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WALDRON v. SL INDUS.

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY


April 21, 1994

REED WALDRON, Plaintiff
v.
SL INDUSTRIES, INC; and SL WABER, INC, Defendants

The opinion of the court was delivered by: JOSEPH E. IRENAS

MEMORANDUM OPINION GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

 IRENAS, District Judge:

 Plaintiff was employed by the defendants from 1972 until 1986, and again from January of 1989 until August of 1991, at which time his employment was terminated. Sixteen months after his termination, plaintiff filed a complaint in which he asserted claims under the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq., and the New Jersey Law Against Discrimination, N.J.S.A. 10:5-1 et seq.

 The defendants now move for summary judgment, alleging that the evidence of age discrimination adduced by the plaintiff is insufficient to create a triable issue of fact. Because we find that plaintiff has failed to present sufficient evidence of a discriminatory animus behind the defendants' decision to terminate his employment, summary judgment will be granted in favor of the defendants.

 I. BACKGROUND

 A. Factual Background

 Defendant SL Waber, Inc. ("Waber") is a subsidiary of defendant SL Industries, Inc., that manufactures and distributes "multiple outlet strips, surge suppressors and other products designed to protect sensitive electrical and electronic equipment from power line surges, disruptions, and noise." Defendants' Brief in Support at 1-2.

 Plaintiff Reed Waldron was employed by SL Waber from 1972 until 1986, when he was laid off pursuant to a reorganization/personnel cutback. *fn1" Plaintiff took a position with PTL, a division of the Pentron Corporation, which lasted for approximately two months. He then accepted a position with Electronic Protection Devices, a division of General Power Corp., which lasted for approximately two years.

 While at the 1988 Comdex trade show in Las Vegas, plaintiff abruptly ended his relationship with General Power and sought reinstatement at Waber. *fn2" In January of 1989, plaintiff was rehired by Waber as a full-time consultant to oversee a line of products that Waber was planning to acquire from General Power and resell under its own private label. *fn3" When the private label arrangement fell through in or around July of 1989, Waber offered plaintiff an opportunity to remain with the company in a quasi-sales representative capacity for the Electrical and Electronics markets, *fn4" whereby plaintiff would receive a guaranteed salary of $ 2,000.00 a month plus a five percent override on shipments above a certain number.

 Plaintiff received three promotions during his second "tour of duty" with Waber. In December of 1989, plaintiff was given responsibility for the Consumer market as well as the Industrial. In July of 1990, after Waber decided to divide the position of Industrial Market Manager into Electrical and Electronics market components, plaintiff was elevated to the newly-created position of Electrical Market Manager. *fn5" In March of 1991, with the departure of the Electronics Market Manager, the positions were consolidated, and plaintiff was named Industrial Market Manager.

 On August 8, 1991, plaintiff was advised that his position would be terminated due to a planned reorganization. Defendants explain that the decision was made to reintroduce the bifurcated Electronics Manager/Electrical Manager system, and that, "having had an opportunity to observe and assess Mr. Waldron's performance and abilities for more than a year, Waber made a legitimate business judgment that he was not the best candidate for either of the two newly-created positions." Brief in Support at 7. At the time of his termination, plaintiff was 63-3/4 years old.

 B. Procedural History

 Plaintiff filed suit in this District on December 30, 1992, alleging claims under the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et seq., and the New Jersey Law Against Discrimination ("LAD"), N.J.S.A. 10:5-1 et seq. Extensive discovery was completed, and a trial date was set for April 18, 1994.

 On March 28, 1994, defendants filed the instant motion for summary judgment, alleging that the evidence of age discrimination adduced by the plaintiff was insufficient to create a triable issue of fact. In addition, defendants argued that plaintiff's rehiring by the company at age 61 created a "strong inference" that age discrimination was not the real reason for his termination. Plaintiff responded that his evidence was "fully sufficient, both to establish a prima facie case and to case serious doubt on the credibility of [the defendants'] proffered defenses."

 II. LEGAL ANALYSIS

 A. Standard of Review in Summary Judgment Cases

 Under Fed. R. Civ. P. Rule 56(c), "summary judgment is proper 'if 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 a judgment as a matter of law.'" Celotex Corp. v. Catrett, 477 U.S. 317, 322, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986).

 At the summary judgment stage, it is not the role of the judge to weigh the evidence or to evaluate its credibility, but to determine "whether there is a genuine issue for trial." Id. at 249. There is no issue for trial unless there is sufficient evidence favoring the nonmoving party such that a reasonable jury could return a verdict for that party. Id. A non-moving party may not rest upon mere allegations, general denials, or vague statements. If the non-moving party's evidence is merely colorable, or is not significantly probative, summary judgment may be granted. Bixler v. Central Penn. Teamsters Health & Welfare Fund, 12 F.3d 1292 (3d Cir. 1993); Trap Rock Indus. Inc. v. Local 825, Int'l Union of Operating Engineers, 982 F.2d 884, 980-91 (3d Cir. 1992).

 The substantive law governing the dispute will determine which facts are material, and only disputes over those facts "that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). Finally, summary judgment should be granted unless a dispute over a material fact is genuine, which the Court has defined as such that "a reasonable jury could return a verdict for the nonmoving party." Id.

 B. Plaintiff's Claims for Age Discrimination

 Age discrimination claims under the LAD and the ADEA are - governed by the same standards and burden of proof structures applicable under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. See generally Erickson v. Marsh & McLennan Co., 117 N.J. 539, 550, 569 A.2d 793 (1990); Clowes v. Terminix Int'l, Inc., 109 N.J. 575, 595, 538 A.2d 794 (1988). Given this identity of standards, the Court will consider plaintiff's LAD and ADEA claims together.

 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). To recover under the ADEA, a plaintiff must prove "by a preponderance of the evidence that age was the determinative factor in the employer's [adverse employment] decision." Bartek v. Urban Redevelopment Authority, 882 F.2d 739, 742 (3d Cir. 1989). The three-stage shifting allocation of the burden of proof, originally developed in the context of Title VII employment discrimination cases, see McDonnell Douglas Corp. v. Green, 411 U.S. 792, 36 L. Ed. 2d 668, 93 S. Ct. 1817 (1973); Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 67 L. Ed. 2d 207, 101 S. Ct. 1089 (1981), has been adapted for use in claims filed under the ADEA. See, e.g., Maxfield v. Sinclair International, 766 F.2d 788 (3d Cir. 1985), cert. denied 474 U.S. 1057, 88 L. Ed. 2d 773, 106 S. Ct. 796 (1986).

 An employee asserting a disparate treatment claim carries the burden of proving, by a preponderance of evidence, that the employer intentionally discriminated against him on the basis of a particular protected characteristic, in this case age. See St. Mary's Honor Ctr. v. Hicks, 125 L. Ed. 2d 407, 113 S. Ct. 2742, 2753 (1993); Ezold v. Wolf, Block, Schorr and Solis-Cohen, 983 F.2d 509, 522 (3d Cir.1992), cert. denied, 126 L. Ed. 2d 56, 114 S. Ct. 88 (1993). Because this is a "pretext" case, and not a "mixed motive" case, the plaintiff must prove by direct or indirect evidence that Waber's "discriminatory motive was the sole cause of the employment action." Griffiths v. CIGNA Corp., 988 F.2d 457, 472 (3d Cir.), cert. denied, 126 L. Ed. 2d 145, 114 S. Ct. 186 (1993). *fn6"

 In McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1983), the Supreme Court set forth a detailed method for establishing an inference of discrimination in the absence of direct evidence. Id. at 802-05, 93 S. Ct. at 1824-26. McDonnell Douglas implemented a three-step analysis, which is applicable in the summary judgment context and which allocates the burden of production as follows: (1) plaintiff must come forth with sufficient evidence to establish a prima facie case of discrimination; (2) if plaintiff succeeds in establishing a prima facie case, the burden then shifts to the defendant, who must articulate some legitimate, non-discriminatory reason for the employee's rejection; (3) if defendant is able to meet this burden, plaintiff must be given the opportunity to come forth with sufficient evidence to show that the legitimate reasons offered by the defendant should not be believed and that the protected characteristic was "the real reason" for the adverse employment action. St. Mary's, 113 S. Ct. at 2752; see also Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 252-53, 67 L. Ed. 2d 207, 101 S. Ct. 1089 (1981); Griffiths, 988 F.2d at 472.

 The Supreme Court's decision in St. Mary's clarified step three in the McDonnell Douglas framework. Previously, the plaintiff could meet the burden of proof merely by establishing that the non-discriminatory reason proffered by the defendant was not credible. See Ezold, 983 F.2d at 522; Bennun v. Rutgers State University, 941 F.2d 154, 170 (3d Cir.1991), cert. denied, 117 L. Ed. 2d 124, 112 S. Ct. 956 (1992).

 Under St. Mary's, the plaintiff does not necessarily meet the burden by merely producing evidence that defendant's articulated reason is pretextual, but instead must prove by a preponderance of evidence that unlawful discrimination was the determinative factor underlying the adverse employment action. 113 S. Ct. at 2752 ("It is not enough to disbelieve the employer; the factfinder must believe the plaintiff's explanation of intentional discrimination."); see also Griffiths, 988 F.2d at 472; E.E.O.C. v. MCI Int'l, Inc., 829 F. Supp. 1438, 1451 (D.N.J. 1993) (applying St. Mary's in summary judgment context).

 1. The Prima Facie Case

 To establish a prima facie case of age discrimination, the plaintiff must prove by a preponderance of evidence that he was (1) a member of a protected class (here, persons aged forty to seventy), (2) qualified for the position, (3) dismissed from, or not selected for, a position, and (4) passed over in favor of a candidate sufficiently younger to permit an inference of age discrimination. Maxfield, 766 F.2d at 792-93; see also Ezold, 983 F.2d at 522. "Establishment of the prima facie case in effect creates a presumption that the employer unlawfully discriminated against the employee." Burdine, 450 U.S. at 254; see also Gray v. York Newspapers, Inc., 957 F.2d 1070, 1078 (3d Cir. 1992).

 Plaintiff indicates that (1) he was 63 years old at the time his employment was terminated, (2) he was qualified for the positions of Electrical or Electronics Marketing Manager, (3) he did not receive either position, and was in fact terminated, and (4) the position of Industrial Marketing Manager was ultimately given to Ed Brown, who at the time was 32 years old. Plaintiff has therefore presented evidence sufficient to establish a prima facie case.

 2. Articulation of Legitimate, Non-Discriminatory Reasons for the Employee's Termination

 If a prima facie case is established, the burden of production shifts to the defendant to articulate a legitimate, nondiscriminatory reason for the employee's rejection. If the defendant fails to produce evidence which, if taken as true, would permit the conclusion that there was a non-discriminatory reason for the defendant's action, judgment must be entered on behalf of the plaintiff. St. Mary's, 113 S. Ct. at 2747; see also Ezold, 983 F.2d at 522; Chipo llini v. Spencer Gifts, Inc., 814 F.2d 893, 898 (3d Cir.), cert. dismissed, 483 U.S. 1052 (1987). However, the defendant's burden is not one of persuasion, but only of production of evidence logically supporting a reason for the dismissal. *fn7" Burdine, 450 U.S. at 254-55; Bellissimo v. Westinghouse Elec. Corp., 764 F.2d 175, 179 (3d Cir. 1985), cert. denied, 475 U.S. 1035, 89 L. Ed. 2d 353, 106 S. Ct. 1244 (1986).

 Defendants have presented the following explanation for the adverse employment decisions made as to the plaintiff: After a year in which Industrial Market sales dropped by more than $ 1.2 million from the preceding year, Waber concluded that "further restructuring changes would be necessary" if the company was to survive and prosper. Brief in Support at 6. One of these changes involved reverting to the previous bifurcated organizational structure under which each segment of the Industrial Market -- Electrical and Electronics -- would have its own manager.

 Waber determined that plaintiff was not the best candidate for either of the two positions, despite his experience as Electrical Market Manager and Industrial Market Manager, for a variety of reasons, including:

 

1. Plaintiff's refusal to visit key customer accounts at their corporate headquarters, despite several conversations with Mr. Mazik in which plaintiff was reminded of the corporate policy encouraging such visits.

 

2. Plaintiff's inability to develop key accounts or to develop a strategy for the industrial market, despite the assistance of Ron Mazik. See Mazik Dep. at T85œ13-T86œ3:

 

As I said before, he couldn't or wouldn't visit major accounts in the electrical distribution market. His failure to develop a meaningful and detailed strategic plan in the industrial market. He was only asked to do half, it was a major disappointment for myself. And it was the final straw. And I just realized that in the reorganized structure that -- where we had to go after major accounts that Reed didn't seem like the right guy for the job. *fn8"

 

3. Plaintiff's poor performance in constructing his portion of the business plan for fiscal year 1992, which required Mazik and Woznicki "to do a massive overhaul to get it in shape to present it to our corporate office." Woznicki Dep. at T112œ20-24.

 

4. Plaintiff's poor performance at a "dress rehearsal," held a few days before the presentation of Waber's business plan to corporate management. Both sides concur that the plaintiff did "a lousy job," with plaintiff indicating that he "came off as unprepared, which I was." Waldron Dep. at T494.

 

5. Plaintiff's apparent "uncertainty of the direction in which the company was headed." Brief in Support at 7. During the presentation to management, plaintiff asserted that the plan of action was to foster growth by increasing "[sales] representative commission[s]," when in fact the marketing staff had agreed beforehand that the emphasis would be placed on fostering new accounts. See Woznicki Dep. at T113œ1-24 (noting that the comment "made [Woznicki] look bad and Ron look bad"); T114œ12-15 ("It became obvious during that time and even at the meeting after that comment was made that [plaintiff] was unwilling or would be unable to do the things we needed to have done."). *fn9"

  This evidence, taken as true, presents several non-discriminatory reasons for the termination of plaintiff's employment. We therefore find that the defendants have met their burden of production.

 3. Demonstration that the Proffered Explanations Are Pretexts for Discrimination

 Once the defendants provide evidence to defend their "legitimate, nondiscriminatory" reasons for their actions, the presumption of illegal discrimination is rebutted and drops from the case. St. Mary's, 113 S. Ct. at 2750. The plaintiff must then prove by a preponderance of the evidence that the defendant's proffered reasons are merely a pretext for unlawful discrimination. At this stage, the plaintiff's burden of proving pretext merges with the ultimate burden of persuading the court that the plaintiff has been the victim of intentional discrimination. Plaintiff must show both that the reason was false, and that discrimination was the real reason. "The ultimate question [is] discrimination vel non." Aikens, 460 U.S. 711, 714. *fn10" , 75 L. Ed. 2d 403, 103 S. Ct. 1478

 

Title VII does not award damages against employers who cannot prove a nondiscriminatory reason for adverse employment action, but only against employers who are proven to have taken adverse employment action by reason of (in the context of the present case) [age] That the employer's proffered reason is unpersuasive, or even obviously incorrect, does not necessarily establish that the plaintiff's proffered reason of [age] is correct.

 St. Mary's, 113 S. Ct. at 2756. And under the ADEA, as in Title VII, even if the employer's explanation for its decision is unworthy of credence, a plaintiff must also show at least indirect evidence of age motivation, which the Supreme Court distinguished from "other unsavory motives." MCI Int'l, Inc., 829 F. Supp. at 1450 (quoting Hazen Paper Company v. Biggins, 123 L. Ed. 2d 338, 113 S. Ct. 1701, 1708 (1993)).

 While St. Mary's was not a summary judgment case, its principles can easily be incorporated into the conventional summary judgment framework, as explained in E.E.O.C. v. MCI Int'l, Inc., 829 F. Supp. at 1451:

 

Defendant, as the moving party, bears the burden of demonstrating that there are no genuine issues of material fact for trial. Because plaintiff, as the non-moving party, will bear the burden of proof at trial, the defendant may satisfy its burden by showing that plaintiff has failed to adduce evidence sufficient to establish an essential element which plaintiff would have to prove at trial -- here, that the defendant's reasons were false and that discrimination was the real reason, and plaintiff must come forward with specific facts showing that there is, indeed, a genuine issue for trial.

 

The facts, of course, must be viewed in the light most favorable to plaintiff and all reasonable inferences must be drawn in plaintiff's favor. Thus, where the falsity of defendant's reasons is at issue, the facts must be viewed as the plaintiff views them unless, of course, those facts are not probative of the issue of falsity or because merely conclusory statements are offered. But even assuming the falsity of defendant's reasons for purposes of summary judgment, plaintiff will have to demonstrate as to a particular claimant that those false reasons together with the prima facie case raise a genuine issue of material fact as to whether the defendant intentionally discriminated against that claimant and, of course, may submit additional facts, if any, to support this claim. If plaintiff cannot do so, summary judgment will be granted; if plaintiff does do so, summary judgment will be denied.

 Id.11 Plaintiff has presented evidence (1) to cast doubt on the reasons proffered by the defendants for the adverse employment action and (2) to demonstrate that age discrimination was the actual reason. We will examine each in turn.

 a. Refuting the Defendants' Reasons

 Plaintiff presents the following evidence and arguments to rebut the defendants' explanation for the termination:

 

1. Corporate Reorganization: While plaintiff acknowledges an industry-wide slump at the time of his termination, he maintains that the defendants' explanation of corporate reorganization was nonetheless pretextual because (1) the position of Electrical Market Manager was never advertised, *fn12" (2) the changes were not part of the business plan presented in June, and (3) several months after plaintiff's departure, the decision was made to consolidate the Electrical and Electronics Market Managers positions into one position, which was given to Mr. Brown, and add a second position at a lower tier on the organizational chart.

 

2. Calling on Key Accounts: Plaintiff concedes that he disregarded the company policy of calling on key accounts because he felt that "you don't have to go out and call on them all the time to keep a relationship going." Waldron Dep. at T439œ9-11. However, he asserts that this reason is also pretextual because (1) three months prior to his termination, some of Waldron's key accounts were transferred to Ed Brown, and (2) Brown did not call on key accounts when he was promoted to Electronics Market Manager.

 

3. The Business Plan "Dress Rehearsal": Plaintiff alleges that the defendants' reliance on his poor performance at the business plan dress rehearsal was pretextual because he performed adequately at the actual presentation.

 Reading these allegations generously, we find that, at best, they call into question a few of the defendants' reasons for the termination. *fn13" However, most of plaintiff's "evidence" of pretext is in fact nothing more than conclusory allegations, the litigational equivalent of a raised eyebrow. It is questionable that this evidence, even when viewed in the light most favorable to the plaintiff, is sufficient to raise a genuine issue of fact as to pretext.

 In order to survive a motion for summary judgment, plaintiff must do more than simply cast doubt on the defendant's reasons for termination. Many termination decisions, such as the one in this case, are made on the basis of the employer's conclusion that the employee's job performance was unsatisfactory. It is difficult to imagine any case in which the plaintiff could not create a genuine factual dispute about whether his performance was satisfactory. That is, almost any litigant could argue that the proffered reasons for his termination were factually incorrect or incomplete. To allow a motion for summary judgment to be defeated simply because there was a dispute concerning the factual premises underlying the employer's termination decision would obviate the McDonnell Douglas/Burdine/ St. Mary's framework. The plaintiff must do more than dispute the accuracy of the reasons given for his termination. He must instead point to evidence of discrimination on the basis of plaintiff's status as a member of a protected class.

 A defendant may be wrong or misguided when taking adverse employment action. However, the law only offers a remedy when that adverse decision is motivated by an improper bias. We turn therefore to an analysis of the plaintiff's evidence of age discrimination. *fn14"

 b. The Evidence of Bias

 The sum total of plaintiff's evidence of bias is as follows:

 

1. Plaintiff argues that a "double standard" was applied when considering him and Ed Brown for the positions of Electrical Market Manager and Electronics Market Manager. While plaintiff was criticized for not making key account calls, Ed Brown, who had never made sales calls, was promoted. In addition, plaintiff notes that Ed Brown had less experience than he, although Brown had more continuous years of service to Waber. *fn15"

 

2. When plaintiff was promoted to the position of Industrial Market Manager in March of 1991, Mr. Mazik commented to him that he should lose weight, as it would make him feel better and "look younger." *fn16"

 

3. Plaintiff perceived an absence of older employees in Waber's marketing and sales departments. Waldron Dep. at T403œ10-11.

 

4. Plaintiff mistakenly believed that SL Industries, the parent company of SL Waber, had previously lost an age discrimination suit.

 This evidence is insufficient as a matter of law to create a triable issue of material fact as to whether age discrimination was the motivating factor in the defendants' decision to terminate the plaintiff's employment.

 We reject plaintiff's contention that a "double standard" was applied in deciding whether the plaintiff was a suitable candidate for either of the market manager positions. The typical double standard case involves a situation in which a number of people apply for a particular position, candidates are evaluated according to the same objective criteria, and the criteria are applied differently to different candidates. See, e.g., Bennun v. Rutgers State Univ., 941 F.2d 154 (3d Cir. 1991), cert. denied, 117 L. Ed. 2d 124, 112 S. Ct. 956 (1992) (finding that employer's explanations of "poor quality and insufficient quality" of research were pretextual, where plaintiff demonstrated that he had published more articles and received more favorable reviews than non-Hispanic faculty who had been granted tenure); Kunda v. Muhlenberg College, 621 F.2d 532 (3d. Cir. 1980) (finding that employer's explanation that plaintiff was not promoted because of lack of master's degree pretextual, where other faculty members without master's degrees were promoted). However, where subjective criteria are employed, the Third Circuit has cautioned courts against "'unwarranted invasion or intrusion' into matters involving professional judgments about an employee's qualifications for promotion." Ezold, 983 F.2d at 527.

 The case at bar involved subjective business decisions as to whether the plaintiff and Ed Brown were suited for management positions comprising both "internal" (e.g., administration, telemarketing) and "external" (e.g., key account calls) components. There is no indication from the record that Mr. Brown was in any way deficient as to the internal components of the position, *fn17" and his abilities with respect to the external portion were unproven. Plaintiff, on the other hand, had demonstrated his weakness in handling administrative matters on several occasions (particularly during the preparation and presentation of the business plan), while simultaneously indicating his unwillingness to do at least a portion of the external tasks (namely, the key account calls). *fn18"

  Defendants in this case were required to evaluate the plaintiff and Mr. Brown in a number of categories, many of which were highly subjective and required professional judgment about the relative merits of each candidate. Each of the candidates offered different strengths, without some evidence of discrimination, we will not second-guess the defendants' evaluations. Cf. Ezold, 983 F.2d at 512-13 (reversing trial court for "impermissibly substituting its own subjective judgment" for the employer's). On the record before us, we cannot find that defendants employed a double standard in evaluating the plaintiff's qualifications.

 Mazik's comment that plaintiff might consider losing weight in no way indicates that plaintiff's termination was motivated by age. The comment was made five months before the plaintiff's termination, in the context of a promotion. Plaintiff concedes that the comment was not tied in any way to his continued employment, and even remarked that he did not give the comment a second thought until after his termination. Waldron Dep. at T401œ9. In short, we believe the comment to be a stray remark entitled to little if any weight, as explained in Ezold, 983 F.2d at 545:

 

Stray remarks by non-decisionmakers or by decisionmakers unrelated to the decision process are rarely given great weight, particularly is they were made temporally remote from the date of decision. See [ Price Waterhouse v.] Hopkins, 490 U.S. at 277, 109 S. Ct. at 1804 (O'Connor, J., concurring); Frieze, 950 F.2d 538, 541; Guthrie v. Tifco Indus., 941 F.2d 374, 378-79 (5th Cir. 1991), cert. denied, 112 S. Ct. 1267 (1992). We decline to depart from this principle in the present case.

 Id. *fn19"

 As for plaintiff's claims regarding the number of Waber employees over age 40, we note that while statistical evidence of an employer's pattern and practice with respect to employment of a protected class may be relevant to a showing of pretext, see Ezold, 983 F.2d at 542-43 and cases cited, plaintiff's bald assertions are insufficient to raise a triable issue either of pretext or discriminatory animus. *fn20"

 Finally, we note that plaintiff's reliance on a prior age discrimination suit is misplaced. The suit was filed three years before the plaintiff's hiring, and five years before his termination. *fn21" It was brought against SL Industries, Waber's parent company, and had nothing to do with Waber. Lastly, the suit was settled out of court -- it was not, as plaintiff stated at deposition, a judgment against Waber. Indeed, while plaintiff argues that the 1986 suit demonstrates a tendency towards age discrimination, we believe than a contrary inference can also be drawn -- that a prior age discrimination suit might have made the company more sensitive to its older employees.

 In any event, this meager evidence comes far short of establishing "pretext for discrimination," nor does it even raise a triable issue of fact. Even were we to find that plaintiff had raised a genuine issue of fact as to pretext, the record is simply devoid of evidence of discrimination. Our conclusion is bolstered by the fact that plaintiff was hired for his second "tour of duty" with Waber when he was 61 years old and promoted three times in the next two years, which hardly demonstrates a discriminatory animus towards older workers. Summary judgment will therefore be granted in favor of the defendants. An appropriate order will be entered.

 Date: April 21, 1994

 JOSEPH E. IRENAS, U.S.D.J.


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