When asked why, plaintiff responded, "I don't know," although he
indicated that Scarano and Ali are younger than plaintiff,
Scarano and Ali received an easier test, and plaintiff has
greater skills than Scarano. (Pl.Resp.Def.Rule 56.1 Stmt. ¶ 54.)
According to defendant, promotions at RSI are made on the basis
of seniority and ability to do the job. (Def.Rule 56.1 Stmt. ¶
55; Def.Ex. L.) Although plaintiff argues in his brief that
"awarding positions to the most senior qualified persons" is "a
bedrock substantive principle," (Pl.Br. at 7), plaintiff
testified in his deposition that ability is a factor. (Pl.Dep. at
I. Summary Judgment Standard
A district court may grant summary judgment only if the
evidence, viewed in the light most favorable to the party
opposing the motion, presents no genuine issue of material fact,
and the movant is entitled to judgment as a matter of law. See
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct.
2505, 91 L.Ed.2d 202 (1986). The court must resolve all
ambiguities and draw all reasonable inferences in the light most
favorable to the party opposing the motion. See Quaratino v.
Tiffany & Co., 71 F.3d 58, 64 (2d Cir. 1995), vacated and
remanded on other grounds, 166 F.3d 422 (1999). "If, as to the
issue on which summary judgment is sought, there is any evidence
in the record from which a reasonable inference could be drawn in
favor of the nonmoving party, summary judgment is improper."
Vann v. City of New York, 72 F.3d 1040, 1049 (2d Cir. 1995).
The party seeking summary judgment has the burden of showing that
no genuine factual dispute exists. See Adickes v. S.H. Kress &
Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970).
II. Plaintiff's ADEA Claim
The ADEA forbids employers from discriminating in hiring,
discharge, or setting of "compensation, terms, conditions, or
privileges of employment" based upon the age of an employee.
29 U.S.C. § 623(a)(1). The ADEA covers the class of employees over
the age of forty. See 29 U.S.C. § 631(a). The requirements of
proof of age discrimination are the same as that for proving
discrimination under Title VII. See Raskin v. Wyatt Co.,
125 F.3d 55, 60 (2d Cir. 1997). The elements of an employment
discrimination claim are "virtually identical" under the New York
Executive Law and Title VII. Lacoparra v. Pergament Home
Centers, Inc., 982 F. Supp. 213, 225 (S.D.N.Y. 1997). Therefore,
our analysis of plaintiff's ADEA claim is equally applicable to
plaintiff's claim under New York Executive Law § 296.
A claim for employment discrimination is governed by the
three-step burden shifting analysis of McDonnell Douglas Corp.
v. Green, 411 U.S. 792, 802-04, 93 S.Ct. 1817, 36 L.Ed.2d 668
(1973). Under this analysis, plaintiff must first establish a
prima facie case of discrimination. If the plaintiff makes out a
prima facie case, a presumption that the employer unlawfully
discriminated against the employee is raised and the burden of
production then shifts to the employer to "articulate a
legitimate, clear, specific and nondiscriminatory reason for
[failing to promote] the employee." Quaratino, 71 F.3d at 64.
If the employer does so, the presumption of discrimination drops
out and the plaintiff has the burden of proof by a preponderance
of the evidence that the employer's stated reason was merely a
pretext for discrimination. See St. Mary's Honor Center v.
Hicks, 509 U.S. 502, 515, 113 S.Ct. 2742, 125 L.Ed.2d 407
(1993). Plaintiff must establish "both that the reason was false,
and that discrimination was the real reason." Id.
A. Plaintiff's Prima Facie Case
To establish a prima facie case of age discrimination,
plaintiff must show that (1) he was within the protected age
group; (2) he was qualified for the job; (3) he suffered from an
decision; and (4) the employment decision occurred under
circumstances giving rise to an inference of age discrimination.
See Hollander v. American Cyanamid Co., 172 F.3d 192, 199 (2d
Cir. 1999). The burden of proof to establish a prima facie case
is minimal. See Chambers v. TRM Copy Ctrs. Corp., 43 F.3d 29,
37 (2d Cir. 1994).
Plaintiff was sixty years old in 1998, and therefore within the
protected age group. There is also no dispute that plaintiff was
denied a promotion to the ET position, thus suffering an adverse
employment decision. There is, however, some question as to
whether plaintiff was qualified for the job.
Plaintiff failed out of the training program for the ET
position in 1994. Then in 1998, he was unable to answer correctly
more than two out of nine questions on Gazzola's oral test.
Plaintiff has put forth evidence that he has performed various
instrumentation functions. (Pl. Dep. at 59-82.) To establish a
prima facie case, an employee "only needs to demonstrate that
[he] possesses the basic skills necessary for performance of the
job." Owens v. New York City Housing Auth., 934 F.2d 405, 409
(2d Cir. 1991), cert. denied, 502 U.S. 964, 112 S.Ct. 431, 116
L.Ed.2d 451 (1991). In light of defendant's concession that
plaintiff met this minimal burden and established a prima facie
case, (see Def.Br. at 21 n. 17), this Court will accept that
plaintiff was sufficiently qualified to establish a prima facie
Plaintiff asserts that age discrimination may be inferred from
the circumstances surrounding the failure to promote plaintiff.
Specifically, plaintiff argues that RSI deviated from their
policy of promotion based upon seniority, violated the collective
bargaining agreement by even considering Scarano and Ali for the
promotion because they had not worked twenty-four months in their
previous positions, and utilized unconventional procedures by
allowing Gazzola to formulate and administer the test for the
promotion. In Norville v. Staten Island Univ. Hosp.,
196 F.3d 89, 97 (2d Cir. 1999), the plaintiff produced sufficient evidence
to establish the final element of her prima facie case by showing
that her employer's actions in filling a position deviated from
its standard practice. Similarly, plaintiff's allegations of
RSI's deviations from standard policy and practice in promotion
are sufficient to satisfy the minimal burden on the plaintiff and
establish a prima facie case.
B. Defendant's Legitimate Non-Discriminatory Reason for the
Failure to Promote
Once the plaintiff has established a prima facie case of
discrimination, the burden of production passes to the defendant
to offer a legitimate, non-discriminatory reason for failing to
promote the plaintiff. Defendant asserts that plaintiff was not
promoted because he was not qualified for the ET position.