• Case 2:02-cv-05194-DRH-MLO

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THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NEW YORK

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
Plaintiff,
v.
Dreyfus Service Corporation, Defendant.

• )
) ) ) ) ) ) ) ) ) )

NATURE OF THE ACTION

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This is an action under the Age Discrimination in Employment Act to correct unla{vful
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employment practices on the basis of age and to provide appropriate relief to Kevin Allen,

Richard Fisherman and other similarly situated employees in the Sales Department at Drey,fus

Service Corporation. Allen, age 60 and Fisherman, age 59, as well as several other empl1yees,
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see Exhibit A, age 40 and older were terminated from their positions in August 1999 becaj.lse of
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their age.

JURISDICTION AND VENUE

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1.. Jurisdiction of this Court is invoked pursuant to 28 U.S.C. §§ 451,1331, lj337, I

1343 and 1345. This action is authorized and instituted pursuant to Section 7(b) of the A~e

Discrimination in Employment Act of 1967, as amended, 29 U.S.C. § 626(b) (the "ADEA'),
which incorporates by reference Section 16(c) of the Fair Labor Standards Act of 1938 (t~e

"FLSA"), as amended, 29 U.S.C. § 216(c).

2. The employment practices alleged to be unlawful were committed within tpe

jurisdiction ofthe United States District Court for the Eastern District of New York

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PARTIES
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3. Plaintiff, the Equal Employment Opportunity Commission (the IIcommissijnll),

is the agency of the United States of America charged with the administration, interpretati ,n and
enforcement of the ADEA and is expressly authorized to bring this action by Section 7(b) ~fthe ADEA, 29 U.S.C. § 626(b), as amended by Section 2 of Reorganization Plan No. I of 197~, 92

Stat. 3781, and by Public Law 98-532 (1984), 98 Stat. 2705.

;

4. At all relevant times, Defendant, Dreyfus Service Corporation, has continufuslY
been doing business in the State of New York and Nassau County, and has continuously h~d at
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least 20 employees.

5. At all relevant times, Defendant Employer has continuously been an pm"1",,pr

engaged in an industry affecting commerce within the meaning of Sections II (b), (g) and h) of

the ADEA, 29 U.S.C. §§ 630(b), (g) and (h).

CONCILIATION

6.

-. Prior to institution of this lawsuit, the Commission's representatives att(lm~t~ed to

eliminate the unlawful employment practices alleged below and to effect voluntary cOlmpllaJrrce

with the ADEA through informal methods of conciliation, conference and persuasion

the

meaning of Section 7(b) of the ADEA, 29 U.S.C. § 626(b).

STATEMENT OF CLAIMS

7.

On or about August 2, 1999, Defendant Dreyfus Service Corporation, eng:ag(ld~ in

unlawful employment practices at its Nassau County Facility in violation of the ADEA, 2~

U.S.C. ~ 623 by terminating the employment of Kevin Allen(age 60), Richard Fisherman :age

59) and other similarly situated individuals in the Sales Department age 40 and over

of

their age.

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8. On or about August 2, 1999, Defendant Dreyfus Service Corporation engaged in a
~evin reduction in force in the Sales Department allegedly due to a drop in sales call volume.
Allen (age 60), Richard Fisherman (age 59), Manuella Gilmore (age 68) and Jane Ryan (aJe 41)
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were selected for termination as part of the reduction in force. Each of these individuals htd
been employed by Dreyfus Services Corporation for at least nine years and prior to the red~ction
in force performed their job in a satisfactory manner.

, 9. Several months prior to August 2, 1999, Defendant Dreyfus Service Corpor~tion
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had transferred five individual, all under the age of30, into the Sales Department. These ~ve
individuals were exempt from the reduction in force on August 2, 1999 and remained emp :oyed
in the Sales Department. The Defendant Dreyfus Service Corporation was aware of the dr p in
sales call volume prior to the time that these younger individuals were transferred into the . ales
Department.

10. The effect of the practices complained of in paragraphs 7 through 9 above h~s been to deprive Kevin Allen, Richard Fisherman and other employees identified on Exhibit A of equal employment opportunities and otherwise adversely affect their status as employees b~I cause
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of their age.
~ 11. The unlawful employment practices complained of in paragraphs 7 through
above were wilful within the meaning of Section 7(b) of the ADEA, 29 U.S.C. ~ 626(b). !
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PRAYER FOR RELIEF
Wherefore, the Commission respectfully requests that this Court:
A. Grant a permanent injunction enjoining Defendant employer, its officers,
successors, assigns and all persons in active concert or participation with it, from discrimin ting
against employees age 40 and over on the basis of age and any other employment practice ~hich

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discriminates on the basis of age against individuals 40 years of age and older.

B. Order Defendant employer to institute and carry out policies, practices and

programs which provide equal employment opportunities for individuals 40 years of age aJ;[d I
older, and which eradicate the effects of its past and present unlawful employment practic~s.

prejUdgm~nt C. Grant a judgment requiring Defendant employer to pay appropriate back wiges in
an amount to be determined at trial, and an equal sum as liquidated damages, or

res~lt interest in lieu thereof, to individuals whose wages are being unlawfully withheld as a

of

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the acts complained of above, including but not limited to Kevin Allen, Richard Fisherm* and

other similarly situated employees age 40 and older from the Sales Department.

D. Order Defendant employer to make whole all individuals adversely affecte+ by the

unlawful practices described above, by providing the affirmative relief necessary to eradickte the
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effects of its unlawful practices, including but not limited to reinstatement of Kevin Allenj
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Richard Fisherman and other similarly situated employees age 40 and older from the Said

Department
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E.
interest. F.

Grant such further relief as the Court deems necessary and proper in the pJliC Award the Commission its costs of this action.

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JURY TRlAL DEMAND
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The Commission requests a jury trial on all questions of fact raised by its complaint.
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Respectfully submitted, Gwendolyn Y. Reams Acting Deputy General Counsel
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
1801 "L" Street, N.W. Washington D.C. 20507

therine E. Bissell (KB 1831) egional Attorney

Trial Attorney

New York District Office 201 Varick Street, Suite 1009 New York, N.Y. 10014 (917) 273-1395
(212) 337-1075 (facsimile)

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Kevin Allen Richard Fisherman Manuella Gilmore Jane Ryan

Exhibit A

 
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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK ------------------------------------------------------------X EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,

Plaintiff,

v. DREYFUS SERVICE CORPORATION,

MEMORANDUM & ORDER 02-CV-5194 (DRH) (WDW)

Defendant. ------------------------------------------------------------X A P P E A R A N C E S:

KATHERINE E. BISSELL, Esq. Regional Attorney, Equal Employment Opportunity Commission New York District Office 33 Whitehall Street, 5th Floor New York, NY 10004 By: Louis Graziano, Esq., Trial Attorney

REED SMITH, LLP Attorneys for Defendant 599 Lexington Avenue, 29th Floor New York, NY 10022 By: John C. Unkovic, Esq., Stephanie Wilson, Esq., and Paul P. Rooney, Esq.

HURLEY, District Judge:

INTRODUCTION The EEOC filed the present age discrimination suit against the Dreyfus Service Corporation on behalf of four of its former employees. Dreyfus has moved for summary judgment. For the reasons that follow, its motion is GRANTED.

BACKGROUND

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The defendant sells mutual funds and other financial services. Prior to being laid off in August 1999, Kevin Allen (age 60 at the time of the events in question), Richard Fisherman (age 59), Manuella Gilmore (age 68), and Jayne Ryan (age 41) were all employed in Dreyfus’s “Inbound Sales Department,” meaning their primary responsibility was to handle incoming telephone calls from individuals seeking to invest in mutual funds. At all times relevant to this case, the Inbound Sales manager was Peter Horacek; Horacek’s superior was Irene Pappas, Senior Vice President of Regional Sales; Pappas in turn reported to Executive Vice President Bill Santos.
The parties agree that at least one of Horacek’s responsibilities included managing the staffing of Inbound Sales to ensure that there were “enough sales representatives to handle calls that came into the department but not so many that sales representatives sat idle.” The parties further agree that at least one of the ways in which Horacek managed staffing levels was by monitoring the department’s “call capacity,” with the aim of maintaining at least a 98% “service level” — meaning that “98% of incoming calls were answered before the caller disconnected.” The parties do not dispute that Dreyfus maintained a “Workforce Management” department that gathered statistical data on Inbound Sales in order to “determine whether staffing levels were sufficient and would be sufficient in the future,” and that “Horacek and Pappas reviewed this data on a daily basis.”
According to Dreyfus, in the spring of 1999 Inbound Sales experienced a higher than expected volume of incoming sales calls, and a higher than expected attrition rate among its existing employees, which led to a decline in the department’s “service level.” Dreyfus
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asserts that its managers expected the high attrition rate to continue, and decided to hire additional sales representatives. On March 15, 1999, Horacek, Pappas, and Santos signed a “Staffing Requisition” to hire several additional employees. The parties agree that five individuals already working as sales representatives in Dreyfus’s Service Department were hired. All five were under age 30 at the time. These five individuals entered Inbound Sales on May 17, 1999, although the EEOC notes that “they were considered ‘in training’ and not counted as sales persons until June.”
The parties agree that by some point in the spring of 1999 the volume of calls to Inbound Sales had significantly declined, that as a result, the “available time” in which sales representatives were idle increased from 31.7% in March 1999 to 55.82% in June 1999, and that by July 1999, Pappas and Santos decided that several sales representative positions in the department needed to be eliminated in order to cut costs. According to Dreyfus, Horacek chose the employees to be laid off based on their placement on “final warning” status or their poor “Rolling 12-month Sales Ratings.” The seven sales representatives with allegedly “marginal” performance ratings were slated for elimination: Allen, Gilmore, Ryan, and four other individuals not involved in the present lawsuit (whose ages were 52, 36, 26, and 25). According to Dreyfus, the five recent transferees “had just arrived in the department” and had no twelve-month ratings from Inbound Sales, but Horacek “learned that each of them had been rated ‘fully meeting and above’ with respect to his sales performance” in the Service Department, and they were thus passed over for elimination. Fisherman, who had a “fully meeting” sales rating, had been placed on “Final Written Warning” on May 18, 1999, following
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“several months of Marginal/Unsatisfactory Telephone Presentations,” including failing to provide “[f]ull disclosures, fact-finding, and product presentation” during his sales calls. Although Fisherman’s warning status apparently ended on June 17, 1999, he too was slated for elimination.
According to Dreyfus, Horacek had the “Quality Assurance Department,” which kept performance statistics on Inbound Sales, print a list of the ratings for each department member. The result was a “Sales Reduction Analysis” or “Sales Performance Chart,” essentially a chart showing the past sales performance ratings and various other data for each of the department’s employees, including the employees’ “Rolling 12-month Sales Ratings.” However, there is some uncertainty as to the history of the Staff Reduction Analysis. An earlier version of the chart had been created on July 20, 1999. It listed the seven marginal employees noted above, but also indicated that two other employees (Reddo and Scicutella), both age 32 and both on disability leave, had similar “marginal” ratings, but were not slated for elimination. According to Dreyfus, this was an error, and the second and correct version of the chart, created on July 26, 1999, indicates that both of the 32-year olds actually had “outstanding” sales performance ratings, and listed neither as being on disability leave. The EEOC states that it “did not learn until after formal discovery had closed . . . that there was a previous version of the SRA that designated two additional employees as marginal.”
In sum, Horacek recommended terminating eight of the 33-member Inbound Sales staff. Again, the ages of the terminated individuals were 25, 26, 36, 41, 52, 59, 60, and 68. Pappas and Santos approved Horacek’s choices, and apparently so did Dreyfus’s Human
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Resources Department, and the legal department of its parent company. On August 2, 1999, the eight individuals previously mentioned were laid off “due to technological change or other business reason not related to individual performance,” and provided with full “displacement benefits.” Of the remaining 25-member Inbound Sales staff, only four individuals were over age 40 (specifically, ages 51, 54, 62, and 68).
Allen and Fisherman filed discrimination charges with the United States Equal Employment Opportunity Commission (EEOC). Following an investigation and unsuccessful attempts at “conciliation,” in September 2002 the EEOC filed the present suit pursuant to the Age Discrimination in Employment Act (ADEA), 29 U.S.C. §§ 621-34. In April 2004, Dreyfus filed the present motion for summary judgment pursuant to Federal Rule of Civil Procedure 56.
DISCUSSION I. Relevant Legal Standards
A. Summary Judgment: Summary judgment is generally appropriate where the “pleadings, depositions,
answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Viola v. Philips Med. Sys. of N. Am., 42 F.3d 712, 716 (2d Cir. 1994) (quoting Fed. R. Civ. P. 56(c)). The relevant governing law in each case determines which facts are material; “only disputes over facts that might affect the outcome of the suit
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under the governing law will properly preclude the entry of summary judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). No genuinely triable factual issue exists when the moving party demonstrates, on the basis of the pleadings and submitted evidence, and after drawing all inferences and resolving all ambiguities in favor of the non-movant, that no rational jury could find in the non-movant’s favor. Chertkova v. Conn. Gen’l Life Ins. Co., 92 F.3d 81, 86 (2d Cir. 1996) (citing Fed. R. Civ. P. 56(c)).
To defeat a summary judgment motion properly supported by affidavits, depositions, or other documentation, the non-movant must present more than a “scintilla of evidence,” Del. & Hudson Ry. Co. v. Consol. Rail Corp., 902 F.2d 174, 178 (2d Cir. 1990) (quoting Anderson, 477 U.S. at 252), or “some metaphysical doubt as to the material facts.” Aslanidis v. U.S. Lines, Inc., 7 F.3d 1067, 1072 (2d Cir.1993) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986)). The opponent cannot rely on the allegations in his or her pleadings, conclusory statements, or on “mere assertions that affidavits supporting the motion are not credible.” Gottlieb v. County of Orange, 84 F.3d 511, 518 (2d Cir. 1996) (internal citations omitted). Rather, the non-movant must offer similar materials setting forth specific facts that show that there is a genuine issue of material fact to be tried. Rule v. Brine, Inc., 85 F.3d 1002, 1011 (2d Cir.1996).
At summary judgment in an employment discrimination case, a court should examine the record as a whole, “just as a jury would”; an invidious discriminatory purpose may often be inferred from the totality of the relevant facts, viewed in the light most favorable to the non-moving party. Byrnie v. Town of Cromwell, Bd. of Educ., 243 F.3d 93, 102 (2d Cir.
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2001) (internal quotations omitted). Thus, in discrimination cases in which an employer’s intent is at issue, summary judgment is ordinarily inappropriate and should be granted with caution. Gallo v. Prudential Residential Servs., Ltd. P’ship, 22 F.3d 1219, 1224 (2d Cir. 1994); Carlton v. Mystic Transp., Inc., 202 F.3d 129, 134 (2d Cir. 2000). But notwithstanding the caution that a court must exercise before granting summary judgment in such cases, “summary judgment remains available to reject discrimination claims in cases lacking genuine issues of material fact.” Chambers v. TRM Copy Ctrs. Corp., 43 F.3d 29, 40 (2d Cir. 1994). “When no rational jury could find in favor of the nonmoving party because the evidence to support its case is so slight, there is no genuine issue of material fact and a grant of summary judgment is proper.” Gallo, 22 F.3d at 1224.
B. The Age Discrimination in Employment Act: The ADEA makes it unlawful for an employer “to discharge any individual or
otherwise discriminate against any 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) (1988). The Act protects persons 40 years of age or older. See id. § 631(a) (Supp. IV 1993). Thus, “[t]he ultimate issue in an ADEA case is whether the plaintiff has proved by a preponderance of the evidence that ‘her age played a motivating role in, or contributed to, the employer’s decision.’ ” Holtz v. Rockefeller & Co., Inc., 258 F.3d 62, 76 (2d Cir. 2001) (quoting Renz v. Grey Advert., Inc., 135 F.3d 217, 222 (2d Cir. 1997)). Phrased differently by the Seventh Circuit, the ultimate question is “whether the same events would have transpired if the employee had been younger than 40 and everything else had been the same.” Gehring
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v. Case Corp., 43 F.3d 340, 344 (7th Cir. 1994), cert. denied, 515 U.S. 1159 (1995). Where, as here, an ADEA claim is based on indirect evidence (that is, absent any
explicitly or overtly discriminatory acts or statements by the defendant), and the defendant moves for summary judgment, a federal district court must apply the analytical framework formulated by the U.S. Supreme Court for Title VII discrimination cases in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-06 (1973). See Holtz, 258 F.3d at 76. First, the plaintiff must present a prima facie case of age discrimination, which means demonstrating that the purported victim of age discrimination (1) was within the protected age group, (2) qualified for the position in which he worked, and (3) was discharged, (4) under circumstances giving rise to an inference of age discrimination. Viola v. Philips Med. Sys. of N. Am., 42 F.3d 712, 715-16 (2d Cir. 1994).1 Once the plaintiff has established a prima facie case of discriminatory action, the defendant employer must proffer a legitimate, non-discriminatory rationale for its actions. Id. at 716. If the employer does so, any presumption of discrimination evaporates, and the burden shifts back to the plaintiff, who must prove that the defendant’s purportedly legitimate reasons were but a pretext for discrimination. Roge v. NYP Holdings, Inc., 257 F.3d 164, 168 (2d Cir. 2001).
Generally speaking, in order to demonstrate pretext, “[a] plaintiff is not required to show that the employer’s proffered reasons were false or played no role in the employment

1

The standards discussed herein are the same regardless of whether the plaintiff is the

actual victim of discrimination, or the EEOC, suing on his behalf. Compare Viola, 42 F.3d at 715-16,

with E.E.O.C. v. Ethan Allen, Inc., 44 F.3d 116, 119 (2d Cir. 1994).

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decision, but only that they were not the only reasons and that the prohibited factor was at least one of the motivating factors.” Cronin v. Aetna Life Ins. Co., 46 F.3d 196, 203 (2d Cir. 1995). Because defendant employers rarely, if ever, provide explicit or direct evidence that supports the plaintiff’s claim, affidavits and depositions “must be carefully scrutinized for circumstantial proof which, if believed, would show discrimination.” Gallo v. Prudential Residential Servs., Ltd. P’ship, 22 F.3d 1219, 1224 (2d Cir. 1994). A discrimination claimant may show pretext by demonstrating “such weaknesses, implausibilities, inconsistencies, incoherences, or contradictions in the employer’s proffered legitimate reasons for its action that a reasonable factfinder could rationally find them unworthy of credence and hence infer that the employer did not act for the asserted non-discriminatory reasons.” Bombero v. Warner-Lambert Co., 142 F. Supp.2d 196, 203 n.7 (D. Conn. 2000) (quoting Anderson v. Coors Brewing Co., 181 F.3d 1171, 1179 (10th Cir. 1999), and citing Olson v. Gen. Elec. Astrospace, 101 F.3d 947, 951-52 (3d Cir. 1996)). That is, “[p]roof that the defendant’s explanation is unworthy of credence is simply one form of circumstantial evidence that is probative of intentional discrimination.” Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 147 (2000).
II. The EEOC Has Failed To Present Sufficient Evidence that Dreyfus’s Rationale for Reducing Its Workforce Is a Pretext for Age Discrimination. A. The EEOC has stated a prima facie case of age discrimination. The burden of establishing a prima facie case has been described as “modest,”
Viola v. Philips Med. Sys. of N. Am., 42 F.3d 712, 716 (2d Cir. 1994), or even “minimal.” 9

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Roge v. NYP Holdings, Inc., 257 F.3d 164, 168 (2d Cir. 2001). Because Dreyfus concedes, however grudgingly, that the EEOC has met this burden, no further analysis is required on this point.
B. Dreyfus has asserted a non-discriminatory rationale in response to the EEOC’s prima facie case. Dreyfus asserts that its decision to fire the eight sales representatives in
question was necessitated by a “dramatic and consistent decrease in call volume” — essentially a downturn in its business. A staff reduction implemented for economic reasons is a legitimate, non-discriminatory business justification for discharging an employee. Blanchard v. Stone Safety Corp., 935 F.2d 18, 19 (2d Cir. 1991). As the EEOC concedes, however grudgingly, Dreyfus has sufficiently alleged a legitimate, non-discriminatory business justification for terminating some of its employees. “Even within the context of a legitimate reduction-in-force, however, an employer may not discharge an employee ‘because’ of his age.” Carlton v. Mystic Transp., Inc., 202 F.3d 129, 136 (2d Cir. 2000), cert. denied, 530 U.S. 1261 (2000). Thus, resolution of the present summary judgment motion necessarily turns on the final step in the McDonnell Douglas inquiry: whether Dreyfus’s claimed rationale for the terminations in question was actually a pretext for unlawful age discrimination.
C. The EEOC has failed to demonstrate any pretext behind Dreyfus’s response. Answering Dreyfus’s purportedly legitimate rationale for terminating the
individuals at issue, the EEOC argues that the reduction in force was indeed pretextual. Age discrimination claims that arise out of a lay-off, downsizing, or “reduction-in-force” (“RIF”)
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commonly turn on the pretext prong of the ADEA analysis, “[g]iven the ‘minimal requirements’ for establishing a prima facie case of employment discrimination, and the ease with which employers can point to the down-sizing procedure to justify any single termination.” Viola, 42 F.3d at 716.
In practice, federal courts addressing ADEA cases generally find sufficient potential pretext in a reduction in force to deny summary judgment where there is evidence that: (1) the RIF is simply pretextual overall; (2) the grounds offered for an employee’s termination are inconsistent with the employer’s stated RIF criteria; or (3) the employer’s evaluation of the employee was falsified to cause termination. See Stone v. Autoliv ASP, Inc., 210 F.3d 1132, 1140 (10th Cir. 2000). These criteria are not exclusive, id., and the EEOC’s briefings suggest variations on all three. According to the EEOC, Dreyfus or its managers masterminded and engineered the reduction in force as a scheme to reduce the number or proportion of older workers in the Inbound Sales department. As evidence of this scheme, the EEOC points both to various purported inequities in the manner in which Dreyfus carried out the RIF that allegedly maximized the number or proportion of older workers that were terminated, as well as some evidence that evaluations of other (younger) employees were falsified. But the EEOC falls short on all three points.
1. The EEOC fails to show that Dreyfus’s RIF was pretextual overall. An employer should not be able to avoid ADEA scrutiny by hiring younger employees shortly before the termination of older employees. Ashby v. Hanger Prosthetics & Orthotics, Inc., No. 02 Civ. 630, 2003 WL 22797562, at *3 (E.D. Pa. Nov. 7, 2003). The
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major thrust of the EEOC’s case is that Dreyfus’s entire decision to undertake a reduction in its workforce must have been a pretext for doing exactly that. However, absent discriminatory intent, a company’s decision to add personnel when it should reasonably anticipate subsequent layoffs merely indicates poor business judgment, or at worst, callousness. See Viola, 42 F.3d at 718.
Poor business judgment is generally not actionable under the ADEA. Dister v. Continental Group, Inc., 859 F.2d 1108, 1116 (2d Cir. 1988). The Second Circuit has cautioned that it is not the role of courts or factfinders in employment discrimination cases to “intrud[e] into an employer’s policy apparatus,” Meiri v. Dacon, 759 F.2d 989, 995 (2d Cir. 1985), “second-guess an employer’s business judgment that it makes in good faith,” Gallo v. Prudential Residential Servs., Ltd. P’ship, 22 F.3d 1219, 1226 (2d Cir. 1994), or “question a corporation’s means to achieve a legitimate goal.” Dister, 859 F.2d at 1116. “Evidence that an employer made a poor business judgment in discharging an employee generally is insufficient to establish a genuine issue of fact as to the credibility of the employer’s reasons.” Id.
Neither is mere callousness actionable.2 See Boucher v. Edgcomb Metals Co., No. 94 Civ. 185, 1995 WL 767364, at *10 (D.N.H. Oct. 24, 1995). An employer is entitled to make his own policy and business judgments, and may, for example, fire an adequate employee if his reason is to hire one who will be even better, as long as this is not a pretext for

2

The EEOC does not argue that the “disparate impact” doctrine, recognized by the

Second Circuit in certain ADEA cases, is applicable here.

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discrimination. See Loeb v. Textron, Inc., 600 F.2d 1003, 1012 n.6 (1st Cir. 1979). And the use of termination criteria that tend to be “correlated with age,” such as pension status, does not amount to unlawful disparate treatment under the ADEA, so long as it was actually the correlated criteria, and not age itself, that governed the decision. Hazen Paper Co. v. Biggins, 507 U.S. 604, 611 (1993).
In sum, if a terminated employee is alleging that, in the context of a pretextual RIF, she was fired for ageist reasons after other employees were preemptively hired as her replacements, she should offer some evidence suggesting as much, if her claim is to survive the employer’s summary judgment motion. See, e.g., Brown v. Mfrs. Hanover Trust Co., No. 92 Civ. 4732, 1993 WL 138823, at *4-5 (S.D.N.Y. April 23, 1993). However, the Second Circuit has held that where a reasonable factfinder could conclude that the defendant’s proffered business-related reason for a termination is “so lacking in merit as to call into question its genuineness,” then a “business decision” may be viewed as a “reason manufactured to avoid liability.” Dister, 859 F.2d at 1116. The EEOC is essentially making this sort of a “so dumb it has to be a pretext” argument.
As noted previously, Dreyfus claims that its Inbound Sales department received a higher-than-expected amount of incoming calls, coupled with a steeper than average employee attrition rate, in the early part of 1999. Dreyfus claims that together, this necessitated expanding its staffing. According to Dreyfus, the post-April drop in incoming sales volume, whose severity was similarly unanticipated, then necessitated a reduction in staffing. Dreyfus insists that no discriminatory subtext can possibly be construed from this
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sequence of events. According to the EEOC, however, the steep decline in Inbound Sales’ call
volume was not “sudden and precipitous,” as Dreyfus claims, but entirely predictable. The EEOC notes that Dreyfus, with its close monitoring of its workforce and efficiency, was bound to know that “sales volume always decline[s]” in April. Thus, suggests the EEOC, Dreyfus transferred five additional (younger) employees into Inbound Sales during the predictably temporary March 1999 spike in incoming call volume, knowing full well that the subsequent and inevitable April downturn would give it an excuse to terminate several (predominantly older) employees. That is, instead of firing some of its older employees and then hiring younger replacements (a series of events more likely to raise red discrimination flags), Dreyfus preemptively hired the replacements, and then went through the motions of a pretextual RIF in order to terminate some older employees.
Dreyfus does not dispute that call volume always declines significantly after the end of the tax season in mid-April; Dreyfus also admits that it requires at least 4-6 weeks to train new Inbound Sales staff, and that, since the requisition forms for new staff were submitted in mid-March and early April of 1999, the new departmental hires could not have started working until after the traditional downturn began. But Dreyfus argues that it had no way of anticipating the extent to which incoming call volume would decline, and more importantly, the extent to which Inbound Sales’ high attrition rate would continue. The EEOC’s own data clearly shows that Inbound Sales “call volume” was significantly lower in April, May, June, and July of 1999 than it had been in each equivalent month of the previous year. And as Dreyfus
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notes, by March 31, 1999 it had lost eight Inbound Sales representatives,3 and at that rate expected to lose at least eight more by mid-May. According to Dreyfus, Horacek “had reason to believe that the rate of attrition would remain high because a new sales department geared toward high net worth individuals was being started and some employees wanted to transfer into it.”
Considering the entirety of the evidence, it cannot fairly be stated that Dreyfus’s conclusion that it needed to hire additional staff for Inbound Sales, even before a traditional slowdown period, was so inherently foolish as to be suspect per se. The underlying burden of proving Dreyfus’s discriminatory intent remains with the EEOC. The EEOC offers no evidence suggesting that Dreyfus knew, or had reason to know, that the 1999 slowdown in incoming sales calls would be significantly steeper than its 1998 equivalent. The EEOC argues that “[w]ith all the constant measurements and monitoring it took of workplace performance,” Dreyfus should have known that call volume would decline more steeply than it did, and that the high attrition rate would level off. But Dreyfus’s undisputed ability to monitor its workforce and produce reams of raw data did not render its managers incapable of misjudging the implications of that data. In sum, the EEOC has, at worst, shown that Dreyfus was foolish — but foolishness and discrimination are not synonyms under federal ADEA jurisprudence.
2. The EEOC fails to show that the manner in which Dreyfus applied its

3

The EEOC argues that “[i]n fact, it was really the equivalent of 6 full-time employees

since four of the eight who left were part-time employees.” This is merely quibbling over numbers, and

does not disprove Dreyfus’s overall contention that the Inbound Sales workforce was shrinking

relatively rapidly.

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termination criteria to individual employees was suspect. According to the EEOC, Dreyfus purposely “select[ed] the method that would result in the removal of the greatest number of older workers without using age directly,” and subjectively applied its own standards inconsistently in order to further its discriminatory goals. The EEOC’s various suggestions of discriminatory methodology on Dreyfus’s part fall short, however. The EEOC takes particular umbrage at the fact that while Dreyfus selected individuals already employed in Inbound Sales for elimination based on their twelve-month performance ratings, it vetted the new transferees instead on their apparently excellent sales performance in its Service Department. The EEOC protests that “these ratings were based upon a job that was not similar to the Inbound Sales position,” because “the positions had different scorecards for sales and service and there was very limited sales in the Service department.” Accordingly, the EEOC argues that the new transferees “were inexperienced and without a track record,” and that “[i]f it was the goal to keep the best sales persons in Inbound Sales,” Dreyfus should have transferred the five incoming individuals back to the Service Department. An employer may generally base the decision to fire certain employees on subjective factors not easily quantified, including “future potential.” See, e.g., Thorn v. Sundstrand Aerospace Corp., 207 F.3d 383, 389-90 (7th Cir. 2000) (Posner, C.J.) (“in making RIF decisions an employer is free to decide which employees are likeliest to contribute most to the company over the long haul.”) (citing cases from Sixth, Tenth, and
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Eleventh Circuits). The extent to which an employee’s prior performance in the “Service Department” is indicative of his high future potential in “Inbound Sales” seems to fall squarely within the realm of Dreyfus’s “business judgment,” and is not for a court to second-guess. However, “future potential” cannot serve as a proxy or surrogate for age, or a “vehicle by which impermissible age bias enter[s] into the process.” See Schanzer v. United Techs. Corp., 120 F. Supp.2d 200, 211 (D. Conn. 2000). Other indications of pretext, in combination with the defendant’s use of “future potential” as an overarching termination criterion, might be sufficient for a jury to infer a discriminatory motive on the defendant’s part. Shannon v. Fireman’s Fund Ins. Co., 156 F. Supp.2d 279, 293 (S.D.N.Y. 2001). But the EEOC’s suggestions of additional pretext are inadequate.
First, the EEOC stresses the fact that although Dreyfus states that it could not apply the “Rolling 12-month Sales Rating” to the five new transferees, its own exhibits show that it applied that standard to two employees who had been in Inbound Sales for less than twelve months. Both employees apparently entered the department on September 16, 1998. One of them was Gilmore, 68 years old and allegedly terminated because of a “marginal” sales record; the other was a 28-year-old man, rated as “fully meeting,” and not terminated. The EEOC suggests that because “Gilmore only ha[d] nine months to achieve her 12 month average,” application of this standard to her was somehow discriminatory. This is specious. While the term “Rolling 12-month Sales Rating” was somewhat inaccurate as applied to Gilmore, the EEOC offers no reason to doubt Dreyfus’s business judgment that an employee’s nine-month sales average is sufficiently indicative of his competence to stand in for a twelve-
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month average. Nor does the EEOC explain why Gilmore should be treated more favorably than the other employee whose “Rolling 12-month Sales Rating” was based on the exact same amount of time. The ADEA “is not a guarantee of tenure for the older worker.” Shager v. Upjohn Co., 913 F.2d 398, 401 (7th Cir. 1990) (Posner, J.).
The EEOC also argues that Dreyfus’s claim to have chosen Fisherman for termination based on his prior “final warning” status is pretextual, since Fisherman was removed from final warning status on June 17, 1999, before his termination. The EEOC also notes that Fisherman had previously been given numerous awards for his (apparently stellar) sales performance. Dreyfus responds that Fisherman was on warning status at the time the layoff decisions were taken, although it does not respond to the EEOC’s implicit point that Dreyfus should have changed its decision regarding Fisherman once his warning period ended. The discrepancy does not appear to matter. Where, as here, an employee displays consistently excellent results or abilities in some facets of his work, but is at the same time consistently inattentive to rules or incompetent in other respects, the decision to terminate him is within his employer’s business discretion, and is not a pretext for age discrimination. See Menzel v. Western Auto Supply Co., 848 F.2d 327, 328-30 (1st Cir. 1988) (no inference of age discrimination where 57 year old plaintiff’s record “show[ed] awards based on his outstanding productivity,” but that “he was persistently incapable of abiding by company guidelines regarding record keeping and other business practices.”).
In a further attempt to show pretext (as well as in its statement of a prima facie case), the EEOC analyzes the statistical effects of Dreyfus’s employment actions on the
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percentage of older workers in Inbound Sales. As Dreyfus argues, any attempt to distill useful statistical information from a sampling size as small as the one involved in this case is doomed to fail. See, e.g., Pirone v. Home Ins. Co., 559 F. Supp. 306, 312 (S.D.N.Y. 1983) (sampling size of 16-18 people in discrimination claim “too small for anything meaningful to be decided”). In sum, the EEOC offers nothing that suggests that Dreyfus’s determination of which of its employees to fire was anything other than a non-discriminatory business judgment.
3. The evidence suggesting that Dreyfus based its termination decisions on inaccurate or inconsistent information is insufficient to support an inference that the terminations were a pretext for age discrimination.
As mentioned earlier, two versions of the “Staff Reduction Analysis” chart were produced by Dreyfus in the course of the events underlying this lawsuit. The earlier version indicates (mistakenly, Dreyfus insists) that two employees under age 40 who were not terminated had marginal performance ratings. The EEOC suggests that the earlier version of the chart, and Dreyfus’s failure to timely produce it in response to discovery requests, indicates pretext or prevarication on Dreyfus’s part. Dreyfus argues strenuously that the earlier version of the chart was simply the result of a clerical error, and that the difference is in any event irrelevant, because the Staff Reduction Analysis was only created after Horacek and Pappas had already decided who would be laid off, and was intended only to allow Dreyfus’s Human Resources and legal departments to review the decision.
As discussed in Part I, supra, to defeat a well-supported summary judgment motion, the non-movant must present more than a “scintilla of evidence,” or “some metaphysical doubt as to the material facts,” and cannot rely only on the allegations in his
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pleadings, conclusory statements, or “mere assertions that affidavits supporting the motion are not credible.” At best, the EEOC’s assertions that Dreyfus somehow doctored its Staff Reduction Analysis amount to a conclusory scintilla of evidence. The EEOC does not offer any evidence to disprove Dreyfus’s underlying contention that Reddo and Scicutella were actually outstanding employees properly retained in their department — a fact that strongly supports Dreyfus’s claim that it retained Inbound Sales employees based strictly on merit. As Dreyfus notes, the ADEA does not forbid an employer from making mistakes. “An employer does not violate the law by making an erroneous evaluation of an employee.” Rodriguez v. Am. Friends of Hebrew Univ., Inc., No. 96 Civ. 240, 2000 WL 1877061, at *5 n.7 (S.D.N.Y. Dec. 26, 2000). A simple clerical mistake or scrivener’s error — especially one that was corrected — should not suffice, without more, to protect an otherwise unsupported claim from summary judgment.
D. Overall, summary judgment is warranted. The EEOC does not dispute that the 1999 downturn in Dreyfus’s business was
more severe than in the previous year, and has offered no reason to doubt Dreyfus’s contention that it expected the high attrition rate among Inbound Sales staff to continue. Nor does the EEOC dispute that three of the eight individuals fired were under age 40, or that this group included the seven lowest-performing salespeople among Inbound Sales’s veterans, as well as an employee who had been repeatedly warned about his unsatisfactory sales technique. Finally, the EEOC has offered nothing, beyond speculation, to show that the EEOC somehow doctored evidence or data in order to preserve the jobs of two younger employees. All of the EEOC’s
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other arguments amount to complaints about the way in which Dreyfus ran its business, and do not suffice to indicate that Dreyfus’s economic rationale for reducing the number of its employees, and the manner in which it carried out that reduction, were actually pretexts for unlawful age discrimination. Summary judgment is thus appropriate.

CONCLUSION For all of the above reasons, the Defendants’ motion is GRANTED, and the EEOC’s complaint must be dismissed. The Clerk of Court is directed to CLOSE this case.

SO ORDERED.

Dated:

Central Islip, New York March 7, 2005

/s/ Denis R. Hurley United States District Judge

21

 
 . .~\{-

MANDATE Case 2:02-cv-05194-DRH-MLO Document 65 Filed 01/20/2006 Page 1 of 2
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
Plaintiff-Appellant,
v.
DREYFUS SERVICE CORPORATION, Defendant-Appellee.

) Appeal No. 05-2271-cv )
) District Court No. 02-cv-5194 ) District Court: Eastern District ofNew York ) District Ct. Judge: Hon. Denis Hurley } ) STIPULATION OF ALL PARTIES } TO DISMISS APPEAL PURSUANT ) TO FED. R. APP. P. 42(b) ) ) }

The parties to this action stipulate that the appeal taken in this case by means of the notice of appeal filed by Appellant Equal Employment Opportunity Commission on May 3, 2005, may be dismissed.
The parties agree and represent that: 1. The appeal in this action was docketed in this Court on May 12,2005. 2. Counsel, whose signatures appear on this stipUlation, have the express authority of their clients to enter into this stipulation and to dismiss the appeal in this action on the terms and conditions set out in this Stipulation. 3. The parties' agreement as to costs on appeal is that each party will bear its own costs and its own attorneys' fees.

•

.. Case 2:02-cv-05194-DRH-MLO Document 65 Filed 01/20/2006 Page 2 of 2

• I
Dated: October '5 i ,2005

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L. Street, N.W. Washington, D.C. 20507 (202) 663-4720
By:~;::4Pz
Elizabeth E. Theran
Attorneyfor Plaintiff-Appellant Equal Employment Opportunity Commission

REED SMITH LLP 599 Lexington Avenue 28th Floor New York, New York 10022 (212) 521-5434
D,liMa (fV\jfrJ/1 John C. Unkovic Paul P. Rooney
Attorneysfor Defendant-Appellee Dreyfus Service Corporation

ORDER OF CLERK
Pursuant to the attached Stipulation, the appeal in this action is dismissed. Pursuant to the agreement set out in this Stipulation, costs on appeal are not awarded to any party and each party will bear its own costs and attorneys' fees.
Dated: _ _ _ _ _ _ _ _"2005

FOR THE COURT ~n B. MacKe:nie. Clerk of urt
"n. St. ounsel
By: ~~D- ep- ut~ y C~l- erk--------­

 
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U.S. District Court Eastern District of New York (Central Islip) CIVIL DOCKET FOR CASE #: 2:02-cv-05194-DRH-MLO

CLOSED

Equal Employment Opportunity Commission v. Dreyfus Service Date Filed: 09/26/2002

Corporation

Date Terminated: 03/09/2005

Assigned to: Senior-Judge Denis R. Hurley

Jury Demand: None

Referred to: Magistrate-Judge Michael L. Orenstein

Nature of Suit: 442 Civil Rights: Jobs

Cause: 29:623 Job Discrimination (Age)

Jurisdiction: U.S. Government Plaintiff

Plaintiff
Equal Employment Opportunity Commission

represented by Katherine E. Bissell Equal Employment Opportunity Commission 33 Whitehall Street, 5th Floor New York, NY 10004 (212) 336-3698 Fax: (212) 336-3623 LEAD ATTORNEY

Louis Graziano EEOC-New York District Office 33 Whitehall Street 5th Flr. New York, NY 10004 212-336-3698 Fax: 212-336-3623 Email: louis.graziano@eeoc.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

V. Defendant Dreyfus Service Corporation

represented by John C. Unkovic Reed Smith 435 6th Avenue Pittsburg, PA 15219 (412)288-3294 Fax: (412)288-3247 Email: junkovic@reedsmith.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Paul P. Rooney Reed Smith LLP

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599 Lexington Avenue 28th Floor New York, NY 10022 212-521-5400 Fax: 212-521-5450 Email: Prooney@reedsmith.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Stephanie Wilson Reed Smith Princeton Forrestal Village 136 Main Street Suite 250 Princeton, NJ 08543 609-520-6031 Fax: (609)951-0824 Email: swilson@reedsmith.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 09/26/2002
11/27/2002 11/27/2002 12/02/2002 12/04/2002 12/04/2002 12/12/2002 12/12/2002

#

Docket Text

1 Complaint filed and summons issued as to defendant(s) Dreyfus Service Corporation. Jury trial demanded.. Filed by Katherine E. Bissell on behalf of Equal Employment Opportunity Commission. (Attachments: # 1 Civil Cover Sheet)(Romano, Daniel) (Entered: 09/30/2002)
5 MOTION for Leave for Stephanie Wilson to Appear Pro hac vice by Dreyfus Service Corporation. (Mierzejewski, Elizabeth) (Entered: 01/21/2003)
7 MOTION for Leave for John Unkovic to Appear Pro Hac Vice by Dreyfus Service Corporation. (Mierzejewski, Elizabeth) (Entered: 01/21/2003)
2 NOTICE of Change of Address by Equal Employment Opportunity Commission. (Branciforte, Ralph) (Entered: 12/16/2002)
6 ORDER granting [5] Motion for Leave for Stephanie Wilson to Appear Pro Hac Vice. (Signed by Judge Denis R. Hurley on 12/4/02) cm (Mierzejewski, Elizabeth) (Entered: 01/21/2003)
8 ORDER granting [7] Motion for Leave for John C. Unkovic to Appear Pro Hac Vice. (Signed by Judge Denis R. Hurley on 12/4/02) cm (Mierzejewski, Elizabeth) (Entered: 01/21/2003)
3 ANSWER to Complaint by Dreyfus Service Corporation.(Mierzejewski, Elizabeth) (Entered: 12/31/2002)
4 DISCLOSURE of Interested Parties by Dreyfus Service Corporation.(Mierzejewski, Elizabeth) (Entered: 12/31/2002)

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01/30/2003 02/14/2003 02/24/2003 02/24/2003 03/26/2003 03/26/2003 10/01/2003 10/02/2003
10/03/2003
10/03/2003

9 ORDER that a conference will be held on 3/12/03 @10:00 a.m. (Signed by Magistrate Judge Orenstein on 1/30/03) cm (Mierzejewski, Elizabeth) (Entered: 02/13/2003)
10 Letter dtd 2/12/03 from Counsel for defendant to Judge Orenstein re: Request that the initial conference presently scheduled for 3/12/03 be adjourned.. (Mierzejewski, Elizabeth) (Entered: 03/11/2003)
ORDER re [10] Letter requesting that the initial conference be adjourned is granted to 3/26/03 @11:30 a.m. (Signed by Magistrate Judge Orenstein on 2/24/03) cm (Mierzejewski, Elizabeth) (Entered: 03/11/2003)
Set/Reset Hearings: Initial Conference set for 3/26/2003 11:30 AM before Magistrate-Judge Michael L. Orenstein. (Mierzejewski, Elizabeth) (Entered: 03/11/2003)
11 Minute Entry Case called. for proceedings held before Michael L. Orenstein : Initial Conference Hearing held on 3/26/2003. (Mierzejewski, Elizabeth) (Entered: 04/04/2003)
12 SCHEDULING ORDER: Final Pretrial Conference set for 10/3/2003 11:00 AM before Magistrate-Judge Michael L. Orenstein. Discovery due by 10/31/2003. Motions due by 12/15/2003. (Signed by Magistrate Judge Orenstein on 3/26/03) cm(Mierzejewski, Elizabeth) (Entered: 04/04/2003)
15 Letter dtd. 9/30/03 from Louis Graziano, Trial Attorney to Mag. J. Orenstein informing the court of discovery status. (Barhome, Sydelle) (Entered: 10/23/2003)
13 Letter dated 10/2/03 from Paul P. Rooney to Magistrate Orenstein Re: in opposition to the EEOC's 9/30/03 request to depose Barbara K. Ross, Esq Senior Counsel Employee Relations, and to oppose the EEOC's request to recall three witnesses for deposition at Dreyfus's expense. (Imrie, Robert) (Entered: 10/16/2003)
16 Letter dtd. 10/2/03 from Paul P. Rooney to Mag. J. Orenstein dtd. 10/2/03 opposing Plf EEOC's 9/30/03 request to depose Barbara K. Ross, Esq. Senior Counsel, Employee Relations, and to oppose the EEOC's request to recall three witnesses for depostion at Dreyfus' expense. (Barhome, Sydelle) (Entered: 10/23/2003)
17 Minute Entry for proceedings held before Michael L. Orenstein : Interim Pretrial Conference held on 10/3/2003 @11:00. Expert reports shall be served by 11/30/03. Depositions below shall be held by 10/31/03. Dft shall produce Ms. Bosmet for deposition. If deposition is in person based upon defendant's decision,it will pay airfare of plf counsel to take depositon in Pittsburgh. If by telephone, dft counsel may not be present with witness unless plf representative. Such deposition shall be held. Application re: deposition of Ms. Ross is denied without prejudice to a renewal after receiving affidavit of Ms. Ross. One hour telephone deposition of one person re: reputation Pretrial Conference set for 12/5/2003 02:30 PM before Magistrate-Judge Michael L. Orenstein. (Barhome, Sydelle) (Entered: 10/23/2003)

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10/22/2003 10/22/2003 10/24/2003
11/07/2003 12/01/2003 12/01/2003 12/01/2003 12/05/2003
12/15/2003 12/29/2003

14 Letter 10/21/03 from Louis Graziano to Magistrate Orenstein Re: the EEOC's application to depose defendant's in-house counsel Barbara Ross. (Imrie, Robert) (Entered: 10/23/2003)
18 Letter dated 10/22/03 from Paul P. Rooney to Magistrate Orenstein Re: in response to the EEOC's letter dated 10/21/03. (Imrie, Robert) (Entered: 10/23/2003)
ORDER re [18] Letter Motion that the Court set a briefing schedule allowing the EEOC to serve a brief on its request to depose Ross of no more than 10 pages on or before 10/28/ and that Dreyfus be given the opportunity to serve an answering brief of no more than 10 pages on or be for e 11/4/03. RULING: Counsel may submit no more than 10 page memoranda of law. Counsel shall be prepared to argue their portions on 12/5/03 @2:00 p.m.. Signed by Judge Michael L. Orenstein on 10/24/03. cm(Mierzejewski, Elizabeth) (Entered: 11/12/2003)
19 LETTER dtd 11/7/03 from Counsel for Plaintiff to Paul Regarding Enclosed Notice of Motion with supporting papers.. (Mierzejewski, Elizabeth) (Entered: 11/18/2003)
20 MOTION to Compel the deposition of Barbara Ross pursuant to FRCP 37 by Equal Employment Opportunity Commission. (Imrie, Robert) (Entered: 12/03/2003)
21 Memorandum of Law in Support re [20] MOTION to Compel the deposition of Barbara Ross pursuant to FRCP 37 filed by Equal Employment Opportunity Commission. (Imrie, Robert) (Entered: 12/03/2003)
22 Memorandum of Law in Opposition re [20] MOTION to Compel the deposition of Barbara Ross pursuant to FRCP 37 filed by Dreyfus Service Corporation. (Imrie, Robert) (Entered: 12/03/2003)
25 Calendar Entry for proceedings held before Michael L. Orenstein on 12/5/03 at 2:30 p.m. for Civil Cause for Pretrial Conference. Next conference 1/23/04 at 11:30 a.m.; Set next conference set for 1/23/04 at 11:30 a.m. before Magistrate-Judge Michael L. Orenstein. Defts time to file letter seeking a pre-motion conference is extended to 1/15/04. Court directed defts to produce Ms. Bonnet for deposition by 12/17/03. Defts' shall produce both SRA's and provide them to pltff by 12/12/03. Deft shall submit the subject confidential memorandum for in camera review by 12/12/03. Deft expects to seek a pre-motion conference for summary judgment. (Fagan, Linda) (Entered: 01/15/2004)
23 Letter dated 12/12/03 from Paul P. Rooney to Magistrate Orenstein Re: in camera inspection of the 7/20/99 electronic mail message from Anita De Santis to Barbara K. Ross. (Imrie, Robert) (Entered: 12/16/2003)
24 Letter dated 12/24/03 from Louis Graziano to Magistrate Orenstein Re: The EEOC requests that any pre-motion letter currently due on 1/15/04 not be sent until after the EEOC has received responses to interrogatories and has an opportunity to determine whether additional discovery is necessary. (Imrie, Robert) (Entered: 01/05/2004)

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01/07/2004 01/08/2004
01/15/2004 01/20/2004 01/20/2004 01/23/2004
01/30/2004 02/09/2004 02/24/2004

Endorsed ORDER on [24] Letter. Court will discuss the requested extensionat the 1/23/04 at 11:30 a.m. conference. ( Signed by Judge Michael L. Orenstein on 1/7/04.) eod #24 (Fagan, Linda) (Entered: 01/22/2004)
29 ORDER; At the conference and proceedings held before the undersigned on 12/5/03, this Court directed the deft to produce for in camera inspection a memorandum from Anita G. DeSantis to Barbard K. Ross, dated 7/20/99. The deft has furnished a copy of such memorandum to the Court. Rooney Letter, dated 12/12/03 (with enclosure). The memorandum reflects that Ms. DeSantis also addressed it to Audrey F. Bonnett with acc: to MaryBeth Leibig. Deft must identify the job functions of these individuals in July 1999 prior to this Court's ruling on whether deft's attorney-client privilege claim should be upheld. Deft shall provide the information prior to the next conference scheduled for 1/23/01 at 11:30 a.m. . Signed by Judge Michael L. Orenstein on 1/8/04. (Fagan, Linda) (Entered: 01/22/2004)
26 Letter from John C. Unkovic to Hon. Denis R. Hurley, dated 1/14/04 re: To request leave to file a summary judgment motion. (Fagan, Linda) (Entered: 01/20/2004)
27 Letter from Louis Graziano to Hon. Denis R. Hurley, dated 1/16/04 re: To respond to Deft's letter of 1/14/04 requesting leave to file a summary judgment motion. (Fagan, Linda) (Entered: 01/21/2004)
28 Letter dated 1/20/04 from Paul R. Rooney to Magistrate Orenstein Re: job functions of MaryBeth Leibig and Audrey F. Bonnett as of July 1999. (Imrie, Robert) (Entered: 01/22/2004)
31 Calendar Entry for proceedings held before Michael L. Orenstein on 1/23/04 at 11:30 a.m. for Civil Cause for Pretrial Conference. Next conference 3/1/04 at 11:30 a.m.; Set status conference for 3/1/04 at 11:30 a.m. before Magistrate-Judge Michael L. Orenstein; Discovery is complete. Curt determined the deft's claim of attorney-client privilege regarding the confidential memorandum. Court upheld claim of privilege. Court determined that deft produce an affidavit or testimony re: changes in the two SRAs, unless an opportunity to depose such person(s) on that issue has been offered. Counsel will renew application to Judge Hurley for the pre-motion conference. (Fagan, Linda) (Entered: 02/05/2004)
30 Letter from Stephanie Wilson to Hon. Denis R. Hurley, dated 1/29/04 re: To request leave to file a summary judgment motion on 1/14/04. (Fagan, Linda) (Entered: 02/02/2004)
32 LETTER MOTION dtd 2/6/04 from Counsel for Plaintiff to Judge Hurley Regarding Response to Defendant, Dreyfus Corporation's request for leave to file a summary judgment motion. The EEOC requests that the Court deny defendant's request to file a motion for summary judgment. (Mierzejewski, Elizabeth) (Entered: 02/10/2004)
33 LETTER MOTION dtd 2/24/04 from Counsel for Defendant to Judge Orenstein Regarding request for an adjournment of the conference scheduled for 3/1/04. (Mierzejewski, Elizabeth) (Entered: 03/11/2004)

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02/24/2004 03/25/2004 03/25/2004 03/26/2004
04/15/2004 04/15/2004 04/19/2004
04/26/2004 04/26/2004 04/26/2004

ORDER granting the [33] Letter motion for an adjournment of the conference scheduled for 3/1/04. If pre-motion conference is scheduled court will adjourn or move its conference to the same date. Status Conference set for 3/30/2004 11:30 AM before Magistrate-Judge Michael L. Orenstein.. Signed by Judge Michael L. Orenstein on 2/24/04. cm(Mierzejewski, Elizabeth) (Entered: 03/11/2004)
34 Letter (fax) from Stephanie Wilson to Hon. Michael L. Orenstein, U.S.M.J., dated 3/24/04 re: To advise the Court that the parties do not require another status conference at this time; and to request that the 3/3/04 status conferenc be adjourned. (Fagan, Linda) (Entered: 04/02/2004)
Endorsed ORDER on [34] Letter. Conference adjourned to 4/19/04 at 2:30 p.m. If a pre-motion conference is scheduled, the Court will reschedule the above conference to the date Judge Hurley fixes.( Signed by Judge Michael L. Orenstein on 3/25/04. ) c/m eod #34(Fagan, Linda) (Entered: 04/02/2004)
35 ORDER the Court WAIVES the pre-motion conferenc requirement. the parties shall conform to the following briefing schedule: Defendant shall serve its proposed motion upon Plaintiff on or before 4/26/04;Plaintiffs shall serve their opposition to this motion 5/25/04; Defendant shall serve its reply upon Plaintiff on or before 6/8/04; Defendant shall file all papers, icluding courtesy copies for the Court on 6/8/04. The parties are advised that Court will not accept any motion papers filed prior to 6/8/04.. Signed by Judge Denis R. Hurley on 3/26/04. cm(Mierzejewski, Elizabeth) (Entered: 04/05/2004)
36 LETTER MOTION dtd 4/9/04 from Counsel for defendant to Judge Orenstein Regarding Request that the conference scheduled for 4/19/04 be cancelled because the parties believe it is no longer necessary. (Mierzejewski, Elizabeth) (Entered: 04/29/2004)
ORDER DENYING the [36] Letter Motion that the conference scheduled for 4/19/04 be cancelled. Application denied without prejudice to renew upon submission of the briefing schedule.. Signed by Judge Michael L. Orenstein on 4/15/04. cm(Mierzejewski, Elizabeth) (Entered: 04/29/2004)
37 MINUTE ENTRY; Case called for proceedings held before Michael L. Orenstein : Status Conference held on 4/19/2004. Parties now have a briefing scheduled. Conferenca djourned. If all papers on motion were filed on 6/8/04, then this court will adjourn conference upon written request. Status Conference set for 6/11/2004 03:00 PM before Chief Magistrate Michael L. Orenstein. (Mierzejewski, Elizabeth) (Entered: 04/29/2004)
38 Letter from Paul P. Rooney to Hon. Denis R. Hurley, dated 6/8/04 re: To advise the Court of the submission of the enclosed courtesy copies of papers related to Dreyfus' motion for summary judgment. File date: 6/8/04; Service date: 4/26/04; Filed by Dreyfus Service Corp. (Fagan, Linda) Modified on 6/17/2004 (Fagan, Linda). (Entered: 06/17/2004)
39 MOTION for Summary Judgment to Dreyfus, purs. to Federal Rule of Civil Procedure 56. File date: 6/8/04; Service date: 4/26/04; Filed by Dreyfus Service Corporation. (Fagan, Linda) (Entered: 06/17/2004)
40 MEMORANDUM OF LAW in Support re [39] MOTION for Summary Judgment to Dreyfus, purs. to Federal Rule of Civil Procedure 56. File date:

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04/26/2004 04/26/2004 04/26/2004 04/26/2004 04/26/2004 04/26/2004 04/26/2004 04/26/2004 04/26/2004 04/26/2004

6/8/04; Service date: 4/26/04; Filed by Dreyfus Service Corporation. (Fagan, Linda) (Entered: 06/17/2004)
41 STATEMENT OF MATERIAL FACTS NOT IN DISPUTE PURS. TO LOCAL CIVIL RULE 56.1 in Support re [39] MOTION for Summary Judgment to Dreyfus, purs. to Federal Rule of Civil Procedure 56. File date: 6/8/04; Service date: 4/26/04; Filed by Dreyfus Service Corporation. (Fagan, Linda) (Entered: 06/17/2004)
42 DECLARATION of Paul P. Rooney, Esq. in Support re [39] MOTION for Summary Judgment to Dreyfus, purs. to Federal Rule of Civil Procedure 56. File date: 6/8/04; Service date: 4/26/04; Filed by Dreyfus Service Corporation. (Fagan, Linda) (Entered: 06/17/2004)
43 DECLARATION of Peter Horacek in Support re [39] MOTION for Summary Judgment to Dreyfus, purs. to Federal Rule of Civil Procedure 56. File date: 6/8/04; Service date: 4/26/04; Filed by Dreyfus Service Corporation. (Fagan, Linda) (Entered: 06/17/2004)
44 DECLARATION of Stephanie Pepitone in Support re [39] MOTION for Summary Judgment to Dreyfus, purs. to Federal Rule of Civil Procedure 56. File date: 6/8/04; Service date: 4/26/04; Filed by Dreyfus Service Corporation. (Fagan, Linda) (Entered: 06/17/2004)
45 MEMORANDUM OF LAW in Opposition re [39] MOTION for Summary Judgment to Dreyfus, purs. to Federal Rule of Civil Procedure 56. File date: 6/8/04; Service date: 4/26/04; Filed by Equal Employment Opportunity Commission. (Fagan, Linda) (Entered: 06/17/2004)
46 RESPONSE TO DEFT'S LOCAL RULE 56.1 STATEMENT re [39] MOTION for Summary Judgment to Dreyfus, purs. to Federal Rule of Civil Procedure 56. File date: 6/8/04; Service date: 4/26/04; Filed by Equal Employment Opportunity Commission. (Fagan, Linda) (Entered: 06/17/2004)
47 AFFIDAVIT of Manuella Gilmore re [39] MOTION for Summary Judgment to Dreyfus, purs. to Federal Rule of Civil Procedure 56. File date: 6/8/04; Service date: 4/26/04; Filed by Equal Employment Opportunity Commission. (Fagan, Linda) (Entered: 06/17/2004)
48 DECLARATION of Louis Graziano re [39] MOTION for Summary Judgment to Dreyfus, purs. to Federal Rule of Civil Procedure 56. File date: 6/8/04; Service date: 4/26/04; Filed by Equal Employment Opportunity Commission. (Fagan, Linda) (Entered: 06/17/2004)
49 DECLARATION of Louis Graziano re [39] MOTION for Summary Judgment to Dreyfus, purs. to Federal Rule of Civil Procedure 56. File date: 6/8/04; Service date: 4/26/04; Filed by Equal Employment Opportunity Commission. (Fagan, Linda) (Entered: 06/17/2004)
51 DECLARATION of Paul P. Rooney, Esq. in Support re [39] MOTION for Summary Judgment to Dreyfus, purs. to Federal Rule of Civil Procedure 56. File date: 6/8/04; Service date: 4/26/04; Filed by Dreyfus Service Corporation. (Fagan, Linda) (Entered: 06/17/2004)

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06/08/2004
06/29/2004
06/29/2004 08/25/2004 08/25/2004 08/25/2004
10/20/2004 10/21/2004 10/21/2004 12/15/2004 12/21/2004 12/21/2004 03/08/2005 03/09/2005

50 REPLY MEMORANDUM OF LAW in Support re [39] MOTION for Summary Judgment to Dreyfus, purs. to Federal Rule of Civil Procedure 56. File date: 6/8/04; Service date: 4/26/04; Filed by Dreyfus Service Corporation. (Fagan, Linda) (Entered: 06/17/2004)
52 Letter from Paul P. Rooney to Hon. Michael L. Orenstein, dated 6/28/04 re: To request that the conference before this Court scheduled for 6/30/04 be cancelled because both parties believe it is no longer necessary. (Fagan, Linda) Modified on 7/19/2004 (Fagan, Linda). (Entered: 07/19/2004)
Endorsed ORDER on [52] Letter. Conference adjourned to 8/27/04 at 11:30 a.m. ( Signed by Judge Michael L. Orenstein on 6/29/04.) eod #52 (Fagan, Linda) (Entered: 07/19/2004)
53 Letter MOTION to Adjourn Conference scheduled for 8/27/04 in light of the pending motion for summary judgment by Dreyfus Service Corporation. (Imrie, Robert) (Entered: 08/30/2004)
ORDER granting 53 Motion to Adjourn Conference: Conference adjourned to 10/22/04 at 2:00 p.m. Signed by JudgeMichael L. Orenstein on 8/25/04. c/m (Imrie, Robert) (Entered: 08/30/2004)
54 RE; Doc #53 : You are required to file all original documents electronically. In the future, please ensure that all original documents in this action are filed electronically. Clearly marked hard copy-courtesy documents should be submitted to Chambers. Courtesy copies should also indicate that the original of the submitted document has already been electronically filed. (Imrie, Robert) (Entered: 08/30/2004)
55 Joint MOTION to Adjourn Conference re discovery by EEOC and by Dreyfus Service Corporation. (Rooney, Paul) (Entered: 10/20/2004)
56 ORDER granting 55 Motion to Adjourn Conference: Conference adjourned to 12/22/04 at 11:00 a.m. Signed by JudgeMichael L. Orenstein on 10/21/04. (Imrie, Robert) (Entered: 10/21/2004)
Set/Reset Hearings: Status Conference set for 12/22/2004 11:00 AM before Chief Magistrate Michael L. Orenstein. (Imrie, Robert) (Entered: 10/21/2004)
57 Fourth MOTION to Adjourn Conference on Discovery by Dreyfus Service Corporation. (Rooney, Paul) (Entered: 12/15/2004)
58 ORDER granting 57 Motion to Adjourn Conference: Conference adjourned to 2/10/05 at 3:30 p.m. Signed by JudgeMichael L. Orenstein on 12/21/04. (Imrie, Robert) (Entered: 12/23/2004)
Set/Reset Hearings: Status Conference set for 2/10/2005 03:30 PM before Chief Magistrate Michael L. Orenstein. (Imrie, Robert) (Entered: 12/23/2004)
59 ORDER: [39] Defendant's Motion for Summary Judgment is hereby GRANTED. The Clerk of Court is directed to CLOSE this case. Signed by Judge Denis R. Hurley on 3/8/05. (Entered: 03/08/2005)
60 CLERK'S JUDGMENT; That pltff take nothing of deft; and that deft's motion for summary judgment is granted. ( Signed by Lorraine Sapienza, Deputy Clerk, on

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03/10/2005 03/10/2005 04/06/2005 05/09/2005 05/10/2005
06/06/2005 01/20/2006

3/9/05. )(Fagan, Linda) (Entered: 03/10/2005)
61 Letter dated 3/9/05 from Paul P. Rooney to Magistrate Judge M. Orenstein Re: advising the Court that Judge Hurley issued a Memorand and Order granting summary judgment and ordering this case closed. (Imrie, Robert) (Entered: 03/14/2005)
ORDER re 61 Letter: Conference cancelled. Signed by Judge Michael L. Orenstein on 3/10/05. (Imrie, Robert) (Entered: 03/14/2005)
62 BILL OF COSTS AND REQUEST TO TAX COSTS by Dreyfus Service Corporation. (Rooney, Paul) (Entered: 04/06/2005)
63 NOTICE OF APPEAL as to 60 Clerk's Judgment by Equal Employment Opportunity Commission. No Appeal Fee Paid. (Graziano, Louis) Modified on 5/9/2005 (Mahon, Cinthia). (Entered: 05/09/2005)
ORDER: the Court is in receipt of 62 Defendant's Bill of Costs, submitted pursuant to Federal Rule of Civil Procedure 54(b)(1) and Local Civil Rule 54.1; Local Rule 54.1(a) states in part: "Costs will not be taxed during the pendency of any appeal"; in light of 63 Plaintiff's recent Notice of Appeal, Defendant's request cannot be considered at this juncture; Defendant may renew the request upon final disposition of the appeal, as per Rule 54.1(a). Ordered by Judge Denis R. Hurley on 5/10/05. (Entered: 05/10/2005)
64 USCA Scheduling Order as to 63 Notice of Appeal filed by Equal Employment Opportunity Commission,. Appeal Record due by 6/30/2005. Appellant's brief due by 7/7/05, appellee's brief by 8/8/05, argued not before 9/19/05. USCA 05-2271.(Romano, Daniel) (Entered: 06/13/2005)
65 MANDATE of USCA as to 63 Notice of Appeal filed by Equal Employment Opportunity Commission, dismissing the appeal by stipulation. Copy sent to chambers. (Romano, Daniel) (Entered: 02/01/2006)

PACER Service Center

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hs0328

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2:02-cv-05194-DRH-MLO

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 USCA2 Docket Sheet for 05-2271

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General Docket
US Court of Appeals for the Second Circuit

Second Circuit Court of Appeals

INDIV

CLOSED

Court of Appeals Docket #:

05-2271-cv

Nsuit : 1442

CIVIL RIGHTS-Jobs

Equal Employment Opportunity Commission v. Dreyfus Service Corporation

Filed 5/9/05

Appeal from:

EDNY (CENTRAL ISLIP)

Case type information:

Civil

United States

None

Lower court information:

District:

02-cv-5194

Trial Judge: Denis R. Hurley

MagJudge:

Michael L. Orenstein

Date Filed:

09/26/02

Date order/judgement:

3/9/2005

Date NOA filed: 5/9/2005

Fee status: Waived

Panel Assignment:

Panel:

Date of decision:

12/19/05

Prior cases: NONE

Current cases NONE

Official Caption 1/

INDIV

CLOSED

-------------------------------------Docket No. [s] : 05-2271 -cv Equal Employment Opportunity Commission,

Plaintiff-Appellant,

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USCA2 Docket Sheet for 05-2271
v. Dreyfus Service Corporation,
Defendant-Appellee. --------------------------------------

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Authorized Abbreviated Caption 2/ -------------------------------------Docket No. [s] : 05-2271 -cv
Equal Employment Opportunity Commission v. Dreyfus Service Corporation --------------------------------------

------------------------------------------------------------------------1/ Fed. R. App. P. Rule 12 [a] and 32 [a]. 2/ For use on correspondence and motions only.

Docket as of February 15, 2006 7:56 pm

Page 2

INDIV

CLOSED

Equal Employment Opportunity Commission Plaintiff-Appellant

Elizabeth E. Theran Esq.
[ LD ret ] EEOC Office of General Counsel

1801 L Street N.W. Washington , DC , 20507

202-663-4720

Dreyfus Service Corporation John C. Unkovic Esq.

Defendant-Appellee

[ inf ] Reed Smith

435 Sixth Avenue Pittsburg , PA , 15219

412-288-3294

Equal Employment Opportunity Commission Plaintiff-Appellant

Katherine E. Bissell Esq.
[ inf ] Equal Employment Opportunity Commission, New York District 33 Whitehall Stree New York , NY , 10004

212-236-3698

Dreyfus Service Corporation Paul P. Rooney Esq.

Defendant-Appellee

[ LD ret ] Reed Smith

599 Lexington Ave. New York , NY , 10022

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212-521-5435

Docket as of February 15, 2006 7:56 pm

Page 3

INDIV

CLOSED

Dreyfus Service Corporation Stephanie Wilson Esq.

Defendant-Appellee

[ inf ] ReedSmith , Princeton Forrestal Village 136 Main St. P.O. Box 7839 Princeton , NJ , 08543

609-520-6031

Docket as of February 15, 2006 7:56 pm

Page 4

INDIV

CLOSED

5/9/05

Copy of notice of appeal and district court docket entries on behalf of APPELLANT Equal Employment Opportunity Commission, filed. [MR]

5/9/05 Copy of district court judgment dated 03-09-2005 RECEIVED. [MR]

5/17/05 APPELLANT Equal Employment Opportunity Commission, Form C filed, with proof of service. [MR]

5/17/05 APPELLANT Equal Employment Opportunity Commission, Form D filed, with proof of service. [MR]

5/26/05 Notice of appeal acknowledgment letter from Elizabeth Theran received. [MR]

5/26/05 Notice of appearance form on behalf of Elizabeth Theran , Esq., filed. (Orig in acco, copy to Calendar) [MR]

5/31/05 Notice of appeal acknowledgment letter from Paul Rooney received. [MR]

6/1/05

Scheduling order #1 filed. Record on appeal due 6/30/2005. Appellants brief due 7/7/2005. Appellees brief due 8/8/2005. Ready week 9/19/2005. (L.G., Staff Counsel) [MR]

6/1/05 Pre-Argument Notice and Order from Lisa Greenberg, Filed. Scheduled For: Thursday, June 16, 2005 at 3:00 PM. [MR]

6/1/05 Notice to counsel re: Scheduling Order and Pre Argument Conference. [MR]

6/2/05 Notice of appeal acknowledgment letter from Paul Rooney received. [MR]

6/16/05 First pre-argument conference held by LG.

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[DL]

Docket as of February 15, 2006 7:56 pm

Page 5

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CLOSED

6/22/05

Scheduling order #2 filed. Record on appeal due 8/1/2005. Appellants brief due 8/8/2005. Appellees brief due 9/8/2005. Ready week 10/17/2005. (LG) [YS]

6/22/05 Notice to counsel in re: Scheduling Order #2 [YS]

8/15/05

Scheduling order #3 filed. Appellants brief due 8/31/2005. Appellees brief due 9/30/2005. Ready week 11/14/2005. (LG) [YS]

8/16/05 Notice to counsel in re: Scheduling order #3 [YS]

8/23/05 Appellant Equal Employment Opportunity Commission motion for extension of time filed with proof of service. [MR]

8/24/05

Scheduling order filed. Appellants brief due 9/30/2005. Appellees brief due 10/31/2005.
Ready week 12/6/2005. (MR., Deputy Clerk) [MR]

8/24/05 Notice to counsel re: Scheduling order dated 8/24/2005. [MR]

8/31/05

Letter received from Appelllee's attorney informing that he will be unavailable for oral argument between December 6, 2005 and December 16, CC: Cal. [MR]

9/20/05

Scheduling order filed. IT IS HEREBY ORDERED that the previous scheduling entered in this appeal is hereby VACATED. IT IS FURTHER ORDERED that the following shceduling order, effective as October 24, 2005, will govern the progress of this appeal. [MR]

9/20/05 Notice to counsel re: Scheduling Order dated 9/20/2005. [MR]

11/18/05 Stipulation to withdraw appeal with prejudice RECEIVED. [MR]

12/19/05

Ordered that the appeal is withdrawn with prejudice, the parties agree that counsel has authority of their clients to enter into this stipulation and to dismiss the appeal, the parties' agreement as to costs on appeal is that each party will bear it's own costs and attorneys' fees.So Ordered for the court

Docket as of February 15, 2006 7:56 pm

Page 6

INDIV

CLOSED

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by LJG, SC. [DB]

1/13/06 Certified copy of the stipulation dated 12/19/05 disposing of the appeal issued to district court. [DB]

1/13/06

Order FILED MOOTING motion extended time by Appellant Equal Employment Opportunity Commission, endorsed on motion dated 8/23/2005 [DB]

1/19/06 Acco received in records room from team. Number of volumes; 1 [LR]

2/3/06 Mandate receipt returned from the district court. [NS]

Docket as of February 15, 2006 7:56 pm

Page 7

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dkt report

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Cost:

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