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
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
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
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
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
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. ...