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United States District Court, N.D. New York

January 3, 2005.


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


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 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 rejected.

  B. Mixed-Motive

  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.

  III. Conclusion

  For the reasons stated above, it is hereby

  ORDERED that judgment is granted to Commonwealth.


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