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
Diagnostic Study of Willsboro Management Team (Trial Ex. J-14) at
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
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
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
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
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
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.
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 ...