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Cobb v. Frontier Communications of Rochester

August 10, 2010


The opinion of the court was delivered by: Michael A. Telesca United States District Judge



Plaintiff Donald P. Cobb ("Plaintiff") brings this action pursuant to the Age Discrimination in Employment Act ("ADEA") and Article 15 of the New York State Human Rights law ("NYSHRL"), against Defendant Frontier Telephone of Rochester*fn1 ("Frontier"), alleging that Frontier discriminated against him on the basis of his age. Specifically, Plaintiff alleges that Frontier terminated his employment on the basis of his age.

Defendant denies Plaintiff's claims and moves for summary judgment against Plaintiff. In support of its motion, Defendant contends that Plaintiff cannot offer any proof sufficient to raise an inference that Frontier's decision to terminate Plaintiff's employment was unlawfully motivated by his age; that Frontier fired Plaintiff because he was not performing his job satisfactorily; and that Plaintiff cannot prove that Frontier's non-discriminatory reasons supporting its actions were merely a pretext to conceal unlawful discrimination. Plaintiff opposes Defendant's motion for summary judgment, on the basis that Defendant's stated reasons for its adverse employment action are simply a pretext for discrimination, and that there are genuine issues of material fact in dispute.


Plaintiff was hired at Frontier as an engineer in 1998 when he was 53-years-old. (Testimony of Donald Cobb. "Cobb Tr." 9). Plaintiff's job duties included designing circuits, detailing how to build the circuits, ordering parts, and updating office records, circuit drawings and database records to reflect changes to the circuits he engineered or adjusted. Id. Frontier gave its employees an annual performance evaluation. (Declaration of John Cunico "Cunico Decl." ¶ 6). Plaintiff's overall performance ratings were 2.87 in 2002, 2.95 in 2003, 2.95 in 2004, and 2.89 in 2005, with 2 as a "threshold" rating indicating "some improvement is needed to fully meet requirements" and 3 as an "effective" rating indicating that the employee "fully meets requirements on a regular basis." (Cunico Decl., Ex. C). Plaintiff often received ratings of 2 and 2.5 for quality, productivity, and timeliness. Id.

In 2006, Frontier downsized its work force, and as a result, the demands on the remaining engineering workforce increased. (Testimony of John Cunico "Cunico Tr." 12-19). Frontier implemented stricter polices, and enforced a rule requiring engineers to complete the jobs assigned to them within five days or to provide a justification for any assignment that would exceed the deadline. Id. About this time, Plaintiff's manager John Cunico and direct supervisor Calvin Jones, noticed an increase in errors in Plaintiff's work. (Cunico Tr. 7-11; Testimony of David Jorgensen "Jorgensen Tr." 11). Plaintiff ordered incorrect and unnecessary parts or failed to order necessary parts, drew a needed engineering drawing incorrectly, and took more than five days to complete assignments on multiple occasions. (Cunico Dec., Ex. D, E). On or about June 27, 2005, Frontier placed plaintiff on a Performance Improvement Plan ("PIP") to give Plaintiff 60 days to bring his work up to expected standards. (Cunico Tr. 12, 19-22, 33-4, 96; Cunico Dec., Ex. D). When Plaintiff's work was still deficient at the end of the 60 day period, Frontier placed Plaintiff on another PIP, granting him 90 days to improve his performance, with a final warning. (Cunico Tr. 23-4,27-8). During the 90 day period, management continued to receive complaints from managers of different departments about the quality of Plaintiff's work. (Cunico Decl. ¶ 18, Ex. G; Cunico Tr. 27-8, 31). Frontier terminated Plaintiff's employment effective March 2, 2007 when Plaintiff was 61-years-old. (Cunico Decl., Ex. F; Plaintiff's Memorandum of Law "Pl Mem." 8).

Plaintiff filed a charge with the Equal Employment Opportunity Commission ("EEOC") on April 6, 2007. The EEOC issued a notice of right to sue on October 19, 2007. (Declaration of Margaret Clemens "Clemens Dec.", Ex. A). Plaintiff commenced this action on January 16, 2008. (Plaintiff's Complaint).


I. Defendant's Motion for Summary Judgment

Rule 56(c) of the Federal Rules of Civil Procedure provides that summary judgment "should be rendered if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." When considering a motion for summary judgment, all genuinely disputed facts must be resolved in favor of the party against whom summary judgment is sought. Scott v. Harris, 550 U.S. 372, 380 (2007). If, after considering the evidence in the light most favorable to the nonmoving party, the court finds that no rational jury could find in favor of that party, a grant of summary judgment is appropriate. Scott, 550 U.S. at 380 (citing Matsushita Elec. Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 586-587 (1986).

II. Plaintiff's ADEA Claim

ADEA makes it unlawful for an employer to take adverse action against an employee "because of such individual's age." 29 U.S.C. § 623(a). Claims of employment discrimination under ADEA are analyzed under the well-recognized burden shifting framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973) and later refined in Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981) and St. Mary's Honor Center v. Hicks, 509 U.S. 502, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993).*fn2 See Grozynski v. Jetblue Airways Corp., (holding that the burden-shifting framework still applies after the Supreme Court's decision in Gross v. FBL Financial Servs., Inc., 129 S.Ct. 2343 (2009)). Under the McDonnell Douglas test, the plaintiff bears the initial burden of proving a prima facie case of discrimination by a preponderance of the evidence. Holt v, KMI-Continental, Inc., 95 F.3d 123, 129 (2d Cir. 1996). If the plaintiff succeeds in stating a prima facie case, the burden of production shifts to the defendant to state a ...

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