Plaintiff, however, contends that his termination was due to
the effects of a "cascading objectives" policy at RTC pursuant to
which objectives were announced at the highest levels of
management and then further expressed and carried out at
progressively lower levels. R.L. Bittner, RTC's President and
Chief Executive Officer, issued a set of "1993 CEO Objectives,"
one of which was to "[i]ntroduce programs that improve the
`Diversity' of the organization such that the trend over a 5 year
horizon will result in the composition of our workforce matching
the composition of the markets we serve." Plaintiff's Exhibits in
Opposition to Defendant's Motion ("Plaintiff's Exhibits") Ex. B
at 3. L.L. Massaro, RTC's Corporate Vice President — Finance and
Treasurer, likewise issued a set of objectives, including one
that stated: "Improve the `Diversity' of Corporate such that by
year end there are a minimum of four minority employees within
the group and at least one is at a second level or higher
position. Clearly demonstrate through personal behavior that the
Corporation values diversity as a business imperative." Id. at
2. Karbel also issued a list of objectives for the Internal Audit
Department, including an objective to "[i]mprove the `Diversity'
of the Internal Audit Group such that by year end there is at
least one minority employee within the group. Clearly demonstrate
through personal behavior that the Corporation values diversity
as a business imperative." Id. at 1.
According to plaintiff, then, the alleged downsizing at RTC was
nothing more than a pretext to get rid of older white males and
replace them with minority employees. He claims that this is what
occurred in the Internal Audit Department: that he was
terminated, ostensibly as part of RTC's overall downsizing, but
in reality to make way for one or more minority employees.
Plaintiff's attorney also states in an affidavit that, in
support of his claim that there was no real downsizing going on
at RTC, "Mr. Blanke will testify at trial, and upon information
and belief, his testimony will be corroborated by others with
first-hand information, . . . which will establish that the
number of managers has increased from approximately 670 managers
to more than 850 managers since 1993, the year in which Mr.
Blanke was terminated." Reply Affidavit of Theodore S. Kantor,
sworn to June 22, 1998 ¶ 3.
This allegation is wholly insufficient to defeat defendant's
motion. For one thing, "[a]n affidavit of the opposing party's
attorney which does not contain specific facts or is not based on
first-hand knowledge is not entitled to any weight." Wyler v.
United States, 725 F.2d 156, 160 (2d Cir. 1983). Moreover, to
defeat a well-founded summary judgment motion, the non-moving
party must come forward with "concrete evidence from which a
reasonable juror could return a verdict in his favor." Anderson
v. Liberty Lobby, 477 U.S. 242, 256, 106 S.Ct. 2505, 91 L.Ed.2d
202 (1986). An attorney's affidavit alleging what his client
will say at trial, without any actual evidence to support that
assertion, is simply inadequate. Such an assertion is equivalent
to an attorney's opening statement at trial, in which he tells
the jury what he expects his client to say in his testimony.
Certainly no reasonable juror could return a verdict in the
client's favor based on that alone. In short, if plaintiff has
evidence that the number of managers increased as he claims, he
should have presented it in opposition to defendant's motion for
summary judgment, or at the very least identified the nature of
the alleged evidence. Conclusory allegations that such evidence
will be forthcoming at trial are not good enough.
In addition, the relevance of an increase in the number of
managers at RTC since 1983 to plaintiff's termination is minimal
at best. Plaintiff was not a manager but an internal auditor, and
he has presented no evidence to show that the number of internal
auditors in his department increased after his termination.
Plaintiff testified at his deposition that he "kn[e]w there was
three minorities according to Larry [Root, another internal
auditor] that were hired shortly after I left." Plaintiff's Depo.
at 160. This is hearsay, however, and plaintiff has put forward
nothing to indicate that Root himself would so testify at trial.
A party "cannot rely on inadmissible hearsay in opposing a
motion for summary judgment, absent a showing that admissible
evidence will be available at trial." Burlington Coat Factory
Warehouse v. Esprit De Corp., 769 F.2d 919, 924 (2d Cir. 1985)
(citations omitted). Plaintiff's attorney did depose Root, see
Reply Affidavit of Todd R. Shinaman, sworn to March 27, 1998, Ex.
B, but plaintiff has submitted no excerpts from that testimony
concerning how many minority employees were hired after
plaintiff's termination. Moreover, plaintiff has presented no
independent evidence to corroborate this assertion.
All the admissible evidence before the court, then, indicates
that when plaintiff was terminated, the number of internal
auditors dropped from six to five, and that it never rose above
five after that date. When Reissig and LaSota resigned, the
number dipped still further, and the hiring of Tolbert and Diaz
simply restored it to five.
It simply makes no sense to think that Tolbert and Diaz
replaced plaintiff when two other auditors voluntarily resigned
after his termination. All of the auditors held the same position
and had essentially the same duties. If Karbel had determined
that he wanted five auditors in the department, there is no
logical way that he could have hired Tolbert or Diaz to replace
plaintiff, who had been the sixth auditor prior to his
termination. When Reissig and LaSota resigned, vacancies arose in
the Internal Audit Department; when plaintiff was terminated,
there was no vacancy as a result, because the desired number of
auditors had been set at five. See Frieze v. Boatmen's Bank of
Belton, 950 F.2d 538, 541 (8th Cir. 1991) (where evidence showed
that plaintiff's alleged replacement was hired only after another
employee resigned, some five months after plaintiff's discharge,
jury could not reasonably infer that other person was hired to
replace plaintiff); Lilley v. BTM Corp., 958 F.2d 746, 752 (6th
Cir. 1992) (fact that an employee was hired nine months after
plaintiff was terminated was not probative of age
discrimination); Kirkpatrick v. Yellow Freight Sys., Inc., No.
1:96-CV-53RR, 1997 WL 149326 *6-7 (S.D.Miss. Jan.17, 1997)
(rejecting plaintiff's assertion that hiring of another person to
fill a vacancy that arose months after plaintiff's termination,
and for which plaintiff did not apply, constituted
In addition, even if Tolbert and Diaz could be considered
plaintiff's replacements, that alone would not suffice to defeat
defendant's motion for summary judgment. Replacement by a person
of a different race may suffice to make out the fourth element of
a prima facie case under Title VII, but without additional
evidence of discriminatory intent, it is insufficient at the
summary judgment stage. "That one's replacement is of another
race, sex, or age may help to raise an inference of
discrimination, but it is neither a sufficient nor a necessary
condition." Carson v. Bethlehem Steel Corp., 82 F.3d 157, 159
(7th Cir. 1996). See Hill v. Burrell Communications Group Inc.,
No. 92 C 8343, 1995 WL 76881 *5 (N.D.Ill. Feb.17, 1995) (by
itself, assertion that plaintiff was replaced by black person
only satisfies part of plaintiff's burden to make a prima facie
case, and does not permit an inference of discriminatory animus);
see also McGraw v. Wyeth-Ayerst Labs., Inc., No. CIV. A.
96-5780, 1997 WL 799437 *7 (E.D.Pa. Dec.30, 1997) (replacement of
female employee with male employee after she was terminated is
not enough to demonstrate disparate treatment or raise inference
of unlawful discrimination under Title VII); Brown v. Herman's
Furniture, Inc., 772 F. Supp. 350, 356 (N.D.Ohio 1990) (fact that
black female plaintiff was replaced by white male "add[s] nothing
beyond establishing plaintiff's prima facie case").
Plaintiff, of course, does contend that he has shown more than
his alleged replacement by minority employees; he relies as well
on the "cascading objectives" seeking to increase "diversity"
within RTC by hiring more minority employees. I find that too
slender a reed on which to rest plaintiff's race discrimination
claim, however. To infer from those generalized statements that
Karbel deliberately terminated plaintiff to make room for a
minority employee would not be reasonable. The statements
articulating RTC's broad goal of increasing the number of
minority employees within its ranks contain no suggestion that
would be terminated in order to effectuate that goal. Even the
statements concerning specific targets for the number of minority
employees by year's end do not in themselves suggest that whites
would be let go in the process. In any business, vacancies will
arise from time to time as employees retire, resign, or get
promoted or transferred. Indeed, that is exactly what happened
here when Reissig and LaSota resigned. RTC's stated objectives,
then, indicate no more than that managers should be on the
lookout for, or actively recruit, minority candidates when
positions did become open. Even if this evidence could suffice to
establish the fourth element of plaintiff's prima facie case,
then, it is not enough to defeat defendant's motion for summary
judgment. See Silver v. City Univ. of New York, 947 F.2d 1021,
1022 (2d Cir. 1991) (internal memorandum stating that lists of
candidates for Distinguished Professor "should include a very
significant representation of minorities and females" in no way
suggested that appointments to that position would be race-or
gender-based) (per curiam); Brown v. Time, Inc., No. 95 Civ.
10081, 1997 WL 231143 *4 (S.D.N.Y. May 7, 1997) (newsletter
circulated by defendant's chairman stating, "[W]e must make
diversity a reality . . . We must do as well at recruiting,
retaining, and promoting minorities as we have with women in
publishing" "express[ed] a commitment to diversity, but d[id] not
thereby suggest a policy of discrimination"); Payne v. Norwest
Corp., 911 F. Supp. 1299, 1305-06 (D.Mont. 1995) (internal memo
that recommended increasing the number of women and minorities in
certain positions, and fact that company had diversity goals and
kept statistics on the number of minorities employed at
managerial levels, did not give rise to inference that plaintiff
was fired because he was white), aff'd in part and rev'd on
other grounds in part, 113 F.3d 1079 (9th Cir. 1997).
IV. Retaliation Claim
Plaintiff alleges that in retaliation for plaintiff's filing of
charges against defendant with the EEOC, defendant has refused to
consider him for re-employment and has deliberately made it
difficult for plaintiff to find work elsewhere by "blackballing"
him or suggesting to potential employers seeking references that
plaintiff is a troublemaker. Plaintiff also alleges that during
his exit interview, Karbel told him that "as long as there was no
trouble, [plaintiff] didn't make waves, whatever, that
[plaintiff] would be considered for future openings within the
corporation." Plaintiff's Depo. at 142. According to plaintiff,
he did apply for various jobs at RTC and submitted his resumé
several times, usually when he noticed newspaper advertisements
for openings at RTC, but RTC never contacted him or acknowledged
that it had received his applications.
Plaintiff has also submitted a copy of a memorandum by Louis V.
Falvo of the Falvo Agency, a private investigating firm that
plaintiff hired after his termination to find out if RTC was
saying anything to potential employers of plaintiff that could
have hurt plaintiff's chances for securing employment. The text
of the memorandum is as follows:
1) Investigators confirmed negative statements made
by Rochester Telephone Company (RTC) to potential
A) "Did you know that Mr. Blanke has filed charges
with the EEOC against RTC?"
B) "Our reference information must not get back to
Mr. Blanke or others."
C) "You need to contact our Legal Department next."