James v. NY Racing Ass'n

• Decision Date: 01 August 1999
• Docket Number: Docket No. 00-7040
• Court: U.S. Court of Appeals — Second Circuit
• Parties: (2nd Cir. 2000) DENNIS JAMES, Plaintiff-Appellant, v. NEW YORK RACING ASSOCIATION, Defendant-Appellee, and NEW YORK STATE RACING & WAGERING BOARD, Defendant

Page 149

233 F.3d 149 (2nd Cir. 2000)

DENNIS JAMES, Plaintiff-Appellant, v. NEW YORK RACING ASSOCIATION, Defendant-Appellee, and NEW YORK STATE RACING & WAGERING BOARD, Defendant.

Docket No. 00-7040

August Term, 1999

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

Argued: June 26, 2000

Decided: November 29, 2000

Appeal by plaintiff James from grant of summary judgment to defendant New York Racing Association on his claim of age discrimination in employment by the United States District Court for the Eastern District of New York (Glasser, J.). The Court of Appeals (Leval, J.) affirms the judgment.

[Copyrighted Material Omitted]

RAYMOND NARDO, Mineola, NY, for Appellant.

PATRICIA FARREN, New York, NY, for Appellee.

Before: LEVAL, PARKER, and KATZMANN, Circuit Judges.

LEVAL, Circuit Judge:

Plaintiff-appellant Dennis James appeals from the district court's grant of summary judgment to defendant-appellee New York Racing Association ("NYRA"). James brought suit in federal district court pursuant to the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et seq., the New York State Human Rights Law, N.Y. Exec. L. § 290 et seq., and the New York City Human Rights Law, Admin. Code of the City of New York § 8-101 et seq., complaining that NYRA discriminated against him on the basis of age in terminating his employment. The district court granted summary judgment to NYRA, holding that NYRA offered a legitimate explanation for discharging James, and that James did not submit evidence that could support a finding that NYRA was motivated by age discrimination. Because the record did not include evidence from which a reasonable factfinder could find that NYRA terminated James's employment due to age discrimination, we affirm.

BACKGROUND

In 1989, when James was 52 years old, he was hired by NYRA as its Assistant Security Director. In 1994, NYRA appointed 66 year-old Kenny Noe its President and General Manager, and later Chairman of the Board of Trustees. At the time, NYRA found itself in financial difficulty, and accordingly, Noe began a program of reorganization and downsizing that reduced the number of NYRA employees by 11 percent, produced a 12.5 percent reduction in payroll costs, and cut the racing schedule from six to five days per week, producing a savings of six million dollars per year. The reorganization program also entailed stopping overtime pay for weekend and holiday work, and reducing the number of paid holidays. In 1995, Noe hired Robert Kibbey, then 67 years old, as NYRA's Security Director, and gave James, then 58 years old, additional responsibilities, a 30 percent raise, and the use of a company car. Noe was the ultimate decisionmaker regarding employment at NYRA.

In October 1996, NYRA (through Noe) terminated James's employment, listing "downsizing" as the reason for termination in James's personnel file. James was then 59 years old. One week later, NYRA hired John Tierney, then 42 years old, as Assistant to the Director of Security (as opposed to "Assistant Security Director," James's title). While James's annual salary was 60,000 dollars at the time he was discharged, Tierney assumed his position at an annual salary of 55,000 dollars. Tierney was placed at James's former desk, was assisted by James's former secretary, and took over many of James's former duties, as well as other duties.

While James does not dispute that NYRA engaged in a downsizing, he contends that, because of a promotion and a new hire, his layoff did not result in any net downsizing. He therefore contends that NYRA gave a false or "pretextual" reason for his dismissal. NYRA points out in response that some of James's responsibilities were reassigned to other employees and that although some of Tierney's duties overlapped with James's, the overall reorganization resulted in Tierney's assuming a different grouping of responsibilities, for lower pay, than James had had.

In addition, James points to a few generalized remarks made at various times by senior NYRA managers in the context of NYRA's precarious financial condition, expressing the hope to "save NYRA for the younger guys," so that the "younger guys . . . could have a job in the future," and that there were "too many older supervisors and some of them needed to retire." James also offered vague testimony that jokes had been told about age, but with no suggestion that the jokes disparaged older workers.

DISCUSSION

In addressing an appeal from a district court's grant of summary judgment, our review is de novo, and we view the evidence in the light most favorable to the non-moving party. See Fagan v. New York State Elec. & Gas Corp., 186 F.3d 127, 132 (2d Cir. 1999). Summary judgment is properly granted only when there is no genuine issue as to any material fact. See Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986); Fagan, 186 F.3d at 132. "'Only when no reasonable trier of fact could find in favor of the nonmoving party should summary judgment be granted.'" White v. ABCO Eng'g Corp., 221 F.3d 293, 300 (2d Cir. 2000) (quoting Taggart v. Time Inc., 924 F.2d 43, 46 (2d Cir. 1991)).

The district court granted summary judgment holding there was no triable issue of fact because, once the employer had given a nondiscriminatory reason for James's termination, James failed to adduce evidence capable of supporting an inference of discrimination. In making this ruling, the district court followed the test we had approved in Fisher v. Vassar College, 114 F.3d 1332 (2d Cir. 1997) (in banc), cert. denied, 522 U.S. 1075 (1998). We believe that the district court applied Fisher properly. Thus, if our ruling in Fisher remains good law, we must uphold the district court.

We agree with the district court that the evidence, taken as a whole, cannot reasonably support an inference that James's discharge was motivated by age-based animus. The evidence that NYRA was engaged in a bona fide reduction in force, motivated by the need to save large amounts of operating costs so as to avoid bankruptcy, was overwhelming. There was also very substantial uncontradicted evidence that NYRA did not discriminate against older workers, including its recent hire of a 66 year-old President and a 67 year-old Security Director, and its recent promotion of James with a 30 percent raise. See Grady v. Affiliated Central, Inc., 130 F.3d 553, 560 (2d Cir. 1997), cert. denied, 525 U.S. 936 (1998) (noting that it is difficult to impute bias against plaintiff's protected class where the actor who made the adverse employment decision against plaintiff also made a recent favorable employment decision regarding plaintiff). And while James cited jokes referring to aging, none of them ridiculed or disparaged aging or in any way showed discriminatory animus against older workers.

Finally, in the context of the precarious financial position of NYRA, the remarks James proffered about saving NYRA for younger employees and about the need for older supervisors to retire clearly represented the hope that over time the older personnel would retire, and thereby reduce the high costs associated with more senior supervisory employees. Such concern with the elevated costs of senior employees does not constitute age discrimination. See Hazen Paper Co. v. Biggins, 507 U.S. 604, 611 (1993) (holding that ADEA does not prohibit employers from acting out of concern for cost, even if cost arises from age-related facts); Woroski v. Nashua Corp., 31 F.3d 105, 109 n.2 (2d Cir. 1994) (same). Indeed, we have specifically recognized a safe-harbor for employer intent to cause early retirement. See Fagan, 186 F.3d at133 ("The ADEA creates a safe harbor for voluntary early retirement plans that are consistent with the . . . purposes of the ADEA . . . .") (internal quotation marks omitted). In any event, taking the evidence in the record as a whole, it is clear that there was insufficient evidence to support a rational finding of age discrimination.

On the other hand, plaintiff's evidence showed that he was over 40 years old, that he was qualified for his job, and that he was dismissed while younger persons were not. In addition, the plaintiff proffered evidence that could permit a finder of fact to conclude that the employer's given reason - downsizing - could not adequately explain his removal and might therefore be false. If these elements are sufficient as a matter of law to require that the case go to the jury, notwithstanding the lack of sufficient evidence to support a reasonable finding of prohibited discrimination, then we may be obligated to overturn the grant of summary judgment.

In Fisher, we focused on the framework for evaluating claims of employment discrimination set forth by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973), Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981), and St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519, 524 (1993). We convened in banc in Fisher to reconsider our earlier precedent in Binder v. Long Island Lighting Co., 57 F.3d 193 (2d Cir. 1995). In Binder, we had ruled that evidence satisfying McDonnell Douglas's minimal requirements of a prima facie case, coupled with evidence from which a factfinder could find that the employer's explanation for the action it took against plaintiff was false, necessarily mandates submission of the case to the jury and the upholding of a plaintiff's verdict, regardless whether the evidence in the case gives reasonable support to the plaintiff's claim that the employer's motives were discriminatory. Fisher rejected the Binder standard, finding it both illogical and incompatible with the Supreme Court's guidance. We read the Supreme Court's explanations in Burdine and St. Mary's as having mandated the following mode of analysis as the case progresses:

At the outset, a plaintiff can avoid dismissal by presenting the "minimal" prima facie case defined by the Supreme...