Ziegler called Cherchi many times to determine whether Cherchi had decided to accept the assignment in Baltimore. See Cherchi Dep. at 41-42. Cherchi did not make a definitive decision, however, until the end of June; he finally indicated he was unwilling to relocate because of personal and economic reasons. Id. at 42. On June 27, 1985, Cherchi asked Ziegler if there was any possibility of obtaining comparable employment in the New York area, but after researching the inquiry, Ziegler indicated no positions were available. Id. at 42-43; 7/8/85 Letter from Cherchi to Ziegler (attached to Plaintiff's Interrs.).
The reasons why Cherchi was unwilling to relocate were that: his mother was hospitalized with kidney problems; the woman with whom he was living and her daughter were unwilling to move, in part because the daughter was about to enter a nine month secretarial course for which the tuition had already been paid; much of his family resided in the greater New York area; he believed he would lose money if he sold his house in New Jersey; and he was disappointed because he perceived the Territory Manager position in Baltimore as a lesser position even though the salary was the same. See Cherchi Dep. at 11-12, 17, 18-19, 22-23, 35, 55. Although Cherchi now argues he was also unwilling to move because he was not given enough time to make the transition, he apparently did not request additional time nor did he indicate he would be willing to accept the position at some later time. See id. at 51.
By letter, dated July 1, 1985, Ziegler confirmed Cherchi's unwillingness to accept his new assignment, and notified Cherchi of his separation from Mobil effective June 29, 1985. By letter dated July 3, 1985, Mobil notified Cherchi of his benefits upon termination. On July 8, 1985, Cherchi responded indicating his interest in receiving employee benefits provided in cases of involuntary separation. By letter, dated July 15, 1985, Ziegler responded to Cherchi's inquiry. Ziegler explained that Cherchi's refusal to accept his position in Baltimore was viewed as a resignation; thus, Cherchi was not eligible for the Mobil Termination Allowance. However, Ziegler indicated the Baltimore position was still available for Cherchi; Ziegler asked Cherchi to reconsider his rejection of the position and again asked Cherchi to accept the Baltimore position. See Letters, dated 7/1/85, 7/3/85, 7/8/85 and 7/15/85 (attached to Plaintiff's Interrs.). Cherchi declined the second offer of the Baltimore position.
Cherchi continued to seek the termination allowance from Mobil. On October 9, 1985, he wrote to the Benefit Plans Administration Department, and asked for a review of the determination that he was not eligible for the termination allowance. See Letter, dated 10/9/85 (attached to Plaintiff's Interrs.). Apparently Cherchi's efforts to obtain the termination allowance were unsuccessful.
On December 9, 1985, Cherchi filed a charge of age discrimination with the Equal Employment Opportunity Commission. Cherchi alleged he had been terminated because of his age and that the reorganization of the Special Products Department was a pretext for age discrimination. See EEOC Charge (attached to Defendant's Interr. No. 16.) The EEOC did not take favorable action on Cherchi's age discrimination charge. Cherchi Dep. at 64.
Cherchi instituted this action on June 25, 1987. The complaint contains two counts. The First Count alleges plaintiff was discharged on or about July 1, 1985, "without prior written notice or opportunity," after he had complained about job assignments and relocations which were forced upon him in order to obtain his involuntary termination. The complaint alleges Cherchi was ultimately replaced by less qualified employees who were under forty years of age. The First Count further alleges plaintiff's job performance was satisfactory, and that the realignment of areas and area managers was merely a pretext for age discrimination.
See Complaint, First Count, paras. 2-5. Under this count plaintiff seeks reinstatement, or in the alternative, front-pay, as well as back pay.
The Second Count of the complaint alleges Mobil has engaged in a pattern or practice of reducing its salaried work force through terminations, lay-offs, and by coercing employees to retire or depart involuntarily. The Second Count alleges this practice has disproportionately affected Mobil's older employees, specifically those between the ages of forty and seventy. Id., Second Count, para. 5. The Second Count further alleges Cherchi has suffered emotional distress as a result of his discharge and despite diligent efforts has not been able to find comparable employment. Id., paras. 7-8. Under this count plaintiff seeks reinstatement, back pay, as well as compensatory and punitive damages.
After conducting discovery, Mobil moves for summary judgment. Mobil argues it is entitled to summary judgment because Cherchi cannot establish a prima facie case of discrimination either under disparate treatment or disparate impact theories. Mobil argues further that even if plaintiff can establish a prima facie case, he has not raised a genuine issue of fact as to whether Mobil's proffered reasons for its actions are a pretext for age discrimination. For the reasons which follow, Mobil's motion for summary judgment is granted.
A. Summary Judgment Standard
To prevail on a motion for summary judgment, the moving party must establish "there is no genuine issue as to any material fact and that [it] is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). The district court's task in deciding the motion is not to "determine the truth of the matter but to determine whether there is a genuine [factual] issue" which can only be properly resolved by a trier of fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). All evidence submitted must be viewed in a light most favorable to the party opposing the motion. See Matsushita Electric Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986).
Although the summary judgment hurdle is difficult to overcome, it is by no means insurmountable. As the Supreme Court has stated, once the party seeking summary judgment has pointed out to the court the absence of a fact issue,
its opponent must do more than simply show that there is some metaphysical doubt as to the material facts . . . . In the language of the Rule, the nonmoving party must come forward with 'specific facts showing that there is a genuine issue for trial.' . . . Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no 'genuine issue for trial.'