ii. Same Decisionmakers
Because the same people who approved an incentive award for
plaintiff only the year before made the decision to discharge
him, this factor also suggests that discrimination was not a
cause of his layoff. See Lapsley., 999 F. Supp. at 523 (citing
Grady v. Affiliated Cent., Inc., 130 F.3d 553, 560 (2d Cir.
1997) ("[w]hen the [people] who made the decision to fire [were]
the same [people] who made the decision to hire, it is difficult
to impute to [them] an invidious motivation that would be
inconsistent with the decision to hire," especially when the
firing occurred only a short time after the hiring)); Ali v.
Tribune Entertainment Co., No. 93 Civ. 1398(CSH), 1996 WL
384913, at *8 (S.D.N.Y. July 10, 1996) (strong inference that
discrimination did not motivate the termination decision when the
same individuals both promoted and fired plaintiff).
3. The Record as a Whole
On the record as a whole, no reasonable jury could conclude
that defendant's proffered reason for terminating plaintiff — his
violation of the "no retaliation policy" — is a pretext for
discrimination. First, plaintiff admitted sending the March 21st
E-mail to Miller even though he was fully aware of defendant's
"no retaliation policy." Hence, he admittedly engaged in
inappropriate conduct. Second, defendant simultaneously
terminated the employment of all the individuals involved in the
harassment of Miller. Third, it is undisputed that Con Edison was
the subject of criminal proceedings, that its actions were being
reviewed by a court monitor, and that as a consequence the
company had a "no tolerance" policy with respect to the
harassment of individuals who reported environmental concerns.
Under these circumstances, and in the absence of any credible
evidence that Con Edison was "dissembling to cover up a
discriminatory purpose," Reeves, 120 S.Ct. at 2108, no
reasonable jury could find that Con Edison's proffered
justification is false. See Griffin v. Ambika Corp.,
103 F. Supp.2d 297, 310 (S.D.N.Y. 2000).
Ultimately, plaintiff's evidence of discrimination is reduced
to essentially three items: (1) his age; (2) his otherwise
satisfactory work record; and (3) defendant's arguable
over-reaction to plaintiff's behavior. These items, taken as a
whole, are insufficient to support a finding of discrimination.
First, although plaintiff was in the protected age category at
the time of his discharge, he was barely so. All the
decisionmakers were also in the protected age category and at
least seven years older than him. Hence, plaintiff's age is
extremely thin evidence of age discrimination in the context of
Second, although plaintiff had an otherwise satisfactory work
performance, that fact likewise is weak evidence of
discrimination, for plaintiff was fired not for poor work
performance but for misconduct — violating the company's no
Third, plaintiff argues that defendant over-reacted by firing
him. Even assuming, however, that a jury could find that Con
Edison over-reacted by firing plaintiff, the issue is not whether
defendant's decision to fire plaintiff was an appropriate
response to the sending of the e-mail, but whether plaintiff was
dismissed, at least in part, because of his age. While the Appeal
Board found in favor of plaintiff on grounds that his action "did
not rise to the level of misconduct under the Law," it also
concluded that plaintiff "may have exercised extremely poor
judgment in this instance." (Pl.Ex. 1 at 2). Actions that do "not
rise to the level of misconduct under the law" may be proper
grounds for the
dismissal of an employee. See Stern, 131 F.3d at 315 (2d Cir.
1997) ("It is simply inappropriate for a court to act `as a
super-personnel department that reexamines an entity's business
decisions.'" (quoting Dale v. Chicago Tribune, 797 F.2d 458,
464 (7th Cir. 1986), cert. denied, 479 U.S. 1066, 107 S.Ct.
954, 93 L.Ed.2d 1002 (1987))); Williams v. Brooklyn Union Gas
Co., 819 F. Supp. 214, 230 (E.D.N.Y. 1993) ("[employer] can be as
arbitrary as he wants [in making good faith business judgments]"
as long as he does not "discriminate on forbidden grounds").
Plaintiff's evidence is simply not enough to create an issue
for trial. In view of the "abundant and uncontroverted
independent evidence that no discrimination had occurred,"
Reeves, 120 S.Ct. at 2109, a reasonable jury could only
conclude that defendant discharged plaintiff because of his
violation of the company's "no retaliation policy" and not
because of his age. See Viola v. Philips Med. Sys.,
42 F.3d 712, 716 (2d Cir. 1994) ("A grant of summary judgment is proper
only if the evidence of discriminatory intent is so slight that
no rational jury could find in plaintiff's favor.") (citation
omitted); Woroski v. Nashua Corp., 31 F.3d 105, 109-110 (2d
Cir. 1994) ("We recognize that plaintiffs did advance some
evidence of age bias in the testimony about [plaintiff's
supervisor's] statements. But some evidence is not sufficient to
withstand a properly supported motion for summary judgment.").
Defendant's motion for summary judgment is granted and the
complaint is dismissed, with prejudice. The Clerk of the Court
shall enter judgment accordingly.