McCarthy v. NYC Tech. College

• Decision Date: 01 August 1997
• Docket Number: Docket No. 97-9243
• Citation: 202 F.3d 161
• Parties: (2nd Cir. 2000) WILLIAM M. McCARTHY, Plaintiff-Appellant, v. NEW YORK CITY TECHNICAL COLLEGE OF CITY UNIVERSITY OF NEW YORK, CITY UNIVERSITY OF NEW YORK and CITY OF NEW YORK, Defendants-Appellees
• Court: U.S. Court of Appeals — Second Circuit

Page 161

202 F.3d 161 (2nd Cir. 2000)

WILLIAM M. McCARTHY, Plaintiff-Appellant, v. NEW YORK CITY TECHNICAL COLLEGE OF CITY UNIVERSITY OF NEW YORK, CITY UNIVERSITY OF NEW YORK and CITY OF NEW YORK, Defendants-Appellees.

Docket No. 97-9243

August Term, 1997

UNITED STATES COURT OF APPEALS

SECOND CIRCUIT

Argued: April 28, 1998

Decided: Feb. 4, 2000

Plaintiff appeals from the district court's grant of defendant's motion for judgment as a matter of law on plaintiff's claim that his employment was terminated because of his age in violation of the Age Discrimination in Employment Act, 29 U.S.C. 621 et seq..

Affirmed.

[Copyrighted Material Omitted]

JOSEPH E. GULMI, New York, N.Y. (Annmarie P. Venuti, Richards & O'Neil, LLP, New York, N.Y., Of Counsel), for Plaintiff-Appellant.

THOMAS LITSKY, Assistant Attorney General, New York, N.Y. (Dennis C. Vacco, Attorney General of the State of New York, John W. McConnell, Deputy Solicitor General, Robert A. Forte and Annemarie Prudenti, Assistant Attorneys General, Of Counsel), for Defendants-Appellees.

Before: NEWMAN and LEVAL, Circuit Judges, and WEXLER, District Judge.^*

Judge Newman files a concurring opinion.

LEVAL, Circuit Judge:

Plaintiff William M. McCarthy appeals from a judgment of the United States District Court for the Southern District of New York (Peter K. Leisure, Judge) dismissing his claim under the Age Discrimination in Employment Act, 29 U.S.C. 621 et seq. ("ADEA"). After a jury verdict in plaintiff's favor, the court granted the motion of defendant New York City Technical College ("the College") to set aside the verdict and render judgment as a matter of law. The district court concluded that there was no evidence from which a rational jury could conclude that age discrimination was a factor in defendant's decision to terminate McCarthy's employment. We affirm.

BACKGROUND

After retiring from the New York City Police Department, plaintiff was hired in 1980 as Director of Security at the College in Brooklyn, New York. (JA, 985-86; Blue, 2) The College is one of 18 campuses of the City University of New York ("CUNY").¹ At the time of his hiring, McCarthy was 50 years old.

Under the collective bargaining agreement applicable to McCarthy's position, McCarthy's appointment was subject to annual review for reappointment. Until 1991, McCarthy's immediate supervisor was the College's director of fiscal operations, Frank Smith. In each of the eleven years Smith supervised McCarthy, Smith completed a performance evaluation rating McCarthy's performance as "excellent" or "very good" in all categories. McCarthy received a civil service rank promotion in 1985 and annual salary increases through 1990.

In 1990, Dr. Will E. Richardson was appointed vice president of administration for the College. Sometime in 1991 McCarthy began reporting directly to Richardson. Among Richardson's responsibilities was recommending to the president of the College each year whether McCarthy should be reappointed.

According to the College, in the spring of 1992, Richardson decided not to recommend McCarthy's reappointment.² On April 14, 1992, Richardson gave McCarthy a letter from Charles W. Merideth, president of the College, stating that "I regret to inform you that I will not recommend your reappointment . . . effective July 1, 1992." McCarthy appealed the decision. The appeal was denied on June 10, 1992, without explanation. After McCarthy requested an explanation for his non-reappointment, he was informed by the College's personnel department that he was not entitled to an explanation under the terms of the collective bargaining agreement applicable to his position. (JA, 162, 987). McCarthy's discharge was effective July 1, 1992, on which date he was 62 years old.

At approximately the same time plaintiff's employment was terminated, his assistant Donald O'Flaherty was also denied reappointment. O'Flaherty was 54 years old. According to the College, O'Flaherty was terminated for budgetary reasons. No replacement was hired for him.

Following McCarthy's termination, his position remained unfilled for approximately ten months. On April 8, 1993, Merideth recommended to the Board of Trustees that John Peterkin be appointed to the post. Peterkin was 64 years old at the time of his hiring, i.e., two years older than McCarthy at the time of McCarthy's termination. Peterkin resigned after five months. He was replaced by James Hall, whose age was not established, but who is conceded to be younger than plaintiff.

Plaintiff brought this action in October 1993 alleging, inter alia, that defendant terminated his employment on the basis of his age and race in violation of the ADEA and Title VII, 42 U.S.C. 2000e et seq. The claims were tried to a jury before Judge Leisure. At trial, the College explained the decision not to reappoint McCarthy on a number of grounds, including his perceived lack of qualification to help lead a CUNY system-wide effort to improve its security policies, financial constraints, and tension between McCarthy and his former assistant, O'Flaherty. In addition, in a letter submitted to the New York State Division of Human Rights before trial, the College offered these additional explanations for McCarthy's termination: McCarthy's failure to work more hours and/or different shifts in order to maintain a "presence" on campus throughout a greater portion of the day; his lack of sensitivity to the budgetary consequences of his staffing decisions; his handling of a 1991 student demonstration at the College; and his lack of "knowledge of or interest in certain advanced security devices, such as an automated entry system, sophisticated cameras, and tracking systems to track officers' coverage."

At the close of plaintiff's case-in-chief, the College moved for judgment as a matter of law, arguing, with respect to the ADEA claim, that "there has been no evidence to substantiate his claim that age was a factor in the decision to nonreappoint him." The district court reserved decision on the motion. On June 17, 1997, the jury found in favor of defendant on the Title VII claim but in favor of McCarthy on the ADEA claim, and awarded him $400,000.

After the verdict, defendant renewed its motion for judgment as a matter of law pursuant to Fed. R. Civ. P. 50(b). Judge Leisure granted the motion on the ground that "there was no evidence that could, directly or indirectly, support a rational conclusion that defendant's action was motivated by age discrimination." See McCarthy v. New York Technical Coll. 1997 WL 540811, at *4 (S.D.N.Y. Sept. 3, 1997).

This appeal followed.

DISCUSSION

Where a district court has vacated a jury's verdict in favor of the plaintiff and granted judgment to the defendant as a matter of law based on the insufficiency of the plaintiff's evidence, the question we face on review is the same as the one considered by the district judge -- whether, drawing all reasonable inferences regarding the weight of the evidence and the credibility of witnesses in favor of plaintiff, the evidence is sufficient to support a reasonable jury finding in plaintiff's favor. See In re Joint Eastern & Southern District Asbestos Litigation, 52 F.3d 1124, 1131 (2d Cir. 1995).

The ADEA makes it "unlawful for an employer . . . to fail or refuse to hire or to discharge any individual [of at least 40 years of age] or otherwise discriminate against any [such] individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's age." 29 U.S.C. 623(a)(1); see id. 631(a).

Plaintiff claims that his age was a motivating factor in the College's decision not to reappoint him as Director of Security. As the defendant offered other explanations for terminating McCarthy, he "must present evidence sufficient to allow a rational factfinder to infer that the employer was actually motivated in whole or in part by age discrimination." Grady v. Affiliated Central, Inc., 130 F.3d 553, 560 (2d Cir. 1997); see also Fisher v. Vassar Coll., 114 F.3d 1332, 1335-36 (2d Cir. 1997) (in banc).

Viewing the record in the light most favorable to plaintiff, we agree with the district judge that there was insufficient evidence from which a jury could rationally infer that the College terminated him because of his age. Plaintiff argues that such an inference could be based on the fact that, at approximately the same time it terminated his employment, the College also fired his assistant, O'Flaherty, who was 54 years old. However, the force of the contention that O'Flaherty was fired because of age discrimination -- instead of for budgetary reasons, as claimed by the College -- is substantially undercut by the fact that the College never sought or hired a replacement for O'Flaherty. Moreover, considered as statistical evidence, plaintiff's "sample" of two was clearly "insufficient to sustain a reasonable inference that [McCarthy's] treatment by the [College] was motivated by discriminatory intent." Pollis v. New Sch. for Soc. Research, 132 F.3d 115, 121 (2d Cir. 1997); see also Haskell v. Kaman Corp., 743 F.2d 113, 121-22 (2d Cir. 1984). McCarthy points to the fact that six more employees under Richardson's supervision were terminated. Although no evidence was introduced regarding the age of any of these employees, McCarthy argues the jury could "infer" that they were in the protected class and were fired because of their age. There is no merit to the argument. Plaintiff cannot satisfy his burden of showing the defendant acted from age-based discrimination by simply asking that we assume facts that might support an inference of such discrimination.

Finally, McCarthy's replacement Peterkin was older than McCarthy. Replacement by an older person may not necessarily be fatal to an age discrimination claim if, for example, a plaintiff can show that his age was the true motivation and the older replacement was hired temporarily as a means of insulating defendant ...