same training, experience, and job skills, and were roughly the
same age as plaintiff. Plaintiff testified that these Jewish
employees were consistently denied promotions and treated poorly
by their non-Jewish managers. Plaintiff, however, conceded in her
deposition testimony that these five Jewish employees continued
to work for the NYCTA after her own termination. (Pl. 56.1 Stat.,
Exs. F, P; Def.'s Reply Aff., Ex. 4.)
In her deposition testimony, plaintiff also cited Martin
Walker's employment at the NYCTA in the position of Computer
Specialist, Level III, as an example of religious and age
discrimination, arguing that he did not have the skills or
training required for the position. (Pl. 56.1 Stat., Exs. F, P.)
In her deposition testimony, plaintiff also noted, without
drawing any further conclusions, that every NYCTA employee or
supervisor who commented negatively on her performance was not
Jewish. (Pl.'s 56.1 Stat., Ex. P.)
Summary judgment under Rule 56(c) of the Federal Rules of Civil
Procedure is proper if "the pleadings, depositions, answers to
interrogatories, and admissions on file together with the
affidavits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to judgment
as a matter of law." Fed.R.Civ.P. 56(c). The moving party has the
burden of demonstrating the absence of any disputed material
facts, and the court must resolve all ambiguities and draw all
inferences in favor of the party against whom summary judgment is
sought. See Thompson v. Gjivoje, 896 F.2d 716, 720 (2d Cir.
The showing needed on summary judgment reflects the burden of
proof in the underlying action. The court must consider "the
actual quantum and quality of proof" demanded by the underlying
cause of action and must consider which party must present such
proof. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 254,
106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Therefore, where the
ultimate burden of proof is on the nonmoving party, the moving
party meets his initial burden for summary judgment by "`showing'
— that is, pointing out to the district court — that there is an
absence of evidence to support the nonmoving party's case."
Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91
L.Ed.2d 265 (1986). To survive the motion, the nonmoving party
must then "make a showing sufficient to establish the existence
of [the challenged] element essential to [that party's] case."
Id. at 322, 106 S.Ct. 2548.
While the court views the evidence in the light most favorable
to the nonmoving party, see O'Brien v. National Gypsum Co.,
944 F.2d 69, 72 (2d Cir. 1991), "the mere existence of some alleged
factual dispute between the parties will not defeat an otherwise
properly supported motion for summary judgment." Anderson, 477
U.S. at 247-48, 106 S.Ct. 2505. Rather, summary judgment is
appropriate "[w]hen the record taken as a whole could not lead a
rational trier of fact to find for the nonmoving party."
Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).
Title VII makes it unlawful for an employer to "fail or refuse
to hire or to discharge any individual or otherwise to
discriminate against any individual with regard to his
compensation, terms, conditions, or privileges of employment,
because of such individual's race, color, religion, sex, or
national origin." 42 U.S.C. § 2000e-2(a)(1). The ADEA prohibits
employers from discriminating in hiring, discharge, or the
setting of "compensation, terms, conditions or privileges of
employment" by reason of an employee's age.
29 U.S.C. § 623(a)(1). Protection under the ADEA extends only to individuals
who are over forty-two years old. See id. § 631(a). Claims
under the ADEA and § 1981 are analyzed under the same framework
as claims brought pursuant to Title VII. See Raskin v. Wyatt
Co., 125 F.3d 55, 60 (2d
Cir. 1997) (ADEA); McLee v. Chrysler Corp., 109 F.3d 130, 134
(2d Cir. 1997) (§ 1981 and Title VII); Woroski v. Nashua Corp.,
31 F.3d 105, 107 (2d Cir. 1994) (ADEA and Title VII).
Employment discrimination cases brought under Title VII fall
within one of two categories: "pretext" and "mixed-motive" cases.
See Tyler v. Bethlehem Steel Corp., 958 F.2d 1176, 1180 (2d
Cir. 1992). In pretext cases, a court uses the burden-shifting
analysis first articulated in McDonnell Douglas Corp. v. Green,
411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). In
mixed-motive cases, courts use the analysis set forth in Price
Waterhouse v. Hopkins, 490 U.S. 228, 109 S.Ct. 1775, 104 L.Ed.2d
268 (1989).*fn6 Specifically, in mixed-motive cases, "if the
plaintiff establishes that a prohibited discriminatory factor
played a `motivating part' in a challenged employment decision,
the burden shifts to the employer to prove by a preponderance of
the evidence that it would have made the same decision anyway."
Raskin, 125 F.3d at 60.
Plaintiff does not specify whether she believes her case should
fall within the "pretext" or "mixed-motive" category. As the
Second Circuit stated in Raskin, "[t]o warrant a Price
Waterhouse burden shift, the plaintiff must initially show that
an impermissible criterion was in fact a motivating or
substantial factor in the employment decision." Raskin, 125
F.3d at 60. The Second Circuit went on to state that,
[b]ecause the plaintiff must show that the evidence
is sufficient to allow a fact finder to infer both
permissible and discriminatory motives, the
plaintiffs initial burden in a Price Waterhouse
mixed-motive case is heavier than the de minimis
showing required to establish a prima facie
McDonnell Douglas case. The types of indirect
evidence that suffice in a pretext case to make out a
prima facie case — or even to carry the ultimate
burden of persuasion — do not suffice, even if
credited, to warrant a Price Waterhouse burden
shift. Evidence potentially warranting a Price
Waterhouse burden shift includes, inter alia, policy
documents and evidence of statements or actions by
decisionmakers that may be viewed as directly
reflecting the alleged discriminatory attitude. In
short, to warrant a mixed-motive burden shift, the
plaintiff must be able to produce a "smoking gun" or
at least a "thick cloud of smoke" to support his
allegations of discriminatory treatment.
Id. Here, there are no policy documents, statements, or actions
that directly reflect an alleged discriminatory attitude.
Accordingly, there is no basis for a Price Waterhouse burden
shift, and the pretext analysis is the proper one.