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April 30, 2001


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).

B. ADEA Claims

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 ...

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