Maresco v. Evans Chemetics, Div. of W.R. Grace & Co.

• Decision Date: 08 May 1992
• Docket Number: D,No. 344,344
• Citation: 964 F.2d 106
• Parties: 58 Fair Empl.Prac.Cas. (BNA) 1381, 58 Empl. Prac. Dec. P 41,496 Eugene F. MARESCO, Plaintiff-Appellant, v. EVANS CHEMETICS, DIV. of W.R. GRACE & CO., Defendant-Appellee. ocket 91-7610.
• Court: U.S. Court of Appeals — Second Circuit

Page 106

964 F.2d 106

58 Fair Empl.Prac.Cas. (BNA) 1381,

58 Empl. Prac. Dec. P 41,496

Eugene F. MARESCO, Plaintiff-Appellant, v. EVANS CHEMETICS, DIV. of W.R. GRACE & CO., Defendant-Appellee.

No. 344, Docket 91-7610.

United States Court of Appeals, Second Circuit.

Argued Oct. 11, 1991.

Decided May 8, 1992.

Eugene Prosnitz, New York City, for plaintiff-appellant.

Joseph D. Luksch, New York City (Epstein, Becker & Green, of counsel), for defendant-appellee.

Before: MINER and MAHONEY, Circuit Judges, and McKENNA, ^* District Judge.

MAHONEY, Circuit Judge:

Plaintiff-appellant Eugene F. Maresco appeals from a judgment of the United States District Court for the Southern District of New York, John S. Martin, Jr., Judge, entered May 29, 1991 that granted the motion for summary judgment of defendant-appellee Evans Chemetics ("Evans"), a division of W.R. Grace & Co. ("Grace"), and denied Maresco's cross-motion for summary judgment, on Maresco's claim that Evans discharged him in violation of the Age Discrimination in Employment Act (the "ADEA"), 29 U.S.C. § 621 (1988) et seq. The district court concluded that Maresco had failed to establish a triable issue of fact that: (1) his discharge occurred under circumstances that gave rise to an inference of age discrimination, or (2) the reasons that Evans articulated for Maresco's discharge were a pretext for age discrimination. Maresco also appeals from an order entered November 27, 1990 in which the district court confirmed a magistrate judge's memorandum and order denying a request by Maresco for additional discovery.

Concluding that Maresco established triable issues of fact as to Evans' liability under the ADEA, we reverse and remand.

BACKGROUND

A. The Events at Issue.

Maresco was hired by Evans in 1967 as a senior clerk. Evans was wholly owned at that time by Ralph Evans, Jr., and was located in New York City. In or about January 1970, Evans relocated to Darien, Connecticut. Maresco accompanied Evans to Darien, continuing to perform as a senior clerk or junior accountant until 1974, when he was promoted to the position of staff accountant. In or about December 1978, Evans was acquired by Grace. Evans then became part of Grace's Organic Chemicals Division (the "Division"), which had offices in Nashua, New Hampshire and Lexington, Massachusetts, as well as the former Evans office in Darien. In 1982, Maresco was promoted to the position of credit manager. This position included minor supervisory responsibilities, in addition to the performance of general corporate accounting functions.

In mid-1986, Grace decided to shut down the Darien office. The accounting functions of the Darien office were transferred to Lexington, and the office's other functions were transferred to other units of the Division. The closing was motivated by the economic cost associated with maintaining a separate office in Darien when most of the divisional operations were headquartered in Lexington. This relocation of functions also entailed cost-saving consolidations, so that the move resulted in a reduction in total employment within the Division.

In December 1986, Frederick Huber, executive vice president of the Division, and Jon Keene, director of industrial relations, made several personal visits to the Darien office in connection with their evaluation of the Division's overall personnel requirements in light of the impending Darien closure. At that time, the Darien office had three accounting and nine nonaccounting employees. Of the three accounting employees, Maresco and one other worker were over the age of forty, and therefore in the class of employees protected from discrimination by the ADEA. See 29 U.S.C. § 631 (1988 & Supp. I 1989). All of the nonaccounting personnel were also in the protected age group. On the other hand, there was only one employee over the age of forty in the approximately twenty-person accounting department of the Division's Lexington office.

During a December 1986 visit to Darien, Keene met with Maresco and informed him that he would not be asked to relocate. This decision was made by Huber and Susan Farnsworth, the Division's vice president of finance. Maresco's performance was considered satisfactory. The justification provided for Maresco's termination was the shutdown at Darien, and the consequent elimination of his position at that office. Maresco was provided with information concerning his pension benefits, severance pay, and continuation of medical benefits. In addition, Maresco received outplacement assistance, although these efforts ultimately proved unavailing.

Four Darien employees were offered the opportunity to transfer to the Lexington office. Of this group, three were nonaccounting employees over the age of forty, and one was an accountant, Byron Kabot, who was thirty-six. Unlike Maresco, Kabot, who subsequently declined the transfer and was terminated, was responsible for the preparation of sophisticated financial reports, and had both an undergraduate degree in accounting and a master's degree in business administration. The remaining two accounting employees, including Maresco, and six nonaccounting employees were terminated. No employees at the Lexington office were terminated in connection with the closure at Darien.

With the shutdown of the Darien office, accounting functions formerly performed there were absorbed by the accounting department at the Lexington office. No new employee was hired to take over Maresco's functions, which were absorbed by two accounting employees at Lexington; William F. Neeb, age thirty, and James A. Flaherty, age sixty. Upon completion of the consolidation, the Lexington accounting department consisted of twenty employees, only one of whom (Flaherty) was over the age of forty.

B. The Proceedings Below.

Maresco filed this action on January 17, 1989 after exhausting his administrative remedies before the Equal Employment Opportunity Commission. He initially proceeded pro se, but obtained counsel in March 1990. The case was referred to Magistrate Judge Naomi Reice Buchwald pursuant to 28 U.S.C. § 636(b)(1) (1988). In April 1989, Maresco served Evans with a document request seeking, inter alia, records dating from January 1, 1980 as to all new hires and separated employees at the Lexington and Nashua facilities. Evans objected to the request as overbroad, contending that the only relevant employment decisions were those stemming from the Darien shutdown. After a discovery conference, the magistrate judge ruled that Maresco was entitled to disclosure as to the job held, salary, age, experience, and (if applicable) reason for termination as to all persons entering or leaving accounting positions at the Lexington and Nashua offices from June 1986 to June 1987, the period immediately following the decision to close Darien. This ruling was confirmed by an order of the United States District Court for the Southern District of New York, Peter K. Leisure, Judge, entered August 30, 1989. The case was reassigned to District Judge John S. Martin, Jr., on July 6, 1990.

In further document discovery initiated after Maresco obtained counsel in 1990, Maresco sought data regarding all employees After the close of discovery, Evans moved, and Maresco cross-moved, for summary judgment. Following oral argument, the district court granted summary judgment in favor of Evans, ruling that Maresco had failed to establish a triable issue of fact that: (1) his discharge occurred under circumstances that gave rise to an inference of discrimination based upon age; or (2) the reasons provided by Evans for Maresco's discharge were a pretext for discrimination. ¹ The rationale of the court's decision was stated as follows:

                of the Division's Darien, Nashua, and Lexington offices.   The purpose of this requested discovery was "to ascertain whether a discriminatory pattern and practice existed" with respect to employment decisions implementing the 1986 consolidation of the Division.   The magistrate judge denied Maresco's request for additional discovery, "given the absence of a specific basis for additional discovery and the general irrelevance of information about non-comparable employees."   The district court affirmed the magistrate judge's order in a memorandum opinion and order entered November 21, 1990
                

The undisputed evidence establishes that the decision to eliminate [Maresco's] position was based on legitimate business factors requiring that Evans close the Darien office and transfer its functions to other Evans locations. The record further shows that the decision not to offer plaintiff the opportunity to relocate was based solely on an analysis of the functions performed by each [Darien] employee and whether or not they could be easily absorbed by existing employees at other locations. Moreover, [Maresco's] claim that he was not offered the opportunity to relocate based upon his age is belied by the fact that four of the twelve employees from Darien who were offered the opportunity to relocate were over 40 years of age [and thus within the ADEA-protected age group], one of whom was 61. In addition, [Maresco] was not replaced, but rather his responsibilities were assumed by existing employees Neeb and Flaherty stationed at [Lexington]. Flaherty was about 60 years old at the time the Darien office was closed.... These facts lend support to the conclusion that [Maresco's] age did not operate to exclude him from being offered relocation.

In reaching its decision, the district court refused to credit certain evidence presented by Maresco. Specifically, the court: (1) discounted as "unsubstantiated" and "unsupported" an affidavit by Maresco asserting that all the terminated Darien employees were over forty-five years old, and that Maresco "was performing the same corporate accounting and ledger related accounting work as is performed by the ... accountants in the Lexington office," see supra note 1; (2) concluded that a...