The opinion of the court was delivered by: Gary L. Sharpe U.S. District Judge
After being terminated from her employment with Otto Oldsmobile-Cadillac, Inc. ("Otto"), Jane Kawalkowski-Kojac ("Kojac") filed this lawsuit against Otto, claiming, among other things, age discrimination under the Age Discrimination in Employment Act of 1967 (ADEA), 29 U.S.C. §§ 621 to 634. Otto has filed a motion for summary judgment. Following review of Otto's motion, brief in support thereof, Kojac's response, and the record on the matter, the court grants Otto's motion.
The following relevant facts are undisputed.*fn1 Kojac worked for Otto from 1977 until she was terminated in 2004. While working for Otto, Kojac worked as a billing clerk, an office manager, and a controller. (Complaint at ¶¶ 13-15.) As a controller, Kojac oversaw the operations of other dealerships/franchises owned by Otto, trained office managers, and was involved in the accounting of these dealerships. (Plaintiff's Response to Defendant's Rule 7.1 Statement of Material Facts at ¶ 29.)
In 1986, Otto hired Tracey Van Allen. (Id. at ¶¶ 34 and 36.) Van Allen worked for Otto in various positions until she became the office manager for Westside Cadillac (a dealership previously owned by Otto) in 1992. (Id.)
Between 1994 and 2002, Van Allen served as the office manager of Saturn of Albany (another Otto dealership). (Id. at ¶ 37.) However, Van Allen left her employment with Otto in late 2002. (Id. at ¶ 60.)
During March 2002, Kojac received a work evaluation that rated her at the highest level possible. (Id. at ¶ 76.) At some point in 2002, however, Otto asked Kojac to make staff changes, correct problems with overtime, and hire new employees to assist her with a backlog of work. (Id. at ¶¶ 89, 91-95, and 100.) In December 2002, Kojac was also asked to hire an assistant. (Id. at ¶¶ 106-08, 127-128, and 137-139.) Kojac failed to hire anyone to assist her, thus, in January 2003, Otto rehired Van Allen as Kojac's assistant. (Id. at ¶¶ 129, 140, 144, 147.)
In May 2003, Otto moved Kojac to the Saturn dealership as the office manager to eliminate some of the problems created by a previous office manager. (Id. at ¶ 165.) While at Saturn, Kojac was under the supervision of Richard Perella, a partner at Saturn. (Id. at ¶ 167.) Kojac retained her title of controller and stayed at Saturn until June 2004. (Id. at ¶ 168.)
During the time Kojac was at Saturn, Van Allen assumed the position of office manager in Kojac's previous dealership site. (Id. at ¶ 169.) Kojac, however, was responsible for overseeing Van Allen's functions. (Id. at ¶¶ 170, 172 and 174.) While at Saturn, Kojac noticed Van Allen's performance was unsatisfactory. (Id. at ¶ 173 and 176.) At the same time, Perella talked to Kojac about her own work performance. (Id. at ¶¶ 218-220.) Perella testified that Kojac was lethargic, with no passion for business and no attention to detail. (Id.). Perella voiced concerns several times about Kojac's performance. (Id. at ¶ 235.)
In June 2004, a decrease in business and the loss of franchises forced Otto to restructure. (Id. at ¶¶ 245-247 and 268.) The restructuring process ultimately resulted in eliminating Kojac's position of controller and returning Kojac to Otto Cadillac as the office manager. (Id. at ¶¶ 249.) Otto indicated Van Allen, thus, would move to another location as office manager. (Id. at ¶ 252.) Also as a result of the restructuring process, Kojac no longer oversaw the functions of other Otto dealerships and Kojac's salary was reduced. (Id. at ¶¶ 265 and 269.) Nevertheless, following the 2004 restructuring, Kojac was still the highest paid office manager amongst the various Otto dealerships. (Id. at ¶ 270.)
Following Kojac's return to Otto Cadillac, more complaints emerged regarding her work performance, and ultimately, on September 7, 2004, a meeting took place to address the issue. (Id. at ¶¶ 295-296.) At the meeting, many problems relating to Kojac's performance were discussed, including problems of schedules, staff vacations, inventory, cash flow, and hiring. (Id. at ¶ 298.) Kojac was emotional and admitted that she was unable to concentrate on her duties. (Id. at ¶¶ 299-301.) Otto discussed with Kojac the possibility of taking time off, but Kojac rejected such option. (Id. at ¶¶ 302-303.)
On September 27, 2004, at age 55, Kojac was terminated. (Id. at ¶ 305.) By memorandum, Otto indicated Van Allen would fill Kojac's position until Kojac's replacement was selected. (Id. at ¶ 309.) In September 2006, Otto terminated Van Allen-- at age 39-- due to her poor record keeping. (Id. at ¶¶ 325-326.) Van Allen was succeeded by a new 61 year old office manager. (Id. at ¶ 328.
In December 2006, Kojac brought this action against Otto claiming, among other things, age discrimination under the ADEA. ...