The opinion of the court was delivered by: Buchwald, District Judge.
Plaintiff Robert Elliott ("plaintiff" or "Elliott") is a
former employee of defendant British Tourist Authority (BTA), an
agency of the British Government. Having been terminated by the
BTA in March, 1996, plaintiff brought this action for age
discrimination under the Age Discrimination in Employment Act
(ADEA), 29 U.S.C. § 621 et seq., and the New York State Human
Rights Law, N.Y. Exec. Law § 296(3)(a). Pursuant to
28 U.S.C. § 1367, plaintiff also brings pendant state law claims of breach
of contract and a breach of the implied covenant of good faith
and fair dealing. Now pending is defendant's motion for summary
judgment, pursuant to Fed.R.Civ.P. 56. For the following
reasons, defendant's motion is granted.
The following facts are undisputed.*fn1 Plaintiff commenced
his employment by BTA in 1969 as a marketing executive. He
continued as an at-will employee of BTA for twenty-seven years,
until his eventual termination effective March 31, 1996. During
that time, he generally received satisfactory performance
reviews. However, in August, 1995, plaintiff received a "below
average" performance rating.
On or about February 26, 1996, when plaintiff was sixty years
old, he was informed by Jeffrey Hamblin ("Hamblin"), the General
Manager of BTA, that his position was being eliminated due to
budget cuts. When terminating plaintiff, Hamblin informed him
that he would receive income from BTA through a consulting
contract. See Deft. Mem, Exh. A, at 77. At the time of his
termination, plaintiff received forty-five weeks severance pay,
totaling $35,447.65, and early receipt of his pension in the
amount of $1650 per month.
On March 26, 1996, plaintiff filed a complaint with the EEOC
alleging age discrimination, and filed the instant action in
December, 1996. Plaintiff has not received any consulting
contracts with BTA since his termination.
Some facts, however, are in dispute. First, plaintiff asserts
that defendant hired a young female employee in her 20s to
assume his duties. He further alleges that he was assigned to
travel throughout the United States with her to orient her to
his job responsibilities and to introduce her to his contacts.
Additionally, Elliott alleges that at the time of his
termination, there existed two open positions at BTA for which
he was qualified and to which he requested reassignment.
However, defendant contests each of these three allegations,
asserting that plaintiff has provided no evidence in support of
any of them.
A. Summary Judgment Standard
Summary judgment is properly granted "`if the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no
genuine issue as to material fact and that the moving party is
entitled to judgment as a matter of law.'" R.B. Ventures, Ltd.
v. Shane, 112 F.3d 54, 57 (2d Cir. 1997) (quoting Fed.R.Civ.P.
56(c)). The Federal Rules of Civil Procedure mandate the entry
of summary judgment "against a party who fails to make a showing
sufficient to establish the existence of an element essential to
that party's case, and on which that party will bear the burden
of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317,
322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).
In reviewing the record, we must assess the evidence in "a
light most favorable to the nonmoving party" and resolve all
ambiguities and "draw all reasonable inferences" in its favor.
American Casualty Co. v. Nordic Leasing, Inc., 42 F.3d 725,
728 (2d Cir. 1994); see Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).
Nonetheless, the non-moving party must affirmatively set forth
at least some facts showing that there is a genuine issue for
trial. Anderson, 477 U.S. at 256, 106 S.Ct. 2505.
We are mindful that summary judgment is "ordinarily
inappropriate" in the context of a workplace discrimination case
because the allegations usually require an exploration into an
employer's true motivation and intent for making a particular
employment decision. See Patrick v. LeFevre, 745 F.2d 153, 159
(2d Cir. 1984). Thus, "trial courts must be especially chary in
handing out summary judgment in discrimination cases."
Chertkova v. Connecticut Gen. Life Ins. Co., 92 F.3d 81, 87
(2d Cir. 1996); see also Bickerstaff v. Vassar College,
196 F.3d 435, 448 (2d Cir. 1999) ("Employers are rarely so
cooperative as to include a notation in the personnel file that
the [adverse employment action] is for a reason expressly
forbidden by law.").
However, this caution does not absolve the plaintiff from the
responsibility of producing sufficient evidence from which a
reasonable juror could return a verdict in his favor. See
Anderson, 477 U.S. at 249-50, 106 S.Ct. 2505 (1986); see also
Lane v. Sotheby Parke Bernet, Inc., 758 F.2d 71, 72 (2d Cir.
1985) (affirming grant of summary judgment in Title VII action
where plaintiff failed to establish prima facie case).
The ADEA provides that it is "unlawful for an employer . . .
to fail or refuse or otherwise to hire or to discharge any
individual or otherwise discriminate
against any individual with respect to his compensation, terms,
conditions, or privileges of employment, because of such
individual's age." 29 U.S.C. § 629(a)(1). The critical issue in
an ADEA case, as in any discrimination case, is one of proof of
discriminatory intent on the part of the defendant. "[L]iability
depends on whether the protected trait (under the ADEA, age)
actually motivated the employer's decision." Hazen Paper Co.
v. Biggins, 507 U.S. 604, 610, 113 S.Ct. 1701, 123 L.Ed.2d 338
(1993) (emphasis added).
Thus, because allegations of age discrimination are, as here,
so often based on circumstantial evidence, they are analyzed
using the three-step burden-shifting analysis established in
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817,
36 L.Ed.2d 668 (1973). See ...