125 F.3d 55 (2nd Cir. 1997), 714, Raskin v. Wyatt Co.

Docket Nº:714, Docket 96-7570.
Citation:125 F.3d 55
Party Name:Richard S. RASKIN, Plaintiff-Appellant, v. The WYATT COMPANY, Defendant-Appellee.
Case Date:September 09, 1997
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

Page 55

125 F.3d 55 (2nd Cir. 1997)

Richard S. RASKIN, Plaintiff-Appellant,


The WYATT COMPANY, Defendant-Appellee.

No. 714, Docket 96-7570.

United States Court of Appeals, Second Circuit

September 9, 1997

Argued Dec. 17, 1996.

Page 56

[Copyrighted Material Omitted]

Page 57

David L. Rose, Rose & Rose, P.C., Washington, DC (David M. Wachtel, on the brief), for Plaintiff-Appellant.

D. Michael Underhill, Morgan, Lewis & Bockius, LLP, Washington, DC (Robert J. Smith, John H. Williamson, Morgan, Lewis & Bockius, LLP, Washington, DC; Anita W. Coupe, James P. Philbin, III, Rene K. McCurry, Morgan, Lewis & Bockius, LLP, New York City, on the brief), for Defendant-Appellee.

Before: WALKER, JACOBS and LEVAL, Circuit Judges.

JACOBS, Circuit Judge:

Richard Raskin appeals from a grant of summary judgment in favor of his former employer, the Wyatt Company ("Wyatt" or "the Company"). Raskin alleged that Wyatt violated both § 4 of the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 623, and the New York State Human

Page 58

Rights Law (N.Y.SHRL), N.Y. Exec. Law. §§ 290-301, by failing to promote him to the position of office manager of Wyatt's New York office and then constructively discharging him, by reason of his age. Wyatt moved for summary judgment on all of Raskin's claims, and the District Court for the Southern District of New York (Knapp, J.) granted Wyatt's motion in its entirety. Raskin v. Wyatt Co., Memorandum and Order, No. 94 CIV 2314(WK), 1996 WL 175087 (S.D.N.Y. Apr.15, 1996). On appeal, Raskin argues that summary judgment was improper because 1) under Price Waterhouse v. Hopkins, 490 U.S. 228, 258, 109 S.Ct. 1775, 1794, 104 L.Ed.2d 268 (1989) (plurality opinion), he was entitled to a mixed-motive burden shift; 2) under the district court's analysis pursuant to McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668 (1973), Raskin had shown the existence of material issues of fact as to age discrimination, pretext, and constructive discharge; and 3) the district court improperly failed to credit a statistical report that supposedly demonstrates Wyatt's age discrimination.

We affirm.


We recount the facts that bear on the issues presented in this appeal, and we do so in the light most favorable to Raskin, as the party against whom summary judgment has been entered.

Raskin has been an actuary since 1957. In June 1983, at age 46, he went to work for Wyatt, a management consulting company specializing in employee benefits, at Wyatt's 80-person New York office. From 1983 until he left Wyatt in 1992, Raskin was one of the three or four most successful consultants at the New York office; he discharged substantial responsibility and generated substantial revenue.

In October 1991, Henry Bright--the 56-year old office manager of the New York office--elected to retire. The president of Wyatt, Michael Davis, solicited nominations to fill the position. 1 Several weeks later, Davis took Raskin out to lunch to discuss the position. At lunch, Davis said that he assumed that Raskin (who was then 55) did not want to be office manager so late in his career; Raskin responded that he was indeed interested in the position, and that he had no intention of retiring for at least another eight years. The conversation then turned to other aspects of Raskin's candidacy.

On December 10, 1991, Davis interviewed employees in the New York office concerning the various candidates for the office manager position. There were at least six candidates: three were from New York (Raskin, age 55; Arnold Malasky, age 51; and Edward Shumsky, age 42); and three were the heads of other Wyatt offices (ages 48, 48, and 50). When Davis met with Raskin, Davis expressed his concern that Raskin might not remain with Wyatt long enough to learn the job. During the interview process, it became clear that Raskin had both strong supporters and strong detractors. Raskin's supporters opined that he was the "right man" for the job, he was the "best successor" to Bright, he "had a vision," and he was both a leader and a manager. Raskin's detractors said, inter alia, that he was "arrogant," "venal," "a bully," and "power crazy."

As early as December 10, Davis had apparently concluded that Raskin would not be the new office manager. On December 27, the Board of Directors deferred making a final decision. On January 15, 1992, a new candidate emerged: Paul Daoust, the 44-year-old manager of Wyatt's Boston office. Davis recommended to the Board that Daoust be appointed as the New York office manager, and the appointment was approved on January 29, 1992, effective March 1.

When Raskin learned he would not be appointed manager, he was unhappy and proposed to Davis, at a meeting on January 22, 1992, that the Company enter into an employment agreement for Raskin's future services. Raskin's proposed agreement included: 1) compensation for all future years of employment at a rate at least equal to his

Page 59

1991 pay, increasing annually in accordance with the Consumer Price Index; 2) up to sixty months of severance pay at $25,000 per month upon discharge for any reason whatsoever; 3) twenty-four months of severance pay upon Raskin's voluntary resignation; 4) trigger of the "discharge" severance benefits upon any substantial change in Raskin's client and management responsibilities; and 5) a non-compete clause. Although it appears that employment agreements were highly unusual at Wyatt, Raskin testified at his deposition that Davis agreed to such an arrangement in Raskin's case with the proviso that Daoust, as the new office manager, would have to sign off on the terms relating to job duties.

Daoust and Raskin went over Raskin's proposed employment agreement in a series of meetings held in February 1992. Daoust refused to guarantee Raskin's compensation level or his job duties, but did accept Raskin's other terms (the severance provisions and non-compete agreement). Raskin, 1996 WL 175087, at * 3. Raskin refused to sign this agreement, "because the proposal [gave Raskin] no security either with respect to clients or income." Appellant's Brief at 18. Daoust told Raskin to leave if he found this arrangement unsatisfactory, but nevertheless tried to convince Raskin to stay. Raskin resigned and went to work for one of Wyatt's competitors.

Raskin filed his complaint on April 1, 1994. Wyatt moved for summary judgment on all of Raskin's claims on November 13, 1995. In opposition to the motion, Raskin submitted, inter alia, two pieces of evidence to support his claims of age discrimination: 1) a copy of Wyatt's early retirement plan, the "Supplemental Retirement Plan" (the "Plan" or the "early retirement plan"), which provides substantial benefits to employees electing to retire between ages 55 and 64; and 2) a statistical report prepared by a labor market economist, Dr. Richard F. Wertheimer, entitled "An Analysis of Employment Practices with Respect to Age at the Wyatt Company" ("the report" or the "Wertheimer report").

In granting Wyatt's motion, the district court assumed arguendo that Raskin had made out a prima facie case of age discrimination, and found that Wyatt had set forth a legitimate non-discriminatory reason for failing to give Raskin the position--namely, that Raskin's appointment would have "perpetuated and, indeed, exacerbated, the factious atmosphere and poor morale in the New York office." 1996 WL 175087, at * 5. The district court granted summary judgment on the ground that Raskin had failed to raise a material issue of fact as to pretext or age discrimination. In making the age discrimination determination, the court discussed both the early retirement plan and the Wertheimer report:

It is well settled that voluntary early retirement incentive plans are lawful and do not, in and of themselves, constitute age discrimination. Unlike prohibitions against race and gender discrimination, which prohibit anything that prefers one class over another, the prohibition against age discrimination does not prohibit programs that benefit younger workers. The [Plan] is one such program in that it ensures continued opportunity for advancement within the company. Absent such a plan, the younger workers just out of college and graduate school would very likely end up on unemployment in their forties. With the plan, however, younger workers are able to advance more quickly, filling the shoes of the older workers who take advantage of the generous early retirement opportunity.

And that explains plaintiff's statistics. Even if we were to accept them as God's truth, as we must on a motion for summary judgment, they do not defeat defendant's motion. Where, as here, employees have generous retirement plans and accrued wealth later in their careers, it is to be expected that retirement will occur earlier, and that promotion rates for employees over 50 would be lower than for those under 50.

Thus, we are unpersuaded by this evidence that there existed in defendant's workplace a general animus toward older workers, and that that animus was the real

Page 60

reason behind defendant's failure to promote plaintiff.

Raskin, 1996 WL 175087, at * 5-* 6.


We review a grant of summary judgment de novo and view the facts in the light most favorable to the non-movant. Aslanidis v. United States Lines, Inc., 7 F.3d 1067, 1072 (2d Cir.1993). Summary judgment is appropriate if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits ... show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c); LaFond v. General Physics Servs. Corp., 50 F.3d 165, 171 (2d...

To continue reading