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PUMMELL v. COMMONWEALTH HOME FASHIONS

January 3, 2005.

WILLIAM ROGER PUMMELL, Plaintiff,
v.
COMMONWEALTH HOME FASHIONS, INC., Defendant.



The opinion of the court was delivered by: DAVID HOMER, Magistrate Judge

MEMORANDUM-DECISION AND ORDER

Plaintiff William Roger Pummell ("Pummell") commenced this action against defendant Commonwealth Home Fashions, Inc. ("Commonwealth") alleging that his employment with Commonwealth was wrongfully terminated in violation of the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 621 et seq. A bench trial was held on June 10, 2004. In accordance with Fed.R.Civ.P. 52, what follows constitutes the Court's findings of fact and conclusions of law. For the reasons stated below, judgment is granted to Commonwealth. I. Findings of Fact

  Pummell was born on July 2, 1931. In 1961, he was hired in England by brothers Saul and Phil Levenson as a sales representative for Commonwealth, their family-owned company. Thereafter, Pummell moved into the manufacturing operations of the company and progressed to running the company's manufacturing operations in England. In 1977, the Levensons purchased a company in Boston, Massachusetts and Pummell relocated there with his family to become the company's Director of Manufacturing. Finding the Boston venture unprofitable, the Levensons sold the company to focus on a Canadian business. Pummell declined the opportunity to remain with the company in Canada and instead accepted employment with another company in West Virginia.

  For the next nine years, Pummell was employed by various companies in Georgia, North Carolina, and New York. In 1989, Pummell rejoined Commonwealth, now headquartered in Montreal, to run a new manufacturing operation in Champlain, New York, located approximately forty-five miles south of Montreal. In 1995, that plant was moved to Willsboro, New York, approximately ninety miles south of Montreal, where Pummell eventually became the Vice President of Manufacturing for Commonwealth and oversaw approximately 120 employees and 150,000 square foot plant.

  Responsibility for the day-to-day operations of Commonwealth had been delegated by the Levensons to their nephew, Harvey Levenson. Beginning in or about 1998, Harvey Levenson encouraged Pummell to hire an individual who could eventually replace Pummell in the Willsboro plant. William McClay was hired effective March 1, 2000 at a salary comparable to that of Pummell. At the outset, McClay assumed responsibility for shipping and receiving, but those responsibilities quickly expanded. In 2000, Pummell was age sixtynine*fn1 and McClay was age fifty-four.

  Throughout his employment at Commonwealth, Pummell received excellent performance evaluations, promotions, and bonuses and never received a negative performance evaluation. However, in June 2000, Harvey Levenson commissioned a "diagnostic study" of the management team at Willsboro by Eric Johnson, a consultant and friend of Harvey Levenson. Johnson's seventeen-page report analyzed the operations, procedures, and management personnel at Willsboro and made various findings and recommendations. Johnson's report was critical of Pummell's management of the Willsboro plant, both directly and indirectly. For example, Johnson stated that:
— "Local Management is floundering. New Positions include some excellent people but within a short period of time they become frustrated and demoralized. The work-force see and feel the lack of direction and discipline and low moral[e] prevails. Rumors run rampid [sic] and there is far too much dialogue about the wrong subjects."
— Among the "weaknesses" at Willsboro were a "Lack of Direction and Focus," "Lack of Planning," "Ineffective Outmoded Management Style," and a "Lack of Discipline."
Diagnostic Study of Willsboro Management Team (Trial Ex. J-14) at 1, 3.

  The report recommended, inter alia, that Harvey Levenson "Evaluate Key Personnel — (can they contribute to the solution or are they part of the problem)." Diagnostic Study at 3-4. The report further found as to McClay that his "Strengths" included "strong leadership skills," the "respect of peers and subordinates," "[g]ood communicator," and "[s]elf-disciplined and conveys confidence." Id. at 5. It recommended that McClay be "Promote[d] Immediately to General Manager of Willsboro reporting directly to Harvey Levenson," the position then held by Pummell. Id. As to Pummell's strengths and weaknesses, Johnson's report declined any specific findings, stating that "[m]ore can be accomplished by discussing a proper course of action for this man — than trying to get down on paper the pros and cons of past performance." Id. at 14. The report recommended, however, that while Pummell was a "top man with considerable experience and impeccable credentials . . ., [he] [c]ould possibly fulfill a dignified and essential position as Manager of Special Projects and Senior Advisor." Id. at 5, 14. Johnson's report thus recommended that Pummell's responsibilities be reassigned to McClay and that Pummell be eased into a position with reduced responsibilities outside the management hierarchy.*fn2 While Pummell and other Willsboro personnel were interviewed by Johnson and were aware of the study, none were provided with a copy of the report until after the events giving rise to this law suit had occurred.

  McClay began assuming increasing aspects of Pummell's former duties. These changes were accompanied by communications, both written and oral, among Pummell, Harvey Levenson, and the Levenson brothers in which Pummell sought clarification of his role with Commonwealth. See, e.g., Trial Exs. J-15-20. Finally, on December 16, 2000, Harvey Levenson said to Pummell that the time had come to "turn the page" and that Pummell was "too old" to continue as Vice President.*fn3 Pummell was removed as Vice President, he was limited to three days work per week,*fn4 and his duties were generally reduced to those recommended for Pummell in Johnson's report. Compare Diagnostic Study at 14 with Mem. from H. Levenson to Pummell dated Jan. 10, 2001 (Trial Ex. 22) at 1-2. In the memorandum confirming Pummell's reduced responsibilities, Harvey Levenson told Pummell that
Roger, you and I have worked together for many years, and your expertise and devotion are certainly something Management has come to respect and appreciate. It is now time to turn the page, and look at the future with a new set of eyes and to take on these responsibilities as a fresh challenge and with renewed vigor.
Trial Ex. 22 at 3. Pummell continued in this part-time position until April 27, 2001 when his duties with Commonwealth ended. Trial Ex. J-28.

  Following the December 2000 changes, Pummell formed a new company, Sewtech International, which would employ sewers in the Malone, New York area*fn5 to assemble fashions as an independent contractor for Commonwealth and other companies. See Trial Exs. J-25, -26. Commonwealth supported the project by referring work to the company, selling it equipment, and financing the purchase of that equipment. See Trial Exs. J-25-27, -29-31, -33-34. Sewtech lost money and eventually closed.

  Commonwealth continued to pay Pummell at the rate of approximately three-fifths of his previous salary through the end of 2001. Trial Exs. J-37, -41. From January 1 through March 31, 2002, Commonwealth paid Pummell at the rate of $500 per week. Trial Exs. J-31, -33, -37, -42. All payments ended thereafter. This action followed.

  II. Conclusions of Law

  Pummell's sole claim is asserted under the ADEA, which provides that it is "unlawful for an employer . . . to . . . discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's age." 29 U.S.C. § 623(a)(1). The ADEA protects individuals over age forty. 29 U.S.C. § 631(a). Thus, "the purpose of the ADEA is to prohibit discrimination in employment on account of age." Carlton v. Mystic Trans., Inc., 202 F.3d 129, 134 (2d Cir. 2000). A plaintiff may recover under the ADEA under theories of either pretext or mixed-motive. See Raskin v. Wyatt Co., 125 F.3d 55, 60 (2d Cir. 1997). Here, Pummell seeks recovery under both theories.

  A. Pretext

  Pretext cases require analysis under the burden-shifting framework first articulated in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). First, the plaintiff must "prove by a preponderance of the evidence a prima facie case of discrimination." Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 252-53 (1981). A prima facie case of age discrimination requires proof that a plaintiff was (1) over age forty, (2) qualified for the position, (3) subjected to an adverse employment action, and (4) that such adverse action occurred under circumstances giving rise to an inference of discrimination. Carlton, 202 F.3d at 134. A plaintiff's burden at this stage is "minimal." Id. Satisfaction of this burden creates a rebuttable presumption of discrimination. See Stratton v. Department for the Aging, 132 F.3d 869, 879 (2d Cir. 1997). This presumption shifts to the employer the burden of articulating a legitimate, non-discriminatory reason for the adverse employment action. See Slattery v. Swiss Reinsurance Am. Corp., 248 F.3d 87, 94 (2d Cir. 2001). If the employer satisfies this burden, the presumption of discrimination ...


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