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January 21, 2000


The opinion of the court was delivered by: William C. Conner, Senior District Judge.


This action arises under the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et seq., and New York Executive Law § 296. Plaintiff Lloyd Bucknell, an electrician employed by defendant Refined Sugars, Inc. ("RSI"), claims he was denied a promotion to the position of electrical technician because of his age. Currently before this Court is defendant's motion for summary judgment. For the reasons stated below, defendant's motion is granted.


Plaintiff, born on February 13, 1938, was sixty years old at the time of the events in question. (Def.Rule 56.1 Stmt. ¶ 1.) Plaintiff was hired by RSI on July 22, 1977 as an electrical improver, and was promoted eight months later to his current position of electrician. (Id. at ¶ 2.) Plaintiff has been a member of Local 1814, ILA (the "Union") throughout his employment. (Id. at ¶ 3.)

In 1994, RSI created the position of electrical technician ("ET"). (Id. at ¶ 4.) Prior to creation of the ET position, RSI employed both electricians and instrumentation employees. RSI often had to assign both an electrician and an instrumentation employee to do jobs that included both electrical and instrumentation work. (Brainard Aff. ¶ 3.) RSI created the ET position to be able to assign only one employee to jobs that included both types of work. (Id. at ¶ 4.) In 1994, RSI contracted with AVO Training Institute in Dallas, Texas to provide training of electricians and instrumentation employees to become ETs. (Def.Rule 56.1 Stmt. ¶ 6.)

Plaintiff was selected, with four other employees, for the ET training program in 1994 on the basis of seniority. (Id. at ¶ 9.) Plaintiff was fifty-six years old at the time he was selected for the training program. The ET training required that the employees take ten exams. All employees and the Union were advised that:

Each employee can retake a training class one time only, if needed, up to a maximum of 20% of the total training courses. Employees who fail to complete the training will revert to the old position at their old rate, and will not be allowed to apply for future electrical technician positions.

Pl.Dep., Ex. G. Therefore, before he was selected for ET training, plaintiff understood that he would be dropped from the training course if he failed two out of the ten exams. (Pl.Dep. at 89.) Defendant asserts that plaintiff also knew that he would not be permitted to reapply for an ET position in the future. Although plaintiff admits that the Union was informed that if the employees failed two exams they would not be permitted to reapply, he asserts that after he was dropped from the program, Donald Brainard, RSI's Vice President for Human Resources, told plaintiff that he could reapply in the future. (Pl.Dep. at 90.)

There is some dispute as to whether plaintiff took four or five parts of the AVO training program. However, this dispute is immaterial because plaintiff failed two of the first four or five parts of the class and was removed from the training program. (Def.Rule 56.1 Stmt. ¶ 19.)

After the conclusion of the AVO training program, no new ET positions were created until July 1998. In July 1998, RSI posted openings for ET positions. Plaintiff, and other employees, bid on the positions. Because the applicants were a mix of electricians and instrumentation employees, defendant felt that separate training was required: electricians had to learn instrumentation work and instrumentation employees had to learn electrical work. (Id. at ¶ 33.) Plaintiff disputes that separate training was required for the electricians and instrumentation employees. (Pl. Resp.Def.Rule 56.1 Stmt. ¶ 33.)

Defendant intended to promote as many employees as were qualified. (Id. at ¶ 38.) Instead of holding two costly training courses, defendant decided to determine whether there were any electricians or instrumentation employees that already knew enough about the other craft to work as an ET without additional training. (Def.Rule 56.1 Stmt. ¶ 37.) The employees who bid on the 1998 ET positions, their ages at the time of the 1998 promotions, their dates of birth and dates of hire were:

--------------------------------------------------------------------- Applicant Date of Birth Date of Hire Age in 1998 Sherif Ali 09-08-66 10-28-96 32 --------------------------------------------------------------------- Herb Coleman 08-02-46 03-26-90 52 --------------------------------------------------------------------- Nyron Ali 11-10-64 05-13-91 34 --------------------------------------------------------------------- Mustafa Rafig 07-29-59 01-03-89 39 --------------------------------------------------------------------- Lloyd Bucknell 02-13-38 08-22-77 60 --------------------------------------------------------------------- Arkady Korsky 11-20-56 05-29-90 42 --------------------------------------------------------------------- Victor Scarano 07-28-68 11-04-96 30 --------------------------------------------------------------------- Uchol Barrett 01-18-50 06-26-89 48 --------------------------------------------------------------------- Angel Castro 06-17-53 03-30-81 53 --------------------------------------------------------------------- Feroze "Steve" Ali 10-26-67 03-25-91 31 --------------------------------------------------------------------- Anthony Bryan 01-19-51 06-29-98 37 ---------------------------------------------------------------------

Def.Rule 56.1 Stmt. ¶ 46 (plaintiff and promoted employees in bold).

The Electrical Supervisor at RSI, Albert Gazzola, formulated and administered a test to determine which applicants were qualified to work as ETs. Specifically, Gazzola formulated one test for applicants who were electricians and another for applicants who were instrumentation employees. Plaintiff argues that the test administered to instrumentation employees was "much easier" than the test given to electricians. (Pl.Resp.Def.Rule 56.1 Stmt. ¶ 43.) Both tests required that the employee answer at least eight out of nine questions correctly. At best, plaintiff answered two questions correctly.*fn1 (Gazzola Dep. at 58-59.) On the basis of this oral examination, plaintiff was not promoted.

Defendant promoted two employees on the basis of Gazzola's oral examination: Victor Scarano and Feroze "Steve" Ali. In 1998, Scarano was thirty years old and Ali was thirty-one years old. They were the two youngest employees that bid on the ET position in 1998. Both Scarano and Ali answered all of the questions correctly. (Def.Rule 56.1 Stmt. ¶ 43.) Scarano was asked the same questions as plaintiff. (Gazzola Dep. at 58.) Ali was asked electrical questions because he was an instrumentation employee. (Gazzola Dep. at 70.)

After Scarano and Ali were promoted, plaintiff filed a grievance with RSI claiming that he was denied seniority rights with respect to the promotion to ET. (Pl. Dep., Ex. K.) RSI denied the ...

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