into North Fork (Scelza
Aff., ¶ 5, 8; Seelig Aff., ¶¶ 5, 9). According to the affidavit
of Karen Seelig, Senior Vice President of North Fork and head of
the bank's Human Resources Department, the merger was expected to
yield "economies of scale," or efficiencies, and greater
profitability by eliminating duplicative job positions in all
areas of the combined entity, except for the branch system, which
was to remain largely intact due to the independent nature and
function of each branch (Seelig Aff., ¶ 9). Seelig states that:
As a part of the merger transaction, the heads of the
various departments of [North Fork] were required to
identify those employees of Extebank who were to be
retained. This determination was made based upon
whether or not the job function in issue could be
absorbed by an existing employee of the Bank. In
making this determination, the Bank considered the
quantity and nature of the work to be performed. This
process, however, did not apply to personnel in the
branches (as opposed to the central office) since the
branch system was to remain largely intact.
Several months before the merger, on December 16, 1995, the
plaintiff was notified
that his employment was to be terminated upon consummation of the
merger (Seelig Aff., ¶ 11; Scelza Aff., ¶ 5; Scelza Dep., pp.
28-29, 36). The plaintiff attended a termination meeting with
Seelig, at which, he testified at his deposition, "I just
indicated to her that redundant with the compliance [sic], but
I am certainly capable of other areas in the bank. [I said I
could work in] [b]ranch administration." (Scelza Dep., p. 36).
According to Scelza's affidavit in opposition to this motion, he
"spoke with Ms. Seelig [at the termination meeting] regarding the
possibility of my continued employment with North Fork Bank. Ms.
Seelig's response was that [my position] was redundant and would
not be needed any longer. I indicated to Ms. Seelig that I
believed I could be productive in other areas of the bank where
there may be openings, however, Ms. Seelig did not reply."
(Scelza Aff., ¶ 8). The plaintiff also asserts in his affidavit
that he "spoke with" Abate and Hannabury regarding his "need for
employment" (Scelza Aff., ¶ 8). However, the plaintiff did not
make any formal, written application to North Fork for employment
in any particular position (Scelza Dep., p. 36). He also did not
attend a May 18, 1996 North Fork job fair, which was advertised
in Newsday (Seelig Aff., ¶ 12; Scelza Aff., ¶ 16).
Upon his March 15, 1996 termination, the plaintiff accepted a
severance package consisting of approximately $253,000 in
deferred compensation benefits and approximately $26,000 in
severance benefits, although, apparently, he did not sign a
waiver of the right to make a discrimination claim (Seelig Aff.,
¶ 15). According to Seelig, "Effective upon the merger
plaintiff's position was eliminated since it was redundant with
those of Anthony Abate and Mary Hannabury and it was determined
that the job functions previously performed by plaintiff could be
absorbed by such employees. . . ." (Seelig Aff., ¶ 11). The
position previously held by the plaintiff was not recreated by
the Bank (Seelig Aff., ¶ 14). Seelig avers that the positions of
virtually all members of senior management of Extebank "were
eliminated" (Seelig Aff., ¶ 14). Seelig states unequivocally that
the plaintiff's age was not a factor in determining whether to
retain him (Seelig Aff., ¶ 12).
Scelza acknowledged at his deposition that no one at Extebank
or Banco Exterior ever made a disparaging remark to him regarding
his age (Scelza Dep., p. 170). For that matter, no one at North
Fork ever said anything to him about the termination decision
being made based on age (Scelza Dep., p. 42).
A. Summary Judgment: The Standard
Summary judgment is appropriate only where there are no genuine
disputes concerning any material facts, and where the moving
party is entitled to judgment as a matter of law. In Re:
Blackwood Associates, L.P., 153 F.3d 61, 67 (2d Cir. 1998)
(citing Fed.R.Civ.P. 56[c]; Celotex Corp. v. Catrett,
477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91
L.Ed.2d 202 (1986)). In deciding a summary judgment motion, the
district court must resolve all ambiguities and draw all
reasonable inferences in the light most favorable to the opposing
party. Castle Rock Entertainment, Inc. v. Carol Pub. Group,
Inc., 150 F.3d 132, 137 (2d Cir. 1998) (citing Garza v. Marine
Transp. Lines, Inc., 861 F.2d 23, 26 (2d Cir. 1988)). If there
is evidence in the record as to any material fact from which an
inference could be drawn in favor of the nonmovant, summary
judgment is unavailable. See Holt v. KMI-Continental, Inc.,
95 F.3d 123, 128 (2d Cir. 1996), cert. denied, ___ U.S. ___, 117
S.Ct. 1819, 137 L.Ed.2d 1027 (1997); Rattner v. Netburn,
930 F.2d 204, 209 (2d Cir. 1991). The trial court's task is
"carefully limited to discerning whether there are any genuine
issues of material fact to be tried, not to deciding them. Its
duty, in short, is confined at this point to issue-finding; it
does not extend to issue-resolution." B.F. Goodrich v.
Betkoski, 99 F.3d 505, 522 (2d Cir. 1996) (quoting Gallo v.
Prudential Residential Servs., Ltd., Partnership, 22 F.3d 1219,
1224 [2d Cir. 1994]), cert. denied sub nom., Zollo Drum Co.,
Inc. v. B.F. Goodrich Co., ___ U.S. ___, 118 S.Ct. 2318, 141
L.Ed.2d 694 (1998).
"When deciding whether this drastic provisional remedy should
be granted in a discrimination case, additional considerations
should be taken into account." Gallo v. Prudential Residential
Services, Ltd. Partnership, 22 F.3d 1219 (2d Cir. 1994). A trial
court must be cautious about granting summary judgment to an
employer when, as here, its intent is at issue. See Montana v.
First Fed. Sav. & Loan Ass'n, 869 F.2d 100, 103 (2d Cir. 1989);
Meiri v. Dacon, 759 F.2d 989, 998 (2d Cir.), cert. denied,
474 U.S. 829, 106 S.Ct. 91, 88 L.Ed.2d 74 (1985); Patrick v.
LeFevre, 745 F.2d 153, 159 (2d Cir. 1984). Because "smoking gun"
writings directly supporting a claim of intentional
discrimination are rarely, if ever, found among an employer's
corporate papers, affidavits and depositions must be carefully
scrutinized for circumstantial proof which, if believed, would
show discrimination. Gallo v. Prudential Residential Services,
22 F.3d at 1225.
By the same token, "when there is nothing more than a
metaphysical doubt as to the material facts," Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct.
1348, 89 L.Ed.2d 538 (1986), and where the "evidence is merely
colorable, or is not significantly probative, summary judgment"
is proper. Anderson v. Liberty Lobby Inc., 477 U.S. at 250, 106
S.Ct. 2505. Thus, a District Court's grant of summary judgment
will be upheld where "no rational jury could find that ...