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December 13, 2002


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 of discrimination.

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 responsibilities.'").

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. ...

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