The opinion of the court was delivered by: David G. Larimer, Chief District Judge.
Plaintiff Rose Venti ("plaintiff") commenced this action against her
employer, defendant EDS, alleging that EDS took adverse employment
actions against her and eventually terminated her on account of her age,
in violation of the Age Discrimination in Employment Act of 1967,
29 U.S.C. § 621 ("ADEA"), and the New York Human Rights Law, N.Y.
EXEC. L. § 296 et seq. ("NYHRL"). Before the Court is EDS's motion
for summary judgment brought pursuant to FED. R. CIV. P. 56. For the
reasons that follow, EDS's motion is granted.
In October 1999, EDS terminated plaintiff as part of its 1999/2000
company-wide reduction-in-force ("RIF"). At the time, plaintiff was
working in EDS's Global Compute Frameworks Group and reported to managers
Michael Boggs and Ed Jacques. Plaintiff began working for EDS in 1994 at
the age of 44, when she was recruited by EDS to leave Xerox after 13
years of service. Xerox and EDS had entered into an outsourcing agreement
pursuant to which EDS provided certain services to Xerox and hired certain
Xerox employees. From 1994 through 1996, plaintiff worked as the
administrative assistant for a Division Vice President in EDS's Corporate
Strategic Securities group. From 1996 through 1998, she worked in EDS's
Disaster Recovery group as a Business Analyst/Disaster Recovery
Specialist. Following a conflict with a co-worker, plaintiff transferred
to the Global Compute Frameworks Division in 1998, where she remained
until her termination in October 1999.
Plaintiff alleges that EDS "had a plan" to restructure the business so
as to replace older employees with a younger energetic population. Dkt.
#12, Exhibit F, at 38-39, 46, 233-34. She claims that Jacques and Boggs,
motivated by age discrimination, engaged in a course of discriminatory
conduct beginning in February 1999 that culminated in her termination as
part of the RIF. Dkt. #16, at ¶¶ 20-22. She alleges that Jacques and
Boggs stripped her of her job responsibilities and refused to train her,
thereby making her more susceptible to termination. Id. at ¶ 21.
After reviewing the pleadings and materials submitted on the motion, I
find that plaintiff has produced insufficient evidence to support an
inference that EDS's proffered reasons for taking the actions it did were
pretextual and based on age related considerations. Plaintiff's conclusory
allegations of EDS's discriminatory intent are insufficient to overcome
EDS's strong showing that it had legitimate nondiscriminatory reasons for
its actions. On this record, no rational fact-finder could return a
verdict in plaintiff's favor, and summary judgment is warranted.
A. Timeliness of Plaintiff's Claims
Initially, I address EDS's contention that many of plaintiff's claims
are time-barred. Based on plaintiff's allegations, most of the acts about
which she complains occurred more than 300 days before she filed her EEOC
charge on June 16, 2000, that is prior to August 21, 1999. Plaintiff
alleges that all of her claims are timely pursuant to the continuing
violation exception to the ADEA because EDS engaged in an ongoing policy
First, the Supreme Court's recent decision in Nat'l R.R. Passenger
Corp. v. Morgan, 536 U.S. 101, 122 S.Ct. 2061
(2002), appears to preclude
application of the exception in cases like this one. Coffey v. Cushman
& Wakefield, No. 01 CIV. 9447, 2002 WL 1610913, *2 (S.D.N.Y. July
22, 2002) ("Contrary to the prior rule in this Circuit, the statute of
limitations thus bars relief for such acts even if they are related to
other actionable conduct that is not time-barred and might otherwise be
considered part of a continuing violation.").*fn1 In Morgan, the Court
held that "discrete discriminatory acts are not actionable if time
barred, even where they are related to acts alleged in timely filed
charges." Morgan, 122 S.Ct. at 2072.
In any event, even assuming plaintiff could invoke the continuing
violation exception after Morgan in this case, she misconstrues the
exception and submits no evidence that EDS engaged in an ongoing policy
of discrimination. The continuing violation exception to the ADEA
provides that if a plaintiff "files a timely EEOC charge about a
particular discriminatory act committed in furtherance of an ongoing
policy of discrimination," the statute of limitations is extended "for all
claims of discriminatory acts committed under that policy." Lightfoot v.
Union Carbide Corp., 110 F.3d 898, 907 (2d Cir. 1997); see also Harris
v. City of N.Y., 186 F.3d 243, 250 (2d Cir. 1999).
To invoke the doctrine, a plaintiff must show either (1) "specific
ongoing discriminatory policies or practices," or (2) "specific and
related instances of discrimination [that] are permitted by the employer
to continue unremedied for so long as to amount to a discriminatory
policy or practice." Quinn v. Green Tree Credit Corp., 159 F.3d 759, 766
(2d Cir. 1998) quoting Cornwell v. Robinson, 23 F.3d 694, 704 (2d Cir.
1994). "As a general rule, the courts of this circuit do not favor
continuing violation arguments." Alfieri v. SYSCO Food Servs.-Syracuse,
192 F. Supp.2d 14, 22 (W.D.N.Y. 2001) citing Cavallaro v. Corning, Inc.,
93 F. Supp.2d 334 (W.D.N.Y. 2000); see also Llyod v. WABC-TV,
879 F. Supp. 394, 399 (S.D.N.Y. 1995).
Here, plaintiff fails to allege any "specific ongoing discriminatory
policies or practices" by EDS in her complaint or otherwise, and her
conclusory allegations are wholly insufficient to establish that policy
or practice. Weeks v. N.Y. State Div. of Parole, 273 F.3d 76, 91 (2d
Cir. 2001). Plaintiff contends that a continuing violation occurred
because she alleged a number of instances of discrimination between
February 1999 and her October 1999 termination by the same "managerial
chain of command." Specifically, plaintiff points to her exclusion from a
quarterly meeting, the split of her employment group into two groups, the
transfer of certain job responsibilities to others, and EDS's alleged
refusal to train her, as evidence of a policy. However, more is
needed to secure the protection of the continuing violation doctrine, see
Weeks, 273 F.3d at 91, quoting Quinn, 159 F.3d at 766 ("[t]he events
pleaded, though embroidered with adjectives and adverbial phrases, are few
and unlinked; they are `not continuous in time with one another or with the
timely acts that she has alleged'"), particularly here, on a motion for
summary judgment motion.
The law is clear that to invoke the continuing violation doctrine on
summary judgment, plaintiff must submit admissible evidence of "specific"
or "identifiable" discriminatory customs or practices, or specific and
related acts that are tantamount to such customs or policies. See
Lightfoot, 110 F.3d at 907 ("[a]lthough the mere allegation of the
existence of [a discriminatory] policy would be sufficient to withstand a
challenge for failure to state a claim, something more is required to
avoid summary judgment on the issue").
Here, the events complained of were isolated and disjointed, and would
not, if proven, amount to a discriminatory policy for purposes of the
exception. See Alfieri, 192 F. Supp.2d at 22, quoting Quinn, 159 F.3d at
766 ("[E]ven if there were multiple incidents of discrimination here, the
Second Circuit has held that `multiple incidents of discrimination, even
similar ones, that are not the result of discriminatory policy or
mechanism do not amount to a continuing violation.'"). In any event, it
is doubtful that any of the untimely actions by EDS could themselves be
actionable as materially adverse employment actions within the meaning of
the ADEA. See Galabaya v. N.Y. City Bd. of Educ., 202 F.3d 636, 640 (2d
Cir. 2000) ("materially adverse means a change in working conditions
[that is] `more disruptive than a mere . . . alteration of job
Therefore, only plaintiff's claims based on EDS's decision not to allow
her to transfer to Amy Orr's group and its decision to terminate her
pursuant to the RIF are timely because they occurred after August 21,
1999. All other claims are time-barred.*fn2
B. Summary Judgment in Discrimination Cases
When deciding a motion for summary judgment brought pursuant to FED.
R. CIV. P. 56, a court's responsibility is to determine whether there are
issues to be tried. Duse v. Int'l Bus. Machs. Corp., 252 F.3d 151, 158
(2d Cir. 2001); see also Larsen v. NMU Pension Trust, 902 F.2d 1069, 1073
(2d Cir. 1990). Summary judgment will be granted if the record
demonstrates that "there is no genuine issue as to any material fact and
that the moving party is entitled to a judgment as a matter of law."
FED. R. CIV. P. 56(C); see also Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 247 (1986); Larsen, 902 F.2d at 1073. "A fact is `material'
for these purposes if it `might affect the outcome of the suit under the
governing law .' . . . An issue of fact is `genuine' if `the evidence is
such that a reasonable jury could return a verdict for the nonmoving
party.'" Lovejoy-Wilson v. NOCO Motor Fuel, Inc., 263 F.3d 208, 212 (2d
Cir. 2001), quoting Anderson, 477 U.S. at 248; see also Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
The general principles underlying summary judgment apply equally to
discrimination actions. Abdu-Brisson v. Delta Air Lines, Inc.,
239 F.3d 456, 466 (2d Cir. 2001) ("It is now beyond cavil that summary
judgment may be appropriate even in the fact-intensive context of
discrimination cases"). Although courts should be cautious about granting
summary judgment in cases where motive, intent or state of mind are at
issue, see Dister v. Cont'l Group, Inc., 859 F.2d 1108, 1114 (2d Cir.
1988); Montana v. First Fed. Sav. and Loan Ass'n of Rochester,
869 F.2d 100, 103 (2d Cir. 1989), "the salutary purposes of summary
judgment — avoiding protracted, expensive and harassing trials
— apply no less to discrimination cases than to . . . other areas
of litigation." Meiri v. ...