Diamantopulos v. Brookside Corp., Civ. No. H-87-75 (PCD).

• Court: United States District Courts. 2nd Circuit. United States District Court (Connecticut)
• Citation: 683 F. Supp. 322
• Docket Number: Civ. No. H-87-75 (PCD).
• Parties: James C. DIAMANTOPULOS v. The BROOKSIDE CORPORATION.
• Decision Date: 12 April 1988

683 F. Supp. 322

James C. DIAMANTOPULOS
v.
The BROOKSIDE CORPORATION.

Civ. No. H-87-75 (PCD).

United States District Court, D. Connecticut.

April 12, 1988.

683 F. Supp. 323

COPYRIGHT MATERIAL OMITTED

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Robert F. McWeeney, Helen Apostolidis, McWeeney & Ferguson, Hartford, Conn., for plaintiff

D. Reed Scism, Mindy K. Dale, Barnes & Thornburg, Indianapolis, Ind., Jay S. Siegel, Hartford, Conn., for defendant.

RULING ON MOTION FOR SUMMARY JUDGMENT

DORSEY, District Judge.

Plaintiff alleges that defendant refused to hire him in violation of the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621, et seq. Defendant has moved for summary judgment.

Facts

From early 1984 to May 1986, plaintiff was employed at the Torin HVAC Division of Clevepak Corporation ("Torin") as Director of Human Resources. Diamantopulos Affidavit ("DA"), ¶¶ 36, 57; Diamantopulos Deposition ("DD") at 4-5.¹ He was responsible for the human resources functions of Torin's various plants, including labor relations, salary and wage administration; benefits administration; human resources planning; personnel planning; etc. DA, ¶¶ 37, 38. Plaintiff performed favorably in this position, receiving positive evaluations and salary increases. Id., ¶¶ 40-44.

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In March or April 1986, defendant, Brookside Corporation ("Brookside"), noticed its intent to acquire a two-thirds interest in Torin. DA, ¶ 47; DD at 22-26. During the ensuing transition, plaintiff worked temporarily for Brookside. On May 19, 1986, he was notified by Claude A. Fourth, President of Brookside, that his employment was being terminated. He resumed his position at the one-third of Torin not acquired by Brookside until it was sold in October 1986. DD at 11, 59.

Plaintiff was informed that Brookside needed an employee relations manager and that he was a candidate. DA, ¶ 47; DD at 25-27. Plaintiff was invited to Brookside's headquarters in Indiana by Mr. Forth for an interview on April 10 and 11, 1986. DA, ¶¶ 49-52; DD at 32-33. During plaintiff's visit, Forth expressed concern over plaintiff's salary requirements. DA, ¶ 53; DD at 32. After the meeting, plaintiff wrote to Forth and reiterated his interest in the job. Letter from Diamantopulos to Forth (April 18, 1986) at 2. He offered to forego his recently granted 4.7% salary increase and to accept a further salary decrease of 10%, describing the resulting annual salary of $54,000 as reasonable compensation which would allow him to maintain his then current standard of living.

Brookside advertised for a Human Resources Manager and received over 700 resumes. Answers to Interrogatories, No. 5. Seven to ten applicants were interviewed, all of whom, with the exception of plaintiff, were from Indiana. Id. The field was then further narrowed based on the salary demands of the respective applicants. Memorandum in Support at 7. The position was offered to and accepted by an applicant who was thirty-nine years of age at the time. Plaintiff was then sixty-one.

Summary Judgment

... Fed.R.Civ.P. 56(c) provides, in part, that summary judgment shall be rendered only when a review of the entire record demonstrates "that there is no genuine issue as to any material fact." The burden falls on the moving party to establish that no relevant facts are in dispute. Heyman v. Commerce & Industry Ins. Co., 524 F.2d 1317, 1319-20 (2d Cir.1975); accord Addickes v. S.H. Kress & Co., 398 U.S. 144, 157 90 S.Ct. 1598, 1608, 26 L.Ed.2d 142 (1970). Moreover, in determining whether a genuine issue has been raised, a court must resolve all ambiguities and draw all reasonable inferences against the moving party. United States v. Diebold, Inc., 369 U.S. 654, 655 82 S.Ct. 993, 994, 8 L.Ed.2d 176 (1962) (per curiam); Quinn v. Syracuse Model Neighborhood Corp., 613 F.2d 438, 445 (2d Cir.1980). Therefore, not only must there be no genuine issue as to the evidentiary facts, but there must also be no controversy regarding the inferences to be drawn from them. Schwabenbauer v. Bd. of Educ., 667 F.2d 305, 313 (2d Cir.1981), accord Anderson v. Liberty Lobby, Inc., 477 U.S. 242 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

Properly employed, summary judgment allows the court to dispose of meritless claims before becoming entrenched in a frivolous and costly trial. Knight v. U.S. Fire Ins. Co., 804 F.2d 9 (2d Cir.1986), cert. denied, ___ U.S. ___, 107 S.Ct. 1570 94 L.Ed.2d 762 (1987). It must, however, be used selectively to avoid trial by affidavit. Judge v. Buffalo, 524 F.2d 1321 (2d Cir.1975). Hence, the fundamental maxim remains that on a motion for summary judgment a court "cannot try issues of fact; it can only determine whether there are issues to be tried." Heyman, 524 F.2d at 1319-20. As long as the plaintiff has adduced sufficient facts to substantiate the elements of his claim, summary judgment is inappropriate. Celotex Corp. v. Catrett, 477 U.S. 317 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

Donahue v. Windsor Locks Bd. of Fire Comm'rs, 834 F.2d 54, 57-58 (2d Cir.1987).

Age Discrimination Under the ADEA

The ADEA prohibits refusal of employment because of one's age. 29 U.S.C. § 623(a); Haskell v. Kaman Corp., 743 F.2d 113, 119 (2d Cir.1984); Stanojev v. Ebasco Serv., Inc., 643 F.2d 914, 919 (2d

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Cir.1981). It does not, however, prevent an employer from refusing employment on non-discriminatory grounds, regardless of the reasonableness of those grounds. Haskell, 743 F.2d at 119; Stanojev, 643 F.2d at 919-22

A cause of action under the ADEA requires a showing that plaintiff's age was a factor that made a difference in deciding whether he should be employed. Geller v. Markham, 635 F.2d 1027, 1035 (2d Cir.1980), cert. denied, 451 U.S. 945, 101 S.Ct. 2028, 68 L.Ed.2d 332 (1981). His age need not have been the sole factor motivating the employer's decision not to hire him. Rather, he need only show that "but for his employer's motive to discriminate against him because of his age, he would not have been" denied employment. Loeb v. Textron, Inc., 600 F.2d 1003, 1019 (1st Cir.1970). See also Hagelthorn v. Kennecott Corp., 710 F.2d 76, 82 (2d Cir. 1983); Pena v. Brattleboro Retreat, 702 F.2d 322, 323 (2d Cir.1983). The ADEA requires only that "an employee's age be treated in a neutral fashion, neither facilitating nor hindering advancement, demotion or discharge." Parcinski v. Outlet Co., 673 F.2d 34, 37 (2d Cir.1982), cert. denied, 459 U.S. 1103, 103 S.Ct. 725, 74 L.Ed.2d 950 (1983).

The Second Circuit has applied to the ADEA cases a test analogous to that enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668 (1973), for Title VII cases. See, e.g., Meiri v. Dacon, 759 F.2d 989, 998 (2d Cir.), cert. denied, 474 U.S. 829, 106 S.Ct. 91, 88 L.Ed.2d 74 (1985); Stanojev, 643 F.2d at 919; Geller, 635 F.2d at 1032. Thus, plaintiff must first establish a prima facie case by showing that he or she: (1) was within the protected age group; (2) was qualified for the employment that was denied; (3) applied for, but was denied the job; and (4) was rejected in lieu of a younger person. McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. at 1824; Meiri, 759 F.2d at 995-96; Haskell, 743 F.2d at 122; Stanojev, 643 F.2d at 919-20, 924 n. 7; Reed v. Signode Corp., 652 F.Supp. 129 (D.Conn.1986) (Ruling on Motion for Summary Judgment at 8).

This initial burden may be sustained by either direct evidence of discrimination or circumstantial evidence from which an inference of such discrimination may be drawn. Haskell, 743 F.2d at 119; Stanojev, 643 F.2d at 919-20. Such circumstantial evidence must be shown to suggest, logically, a different treatment of employees based on age. Stanojev, 643 F.2d at 921. That is, such evidence must be sufficient "to create an inference that an employment decision was based on a discriminatory criterion illegal under the Act." International Brotherhood of Teamsters v. United States, 431 U.S. 324, 358, 97 S.Ct. 1843, 1866, 52 L.Ed.2d 396 (1977) (construing Title VII, 42 U.S.C. § 2000e, et seq.).

Once a prima facie case has been established, the burden falls to the defendant to produce evidence of a legitimate, non-discriminatory reason for the action taken. McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. at 1824. If the defendant meets this burden, the plaintiff must then demonstrate that the non-discriminatory reason advanced by the employer was but a mere pretext to disguise the true discriminatory basis for the denial of employment.² See Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 253, 101 S.Ct. 1089, 1093-94, 67 L.Ed.2d 207 (1981); Meiri, 759 F.2d at 997.

When an employer raises several non-discriminatory reasons for rejecting an applicant, the applicant, in order to defeat summary judgment, must either raise an issue of material fact as to the pretextual nature of the proffered reasons or persuade the court that a discriminatory motive more likely motivated the employer's action. Texas Dept. of Community Affairs, 450 U.S. at 256, 101 S.Ct. at 1095; Cuddy v. Carmen, 762 F.2d 119, 123

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(D.C.Cir.), cert. denied, 474 U.S. 1034, 106 S.Ct. 597, 88 L.Ed.2d 576 (1985); Skelton v. ACTION, 668 F.Supp. 25, 29 (D.D.C.1987); Meiri, 759 F.2d at 997; Carroll v. ITT, 37 Fed.Emp.Prac. 1712, 1714 (S.D.N.Y.), aff'd, 779 F.2d 38 (2d Cir.1985). Even though summary judgment is ordinarily inappropriate where intent and state of mind are involved, the mere incantation of intent is not a sufficient basis upon which to deny a motion. Meiri, 759 F.2d at 997

Discussion

Plaintiff's Prima Facie Case

For purposes of this motion, defendant concedes that plaintiff has made out a prima facie case of age discrimination: (1) plaintiff was over forty years old when he was denied employment and thus within the protected class; (2) he was arguably qualified for the position of Human Resources Manager;³ (3) he applied for, but was not offered the position; and (4)...