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September 16, 2000


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. Items 31-32.


I. Background

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. 8.

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, ¶¶ 52-53.

II. 1996 Reorganization for Dictaphone & Changes in District Managers' Salaries

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, ¶ 114.*fn2

III. Job Openings for Regional Vice Presidents

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.


I. Standards of Law

A. Summary Judgment

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).

B. Age Discrimination

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).

C. Retaliation

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 affected ...

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