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.
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
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
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 ...