MORRIS v. NEW YORK CITY DEPARTMENT OF SANITATION, (S.D.N.Y. 2003)

WHITMAN KNAPP, Senior United States District Judge

Plaintiff Gregory Morris ("Plaintiff" or "Morris") is a white male over the age of forty who is a former employee of the New York City Department of Sanitation ("DOS"). Morris brings this cause of action against DOS and the City of New York ("City" or "Defendant") alleging that his employer violated his rights under the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et seq., Title VII of the Civil Rights Act ("Title VII"), 42 U.S.C. § 2000e et seq., and New York State and New York City Human Rights Law s. Specifically, Morris claims that he was constructively discharged from his employment in July 1996 because of his race and his age.

Before us now is Defendant's motion for summary judgment on both claims and Plaintiff's cross-motion for partial summary judgment on his race claims. Defendant's motion to dismiss Plaintiff's claims as against the DO S is also before us.

Facts

Morris is a white male whose date of birth is April 14, 1947. On or about June 30, 1969, Morris began his employment with the DOS in the capacity of Sanitation Worker. Morris retired in July or August 1996; he alleges that his retirement was actually a constructive discharge. Over the course of his career, Morris took and passed several promotional civil service examinations which enabled him to be promoted through the DOS ranks. In September 1981, Morris was promoted to the title of General Superintendent I. The title of General Superintendent ("GS") consists of five levels, the first of which is the only one that is secured by passing a civil service examination. The other levels, which are deemed "managerial," may be reached only through a discretionary promotion within the agency. Morris was promoted to GS II in 1986 and to GS III in 1993. Prior to his retirement, Morris was the Assistant Chief of Collection Operations working out of the agency's Central Office. His salary in this position was approximately $89,000. During his employment with DOS, Morris' performance evaluations ranged from good to excellent. Plaintiff received a rating of "Very Good (-)" on his final performance evaluation in 1996. Additionally, over the course of his career with DOS, Morris received various commendations for his performance.

Morris' claims center around the events leading up to his retirement in 1996. Morris claims that in early May 1996, he met with Frank Landers ("Landers"), the Director of Bureau of Cleaning and Collection for DOS. According to Morris, Landers informed him that he was not in DOS' future plans and that the First Deputy for DOS, Michael T. Carpinello ("Carpinello"), wanted him to retire so that the agency could promote younger people. It is alleged that at around the same time, two other GS IIIs, Lou Scalzo ("Scalzo") and Jack Lorenzo ("Lorenzo") had similar meetings with Landers. In late May 1996, Morris met with Carpinello. Morris claims that Carpinello told him that his "management style" differed from what DOS wanted and that Carpinello wanted Morris to retire. Morris also claims that Carpinello told him that if he did not retire, he would demote plaintiff down two levels. Such a demotion would have reduced plaintiff's salary by approximately $25,000 and would have diluted his future pension benefits. Carpinello allegedly made the same threat of demotion to Scalzo and Lorenzo during May 1996. During July or August 1996, Morris, Scalzo, and Lorenzo all retired rather than be demoted.

Michael Hawkins ("Hawkins") is also an employee of DOS, and also holds the position of G S III. Hawkins is an African-American who is younger than Morris. According to Morris, Hawkins received a 1996 performance rating from DOS of "marginal" after one year in the position of Borough Superintendent. As a result, Hawkins w as temporarily removed from his command, retrained, and then reinstated.

On approximately February 18, 1997, Morris timely filed a charge of discrimination on the basis of age and race with the New York State Division of Human Rights. Such a charge is deemed to be simultaneously filed with the Equal Employment Opportunity Commission (EEOC). The EEOC determined that there was reasonable cause to believe that plaintiff was treated differently than a similarly situated employee, based on age and race. On approximately April 8, 1999, the Civil Rights Division of the United States Department of Justice issued Morris a Notice of Right to Sue. Morris then filed the instant complaint.

Discussion

I. Defendant's Motion to Dismiss the Action Against DOS

Defendant moves to dismiss Plaintiff's claims against DOS because DOS is not a suable entity. That motion is GRANTED. Under Chapter 17, § 396 of the New York City Charter, "[a]ll actions and proceedings for the recovery of penalties for the violation of any law shall be brought in the name of the City of New York, and not that of any agency, except where provided by law." N.Y. City Charter, § 396. Under this provision of the Charter, individual City agencies are not suable entities unless specified by law. See Jackson v. The City of New York Dep't (S.D.N.Y. October 7, 1996) No. 96 Civ. 5779 (MBM), 1996 U.S. Dist. LEXIS 14804, at *17. DOS is a City agency that has not been authorized as a suable entity by law. Thus Plaintiff's claims against DOS are hereby DISMISSED.

II. Summary Judgment Standard

Summary judgment shall be granted "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits . . . show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c); Anderson v. Liberty Lobby, Inc. (1986) 477 U.S. 242, 247. The burden is on the moving party to demonstrate that no genuine issue respecting any material fact exists. Heyman v. Commerce Indus. Ins. Co. (2d Cir. 1975) 524 F.2d 1317, 1320. We resolve all ambiguities and draw all inferences in favor of the party against whom summary judgment is sought. Eastway Constr. Corp. v. City of New York (2d Cir. 1985) 762 F.2d 243, 249, cert. denied (1987) 484 U.S. 918. The mere existence, however, of an alleged factual dispute between the parties will not defeat a motion for summary judgment. In order to defeat such a motion, the non-moving party must affirmatively set forth facts showing that there is a genuine issue for trial. Anderson, 477 U.S. at 256.

Discrimination cases such as this one call for extra precaution when deciding whether this "drastic provisional remedy should be granted." Gallo v. Prudential Residential Services, Ltd. Partnership (2d Cir. 1994) 22 F.3d 1219, 1224. In fact, summary judgment is "ordinarily inappropriate" in the context of a workplace discrimination case because the allegations usually require an exploration into employer's true motivation and intent for making a particular employment decision. Patrick v. LeFevre (2d Cir. 1984) 745 F.2d 153, 159. We abide by the Second Circuit's command that we carefully scrutinize affidavits and depositions for circumstantial proof which, if believed, would show discrimination. Gallo, 22 F.3d at 1224.

At the same time, our exercise of caution does not render summary judgment unavailable to a defendant in discrimination cases. McLee v. Chrysler Corp. (2d Cir. 1994) 38 F.3d 67, 68. 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, making a grant of summary judgment proper. Dister v. Continental Group, Inc. (2d Cir. 1988) 859 F.2d 1108. Moreover, summary judgment will be entered "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Anderson, 477 U.S. at 247. See also Meiri v. Dacon, 759 F.2d 989, 998 (2d Cir. 1985) ("To allow a party to defeat a motion for summary judgment by offering purely conclusory allegations of discrimination, absent any concrete particulars, would necessitate a trial in all [discrimination] cases.").

III. Employment Discrimination

The "ultimate issue" in an employment discrimination case is whether the plaintiff has met the burden of proving that the adverse employment decision was motivated at least in part by an "impermissible reason." Fields v. New York State Office of Mental Retardation Dev. Disabilities (2d Cir. 1997) 115 F.3d 116, 119; Lapsley v. Columbia University-College of Physicians and Surgeons (S.D.N.Y. 1998) 999 F. Supp. 506, 513. A plaintiff may meet this burden by proving "pretext" under the analysis first enunciated in McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792, 802. Alternatively, a plaintiff may meet the burden by using a "mixed-motives" analysis. See de la Cruz v. New York City Human Resources Admin. Dep't of Social Servs. (2d Cir. 1996) 82 F.3d 16, 23, cert. denied (1996) 519 U.S. 805. Either way, "[t]he ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff." Reeves v. Sanderson Plumbing Products, Inc. (2000) 530 U.S. 133, 143 (citation omitted).

The ADEA provides that it is "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). The Act protects persons 40 years of age or older. See id. Title VII of the Civil Rights Act of 1964 prohibits employment discrimination on the basis of "race, color, religion, sex, or national origin" by employers, labor organizations, and employment agencies. Title VII's proscription against race discrimination applies not only to historically excluded "minorities" but to all racial groups. See generally McDonald v. Santa Fe Trail Transportation Co. (1976) 427 U.S. 273. Our consideration of claims brought under the state and city human rights laws parallels the analysis used in Title VII claims and ADEA claims. See Tyler v. Bethlehem Steel Corp. (2d Cir. 1992) 958 F.2d 1176, 1180.

A. McDonnell Douglas Analysis

In McDonnell Douglas and Texas Dept. of Community Affairs v. Burdine (1981) 450 U.S. 248, the United States Supreme Court articulated a burden shifting analysis which courts must apply when analyzing discrimination claims. This analysis was revised by the Supreme Court in Reeves. First, the plaintiff must establish a prima facie case of discrimination by showing (1) membership in a protected class, (2) qualification for the position held, (3) adverse employment action, and (4) circumstances giving rise to an inference of discrimination. See McDonnell Douglas, 411 U.S. at 802-804; see also Reeves, 530 U.S. at 142. Once a plaintiff successfully makes out a prima facie case, we presume that the employer unlawfully discriminated against the plaintiff. See Fisher v. Vassar College (2d Cir. 1997) 114 F.3d 1332, 1335.

The burden then shifts to the employer to articulate a legitimate, nondiscriminatory reason for the employment decision. See McDonnell Douglas, 411 U.S. at 802. "Any legitimate, non-discriminatory reason will rebut the presumption triggered by the prima facie case. The defendant need not persuade the court that it was actually motivated by the proffered reasons." Fisher, 114 F.3d at 1335-36 (citation omitted).

If the defendant is able to provide evidence of a nondiscriminatory basis for the discharge, then the presumption of discrimination "drops out of the picture" and the burden shifts to the plaintiff to demonstrate, by a preponderance of the evidence, that the employer's presumptively valid explanation was merely a pretext for discrimination. St. Mary's Honor Ctr. v. Hicks (1993) 509 U.S. 502, 511; McDonnell Douglas, 411 U.S. at 804. In Reeves, the Supreme Court eliminated any distinction between evidence which the plaintiff uses to meet its prima facie burden of showing "circumstances giving rise to an inference of discrimination," and evidence which the plaintiff uses to meet its burden of showing that defendant's stated reason for it's dismissal is a pretext for discrimination.

The Supreme Court has held that "a reason cannot be proved to be `a pretext for discrimination' unless it is shown both that the reason w as false, and that discrimination was the real reason." St. Mary's Honor Ctr., 509 U.S. at 515. In the summary judgment context, this means that the plaintiff must establish a genuine issue of material fact either through direct, statistical or circumstantial evidence as to whether the employer's reason for discharging her is false and as to whether it is more likely that a discriminatory reason motived the employer to make the adverse employment decision. See Taggert v. Time Inc. (2d Cir. 1991) 924 F.2d 43, 46.

B. "Mixed-motives" Analysis

If the plaintiff establishes improper motivation with direct evidence, the defendant may present evidence that there were additional legitimate factors that affected the decision adverse to the plaintiff. See generally Price Waterhouse v. Hopkins (1989) 490 U.S. 228. If the defendant succeeds in convincing the trier of fact that legitimate factors as well as illegal motivation affected the decision, the case becomes one of "mixed motive." A plaintiff may establish a "mixed-motives" case by "convinc[ing] the trier of fact that an impermissible criterion in fact entered into the employment decision." Tyler 958 F.2d at 1181. In a mixed-motives case, the plaintiff must "focus his proof directly at the question of discrimination and prove that an illegitimate factor had a `motivating' or `substantial' role in the employment decision." Tyler, 958 F.2d at 1181 (quoting Price Waterhouse, 490 U.S. at 258). If a plaintiff demonstrates that a discriminatory motive is present, even if a legitimate motive also exists, the burden of proof, and not merely the burden of production, passes to the defendant. Price Waterhouse, 490 U.S. at 250. The defendant can then escape liability only by showing by a preponderance of the evidence that, even without the presence of the illegitimate factor, the decision would have been the same. Id.

IV. Plaintiff's Prima Facie Case

For the purposes of this motion, we find that Morris has made out the first three elements of a prima facie case of employment discrimination. First, at the time of his retirement, Morris was within a protected age group as well as a protected racial group: he is a white male over the age of forty. Second, Morris was qualified for the position he held: it is uncontested that during his employment with DOS, Morris' performance evaluations ranged from good to excellent, including a rating of "Very Good (-)" in his last performance evaluation. Additionally, over the course of his career with DOS, Morris received various commendations for his performance. Morris claims that the third requirement — that he was discharged — is satisfied because his retirement was actually a constructive discharge. To establish a constructive discharge, Morris must show that Defendant deliberately made his working conditions so intolerable that he was forced to resign. Stetson v. NYNEX Serv. Co. (2d Cir. 1993) 995 F.2d 355, 360; Pena v. Brattleboro Retreat (2d Cir. 1983) 702 F.2d 322, 325. Morris has alleged that Carpinello told him that if he did not retire, he would be demoted down two levels resulting in a salary reduction of approximately $25,000 and attendant dilution of future pension benefits. (Felix Decl., Ex. 3 at 72-74, 77-83). These allegations, if true, would be sufficient to "permit a rational trier of fact to infer that the employer deliberately created working conditions that were `so difficult or unpleasant that a reasonable person in the employee's shoes would have felt compelled to resign.'" Stetson, 995 F.2d at 361 (quoting Pena, 702 F.2d at 325). Compare Alfieri v. Sysco Food Services — Syracuse (W.D.N.Y. 2001) 192 F. Supp.2d 14, 24 (Plaintiff's resignation did not meet the test for constructive discharge: "she was not being threatened with immediate discharge, demotion, or a cut in pay, and her duties had not been changed") (emphasis added).

To raise an inference of discrimination sufficient to satisfy the fourth element of Plaintiff's prima facie claim, Morris must produce evidence that would lead a reasonable fact-finder to conclude either that his termination occurred because of his age/race or that Defendant regarded his age/race as a negative factor in such consideration. See Ouaratino v. Tiffany Co.(2d Cir. 1995) 71 F.3d 58, 64; Hollander v. American Cyanamid Co. (2d Cir. 1990) 895 F.2d 80, 83.

Morris supports his age claim by offering evidence that Landers, one of the individuals involved in the decision making process, made inappropriate comments to Morris (as well as to Lorenzo and Scalzo, also white males over the age of 40) referring to each respective employee's age. (Felix Decl., Ex. 4 at 54-55, 64, 87; Felix Decl., Exs. 9, 10). These statements were allegedly made in conjunction with statements about DOS's desire to bring in "younger blood" and the department's desire that these employees retire to effect that goal. (Id.) Additionally, the age-related remarks were allegedly made in close proximity to threats of demotion if the employees did not cooperate by retiring. (Id.) Morris supports his race claim by offering evidence that Hawkins w as treated favorably as compared with Morris (as well as Scalzo and Lorenzo). Defendant argues that Morris fails to make out a prima facie case on either claim because he was replaced by another white male older than Morris. (Mem. of Law in Supp. of Defs.' Mot. for Summ. J. at 6 (hereinafter "Defs.' Mem. in Supp."); Tiliakos Decl. Ex. A at 101-102.) Morris does not dispute that he was replaced by a member of his protected classes, but he claims that this fact is not fatal. (Pl.'s Mem. of Law in Opp'n to Defs.' Rule 56 Summ. J. Mot. and in Supp. of Pl.'s Req. that Summ. J. be Granted on his Race Claims at 13 (hereinafter "Pl.'s Mem in Opp'n"); Felix Decl., Ex. 4 at 101-102). Both the Supreme Court and the Second Circuit have made it clear that a plaintiff is not required to show that he was replaced by someone outside of his protected class so long as he has presented some other evidence that gives rise to an inference of discrimination. See O'Connor v. Consol. Coin Caterers Corp. (1996) 517 U.S. 308, 313 ("In the age-discrimination context [an inference of discrimination] cannot be drawn from the replacement of one worker with another insignificantly younger"); Worowski v. Nashua Corp. (2d Cir. 1994) 31 F.3d 105, 108, 109 (plaintiff "not required to show that he was replaced by a younger, newly-hired employee" where he had uncovered some direct evidence of discrimination); James v. N.Y. Racing Ass'n (2d Cir. 2000) 233 F.3d 149, 153-154 (holding that a plaintiff must demonstrate employer's "preference for a person not of a protected class."). Where no evidence giving rise to an inference of discrimination has been presented, the fact that a plaintiff is replaced with an individual within his protected class undermines his attempt to establish a prima facie case of discrimination. See Carr v. Westlab Administration, Inc. (S.D.N.Y. 2001) 171 F. Supp.2d 302, 307; Bampoe v. Coach Stores, Inc. (S.D.N.Y. 2000) 93 F. Supp.2d 360, 371; Ticali v. Roman Catholic Diocese of Brooklyn (E.D.N.Y. 1999) 41 F. Supp.2d 249, 262; Umansky v. Masterpiece Int'l Ltd.(S.D.N.Y. July 31, 1998) No. 96 Civ. 2367(AGS), 1998 U.S. Dist. LEXIS 1175, at *3; Estepa v. Shad (E.D.N.Y. 1987) 652 F. Supp. 567, 570 n. 5 ("[U]nless a Title VII plaintiff is replaced by a member of a nonprotected class, proof of intentional discrimination appears extremely difficult, if not practically impossible.").

Morris' circumstances differ from those of the plaintiff's in Meiri v. Dacon, where the Second Circuit did not require a plaintiff to demonstrate that she was replaced by a person outside of her protected class. See Meiri, 759 F.2d 989. In that case, the plaintiff's position was ultimately eliminated — rendering moot the consideration of her replacement — whereas here, Morris' position was not eliminated. Instead, he was replaced by an individual who is not only a member of both his age and race class but is also older than he. This is a crucial difference. See Bampoe, 93 F. Supp.2d at 371 n. 6.

Thus, in order for Morris to satisfy the fourth element of his prima facie case for discrimination, he must produce some evidence of discrimination that is sufficient to raise an inference of discrimination. We find that he has done so for his age claim, but not for his race claim.

A. Age Discrimination

Morris claims Landers' comments constitute direct evidence of age discrimination. (Pl.'s Mem. in Opp'n at 34). Verbal comments constitute evidence of discriminatory motivation when a plaintiff demonstrates that a nexus exists between the allegedly discriminatory statements and a defendant's decision to discharge the plaintiff. Zhang v. Barr Labs., Inc. (S.D.N.Y. May 8, 2000) No. 98 Civ. 5717(DC), 2000 U.S. Dist. LEXIS 6237, at *13. See also Campbell v. Daytop Village, Inc. (S.D.N.Y. May 7, 1999) No. 97 Civ. 4362, 1999 U.S. Dist. LEXIS 6943, at *7; Ruane v. Continental Cas. Co. (S.D.N.Y. June 3, 1998) No. 96 Civ. 7153, 1998 WL 292103, at *8 (citing Spence v. Maryland Cas. Co. (2d Cir. 1993) 995 F.2d 1147, 1155). Not all comments will constitute direct evidence of discrimination. Many courts have held that stray remarks in the workplace, by themselves, and without a demonstrated nexus to the complained of personnel actions, will not defeat the employer's motion for summary judgment. See, e.g., Rush v. McDonald's Corp. (7th Cir. 1992) 966 F.2d 1104, 1106 (remarks must be relatively contemporaneous and must be related to the employment decision in question). Defendant denies that Landers ever made the alleged comments. (Felix Decl., Ex. 8 at 41.) For the purposes of this motion, we resolve the dispute in Plaintiff's favor. Defendant argues that even if Landers had made the alleged comments, they ought to be viewed as stray remarks and thus not sufficient evidence of discrimination. (Defs.' Mem in Supp. at 6.) We cannot agree. First, while the statements were not numerous, they were made by an individual with substantial influence over Morris' employment. See Owens v. New York City Housing Authority (2d Cir. 1991) 934 F.2d 405, 410. Moreover, the nexus between Landers' comments and Morris' constructive discharge is apparent: the comment was made during a discussion of Morris' future employment options — be demoted or retire — as well as DOS's alleged desire to change the composition of its workforce. (Felix Decl., Ex. 4 at 54-55, 64, 87; Exs. 9, 10.) Moreover, the comments were made only four months prior to Morris' retirement by a person who claimed to be meeting with Morris on behalf of one in a position to demote Morris. (Id.) For these reasons, we cannot dismiss these comments as stray remarks. Compare Castro v. Local 1199 (S.D.N.Y. 1997) 964 F. Supp. 719, 726 (dismissing comments as stray remarks but finding it significant that "the comments were not expressly directed at plaintiff") (citing Boyle v. McCann-Erickson, Inc. (S.D.N.Y. 1997) 949 F. Supp. 1095, 1102). Thus, Morris has presented some facts that the discharge occurred under circumstances giving rise to an inference of discrimination based on race. In so doing, he has satisfied the fourth element of his prima facie case on the age claim.

B. Race Discrimination

A plaintiff may establish the fourth element of a prima facie case of discrimination by showing that he was treated differently from "similarly situated" members outside of his class. See Mitchell v. Toledo Hosp. (6th Cir. 1992) 964 F.2d 577, 582-582 cited with approval in Shumway v. United Parcel Service, Inc. (2d Cir. 1997) 118 F.3d 60, 64. To be found "similarly situated," the other employee must be "similarly situated in all material respects." Mitchell, 964 F.2d at 583. In order to be "deemed `similarly-situated', the individuals with whom the plaintiff seeks to compare his/her treatment must have dealt with the same supervisor, have been subject to the same standards and have engaged in the same conduct without such differentiating or mitigating circumstances that would distinguish their conduct or the employer's treatment of them for it." Id. (citing Mazzella v. RCA Global Communications, Inc. (S.D.N.Y. 1986) 642 F. Supp. 1531, aff'd, 814 F.2d 653 (2d Cir. 1987)). Morris alleges that he and Hawkins were similarly situated because they both held the title of GS III and were both subject to the supervision of Landers and Carpinello. (Compl. ¶ 33.) This is not sufficient to prove the two employees "similarly situated." While both Morris and Hawkins were indeed GS IIIs and subject to the supervision of Landers and Carpinello, Morris held the position of Assistant Chief, Collection Operations while Hawkins held the position of Borough Superintendent. (Pl.'s Reply Mem. in Supp. of his Mot. for Partial Summ. J. on his Race Claims at 2 (hereinafter "Pl.'s Reply Mem."); Defs.' Reply mem. at 5.) There is no evidence in the record to suggest that these positions, or the duties and responsibilities required of each job holder, are sufficiently similar so as to render them "comparable positions." See Mitchell 964 F.2d at 583 n. 5 (declining to find "jobs at the same level in occupational hierarchy" comparable without more.) Moreover, Morris fails to make a showing — beyond conclusory statements — that the differentiating circumstance at issue here (i.e., each employee's time on the job) is sufficient to distinguish each employee's conduct or the D OS's treatment of each employee. (See Pl.'s Reply Mem. at 13-14.) Defendant explains that "Hawkins was inexperienced in his new position and thus was given time to improve his performance . . . [while] Carpinello and Landers had been provided with ample opportunity to observe plaintiff's management style and to reach the conclusion that plaintiff's approach was inconsistent with that of DOS." (Defs.' Reply Mem. at 6.) It is not the Court's role to second guess a decision that was based on Defendant's view of the work of its employees. See Montana v. First Fed. Sav. and Loan Ass'n of Rochester (2d Cir. 1989) 869 F.2d 100, 106 (the ADEA does not hand federal courts a "roving commission to review business judgments"); Meiri, 759 F.2d at 995 (courts "must refrain from intruding into an employer's policy apparatus or second-guessing a business's decision-making process"). Without affirmative evidence that Morris and Hawkins were similarly situated in all respects, we cannot find that Morris has presented sufficient evidence to raise an inference of discrimination. Morris' failure in this regard undermines his attempt to make out a prima facie case of race discrimination. See Bampoe, 93 F. Supp.2d at 371. Thus, the undisputed facts that Morris' replacement, as well as the two decisionmakers in the case, were also white become relevant to our consideration of the fourth element of the prima facie case. (Defs.' Reply Mem. at 5; Neal Decl. at ¶¶ 4, 7 and Ex. 1.) Where all decision-makers are members of a plaintiff's protected class, courts have found an inference against discriminatory intent. See Zhang 2000 U.S. Dist. LEXIS 6237 at *21; Elrod v. Sears, Roebuck Co. (11th Cir. 1991) 939 F.2d 1466, 1471. Taking the evidence as a whole, we can draw no inference of race discrimination, and Morris therefore fails to satisfy the essential fourth element of his prima facie case on his race claim. O'Connor, 517 U.S. at 313. Accordingly, Defendant's motion for summary judgment on the race claim is GRANTED and Plaintiff's partial summary judgment motion for same is DENIED.

Carpinello, Landers, and Morris' replacement were also older than Morris. This evidence is not fatal to Morris' prima facie case on the age claim because Morris has presented sufficient direct evidence of age discrimination.

V. Defendant's Burden to Show a Non-Discriminatory Reason for Discharge

Because we have found that Morris has made out a prima facie case in the age discrimination context, Defendant now has the burden to articulate a legitimate and non-discriminatory reason for Morris' discharge. See Burdine, 450 U.S. at 254-255. To satisfy this burden at the summary judgment stage, a defendant need not show that they made the most prudent choice, "but only that the reasons for its decision were nondiscriminatory." Davis v. University of N.Y. (2d Cir. 1986) 802 F.2d 638, 641. Defendant argues that Morris was discharged because he was not considered an efficient manager and that his management style differed from the management style that DOS was seeking. (Defs' Mem. in Supp. at 2, 3.) This explanation is not entirely persuasive, as throughout Morris' career, he received performance review ratings that never fell below "good" and his final review found him to be "Very good —." (Compl. at ¶ 27; Felix Decl. Exs. 11, 12, 13.) We find it difficult to reconcile Defendant's positive reviews of Plaintiff over the course of his lengthy employment with their ex post characterization of his work as inefficient. (Defs.' Mem. in Supp. at 2.) Nonetheless, whether Defendant's explanation is a credible one is a question of fact for a jury, and not one to be decided by this Court at the summary judgment stage.

VI. Plaintiff's Burden to Show Proffered Reasons are Pretextual

Because Defendant has articulated a legitimate non-discriminatory reason for its action, the burden shifts back to Morris to avoid summary judgment by producing evidence to indicate that his age w as the true reason for his discharge. See Gallo, 22 F.3d at 1224-25. Morris must show that there is a material issue of fact as to whether (1) the employer's asserted reason for discharge is false or unworthy of belief and (2) more likely than not the employee's age was the real reason for the discharge. See St. Mary's Honor Ctr. v. Hicks (1993) 509 U.S. 502, 516-517; Van Zant v. KLM Royal Dutch Airlines (2d Cir. 1996) 80 F.3d 708, 714; Gallo 22 F.3d at 1225; Woroski, 31 F.3d at 108-109. Morris essentially makes two arguments to support his claim that Defendant's proffered reason for his dismissal was mere pretext for the real reason, his age. First, Morris claims that Landers' remarks are direct evidence of age discrimination. We considered this argument in the context of Morris' prima facie case, supra, and found Morris has presented sufficient evidence to demonstrate that a material issue of fact and a nexus between Plaintiff's termination and the age-based comments have been demonstrated. See Blanke v. Rochester Tel. Corp. (W.D.N.Y. Feb. 5, 1999) No. 96 Civ. 6200L, 1999 WL 66006, at *3.

Second, Morris claims that Defendant's proffered explanation that he was an inefficient manager whose style was not compatible with the DOS' requirements is not credible because he had a good work history, evidenced by performance evaluations that were always above a rating of "good" as well as various commendations for his work. (Pl.'s Reply mem. at 13-14.) We find this argument persuasive. "Actions taken by an employer that disadvantage an employee for no logical reason constitute strong evidence of an intent to discriminate." Stratton v. Department for the Aging for the City of New York (2d Cir. 1997) 132 F.3d 869, 879 n. 6. See also Bullard v. Sercon Corp. (7th Cir. 1988) 846 F.2d 463, 466 (fact that an employee is fired without "good cause" may be evidence of discrimination in some cases); In re Lewis (6th Cir. 1988) 845 F.2d 624, 633 (Employer's decision to fire plaintiff "may have been so unusual or idiosyncratic as to shed light upon [its] motivation in firing here. The more questionable the employer's reason, the easier it will be for the jury to expose it as pretext."). Defendant has not explained why Morris would consistently and repeatedly receive positive performance evaluations if he was, as it now contends, an inefficient manager whose style was at odds with DOS's needs. Thus, we find that the evidence on which Morris relies is sufficient for a reasonable juror to conclude that DOS may have constructively discharged him because of his age. See Mesnick v. General Electric Co. (1st Cir. 1991) ("if the employer offers a shaky, hard-to-swallow reason for its actions, logic counsels that the plaintiff's . . . burden [to prove pretext] should become correspondingly lighter") cited with approval in Stratton 132 F.3d at 879 n. 6. Accordingly, Defendant's motion for summary judgment as to Morris' ADEA claim is DENIED.

Morris urges the Court to apply the "mixed motive" test set forth in Price Waterhouse. (Pl.'s Mem. of L. in Opp'n to Defs.' Rule 56 Summ. J. Mot. and in Supp. of Pl.'s Req. that Summ. J. be Granted on his Race Claims at 34 (hereinafter "Pl.'s Mem. in Opp'n.) Because we have decided Defendant's motion for summary judgment on the age claim under the more restrictive McDonnell Douglas analysis we do not now need to consider the matter under the "mixed motive" test.

Conclusion

For the foregoing reasons, it is hereby ORDERED that

Defendant's motion that Plaintiff's claims as against DO S be dismissed is GRANTED.

Defendant's motion for summary judgment on the race claim is GRANTED. Plaintiff's partial motion for summary judgment on same is DENIED.

Defendant's motion for summary judgment on the age claim is DENIED.

SO ORDERED.