have had in
Disaster Recovery would not necessarily translate to those needed in
Global Compute, a fact plaintiff glosses over in her papers.
Even if plaintiff had technical skills and EDS choose not to utilize
them or did not thoroughly investigate her technical training, that
evidence by itself would still be insufficient to withstand this motion.
The record reflects that it made good business sense for the efficient
function of Boggs's group to terminate plaintiff instead of allowing her
to transfer to Orr's group or terminating another employee. This
decision, even if unfair, does not support a claim under the ADEA. "The
ADEA prohibits discrimination, not poor judgment." Richane,
179 F. Supp.2d at 89; see also Montana v. First Fed. Sav. and Loan Ass'n of
Rochester, 869 F.2d 100, 106 (2d Cir. 1989) (federal courts do not have a
"roving commission to review business judgments") quoting Graefenhain v.
Pabst Brewing Co., 827 F.2d 13, 21 n. 8 (7th Cir. 1987); Dister v. Cont'l
Group, Inc., 859 F.2d 1108, 1116 (2d Cir. 1988) ("[e]vidence that an
employer made a poor business judgment generally is insufficient to
establish a question of fact as to the credibility of the employer's
reasons"); Meiri v. Dacon, 759 F.2d 989, 995 (2d Cir. 1985) (courts "must
refrain from intruding into an employer's policy apparatus or
second-guessing a business's decision-making process"); Graefenhain, 827
F.2d at 20 ("A business decision need not be good or even wise. It simply
has to be nondiscriminatory . . .").
Plaintiff has completely failed to submit any credible evidence that
the real reason EDS took the actions it did was because plaintiff was
over 40 years old. Slattery, 248 F.3d at 94; see also Schnabel, 232 F.3d
at 91 (summary judgment to defendant affirmed "[b]ecause plaintiff has
presented no evidence from which the inference could be drawn that he was
discriminated against on the basis of age"). Plaintiff submits a stray
comment made by Alex Kostro during a phone conference with plaintiff and
two other employees. Kostro commented that a number of employees in the
U.S. Global Compute group were pregnant. When plaintiff commented that
she was not pregnant, Kostro responded that she was "too old" to be
pregnant. Dkt. #12, Exhibit F, at 41. Plaintiff never reported to EDS
management that Kostro made the comment, and could not identify any other
comment that Kostro made about her age. Id. at 42.
"To be probative of discrimination, isolated comments must be
contemporaneous with the discharge or causally related to the discharge
decision making process." Geier v. Medtronic, Inc., 99 F.3d 238, 242 (7th
Cir. 1996); see also Wado, 991 F. Supp. at 212 ("[s]tatements made or
actions taken by nondecisionmakers, or actions unrelated to the
decision-making process, cannot be used to support an allegation of
pretext."). This stray comment was not connected to EDS's decision to
terminate plaintiff, and the meeting at which it was said was not related
to the RIF. In fact, Kostro had no responsibility or input in the
decision to terminate plaintiff. Dkt. #12, Exhibit I, at 11.
Plaintiff also alleges that when Boggs told her she "was targeted" she
"felt like there was a segment of a population that was targeted when he
used the word targeted." Dkt. #12, Exhibit F, at 43. However, she
admitted that Boggs never said that those over 40 were targeted for
termination and that Boggs never did anything to her to make her believe
he had a bias against older people. Id. at 43-44.
Plaintiff also contends that she "kind of heard that there was a
mentality or philosophy to restructure EDS with a younger energetic
population." Id. at 44-45. She claims to have seen EDS CEO Dick Brown
say something to that effect in a conference video, though she could not
recall his exact words and did not produce the video or a transcript of
it. Plaintiff maintains there was "generalized talk among employees" that
EDS targeted individuals for lay off because it was looking for a younger
work force. Id. at 233-34. However, she could not say which employees
made the comment, and relied again on a Spring of 1999 videotape and
newsletter in which she claims she heard Dick Brown say EDS "is going to
go through a transformation change and . . . looking for a younger work
force." Id. at 234. She could not remember the date of the newsletter and
did not keep a copy. Id. at 237. Nor could she recall any details about
the video. Id. at 240.
Plaintiff's unsubstantiated allegations regarding Brown's alleged
comments and unspecified employee gossip does not raise an inference of
discrimination.*fn4 "Conclusory allegations, conjecture, and speculation
. . . are insufficient to create a genuine issue of fact." Kerzer v.
Kingly Mfg., 156 F.3d 396, 400 (2d Cir. 1998). Anyhow, though comments
about "changing the corporate culture made by top executives" can be
probative of alleged discriminatory intent by lower level managers, such
statements must be "considered in the context of the case as a whole.
. . ." Slattery v. Swiss Reins. Am. Corp., 248 F.3d 87,
93-94 (2d Cir. 2001).
Plaintiff failed to show that EDS's legitimate, nondiscriminatory
reasons for taking the actions it did were unworthy of belief. The record
as a whole simply would not lead a reasonable jury to conclude that EDS
fired plaintiff because of her age. "As the Second Circuit has made
clear, in a case where a plaintiff does not credibly call into question
an employer's non-discriminatory explanation for its motives, summary
judgment for the defendant continues to be appropriate." Richane,
179 F. Supp.2d at 87, citing Schnabel, 232 F.3d at 90; see also Slattery, 248
F.3d at 94.
For all the foregoing reasons, EDS's motion for summary judgment (Dkt.
#12) is granted, and plaintiff's complaint is dismissed with prejudice.
IT IS SO ORDERED.