Burger v. New York Institute of Technology, 1135

• Decision Date: 09 September 1996
• Docket Number: No. 1135,D,1135
• Citation: 94 F.3d 830
• Parties: 71 Fair Empl.Prac.Cas. (BNA) 1767, 69 Empl. Prac. Dec. P 44,410 Betty Jane BURGER, Plaintiff-Appellant, v. NEW YORK INSTITUTE OF TECHNOLOGY, Defendant-Appellee. ocket 95-7859.
• Court: U.S. Court of Appeals — Second Circuit

Page 830

94 F.3d 830

71 Fair Empl.Prac.Cas. (BNA) 1767,

69 Empl. Prac. Dec. P 44,410

Betty Jane BURGER, Plaintiff-Appellant, v. NEW YORK INSTITUTE OF TECHNOLOGY, Defendant-Appellee.

No. 1135, Docket 95-7859.

United States Court of Appeals, Second Circuit.

Argued April 2, 1996.

Decided Sept. 9, 1996.

Morton S. Robson, Robson & Miller, New York City (Kenneth N. Miller, of counsel), for Plaintiff-Appellant.

Douglas P. Catalano, Fulbright & Jaworski, New York City (Neil G. Sparber; Edward Dolido, of counsel), for Defendant-Appellee.

Before OAKES, WINTER, and CALABRESI, Circuit Judges.

WINTER, Circuit Judge:

Betty Jane Burger appeals from Judge Real's dismissal of her action under the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. §§ 621 et seq. The district court dismissed Burger's claim after her main case-in-chief. However, the district court did not make the findings required under Rule 52(c), Fed.R.Civ.P., and, viewing the evidence in the light most favorable to Burger, we conclude that she established a prima facie case. We therefore reverse.

BACKGROUND

Burger was employed for approximately eleven years in the accounting department of New York Institute of Technology ("NYIT"). On November 2, 1990, she was terminated as part of what NYIT described as a reduction in force caused by financial pressures.

In October 1991, Burger filed the instant action alleging that she was discriminated against on the basis of her age and gender, in violation of the ADEA, 29 U.S.C. §§ 623(a)(1), (a)(2), and (d), and Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e. She also alleged a violation of Article XV of New York Human Rights Law and intentional infliction of emotional distress. After discovery was completed, NYIT moved for summary judgment. Then-Chief Judge Platt granted the motion as to all but the ADEA claim. Burger has now abandoned her other claims.

A bench trial was held before visiting Judge Real. Burger's case-in-chief consisted primarily of testimony by herself, Lawrence Proman, former Senior Vice President and Comptroller of NYIT, and Theresa Perticaro Hechler, former Assistant Comptroller of NYIT. Burger also introduced portions of the depositions of William Udry, NYIT Senior Vice President and Treasurer, Paul Sintef, Assistant Comptroller, and Anthony Onorato, the NYIT Vice President and Comptroller who terminated Burger.

Burger testified that her duties encompassed a variety of accounting and bookkeeping tasks that included bank reconciliation, handling cash receipts, auditing and accounting for NYIT's DeSeversky Conference Center and its Horizon Day Camp, making daily bank deposits for the entire campus and the NYIT culinary school, paying the bills for the culinary school, handling fund advances for all departments of the school, assisting the bursar department, and providing secretarial service for Udry and Onorato. Proman's and Perticaro's testimony generally supported that of Burger with regard to her job functions. Burger had also occasionally assumed supervision of the accounting department when the regular supervisor was ill. Testimony reflected that Burger, at one time or another, performed all of the tasks in the At the time of her termination, Burger's annual salary was $24,368. Her pension rights had vested. Of the seven non-supervisory persons employed in the accounting department, Burger was the only one terminated. She was 57 years old. The other six accounting employees ranged in age from 24 to 36; each had less than four years' service at NYIT, with the exception of one 30 year-old employee who, like Burger, had eleven years of service. Four of the other six employees had salaries lower than Burger's.

accounting department with the exception of grants, which is a specialized area. Burger testified that in eleven years of employment at NYIT she never received any negative performance reviews or attendance complaints but rather only commendations from her superiors. Deposition testimony by the NYIT managers is consistent with Burger's claims with regard to both performance and attendance.

According to Udry, NYIT management determined "over the summer and fall of 1990" that one accounting department employee would be terminated as part of the overall reduction in force. Three candidates with similar, although not identical, job functions were considered for termination. One was David van Sleet, age 24, who was performing bank reconciliation for NYIT--a function that Burger had performed in the past. Another was Donna Minthorn, age 24, who had been employed at NYIT for one year and eight months, but during only the last six months in the accounting department. Minthorn had been transferred from another department to replace a worker in the department who had been terminated for cause. At the time of Burger's discharge, Minthorn's work consisted of entering cash receipts and code numbers--work that Burger testified she had previously performed and could have performed in addition to her own duties at the time she was terminated.

The deposition testimony of Onorato, Udry, and Sintef was that Burger was selected for termination because her functions were the most expendable in the accounting department. Onorato testified that Burger was eliminated because of the "redundancy" of her job function. This redundancy appears to have concerned the accounts of the DeSeversky Conference Center. He stated that Burger "tabulated records and recorded invoices and accounts receivable, and that generally was provided for by some individual at the DeSeversky Conference Center." After Burger was terminated, the accounting department no longer handled Conference Center accounts. Onorato and Sintef further testified that they believed that Burger was "overqualified" for the work that Minthorn was doing.

After the close of Burger's case-in-chief, NYIT moved for judgment. Much of the argument of counsel for both parties addressed the question of the extent to which the ADEA requires an employer to find suitable employment within a firm for an older employee whose responsibilities are eliminated, even if that entails the replacing of a younger co-worker. Judge Real granted NYIT's motion. His decision states in its entirety that the court "found, among other things, that [NYIT] was not required to replace one of its employees, Donna Minthorn, with [Burger] where [Burger]'s job function was eliminated and [Burger] was not performing the duties assigned to Donna Minthorn at the time of the reduction in force." Burger v. N.Y. Inst. of Technology, No. 91 Civ. 4183 (E.D.N.Y. August 4, 1995).

DISCUSSION

A plaintiff asserting an employment discrimination claim must meet an initial burden of presenting evidence sufficient to establish a prima facie case of the alleged violation--in Burger's case, of age discrimination. St. Mary's Honor Center v. Hicks, 509 U.S. 502, 506, 113 S.Ct. 2742, 2746-47, 125 L.Ed.2d 407 (1993); Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 252-53, 101 S.Ct. 1089, 1093-94, 67 L.Ed.2d 207 (1981); McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668 (1973); Cronin v. Aetna Life Ins. Co., 46 F.3d 196, 203 (2d Cir.1995). Once the plaintiff establishes a prima facie case, the burden shifts to the employer to rebut it through the introduction of evidence that supports a finding that unlawful discrimination was not the cause of the discharge. Hicks, 509 U.S. at 506-07, 113 S.Ct. at 2746-47; Cronin, 46 F.3d at 203. The plaintiff retains the "ultimate burden of persuasion" and the burden of proof to demonstrate that the challenged employment action was the result of intentional discrimination. Hicks, 509 U.S. at 511, 113 S.Ct. at 2749; Cronin, 46 F.3d at 203.

A prima facie case of discharge resulting from age discrimination is established if the plaintiff shows, through direct or circumstantial evidence, that: (1) she was within the protected age group, (2) she was qualified for the position, (3) she was discharged, and (4) the discharge occurred under circumstances giving rise to an inference of discrimination. Cronin, 46 F.3d at 204.

Burger's case-in-chief clearly satisfied the first three elements of the prima facie case. The issue is thus whether it satisfied the fourth prong of the test applicable to reorganizations or reductions in work force: did "the discharge occur[ ] under circumstances suggesting that age was a factor"? Gallo v. Prudential Residential Servs., 22 F.3d 1219, 1224 (2d Cir.1994).

Much of the parties' arguments are directed to the issue of whether an employer is forbidden by the ADEA from terminating older employees during a reduction in force when there are jobs held by younger employees that the older ones are qualified to perform. We believe that this framing of the issue obscures the question before us.

Our discussion begins with first principles. The ADEA prohibits an employer from terminating an employee because of age. (There are no issues in the instant matter implicating the doctrine of disparate impact. See International Bhd. of Teamsters v. United States, 431 U.S. 324, 335 n. 15, 97 S.Ct. 1843, 1854 n. 15, 52 L.Ed.2d 396 (1977); NAACP v. Town of East Haven, 70 F.3d 219, 225 (2d Cir.1995).) It simply forbids employment decisions in which the age of the adversely affected employee is a substantial factor. See 29 U.S.C. § 623(a)(1). In a case such as the present one, where the plaintiff's evidence is entirely circumstantial, the pertinent question is whether plaintiff's main case contains evidence sufficient to permit the trier of fact to draw an inference that the prohibited motive was a substantial factor in the adverse employment decision.

In cases involving a reduction in force, the inquiry is highly fact specific. We illustrate by analyzing two polar hypotheticals. In the first, an older maintenance employee is laid off when a company shuts down a plant. The older employee could...