The opinion of the court was delivered by: John T. Curtin, U.S.D.J.
Plaintiff Edwin Williams brings this action against his former
employer, Dictaphone Corp. ("Dictaphone"), pursuant to the Age
Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621, et seq.
Item 1.*fn1 Williams claims that Dictaphone: (1) discriminated against
him on the basis of his age by reducing his salary in July 1996; (2)
retaliated against him on the basis of protected activity by placing him
under intensive supervision in November 1996 and March 1997; and (3)
discriminated and retaliated against him when it fired him in July 1997.
In November 1999, Dictaphone brought the present motion for summary
judgment. Items 16-19. By his attorney, Williams submitted various
opposing papers. Items 24-26, and 33. Subsequently, Dictaphone has had an
opportunity to reply, Items 28-29, and Williams has filed a sur-reply.
Williams was born on June 20, 1945. Item 18, Exh. 3, p.5. Originally
an Account Representative for Buffalo, New York, in January 1975
see id. at 5-6, Dictaphone later appointed plaintiff to the position of
Area Sales Manager in Buffalo in July 1976. See Item 19, ¶ 4. In 1980,
Williams left Dictaphone because he believed that his opportunities for
advancement were limited. See Item 18, Exh. 3, p.8.
In 1991, however, Williams reapplied for a managerial position with
Dictaphone. See id. at 9 and Item 19, ¶ 5. At that time, Williams
spoke with Gil Kamenir ("Kamenir"), who was the Regional Vice President
for Dictaphone's Eastern Region. See Item 18, Exh. 3, p.21. In January
1992, Kamenir hired Williams as the Branch Manager for Norfolk,
Virginia. See id. at 21-23; Item 33, Exh. 7, pp. 39-40. At the time of
his re-hiring, Williams was 47 years old.
In August 1993, Dictaphone appointed Williams to the position of Branch
Manager in Rochester, New York. See Item 18, Exh. 6. George Wallrich, the
District Manager for Buffalo; and Barbara Bilka, the Regional Vice
President for the Northern Region, were both involved in giving Williams
this new position. However, it was Ms. Bilka who supervised Williams as
Rochester's Branch Manager. See Item 18, Exh. 3, p.27 and Item 19,
¶ 6. In February 1994, Bilka promoted Williams from Branch Manager to
acting District Manager for Rochester. See Item 18, Exh. 3, p.36 and
Exh. 7. Bilka then appointed Williams to be Rochester's permanent
District Manager in May 1995. See Item 18, Exh. 3, pp. 36, 38 and Exh.
In October 1995, Dictaphone merged the Rochester and Buffalo districts
into one district. Williams took over as District Manager for this newly
consolidated district and received a pay raise in return. See Item 18,
Exh. 3, p.37 and Exh. 9.
In December 1995, Dictaphone offered to make Williams the District
Manager for New York City. See Item 18, Exh. 3, p.39. Williams turned the
position down because the increase in pay that was being offered was not
great enough to offset the increased cost of living that he and his
family would have encountered in New York. See Item 26, Williams, ¶¶
II. 1996 Reorganization for Dictaphone & Changes in District Managers'
In January 1996, Dictaphone reorganized its corporate structure by
splitting the company into two divisions — Healthcare and
Commercial. See Item 18, Exh. 3, p.43. Under the reorganized structure,
Williams became the Buffalo District Manager for the Commercial
Division. See Item 18, Exhs. 10 & 11. Williams' sales quota was reduced
from $240,000 to $110,558, and his sales staff was reduced from fourteen
to seven. See Item 18, Exh. 3, pp. 45-46 & Exh. 11; Item 19, ¶ 10.
Under the reorganization, Dictaphone also set $36,000 as the maximum
salary for all of its District Managers. Item 19, ¶ 11. For District
Managers whose 1995 salary was more than $36,000, Dictaphone created a
"grandfathering" scheme. In order to keep their "grandfathered"
salaries, affected District Managers had to attain at least 80 percent of
their year-to-date sales quota as of May 1996. See Item 18, Exh. 3,
p.48. In May 1996, Dictaphone determined that Williams had attained only
74 percent of his year-to-date sales quota. As a result, Dictaphone
reduced Williams' salary from $39,717 to $36,000. See Item 19, ¶
III. Job Openings for Regional Vice Presidents
In May 1996, Dictaphone had two openings for Regional Vice Presidents
— one in
the Central Region and the other in the Western Region. See Item 18,
Exh. 3, p.52. Williams applied for both of these positions, but was
neither interviewed nor hired. Instead, Dictaphone's Vice President of
Sales, Robert Ronchi, hired Mark Jamieson, age 35, as the Central
Region's Vice President and Greg Van den Heuven, age 35, as the Western
Region's Vice President. Mr. Jamieson had worked for Dictaphone as a
District Manager since January 1995 and had been Dictaphone's number one
District Manager for the year 1995. See Item 19, ¶ 18. Mr. Van den
Heuven had been the District Manager of Phoenix since December 1989 and
had many contacts in the Western Region as a result of his work there.
IV. Williams' Performance as District Manager
Williams was successful as a District Manager from February of 1994
through the end of 1995. See, e.g., Item 33, Exhs. 36-46 (documenting
Williams' success). After the 1996 restructuring, Mr. Kamenir took over
as the Vice President for the Northeast Region's Commercial Division and
became Williams' supervisor. Item 33, Exh. 7, pp. 11, 17.
Kamenir and Williams paint completely different pictures of how
Williams performed from January 1996 until his discharge in July 1997.
Overall, Dictaphone insists that there were three primary reasons why
Kamenir became profoundly dissatisfied with Williams: (1) his failure to
communicate with Kamenir regarding his work schedule and time off;*fn3
(2) his poor client relations;*fn4 and (3) his poor sales figures.*fn5
For his part, Williams contests Kamenir's version of the facts on each
and every one of these alleged areas of deficiency. See Item 26,
Williams, ¶¶ 80-82, 86-90, 98; id., McKeon Affidavit.
Kamenir's professed dissatisfaction with Williams caused him to put
Williams on a "Work Improvement Plan" and "Performance Improvement Plan,"
see Item 33, Exh. 7, pp. 37, 47-50; Item 18, Exh. 18, and ultimately led
Kamenir to fire Williams in July 1997. Item 18, Exh. 21. However,
Williams insists that there were many factors that led to this drop-off
and that Kamenir discriminatorily disregarded each of these factors when
evaluating Williams' performance. See Item 26, Williams, ¶¶ 127-32,
64, 70-71, 76a, 111-17, 121-22; Item 33, Exhs. 33 and 48.
Summary judgment is appropriate when "there is no genuine issue as to
any material fact and . . . the moving party is entitled to a judgment as
a matter of law." Fed. R. Civ. P. 56(c). In resolving a motion for
summary judgment, the court must construe all evidence in the light most
favorable to the nonmovant and must draw all reasonable inferences in his
favor. See Skubel v. Fuoroli, 113 F.3d 330, 334 (2d Cir. 1997).
The movant has the initial burden of identifying those portions of "the
pleadings, depositions, answers to interrogatories, and admissions on
file, together with the affidavits, if any," which demonstrate the
absence of a genuine issue of material fact. Fed. R. Civ. P. 56(c).
However, once that burden has been met, the non-moving party "may not
rest upon mere allegation or denials of his pleading, but must set forth
specific facts showing that there is a genuine issue fortrial." Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986) (quoting Fed. R. Civ.
P. 56(e)). Moreover, "[w]hen the moving party has carried its burden
under Rule 56(c), its opponent must do more than simply show that there
is some metaphysical doubt as to the material facts." Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).
In an employment discrimination case, the plaintiff has the initial
burden of proving by the preponderance of the evidence a prima facie case
of discrimination. See St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 506
(1993). In order to establish a prima facie case of age discrimination,
the plaintiff must show that he was (1) within the protected age group;
(2) qualified for the position; (3) suffered an adverse employment
action; and (4) that the adverse action occurred under circumstances
giving rise to an inference of discrimination. See Norton v. Sam's Club,
145 F.3d 114, 118 (2d Cir. 1998). Plaintiffs burden of establishing a
prima facie case, however, can be described as "minimal." See St. Mary's
Honor Ctr., 509 U.S. at 506.
If the plaintiff establishes a prima facie case, a rebuttable
presumption of discrimination arises. See Stratton v. Department for the
Aging, 132 F.3d 869, 879 (2d Cir. 1997). The burden of production then
shifts to the employer to articulate a legitimate, non-discriminatory
reason for discharging the employee. See Norton v. Sam's Club,
145 F.3d 114, 118 (2d Cir. 1998). If the employer articulates a
non-discriminatory reason for its employment decision, the presumption of
discrimination raised by the prima facie case "simply drops out of the
picture." St. Mary's Honor Ctr., 509 U.S. at 511.
At this stage, the plaintiff must produce evidence to support the
reasonable inference that discriminatory animus more likely than not
motivated the adverse employment action. To support such a showing, the
plaintiff may "show that the employer's proffered explanation is
unworthy of credence." Texas Dept. of Community Affairs v. Burdine,
450 U.S. 248, 256 (1981). In addition to showing the falsity of the
proffered reasons, though, the plaintiff must also carry his burden on the
ultimate issue: that discriminatory intent motivated the decision (i.e.,
that the proffered reasons were just a pretext for the discrimination).
On this count, plaintiff may continue to rely on evidence that was
submitted to support a prima facie claim of discrimination. Id. at 255
n.10. In other words, "[t]he factfinder's disbelief of the reason put
forward by the defendant . . . may, together with the elements of the
prima facie case, suffice to show intentional discrimination. Thus,
rejection of the defendant's proffered reasons will permit the trier of
fact to infer the ultimate fact of intentional discrimination." St.
Mary's, 509 U.S. at 511. Plaintiff need not prove that age was the only
or even the principal factor in the adverse employment action, but only
that age was at least one of the motivating factors in that decision.
See Renz v. Grey Ader Inc., 135 F.3d 217, 222 (2d Cir. 1997).
The ADEA also prohibits an employer from taking any adverse employment
action against an employee who complains about an unlawful practice.
Absent direct proof of retaliatory intent, the court should apply the
familiar burden-shifting framework set forth in McDonnell Douglas. See
Sumner v. U.S. Postal Service, 899 F.2d 203, 208 (2d Cir. 1990)
(citations omitted). To establish a prima facie case of retaliation under
the ADEA, a plaintiff must show: (1) protected activity under ADEA that
was known by the alleged retaliator; (2) an adverse employment action
taken against the person who engaged in the protected activity; and (3) a
causal connection between the protected activity and the adverse
employment action. DeCintio
v. Westchester County Medical Center, 821 F.2d 111, 115 (2d Cir. 1987).
It should be noted that "[p]roof of causal connection can be established
indirectly by showing that the protected activity was followed closely by
discriminatory treatment. . . ." Id.
Much like the analysis of a discrimination claim, if the plaintiff
meets this initial burden, the defendant must then articulate a
legitimate, non-discriminatory reason for its action. See Tomka v. Seiler
Corp., 66 F.3d 1295, 1308 (2d Cir. 1995). If the defendant articulates a
legitimate, non-discriminatory reason for its action, the plaintiff must
then prove that the proffered reason was merely a pretext for retaliation
and that an impermissible motive was actually a motivating factor in
defendant's actions. See id.
II. Reduction in Salary as Discriminatory
Williams alleges that Dictaphone discriminated against him when, in
1996, it instituted a salary reduction policy that almost exclusively