and poor attendance. (See Pl.Dep. Exs. 9-16). As plaintiff
points out, however, defendants had determined that plaintiff
could not learn how to use the computer and that further training
would be futile. (Pl.Mem. at 40; Pl.Ex. 2 at 31 & Ex. 4 at 75).
Defendants did not assume that she could not learn, for indeed
they tried to train her. Only upon trying, and failing, did they
abandon their efforts.
Defendants have presented substantial, largely unrebutted
evidence that they did not discriminate against plaintiff because
of her age. Plaintiff's age when she was hired as well as the
overall age makeup of MBM's workforce, for example, undermine the
contention that she was fired because of her age. Although Siano
was seventy-one when she was fired, she was already sixty-four
when she was hired. Further, two other employees were older than
plaintiff when she was discharged and over forty percent of MBM
employees were over forty. And, while plaintiff emphasizes that
out of 279 employees only two were older than she, that only nine
other employees were over the age of sixty, and that the next
oldest employee in her department was forty-eight, she does not
present any comparative statistics (such as general population
employment statistics) that would indicate that defendants
engaged in age discrimination. Indeed, the fact that MBM hired
plaintiff at an age when many employees leave the workforce is
evidence of the absence of age-based animus.
Further, defendants have presented evidence that the nature of
plaintiff's position changed to require the use of computers. The
record before the Court reflects that plaintiff was in fact
trained and no evidence exists to suggest that defendants'
decision to stop training plaintiff was because of her age.
Although plaintiff alleges in her complaint that she was not
"trained," she testified during her deposition that she was
taught to use the computer "to see if the invoices were paid."
(Petriello Aff.Ex. H at 33, 38). Plaintiff also testified that
defendants "showed [her] a little, no training, just one time,
use this key, use that key, use this key. That was it. Then if I
got stuck I had to call one of them." (Id. at 29-30). Plaintiff
further testified that her grandson showed her "how to get into
the computer," and "[i]f [she] got stuck he would say do this, do
that." (Id. at 31).
Despite plaintiff's belief that she mastered the computer tasks
she was taught, two of her supervisors concluded that she was
unable to learn to use the computer system. MBM apparently made a
business decision not to spend any more time attempting to train
plaintiff. The record reflects that plaintiff's replacements
learned how to use the computer system with very little training.
While employers are required under the ADEA to treat employees in
a neutral fashion, they are not required to spend more time and
effort training an employee over forty than they would spend
training anyone else. See Parcinski v. Outlet Co., 673 F.2d 34,
37 (2d Cir. 1982); Jackson v. Lyons Falls Pulp & Paper, Inc.,
865 F. Supp. 87, 98 (N.D.N.Y. 1994).
While it is true that most of the people hired to replace
plaintiff were not in the protected class, at least one was
forty-eight. Further, plaintiff's successors were compensated at
approximately the same rate as she. Moreover, although evidence
exists that MBM eventually hired one temporary employee whose
sole job was to file, plaintiff's replacements in fact used
Finally, even assuming that defendants' justification for its
decision to discharge plaintiff was pretextual, that defendants
did not actually fire her because she could not learn the skills
necessary to perform her job as it evolved from a file clerk
position to one requiring computer skills, a reasonable jury
could not conclude that the pretext was a mask for age
In the end, plaintiff's evidence of discrimination boils down
one fact, that she was seventy-one, and a subjective belief that
she did not deserve to be fired. As she testified at her
Q. What facts . . . support [your belief] that age
was the cause of your termination?
A. Well, I didn't do anything wrong, and my
evaluations were fine. I never was told that I did
anything wrong, so what else was it?
Q. Are there any other facts that you have which
would indicate that you were terminated because of
A. Well, when I went to unemployment they told me
(Pl.Ex. 1 at 5-6). Of course, plaintiff's belief that she did
nothing wrong, her receipt of positive evaluations, and
statements made to her by "unemployment" do not constitute proof
of discrimination. As the Second Circuit recently noted, "a jury
cannot infer discrimination from thin air." Norton v. Sam's
Club, 145 F.3d 114, 119 (2d Cir. 1998). Here, defendants' motion
must be granted, for plaintiff's claim of age discrimination is
based on little more than "thin air."
B. Infliction of Emotional Distress
To sustain a claim under New York law for intentional
infliction of emotional distress, a plaintiff must prove that the
defendant engaged in "extreme and outrageous conduct" and that
the defendant intentionally or recklessly caused plaintiff to
suffer emotional distress. Murphy v. American Home Prods.
Corp., 58 N.Y.2d 293, 461 N.Y.S.2d 232, 236, 448 N.E.2d 86
(Ct.App. 1983). The offending conduct must "consist of more than
mere insults, indignities, and annoyances and must be so shocking
and outrageous as to exceed all reasonable bounds of indecency."
Lapsley v. Columbia Univ., 999 F. Supp. 506, 525 (S.D.N.Y. 1998)
(quoting Nestlerode v. Federal Ins. Co., 66 A.D.2d 504,
414 N.Y.S.2d 398, 400 (4th Dep't), appeal denied, 48 N.Y.2d 604,
421 N.Y.S.2d 1029, 396 N.E.2d 487 (Ct.App. 1979)); see also
Fischer v. Maloney, 43 N.Y.2d 553, 402 N.Y.S.2d 991, 993,
373 N.E.2d 1215 (Ct.App. 1978) (stating that defendants' conduct must
be "so outrageous in character, and so extreme in degree, as to
go beyond all possible bounds of decency, and to be regarded as
atrocious and utterly intolerable in a civilized society").
On the record before the Court, no reasonable jury could
conclude that plaintiff has met the high threshold required by
New York law. Even assuming that all of plaintiff's allegations
are true, defendants' alleged conduct was not by any means "so
shocking and outrageous as, to exceed all reasonable bounds of
indecency." See, e.g., Bradley v. Consolidated Edison Co.,
657 F. Supp. 197 (S.D.N.Y. 1987) (negative evaluations and disparaging
statements insufficient to state claim); Brink's Inc. v. City of
New York, 533 F. Supp. 1123 (S.D.N.Y. 1982) (harassment and
verbal abuse insufficient to make out claim). Accordingly, this
count is dismissed as well.
For the reasons set forth above, defendants' motion for summary
judgment is granted and the complaint is dismissed with
prejudice. The Clerk of the Court shall enter judgment