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United States District Court, S.D. New York

May 21, 2004.


The opinion of the court was delivered by: LEWIS KAPLAN, District Judge


Plaintiff, a former IBM executive then 61 years of age applied for a position with the New York City Campaign Finance Board. The position ultimately was given to a younger female applicant who, at the time, was the Board's Deputy General Counsel. Plaintiff brought this action under Title VII of the Civil Rights Act of 1964, as amended, and the Age Discrimination in Employment Act.

In a report and recommendation dated February 10, 2004 (the "R&R"), Magistrate Judge Debra Freeman concluded that the plaintiff had made out a prima facie case, but that the Board had articulated legitimate, non-discriminatory reasons for its decision, which the plaintiff failed to show were pretext. Judge Freeman recommended that the Board therefore was entitled to summary judgment dismissing the case. Plaintiff objects to the R&R.

  At the outset, although plaintiff has not raised the point, the R&R might be read as suggesting that a plaintiff's failure to adduce evidence that the employer's explanation of its actions was pretextual would result in summary judgment being entered against the plaintiff. E.g., R&R at 19, 20, 25. The Court does not so understand the law.

  If the plaintiff makes out a prima facie case, the burden of production shifts to the employer, who may defeat a rebutable presumption of discrimination by articulating a legitimate, non-discriminatory reason for the employment decision. If the employer offers a justification of its action that, if believed, would allow a finding of no unlawful discrimination, then the McDonnell Douglas framework — with its presumptions and burdens — disappears, and the sole remaining issue is "discrimination vel non." With respect to this last stage in the analysis, plaintiff has the ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against him. Byrnie v. Town of Cromwell Bd. of Educ., 243 F.3d 93, 102 (2d Cir. 2001) (citing Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142-43 (2000)). "`[T]o defeat summary judgment . . . the plaintiff is not required to show that the employer's proffered reasons were false or played no role in the employment decision, but only that they were not the only reasons and that the prohibited factor was at least one of the "motivating" factors.'" Back v. Hastings on Hudson Union Free Sch. Dist., 365 F.3d 107, __ (2d Cir. Apr. 7, 2004) (quoting Holtz v. Rockefeller & Co., 258 F.3d 62, 78 (2d Cir. 2001)). Thus, insofar as the R&R might be read as requiring plaintiff to adduce evidence of pretext, this Court disagrees. But that is not the end of the matter.

  Once the Board produced evidence that, if believed, showed legitimate, nondiscriminatory reasons for its decision, the burden shifted to plaintiff to come forward with admissible evidence sufficient to permit a trier of fact reasonably to conclude that age or gender was a motivating factor. To determine whether he has done so, the Court must examine the record as a whole to determine "whether a jury could reasonably find an invidious discriminatory purpose on the part of the employer." Byrnie, 243 F.3d at 102; see, e.g., James v. N.Y. Racing Ass'n, 233 F.3d 149, 152 (2d Cir. 2000) (agreeing with the district court that the evidence, taken as a whole, could not reasonably support an inference that plaintiff's discharge was motived by age-based animus).

  Evidence of pretext, or the lack thereof, can be significant in this process, but it is not inherently dispositive, one way or the other. Evidence from which a jury could find that the defendant's stated reason is false combined with evidence satisfying the plaintiff's prima facie case may be, but is not necessarily, sufficient to meet the plaintiff's ultimate burden of proving discrimination. James, 233 F.3d at 156-57; Schnabel v. Abramson, 232 F.3d 83, 90-91 (2d Cir. 2000). Per contra, lack of evidence of pretext is not necessarily fatal. In other words, even if a plaintiff raises a genuine issue as to pretext, the defendants nevertheless maybe entitled to summary judgment. Fisher v. Vassar College, 114 F.3d 1332, 1338-39 (2d Cir. 1997) (in banc), cert. denied, 522 U.S. 1075 (1998). The plaintiff must raise an issue of fact as to whether "discrimination was [a] real reason" for the action complained of even if there is an issue of fact as to pretext. Id. at 1339 (quoting Quaratino v. Tiffany & Co., 71 F.3d 58, 64 (2d Cir. 1995)) (internal quotation marks omitted). The relevant factors in determining whether a plaintiff has raised a genuine issue of material fact as to discrimination vel non "`include the strength of the plaintiff's prima facie case, the probative value of [any] proof that the employer's explanation is false, and any other evidence that supports [or undermines] the employer's case.'" James, 233 F.3d at 156 (quoting Reeves, 530 U.S. at 148-49) (second alteration in original).

  In this case, plaintiff's prima facie case, although legally sufficient, is quite weak — indeed, the bare minimum required to carry a burden itself frequently described as "minimal." Plaintiff's statistics, which he claims are suggestive of discrimination, are even weaker. They show only that three men and eight women, ages ranging from 31 to 54, were hired for eleven executive positions. Without proof of the ages and gender of the applicants for each of these positions, they actually are meaningless.*fn1 So what it comes down to is that plaintiff quarrels with some of the explanations given by the Board for its decision, contends that this shows that its reasons are pretexual, and thus asserts that there necessarily was enough evidence to get him to a jury. At least on this record, he is mistaken.

  Even if plaintiff is right in contending that some of his disagreements with the Board's explanations reflect genuinely disputed facts, none of those disputes is material here. In other words, assuming that the Board dissembled in its explanations, the nature and extent of any dissembling would not be sufficient to warrant a jury in concluding that age or gender played a motivating factor here.*fn2 Plaintiff would be entitled to a trial if, and only if, he had adduced admissible evidence that, if believed, would justify a jury in concluding that it is more probable than not that age or gender was a motivating factor. He has not done so.

  Accordingly, the motion for summary judgment dismissing the complaint is granted.



It is ORDERED that counsel to whom this Order is sent is responsible for faxing a copy to all counsel and retaining verification of such in the case file. Do not fax such verification to Chambers,

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