at finding other jobs within GE. Finally, plaintiffs'
statistical report provides circumstantial evidence which also
supports their prima facie case.
In the second step of the disparate treatment claim, GEPS
explained the layoffs were due to increased competition from
outside sources and a need to cut costs to remain competitive.
Increased competition and cost cutting needs are legitimate
business reasons for laying off workers. Therefore, the
defendants have satisfied their burden of coming forward with a
legitimate, non-discriminatory reason for the terminations.
Finally, the plaintiffs have presented evidence on the issue
of whether the defendants' reason was merely a pretext. Three of
the plaintiffs argue that the labeling of their functions as
"unique" was done so they would not have to be evaluated against
their coworkers. It should be determined at trial if the
positions held by three of the plaintiffs were truly "unique,"
and thus not meriting comparison on a matrix. If their positions
were not "unique," their labeling may be a pretext for
discrimination. In addition, a number of younger employees that
were terminated were able to find positions within GE's
workforce, while all the plaintiffs were told there were no jobs
that fit their skills. If the skills of these employees overlap,
it could show the RIF's legitimate reason was merely a pretext
E. Practice and Pattern Claim
If discrimination is part of a company's standard operating
procedures, a plaintiff can base a claim on a "practice and
pattern" of discrimination. See International Bhd. of Teamsters
v. United States, 431 U.S. 324, 336, 97 S.Ct. 1843, 52 L.Ed.2d
396 (1977). In the present case, each plaintiff claims that he
may assert a claim of "practice and pattern" discrimination
based on his co-plaintiffs claims. If this argument were to
succeed, summary judgment would be rendered useless in
multi-plaintiff ADEA cases. A plaintiff could simply base his
claim on the unsupported allegation of another plaintiff in
order to sustain a meritless action. Plaintiffs, some of whom
were managers at GEPS, have provided no evidence that they were
either discriminated against prior to their terminations or ever
asked to discriminate against others based on age. In fact,
plaintiffs admit that, while they were managers, they were
instructed not to take age into account in employment decisions.
Plaintiffs have offered no evidence of a "pattern and practice"
of discrimination at GEPS.
F. Willful Violation of ADEA
A willful violation of the ADEA occurs when an "employer knew
or showed reckless disregard for the matter of whether its
conduct was prohibited by the ADEA." McGinty v. State of New
York, 193 F.3d 64, 69 (2d Cir. 1999) (quoting Hazen Paper Co.
v. Biggins, 507 U.S. 604, 614, 113 S.Ct. 1701, 123 L.Ed.2d 338
(1993)). GEPS clearly knew that it could not take an employee's
age into account in determining who should be terminated.
However, there is a question of fact as to whether the
plaintiffs were intentionally laid off in the RIF because of
G. Human Rights Law Claim
Defendants contend that Pressman and Hollenberg are not
individually liable under the HRL. The HRL states, "[i]t shall
be an unlawful discriminatory practice for any person to aid,
abet, incite, compel or coerce the doing of any of the acts
forbidden under this article." § 296(6). "A defendant who
actually participates in the conduct giving rise to a
discrimination claim may be held personally liable under the
HRL." Tomka v. Seiler Corp., 66 F.3d 1295, 1317 (2d Cir.
1995). The record shows that Pressman signed the layoff approval
form for all the plaintiffs in this action. (Pressman Aff. ¶ 9.)
Hollenberg, in his position as General Manager of the Global
Sales Integration and Support unit, was required to review the
decisions for Hogan and Rees. Hollenberg also attended the
meeting where it was decided Laporta would be removed from the
matrix and labeled "unique." While it is clear Pressman and
Hollenberg supervised and reviewed the terminations in the RIF,
there is a question of fact as to how much they actually
participated in the selection of employees for termination.
Therefore, the action should continue against Pressman and
Due to special circumstances surrounding the information used
by plaintiffs' expert, the statistical report should not be
excluded. This report, as well as other evidence provided by
plaintiffs, supports the ADEA claims of disparate impact and
disparate treatment discrimination. In addition, the plaintiffs
have provided evidence that Pressman and Hollenberg participated
in the RIF, and therefore the state HRL claim against them
should not be dismissed. For the foregoing reasons, it is
1. Defendants' motion in limine to exclude the plaintiffs'
expert statistical report is DENIED;
2. Defendants' motion for summary judgment on plaintiffs' ADEA
claims based on disparate impact, disparate treatment, and
willful violation are DENIED;
3. Defendants' motion for summary judgement on plaintiffs' HRL
claim is DENIED; and
4. Defendants' motion for summary judgment on plaintiffs' ADEA
claim based on a "practice and pattern" of discrimination is
IT IS SO ORDERED.