United States District Court, N.D. New York
January 3, 2005.
WILLIAM ROGER PUMMELL, Plaintiff,
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
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 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
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
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.
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 arising
from the prima facie case dissolves "out of the picture," St.
Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 510-11 (1993), and the
burden returns to the plaintiff to demonstrate that the
employer's proffered reason was a pretext for the true reason,
age. Id. at 507-08; Carlton, 202 F.3d at 135.
The adverse employment action here began on December 16, 2000
when Pummell received notice from Harvey Levenson that he was
being removed as Vice President, relieved of his management
responsibilities at Willsboro, and reduced to part-time
employment. As to Pummell's initial burden, there is no dispute
that Pummell was over age forty at that time, he was qualified
for his position, and he was subjected to an adverse employment
action. Moreover, given Harvey Levenson's comment on December 16,
2000 about Pummell's age and the fact that Pummell's duties were
reassigned to McClay, fifteen years Pummell's junior, Pummell has
also satisfied his "minimal" burden to demonstrate that the
adverse action occurred under circumstances giving rise to an
inference of age discrimination. This creates a presumption that
Pummell was subjected to age discrimination and shifts the burden
to Commonwealth to produce a legitimate, nondiscriminatory reason
for its actions. Commonwealth has met this burden by articulating
that the adverse action against Pummell was motivated by job
performance, not age, in that Commonwealth desired to replace
Pummell at Willsboro with McClay for the non-discriminatory reasons articulated in Johnson's Diagnostic Study.
The presumption of discrimination is thus removed from the case
and the burden returns to Pummell to prove that Commonwealth's
articulated reason was a pretext and that Pummell's age was a
motivating factor for the adverse action. From the testimony and
exhibits at trial, there exists no doubt that Commonwealth's
principal motivation in demoting Pummell and terminating his
employment was the determination that McClay was better suited to
manage the operations at Willsboro at that time. That
determination was based primarily on Johnson's report, which
recommended McClay's various talents as best capable of
addressing the problems which, according to Johnson's report, had
developed or persisted through Pummell's tenure. Whatever the
wisdom of its determination, Commonwealth retained the right to
assign duties to management personnel for reasons such as those
described in Johnson's report.
However, the fact that Commonwealth's evaluation of job
performances by Pummell and McClay was the principal motivating
factor in its decision does not foreclose the possibility that
Pummell's age played a lesser but nonetheless significant role in
Commonwealth's decision. "Plaintiff need not prove that age was
the only or even the principal factor in the adverse employment
action, but only that age was at least one of the motivating
factors in that decision." Carlton, 202 F.3d at 135 (citing
Remz v. Grey Adver., Inc., 135 F.3d 217, 222 (2d Cir. 1997)).
Pummell contends that he has satisfied this burden here
principally through three facts.
First, Pummell contends that Johnson's report was itself a
pretext to conceal Commonwealth's age animus. The only evidence
supporting this contention, however, is that Johnson was a friend
of Harvey Levenson's and that Johnson had a limited background in the industry. The report itself reveals a
sufficient investigation, including interviews of management
personnel and others at Willsboro. The strengths and weaknesses
of structures, procedures, and personnel were assessed and
recommendations were made on those findings. The report appears
reasonable both in the scope and nature of the investigation upon
which it was based and in its recommendations. In short, the
clear weight of the evidence supports the conclusion that
Johnson's report was reasonably objective and not pretextual.
Second, Pummell contends that Levenson's comment on December
16, 2000 that Pummell was "too old" demonstrates the requisite
animus.*fn6 However, as a general rule, a single stray
comment such as this is insufficient to establish that age was a
motivating factor. See Carlton, 202 F.2d at 135; Campbell v.
Alliance Nat'l Inc., 107 F. Supp. 2d 234, 247 (S.D.N.Y. 2000)
(finding isolated, stray remark insufficient to establish
animus).*fn7 Such a remark must be considered in the context
of the other evidence in the case to determine if it is supported
or refuted by such other evidence. See Carlton,
202 F.3d at 135 (holding that a stray remark was supported by other evidence
in the case establishing an age animus). The evidence here in its
entirety refutes rather than supports Pummell's claim of age
animus, including the ages comparable to Pummell's of other
individuals in the Commonwealth management structure and the fact
that Commonwealth sought to retain Pummell's services in areas of his identified strengths rather
than simply summarily terminating his employment.
Finally, Pummell contends that the fifteen year disparity in
ages between he and McClay, his replacement, further evidences
Commonwealth's age animus. The fact that McClay, even though over
forty, was substantially younger than Pummell may "`create an
inference that an employment decision was based on a[n] [illegal]
discriminatory criterion. . . .'" O'Connor v. Consolidated Coin
Caterers Corp., 517 U.S. 308, 312 (1996) (quoting Teamsters v.
United States, 431 U.S. 324, 358 (1977)). Such an inference is
justified here. However, that inference is insufficient to carry
Pummell's burden of proof in the circumstances presented here
where no other significant evidence of age animus exists and
where Commonwealth has offered significant evidence to rebut such
an inference. That rebuttal evidence includes Johnson's report,
the presence in the Commonwealth management hierarchy of
individuals near to or exceeding Pummell in age, and the course
of conduct by Commonwealth throughout its dealings with Pummell
which suggested no age animus.
Thus, Pummell has failed to satisfy his burden of demonstrating
that Commonwealth's articulated reason for its action against
Pummell was a pretext for age discrimination or that Pummell's
age played any motivating role in Commonwealth's decision or
actions. Pummell's claim under the pretext theory must be
Under the mixed-motive theory, "we use the different analysis
set out in Price Waterhouse v. Hopkins, 490 U.S. 228, 258 . . .
(1989) (plurality opinion): if the plaintiff establishes that a prohibited discriminatory factor played a
`motivating part' in a challenged employment decision, the burden
shifts to the employer to prove by a preponderance of the
evidence that it would have made the same decision anyway."
Raskin, 125 F.3d at 60. To shift the burden of proof to the
employer, a plaintiff must demonstrate that "an impermissible
criterion was in fact a `motivating' or `substantial' factor in
the employment decision." de la Cruz v. New York City Human
Resources Admin. Dep't of Soc. Servs., 82 F.3d 16, 23 (2d Cir.
1996) (quoting Price Waterhouse, 490 U.S. at 258). Only after a
plaintiff demonstrates that "`the forbidden animus was a
motivating factor in the employment decision' does the burden
shift to the employer to prove that it would have made the same
decision absent the discriminatory factor." Raskin,
125 F.3d at 60 (quoting Ostrowski v. Atlantic Mut. Ins. Cos., 968 F.2d 171,
181 (2d Cir. 1992)).
Here, for the reasons discussed supra in subsection A,
Pummell has failed to meet his initial burden of demonstrating
that his age played a motivating role in Commonwealth's decision.
Accordingly, Pummell's claim under the mixed-motive theory must
also be rejected.
For the reasons stated above, it is hereby
ORDERED that judgment is granted to Commonwealth.
IT IS SO ORDERED.