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February 5, 1999


The opinion of the court was delivered by: Larimer, Chief Judge.


Plaintiff, Richard L. Blanke, commenced this action in New York State Supreme Court, Monroe County, on March 26, 1996, alleging causes of action under the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et seq., Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and the Civil Rights Act of 1991, Pub.L. No. 102-166, 105 Stat. 1071 (1991). Defendant, Rochester Telephone Corporation ("RTC"), removed the action to this court pursuant to 28 U.S.C. § 1331 and 1441(b) on April 25, 1996. Plaintiff, a former employee of RTC, alleges that he was terminated on account of his age, race and sex. Defendant has moved for summary judgment.


Plaintiff began working for RTC in October 1988 as a purchasing agent. In February 1992, he voluntarily transferred from RTC's Purchasing Department into its Internal Audit Department, where he worked as an auditor. Plaintiff was terminated from his employment on April 15, 1993. Plaintiff, who is white, was forty-one years old at the time.

RTC contends that plaintiffs termination occurred as part of a downsizing within its Corporate Department. RTC claims that it had determined that, to decrease its personnel in the Internal Audit Department, one internal auditor should be terminated. RTC alleges that Frank Karbel, the Internal Audit Director, reviewed the 1992 performance appraisals of the six auditors in the Internal Audit Department, and also independently evaluated their performances during the period after the appraisals were written, and determined that plaintiff was ranked lowest of the six auditors. According to RTC, that is why plaintiff was chosen for termination.

Plaintiff alleges that RTC's "downsizing" was, at least as far as his own termination is concerned, a pretext to eliminate a white male employee so that RTC could promote "diversity" within its ranks by hiring minority employees. Plaintiff claims that in September 1993, some five months after he was terminated, RTC hired two minority employees to replace him: Bruce Tolbert, a forty-two-year-old black male, and Jose Diaz, a forty-six-year-old Hispanic male. RTC admits that it hired Tolbert and Diaz, but contends that they were hired to replace two other auditors who voluntarily resigned after plaintiff was terminated.

On January 19, 1994, plaintiff filed a complaint against defendant with the Equal Employment Opportunity Commission ("EEOC"). Plaintiff checked the boxes for race and age discrimination, and stated, inter alia, "I believe that I was discharged because of my race, white," and, "I further believe that I was discriminated against in my layoff/discharge because of my age. . . ." He did not check the box for sex discrimination, nor did he expressly state that he believed that he had been discriminated against on account of his sex, though he did state that he had "observed that different qualifications were used to promote white men vs. other personnel." Affidavit of Todd R. Shinaman, sworn to Mar. 2, 1998, Ex. B. On June 13, 1994, plaintiff filed an amended EEOC complaint stating that he had previously "filed a charge of age and race discrimination," and that he believed that defendant had refused to consider him to fill certain vacancies that had arisen since his termination, in retaliation for plaintiff's filing of his prior EEOC complaint. Id. On March 29, 1996, the EEOC issued a right-to-sue notice, which contained no factual findings. Plaintiff commenced this action on March 26, 1996.*fn1


I. Age Discrimination Claim

To make out a prima facie case of age discrimination, plaintiff must demonstrate that (1) he belongs to the protected age group, (2) he was qualified to perform the duties required by the position, (3) he was discharged, (4) and he was discharged under circumstances suggesting that age was a factor. Woroski v. Nashua Corp., 31 F.3d 105, 108 (2d Cir. 1994); Gallo v. Prudential Residential Servs., Ltd. Partnership, 22 F.3d 1219, 1225 (2d Cir. 1994); Spence v. Maryland Casualty Co., 995 F.2d 1147, 1155 (2d Cir. 1993); Levin v. Analysis & Tech., 960 F.2d 314, 316 (2d Cir. 1992); Montana v. First Fed. Sav. & Loan of Rochester, 869 F.2d 100, 104 (2d Cir. 1989). The Second Circuit has stated that a plaintiff's burden to establish a prima facie case is de minimis. Meiri v. Dacon, 759 F.2d 989, 996 n. 10 (2d Cir.), cert. denied, 474 U.S. 829, 106 S.Ct. 91, 88 L.Ed.2d 74 (1985); Sweeney v. Research Found. of the State Univ. of New York, 711 F.2d 1179, 1184 (2d Cir. 1983).

An ADEA action is governed by the same three-step burden shifting analysis used in the Title VII context. Montana, 869 F.2d at 103; Dister v. Continental Group, Inc., 859 F.2d 1108, 1112 (2d Cir. 1988).

Texas Dep't of Community Affairs v. Burdine, 450 U.S. at 252-53, 101 S.Ct. 1089 (quoting McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973)).

In the case at bar, I am not convinced that plaintiff has even carried his de minimis burden of establishing a prima facie case of age discrimination. Although plaintiff has established the first three elements of a prima facie case, there is virtually nothing in the record tending to establish the fourth, i.e., that he was terminated under circumstances suggestive of age discrimination. At any rate, even if plaintiff has carried this burden, he has certainly not shown the existence of a genuine issue of fact concerning whether defendant's proffered reason, i.e., that plaintiff's performance rating was the lowest in his group, is a pretext for age discrimination.

Plaintiff does not dispute defendant's assertion that at the time of his termination at age 41, the five other persons in his unit were ages 40, 41, 44, 45, 50, and 50. Nor does plaintiff dispute that Tolbert and Diaz, who plaintiff alleges replaced him, were respectively ages 42 and 46 at the time they were hired. Plaintiff, then, was one of the youngest people in his unit, and his alleged replacements were older than he. If anything, these facts tend positively to show a complete absence of age discrimination.

In his complaint, plaintiff alleges that while he was in the Purchasing Department, he "found that he was passed over for promotion in favor of female candidates who were often younger . . ." and less qualified than he. Complaint ¶ 12. That is allegedly why he transferred out of that department. Plaintiff, however, does not assert a claim based on a failure to promote him, or on any events that occurred while he was in the Purchasing Department, and he has shown no nexus between these alleged promotions of younger females in Purchasing and his termination from the Internal Audit department. This evidence is simply irrelevant to his claims.

Plaintiff also alleges that after he transferred to the Internal Audit Department, he "was informed that he and other white male employees who were generally over the age of forty (40) years should seek transfer to employment elsewhere within the company because the company needed to hire minority and/or female employees. . . ." Complaint ¶ 16. He does not allege, however, that he was told that the company needed to hire younger employees, nor does he allege that RTC did hire younger employees to work in the Internal Audit Department.

In addition, plaintiff has submitted no evidence that younger, less qualified employees were in fact chosen over him for any particular positions; he has identified neither the positions in question nor the successful candidates. See Brown v. Coach Stores, Inc., 163 F.3d 706, 708 (2d Cir.998) (plaintiff asserting failure-to-promote claim must "allege that she or he applied for a specific position or positions and was rejected therefrom . . .").

The only evidence relating to this matter is plaintiff's statement that one Beth DeFranco (whose age plaintiff does not appear to have alleged anywhere in the record) was selected for a certain position instead of plaintiff. Plaintiff stated, however, that he had not even been aware that the position in question was going to be open until after DeFranco was hired. He therefore did not actually apply for that position, and he testified only that he had previously "mentioned to [one of his supervisors] that I was interested in advancement." Plaintiff's Deposition (Defendant's Motion for Summary Judgment Ex. E) at 45. That is not sufficient to sustain plaintiff's claim. See Brown, 163 F.3d 706, 708 (plaintiff cannot "merely assert[] that on several occasions she or he generally requested promotion").

Moreover, apart from his broad allegation that defendant had a policy of promoting "diversity" in its workforce, plaintiff has presented no evidence that these alleged occurrences in the Purchasing Department were in any way related to defendant's decision to terminate him from the Internal Audit Department, or that any of the same people were involved. See Price Waterhouse v. Hopkins, 490 U.S. 228, 277, 109 S.Ct. 1775, 104 L.Ed.2d 268 (1989) (statements or actions by nondecisionmakers, or actions unrelated to decisionmaking process, cannot support allegation of pretext) (O'Connor, J., concurring); Ayala-Gerena v. Bristol Myers-Squibb Co., 95 F.3d 86, 97 (1st Cir. 1996). Plaintiff's claim is based on his termination, not on an alleged failure to promote, and these alleged occurrences are simply not probative of whether his termination was discriminatory.

II. Sex Discrimination Claim

A. Failure to Include Claim in EEOC ...

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