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March 29, 1999


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


In this employment case, plaintiff Angelina Siano alleges that defendants unlawfully terminated her employment because of her age. Defendants move for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. Although plaintiff was seventy-one years old when defendants fired her, she was already sixty-four years old when they hired her. Moreover, defendants present compelling evidence that Siano was unable to adapt to her job as it evolved over time. On the record before the Court, no reasonable jury could conclude that defendants discharged her because of her age. Defendants' motion is therefore granted and the complaint is dismissed.


A. The Facts

Construed in the light most favorable to plaintiff, the facts are as follows:

Defendant Micro-Bio Medics, Inc. ("MBM") is in the business of buying and selling medical supplies. Defendants Bruce Haber and Louis Buther are, respectively, its President and Vice President. In March 1995, defendant Stuart Fleischer joined MBM as Vice President of Finance. Plaintiff claims that she began experiencing age discrimination about the time Fleischer started working at MBM.

Siano performed her job as file clerk well. She consistently received satisfactory performance evaluations and annual pay raises. By the time she was fired, however, the company had come to rely heavily on computers to manage information. Plaintiff's position as file clerk had evolved from being completely paper-based to requiring use of the company's computer system. MBM claims that despite attempts to train Siano, she was not able to become proficient at the computer. Plaintiff argues that she only received minimal training and was never informed that her job was in jeopardy despite company policy requiring oral and written warnings as well as probation before discharging an employee.

B. Procedural History

Siano has duly exhausted her administrative remedies. She timely filed a charge of discrimination with the Equal Employment Opportunity Commission (the "EEOC") and received a right-to-sue letter dated January 15, 1997. On April 8, 1997, within ninety days of receipt of the right-to-sue letter, Siano commenced this lawsuit.

In her complaint, plaintiff alleges: (1) age discrimination in violation of the Age Discrimination in Employment Act (the "ADEA"), 29 U.S.C. § 630(f); New York State Human Rights Law, N YExec. Law § 292(6); and New York City Human Rights Law, N YC.Admin.Code § 8-102(1)(a);*fn1 and (2) negligent and intentional infliction of emotional distress. Siano seeks damages, costs, and attorney's fees. On July 24, 1997, defendants filed an answer denying the allegations and asserting affirmative defenses.

This motion followed.


A. Legal Standards

1. Summary Judgment

The standards governing motions for summary judgment are well settled. A court may grant summary judgment only where there is no genuine issue of material fact and the moving party, is therefore entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(c); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 585-87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). Accordingly, the Court's task is not to "weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). To create an issue for trial, there must be sufficient evidence in the record to support a jury verdict in the nonmoving parties favor. See id. at 249-50, 106 S.Ct. 2505.

To defeat a motion for summary judgment, however, the nonmoving party "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita, 475 U.S. at 586, 106 S.Ct. 1348. The nonmoving party may not rest upon mere "conclusory allegations or denials," but must set forth "concrete particulars" showing that a trial is needed. National Union Fire Ins. Co. v. Deloach, 708 F. Supp. 1371, 1379 (S.D.N.Y. 1989) (quoting R.G. Group, Inc. v. Horn & Hardart Co., 751 F.2d 69, 77 (2d Cir. 1984)). As the Supreme Court stated in Anderson: "If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Anderson, 477 U.S. at 249-50, 106 S.Ct. 2505 (citations omitted).

2. Age Discrimination

In the absence of direct evidence of discrimination, a plaintiff in an employment discrimination case usually relies on the three-step McDonnell Douglas test. First, a plaintiff must establish a prima facie case of unlawful discrimination by showing that (1) she or he is a member of a protected class (2) who was qualified for her or his position (3) who suffered an adverse employment action (4) under circumstances giving rise to an inference of discrimination. See McDonnell Douglas v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973); Shumway v. United Parcel Serv., Inc., 118 F.3d 60, 63 (2d Cir. 1997). Second, if the plaintiff establishes a prima facie case, a rebuttable presumption of discrimination arises and the burden then "shifts" to the defendant to articulate a legitimate, nondiscriminatory reason for the employment decision. See Stratton v. Department for the Aging for the City of New York, 132 F.3d 869, 879 (2d Cir. 1997); Fisher v. Vassar College, 114 F.3d 1332, 1335-36 (2d Cir. 1997) (en banc), cert. denied, ___ U.S. ___, 118 S.Ct. 851, 139 L.Ed.2d 752, reh'g denied, ___ U.S. ___, 118 S.Ct. 1341, 140 L.Ed.2d 501 (1998). Third, if the defendant articulates a nondiscriminatory reason for its actions, the presumption of discrimination is rebutted and it "simply drops out of the picture." St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 510-11, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993). The plaintiff must then show, without the benefit of any presumptions, that more likely than not the employer's decision was motivated at least in part by a discriminatory reason. Because the defendant has at that point offered a nondiscriminatory reason for its actions, the plaintiff must show that the proffered reason is in reality a pretext for unlawful discrimination. See Fisher, 114 F.3d at 1337.

For the reasons set forth in Lapsley v. Columbia Univ., 999 F. Supp. 506 (S.D.N.Y. 1998), and other decisions, I believe that the McDonnell Douglas test should be eliminated. See Peterson v. City College, 32 F. Supp.2d 675, 683-84 (S.D.N.Y. 1999); Evans v. Golub Corp., 29 F. Supp.2d 194, 199-201 (S.D.N Y 1998). McDonnell Douglas has developed into a complex seven or eight-part test that has proven at times to be confusing and unworkable. See Denny Chin & Jodi Golinsky, Moving Beyond McDonnell Douglas: A Simplified Method for Assessing Evidence in Discrimination Cases, 64:2 Brook.L.Rev. 659 (1999). It should be discarded and courts instead should focus on the "ultimate issue" — whether the plaintiff has proven that more likely than not the employer's decision was motivated at least in part by an "impermissible," or discriminatory, reason. Id. In considering a summary judgment motion, courts must determine whether the plaintiff has presented sufficient evidence to permit a reasonable jury to conclude that a defendant's decisions were motivated at least in part by an impermissible reason. See Fisher, 114 F.3d at 1337.

B. Application

As defendants rely on the McDonnell Douglas test and it remains governing law, however, I am bound to apply it. Here, I assume that plaintiff has made out a prima facie case. Defendants have articulated a legitimate, nondiscriminatory reason for firing her: They contend that plaintiff could not adapt as her position evolved into one that required the use of computers. Hence, I proceed directly to the ultimate question: Whether Siano has presented sufficient evidence from which a reasonable jury could find discrimination. I do so by reviewing first Siano's evidence, then defendants' evidence, and finally the record as a whole, keeping in mind the "elusiveness" of proof of discrimination and the ...

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