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January 23, 1999


The opinion of the court was delivered by: Spatt, District Judge.


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.

(Seelig Aff., ¶ 10).

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 ...

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