NOTE: age discrimination

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Page 3 1998 U.S. Dist. LEXIS 8494, * FOCUS - 1 of 4 DOCUMENTS CURTIS J. GOLDSBERRY, Plaintiff, - against - COLUMBIA UNIVERSITY IN THE CITY OF NEW YORK, Defendant. 97 Civ. 6686 (RWS) UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK 1998 U.S. Dist. LEXIS 8494

June 4, 1998, Decided June 9, 1998, Filed

DISPOSITION: [*1] Columbia's motion to dismiss granted and action dismissed. CASE SUMMARY:

PROCEDURAL POSTURE: Defendant employer made a motion for summary judgment in the employee's action pursuant to the Age Discrimination in Employment Act (ADEA), 29 U.S.C.S. 621 et seq., regarding his termination. OVERVIEW: The employee was terminated allegedly due to the employer's budget deficits. Upon consideration, the court granted the employer's motion for summary judgment. The court found that the employer had conceded that the employee was within a protected age group for ADEA purposes, was qualified for his position, and was laid off. However, the court held that the employee could not establish a prima facie case of age discrimination because he presented no evidence that he was terminated under circumstances giving rise to an inference of age discrimination. The court determined that the employee's allegations that a younger person assumed his duties was not supported by evidence that demonstrated such action constituted an inference of age discrimination. The court noted that terminating the employee to substitute a less expensive worker did not constitute age discrimination in and of itself. With respect to the employee's allegations that he was improperly assigned additional duties, the court found that no evidence was presented regarding a comparison of duties between the employee and other employees, either older or younger. OUTCOME: The court granted the employer's motion for summary judgment and dismissed the employee's ADEA action. CORE TERMS: age discrimination, summary judgment, prima facie case, material fact, genuine issue, adverse party, terminated, non-moving, assigned, age group, deposition, admissible, retirement age, administrator, laboratory, retirement, farewell, salary, woman, cake, Federal Rules, matter of law, entitled to judgment, employment discrimination, employment decision, moving party, personal knowledge, giving rise, ambiguities, disputed LexisNexis(R) Headnotes

Page 4 1998 U.S. Dist. LEXIS 8494, * Civil Procedure > Summary Judgment > Standards > Genuine Disputes Civil Procedure > Summary Judgment > Standards > Legal Entitlement Civil Procedure > Summary Judgment > Standards > Materiality [HN1] Under the Federal Rules of Civil Procedure, summary judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). Civil Procedure > Summary Judgment > Motions for Summary Judgment > General Overview Civil Procedure > Summary Judgment > Opposition > General Overview Civil Procedure > Summary Judgment > Standards > Materiality [HN2] In determining whether there is a genuine issue of material fact, a court must resolve all ambiguities, and draw all inferences, against the moving party. A party is entitled to summary judgment if resolving all ambiguities and drawing all factual inferences in favor of the non-moving party, there is no genuine issue of material fact to be tried. Moreover, credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions. However, the mere existence of disputed factual issues is insufficient to defeat a motion for summary judgment. The disputed issues of fact must be material to the outcome of the litigation. Substantive law will identify which facts are material. Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude entry of summary judgment. Civil Procedure > Summary Judgment > Motions for Summary Judgment > General Overview Civil Procedure > Summary Judgment > Opposition > General Overview Civil Procedure > Summary Judgment > Supporting Materials > Affidavits [HN3] To defeat summary judgment, the non-moving party must present evidence that would allow a rational trier of fact to find for the non-moving party. The non-movant must do more than simply show that there is some metaphysical doubt as to the material facts. Fed. R. Civ. P. 56 provides that supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Fed. R. Civ. P. 56(e). Rule 56 also provides that, when a motion for summary judgment is made and supported as provided in Rule 56, an adverse party may not rest upon the mere allegations or denials of the adverse party's pleading, but the adverse party's response, by affidavits or as otherwise provided in Rule 56, must set forth specific facts showing that there is a genuine issue for trial. If the adverse party does not so respond, summary judgment, if appropriate, shall be entered against the adverse party. Evidence > Procedural Considerations > Burdens of Proof > Allocation Evidence > Procedural Considerations > Burdens of Proof > Ultimate Burden of Persuasion Labor & Employment Law > Discrimination > Disability Discrimination > Proof > General Overview [HN4] Under the standard burden-shifting analysis, a plaintiff must initially establish a prima facie case of employment discrimination. When, and if, this is done, the burden of production then shifts to the employer to articulate a legitimate, nondiscriminatory reason for its actions. The plaintiff has the ultimate burden of persuasion to demonstrate the challenged employment decision was the result of intentional discrimination. However, the plaintiff is not required to show that the employer's proffered reasons were false or played no role in the employment decision, but only that they were not the only reasons and that the prohibited factor was at least one of the "motivating" factors. Labor & Employment Law > Discrimination > Age Discrimination > Proof > General Overview [HN5] The Age Discrimination in Employment Act forbids employers from discriminating in hiring, discharge, or the setting of compensation, terms, conditions, or privileges of employment by reason of the age of an employee. 29 U.S.C.S. 623(a)(1). In order to establish a prima facie case of age discrimination, a plaintiff must demonstrate that (1) he was within the protected age group; (2) he was qualified for the position; (3) he was discharged; and (4) the discharge occurred under circumstances giving rise to an

Page 5 1998 U.S. Dist. LEXIS 8494, * inference of age discrimination. Civil Procedure > Counsel > General Overview Civil Procedure > Summary Judgment > Evidence Civil Procedure > Summary Judgment > Supporting Materials > Memoranda of Law [HN6] Evidence adduced by affidavit or as otherwise provided by Fed. R. Civ. P. 56 cannot be supplemented by statements in a memorandum of law made by an attorney without personal knowledge. Healthcare Law > Business Administration & Organization > Employment Discrimination Labor & Employment Law > Discrimination > Age Discrimination > Proof > General Overview [HN7] Terminating an employee to substitute a less expensive worker is not, without more, age discrimination. Labor & Employment Law > Discrimination > Age Discrimination > Proof > General Overview [HN8] Assignment to additional duties also does not amount to age discrimination. COUNSEL: For Plaintiff: DAVID M. FISH, ESQ., New York, NY. For Defendant: MICHAEL T. McGRATH, ESQ., MARK A. HERNANDEZ, ESQ., Of Counsel, PUTNEY, TWOMBLY, HALL & HIRSON, New York, NY. JUDGES: ROBERT W. SWEET, U.S.D.J. OPINION BY: ROBERT W. SWEET OPINION OPINION Sweet, D.J. Defendant Columbia University ("Columbia") moves to dismiss this action pursuant to Rule 56, Fed. R. Civ. P., on the grounds that there is no genuine issue of material fact and it is entitled to judgment as a matter of law. The complaint filed by plaintiff Curtis J. Goldsberry ("Goldsberry") alleges that Columbia terminated his employment because of his age, in violation of the Age Discrimination in Employment Act (the "ADEA"), 29 U.S.C. 621 et seq. (1988), as well as state and municipal law. For the reasons set forth below, Columbia's motion is granted, and the action is dismissed. Facts and Prior Proceedings Goldsberry was hired by Columbia in 1969 as a technician assistant in the Pediatric Department (the "Department"), and his primary job duties included cleaning laboratory glassware and instruments, delivering laboratory specimens [*2] to various laboratories, making photocopies and running errands for other employees within the Department. Columbia terminated Goldsberry's employment effective February 7, 1997, after 28 years of service, at which time he was earning $ 35,710 annually. Columbia contends that in 1994, the Department faced a one million dollar deficit in its budget. At that time, in an effort to avoid laying off Goldsberry, Columbia "transferred" him so that a portion of his work day, approximately 30 percent, was spent in the Institute of Human Nutrition (the "IHN"). His duties at the IHN included assembling and binding brochures and making deliveries. Columbia contends that by 1996 the funding used by the Pediatric Department to support Goldsberry's salary was depleted, and that no other funding could be found, and therefore the position was eliminated and Goldsberry's employment was terminated. Columbia states that the Pediatrics Department also laid off

Page 6 1998 U.S. Dist. LEXIS 8494, * a faculty member who had been working in the Department since 1987 and a Research Fellow who had been with the Department since December 1, 1995, and took other measures to close an approximately one million dollar financial gap. Columbia contends [*3] that no replacement was hired for either the Department or the IHN, and that the duties previously performed by Goldsberry are being performed by the remaining employees. Columbia contends that, consistent with the collective bargaining agreement between Goldsberry's union and Columbia, they provided Goldsberry with twenty-six weeks of severance pay, as well as four weeks in accrued vacation pay. Goldsberry filed the complaint in this action on September 9, 1997. Columbia filed the instant motion for summary judgment on February 13, 1998. Oral argument was heard on March 25, 1998, at which time the motion was deemed fully submitted. Discussion I. Standard For Summary Judgment [HN1] Under the Federal Rules of Civil Procedure, summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). "Summary judgment is properly regarded not as a disfavored procedural shortcut, but rather as an integral part of the Federal [*4] Rules as a whole, which are designed to 'secure the just, speedy and inexpensive determination of every action.'" Celotex Corp. v. Catrett, 477 U.S. 317, 327, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986) (quoting Fed. R. Civ. P. 1). [HN2] In determining whether there is a genuine issue of material fact, a court must resolve all ambiguities, and draw all inferences, against the moving party. See United States v. Diebold, Inc., 369 U.S. 654, 655, 8 L. Ed. 2d 176, 82 S. Ct. 993 (1962) (per curiam); Keywell Corp. v. Weinstein, 33 F.3d 159, 163 (2d Cir. 1994) (a party is entitled to summary judgment if "resolving all ambiguities and drawing all factual inferences in favor of the non-moving party, there is no genuine issue of material fact to be tried"). Moreover, "credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). However, the mere existence of disputed factual issues is insufficient to defeat a motion for summary judgment. See Knight v. United States Fire Ins. Co., 804 F.2d 9, 11-12 (2d Cir. 1986). [*5] The disputed issues of fact must be "material to the outcome of the litigation," id. at 11. "Substantive law will identify which facts are material. Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude entry of summary judgment." Anderson, 477 U.S. at 248. [HN3] To defeat summary judgment, the non-moving party must present evidence that would allow "a rational trier of fact to find for the non-moving party." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986). The non-movant "must do more than simply show that there is some metaphysical doubt as to the material facts." Id. See also Anderson, 477 U.S. at 248 (genuine issue of material fact exists if "a reasonable jury could return a verdict for the non-moving party"). Rule 56 provides that "supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein." Rule 56(e), Fed. R. Civ. P. The Rule also provides that:
When a motion for [*6] summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of the adverse party's pleading, but the adverse party's response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If the adverse party does not so respond, summary judgment, if appropriate, shall be entered against the adverse party.

Id.

Page 7 1998 U.S. Dist. LEXIS 8494, * II. Standard For ADEA Violations When attempting to establish age discrimination through circumstantial evidence, a plaintiff is required to negotiate the shifting burdens adopted by the Supreme Court in a trilogy of cases for use in employment discrimination litigation. See St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 505-506, 125 L. Ed. 2d 407, 113 S. Ct. 2742 (1993); Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 252-53, 67 L. Ed. 2d 207, 101 S. Ct. 1089 (1981); McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 36 L. Ed. 2d 668, 93 S. Ct. 1817 (1973). [HN4] Under this standard, a plaintiff must initially establish a prima facie case of employment discrimination. When, and if, this is [*7] done, the burden of production then shifts to the employer to articulate a legitimate, nondiscriminatory reason for its actions. The plaintiff has the ultimate burden of persuasion to demonstrate the challenged employment decision was the result of intentional discrimination. Hicks, 509 U.S. at 507. However, the plaintiff is not required to show that the employer's proffered reasons were false or played no role in the employment decision, but only that they were not the only reasons and that the prohibited factor was at least one of the "motivating" factors. See Cronin v. Aetna Life Ins. Co., 46 F.3d 196, 203 (2d Cir. 1995) (citing Price Waterhouse v. Hopkins, 490 U.S. 228, 247, 249, 104 L. Ed. 2d 268, 109 S. Ct. 1775 (1989), (plurality opinion). Although the burden of proof scheme set forth in Burdine, McDonnell Douglas and Hicks was established for Title VII actions, it applies equally to ADEA claims. See Woroski v. Nashua Corp., 31 F.3d 105, 108 (2d Cir. 1994); Bay v. Times Mirror Magazines, Inc., 936 F.2d 112, 116 (2d Cir. 1991). [HN5] The ADEA forbids employers from discriminating in hiring, discharge, or the setting of compensation, terms, conditions, [*8] or privileges of employment by reason of the age of an employee. See 29 U.S.C. 623(a)(1). In order to establish a prima facie case of age discrimination, Plaintiff must demonstrate that (1) he was within the protected age group; (2) he was qualified for the position; (3) he was discharged; and (4) the discharge occurred under circumstances giving rise to an inference of age discrimination. See, e.g., Viola v. Philips Med. Sys. of N. Am., 42 F.3d 712, 716 (2d Cir. 1994); Woroski, 31 F.3d at 108; Suttell v. Manufacturers Hanover Trust Co., 793 F. Supp. 70, 72 (S.D.N.Y. 1992). III. Goldsberry Has Not Established A Prima Facie Case of Age Discrimination Although Columbia concedes that Goldsberry is within a protected age group for purposes of the ADEA, was qualified for the position he previously held, and was laid off, they contend that he cannot satisfy the fourth prong of his prima facie case of age discrimination. Specifically, they contend that Goldsberry has adduced no credible evidence that his layoff occurred under circumstances giving rise to an inference of age discrimination. The only evidence submitted by Goldsberry in opposition to the instant [*9] summary judgment motion is excerpts from his October 21, 1997, deposition. In the deposition, Goldsberry alleges that (1) some of his job responsibilities at the IHN were assumed by a " heavy-set Hispanic lady"; (2) he was near the retirement age of 55; (3) his salary was a big burden for hospital; (4) he was assigned additional duties; (5) the IHN administrator, Ms. Battaglia, said in 1996 that if he "couldn't keep up with the work, they would find somebody else," which Goldsberry stated that he took to mean "shape up or ship out," and (6) the cake at his farewell party, held on the last day of his employment, said something like "to Curtis' retirement." While the evidence necessary to establish a prima facie case are de minimis, it is also not anorexic. [HN6] Nor can the evidence adduced by affidavit or as otherwise provided by Rule 56 be supplemented by statements in a memorandum of law made by an attorney without personal knowledge. Considering the factual allegations seriatim, Goldsberry fails to establish a prima facie case of age discrimination. Although Goldsberry contends that some of his job responsibilities were assumed by a Hispanic woman, he does not identify [*10] the woman, nor does he introduce evidence of her age. Although his Rule 56.1 statement purports to identify the Hispanic woman as Naomi Hornedo, and to establish that she is "under age forty," he does not submit any affidavit or admissible evidence regarding these purported facts. Accordingly, even assuming that Goldsberry's statement that Hornedo assumed his duties was admissible evidence, there is no evidence in the record to support the inference that such action constitutes an

Page 8 1998 U.S. Dist. LEXIS 8494, * inference of age discrimination. 1

1 Moreover, Columbia contends that Hornedo works as a bookkeeper in the Biochemistry Department of Columbia and that in March, 1997, she was temporarily assigned to the IHN to assist in the preparation of financial information for a computerized grant application software program. They contend that this work was not part of Goldsberry's former job duties nor work that he was trained or qualified to perform,. Columbia contends that her work was completed on October 3, 1997 and, thereafter, she resumed her full time duties in the Biochemistry Department.

[*11] Goldsberry asserts that the timing of his termination, when he was near the retirement age of 55, supports an inference of age discrimination. If Goldsberry's position were accepted, then anyone near retirement age who loses their job would establish a prima facie case of age discrimination. Moreover, Columbia concedes that Goldsberry is in a protected age group. He must establish, in addition, that his discharge occurred under circumstances giving rise to an inference of age discrimination. Goldsberry asserts that his salary was a big burden for the hospital. This fact seems to undermine, rather than support, Goldsberry's position that he was terminated due to age. [HN7] Terminating an employee to substitute a less expensive worker is not, without more, age discrimination. Indeed, the replacement worker could be the same age, or even older, than the terminated employee. [HN8] Assignment to additional duties, also, does not amount to age discrimination. Goldsberry is not specific as to what additional duties were assigned, nor how they relate to age discrimination. There is no comparison of duties assigned to him as compared with other employees, either older or younger. Accordingly, no [*12] inference of age discrimination may be drawn from this allegation. Nor does the statement allegedly made by Ms. Battaglia, the IHN administrator, amount to an inference of age discrimination. By Goldsberry's recollection, Ms. Battaglia said that if he "couldn't keep up with the work, they would find somebody else." Goldsberry asserts that he understood this to mean "shape up or ship out." There is nothing, however, in this statement to indicate that the criticism was in any way related to his age. Finally, the inscription on the his farewell cake, which Goldsberry recollects was something like "to Curtis' retirement" does not suggest any inference regarding Columbia's motivation for terminating his employment. 2

2 Renee Bedel, the Divisional Administrator for the Division of Pediatric Gastroenterology and Nutrition at Columbia, contends in her affidavit that she arranged the party and that she does not recall seeing the word "retirement" on the cake. The plaque given to Goldsberry by Columbia at his farewell luncheon stated "Presented to Mr. Curtis J. Goldsberry by the Division of Pediatric Gastroenterology Department of Pediatrics in recognition of thirty-four years of continuous service to the Columbia-Presbyterian Medical Center" and was dated February 7, 1997.

[*13] Conclusion For the reasons set forth above, Columbia's motion is granted, and the action is dismissed. It is so ordered. New York, N. Y. June 4, 1998 ROBERT W. SWEET U.S.D.J.