The opinion of the court was delivered by: David G. Larimer United States District Judge
This is an action under the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et seq. The three plaintiffs, Kerry Kourofsky, Wayne Newman, and William Sperr, allege that their former employer, Genencor International, Inc. ("Genencor"), terminated their employment in March 2003, on account of their age. Genencor has moved for summary judgment.
Genencor is a company involved in biotechnology; it develops and sells biochemicals for use in various types of applications. All three plaintiffs previously worked at Genencor's Manufacturing Support Group at its Lexington Avenue facility ("the Plant") in Rochester, where held the position of engineer until late 2002.
In late 2002, plaintiffs were assigned to new positions as Senior Manufacturing Supervisor. These reassignments occurred during a transition period in which Genencor was changing the Plant from a product and process development facility to a manufacturing plant. That transition was occasioned by Genencor's recent acquisition of certain product lines of another company, Rhodia, Ltd. ("Rhodia").
Also in conjunction with this transition, Genencor implemented a reduction in force ("RIF") for the purpose of cutting its operating costs. Ten positions at the Plant, including plaintiffs', were eliminated. On March 31, 2003, plaintiffs were notified of the decision to terminate them.
Each plaintiff was provided with a severance package that included six months' pay and other benefits, in exchange for their release of all potential claims against Genencor arising out of their termination. Genencor now concedes, however, that the releases are ineffective because Genencor failed to comply with certain requirements of the Older Workers' Benefit Protection Act ("OWBPA"), Pub.L. No. 101-433, 104 Stat. 978 (1990).
Following their receipt of right-to-sue letters from the Equal Employment Opportunity Commission, plaintiffs filed the complaint in this action on July 16, 2004. They assert claims for age discrimination under the ADEA and the New York State Human Rights Law, Exec. L. § 296, and a claim under the OWBPA.
I. Summary Judgment in ADEA Cases
An ADEA claim may be based on allegations of disparate treatment or disparate impact. See Smith v. City of Jackson, Mississippi, 544 U.S. 228, 238-40 (2005); Maresco v. Evans Chemetics, 964 F.2d 106, 115 (2d Cir. 1992). Plaintiffs' ADEA cause of action is premised on both theories. See Complaint ¶¶ 26, 28.*fn1
ADEA disparate-treatment claims are analyzed using the same burden-shifting framework as that employed in cases under Title VII. See Terry v. Ashcroft, 336 F.3d 128, 137-38 (2d Cir. 2003). First, plaintiff must establish a prima facie case of age discrimination by showing that: (1) he was over forty years old at the time of the relevant events; (2) he was performing satisfactorily; (3) he was discharged; and (4) the discharge occurred under circumstances giving rise to an inference of discrimination based on the plaintiff's age. Chambers v. TRM Copy Ctrs. Corp., 43 F.3d 29, 37 (2d Cir. 1994).
Once the plaintiff has made out a prima facie case, the burden shifts to the employer to articulate a legitimate, nondiscriminatory business rationale for its actions. When "the defendant has made a showing of a neutral reason for the complained of action, 'to defeat summary judgment ... the plaintiff's admissible evidence must show circumstances that would be sufficient to permit a rational finder of fact to infer that the defendant's employment decision was more likely than not based in whole or in part on discrimination.'" Terry, 336 F.3dat 138 (quoting Stern v. Trustees of Columbia Univ. in City of New York, 131 F.3d 305, 312 (2d Cir. 1997)); see also Abdu-Brisson v. Delta Air Lines, Inc., 239 F.3d 456, 466 (2d Cir. 2001); James v. New York Racing Ass'n, 233 F.3d 149, 154 (2d Cir. 2000). Plaintiff may meet this burden by showing, inter alia, that the employer's proffered reasons for its decision were false or that discrimination was the real motivation for the company's decision. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 148 (2000).
The analysis is different for claims brought under a disparate-impact theory, which targets "practices that are fair in form, but discriminatory in operation." Griggs v. Duke Power Co., 401 U.S. 424, 431 (1971). A plaintiff establishes a prima facie case of disparate impact by identifying a specific employment practice which, though facially neutral, has had an adverse impact on him as a member of a protected class. See Smith, 544 U.S. at 241; Watson v. Fort Worth Bank & Trust, 487 U.S. 977, 994 (1988). Statistical data may be admitted to show a disparity in outcome between groups, but to make out a prima facie case the statistical disparity must be "sufficiently substantial" to raise an inference of causation. Watson, 487 U.S. at 994-95; accord NAACP v. Town of East Haven, 70 F.3d 219, 225 (2d Cir. 1995). In addition, "any statistics relied upon 'must be of a kind and degree sufficient to reveal a causal relationship between the challenged practice and the disparity' when combined with other evidence." Malave v. Potter, 320 F.3d 321, 326 (2d Cir. 2003) (quoting Robinson v. Metro-North Commuter R.R. Co., 267 F.3d 147, 160 (2d Cir. 2001), cert. denied, 535 U.S. 951 (2002)).
"[A]fter an employee establishes a prima facie case of disparate impact age discrimination under the ADEA, the burden of production shifts to the employer to assert that its neutral policy is based on a reasonable factor other than age." Pippin v. Burlington Resources Oil And Gas Co., 440 F.3d 1186, 1200 (10th Cir. 2006) (italics omitted). Under this test, "the employer is not liable under the ADEA so long as the challenged employment action, in relying on specific non-age factors, constitutes a reasonable means to the employer's legitimate goals." Meacham v. Knolls Atomic Power Lab., 461 F.3d 134, 140 (2d Cir. 2006) (citing Smith, 544 U.S. at 243). "[T]he plaintiff bears the burden of persuading the factfinder that the employer's justification is unreasonable." Id. at 139 (citing Pippin, 440 F.3d at 1200). To survive a well-founded motion for summary judgment, then, an ADEA ...