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Byrne v. Zurich-American Insurance Group

UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY


February 5, 2001

EDWARD BYRNE,
PLAINTIFF,
V.
ZURICH-AMERICAN INSURANCE GROUP, INC., DINOS IORDANOU, AND BOB DAVIS, J/S/A,
DEFENDANTS.

The opinion of the court was delivered by: Thompson, U.S.D.J.

NOT FOR PUBLICATION

OPINION

This matter is before the Court on motion by defendants Zurich American Insurance Company ("Zurich"), Dinos Iordanou, and Bob Davis for summary judgment pursuant to Fed. R. Civ. P. 56. The Court heard oral argument on July 17, 2000. For the reasons stated below, the motion will be granted.

BACKGROUND

I. Procedural Background

Plaintiff filed this age discrimination case in the Superior Court of New Jersey, Law Division, Mercer County, asserting that he was terminated in violation of the New Jersey Law Against Discrimination ("LAD"), N.J. Stat. Ann. § 10:5-1 et seq., and the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et seq., and asserting claims for intentional infliction of emotional distress, implied employment contract and breach of covenant of good faith and fair dealing. *fn1 On June 11, 1999, defendants removed the case to this Court.

Prior to filing in state court, plaintiff had filed a Charge of Discrimination with the U.S. Equal Employment Opportunity Commission ("EEOC"). In the Charge, plaintiff stated that he was the only employee in his division at Zurich terminated and that he had been the oldest employee in the division. On January 25, 1999, the EEOC dismissed the charge, stating that it was unable to conclude that the information obtained established violations of the statutes, and issued a Right to Sue letter.

II. Plaintiff's Job Performance

Plaintiff Edward Byrne, a New Jersey resident, was hired by Zurich on July 1, 1991 as a Claims Account Executive for its Liberty Plaza office in New York, New York. He was 43 years old. Zurich provides property, casualty and specialty insurance throughout the United States. Bob Davis was hired by Zurich in 1996 as the Regional Vice President for International Accounts. Dinos Iordanou is the Chief Executive Officer of Zurich.

Plaintiff's responsibilities included being a liaison between the claims department and Zurich's customers and prospective customers. Specifically, plaintiff developed instructions for the use of the claims department which outlined a particular customer's service needs. Thereafter, if the customer had a problem, plaintiff would "troubleshoot" with the customer and help work out a solution. Plaintiff also arranged claim reviews with customers and brokers. Occasionally, plaintiff performed marketing duties.

Like other claims account executives, plaintiff received an annual performance review called a Performance Management Plan ("PMP"). Plaintiff received ratings on "Major Accountabilities," "General Business Accountabilities" and an "Overall Rating." The accountabilities are defined as "what the employee does." For example, major accountabilities included, inter alia, acting as a liaison between insureds/producers and the claim department; representing the Zurich claims department at meetings; and conducting claim reviews. The general business accountabilities included, inter alia, planning and organizing; communication and interpersonal effectiveness; and handling specific situations. The ratings were: exceeds requirements; periodically exceeds requirements; meets requirements; marginally meets requirements; and does not meet requirements.

In his PMP for the period July 1991 through July 1992, plaintiff was evaluated on six major accountabilities and four general business accountabilities. Plaintiff received the following ratings on major accountabilities: one rating of does not meet requirements, three marginally meets requirements and two meets requirements. In the comments section, the evaluator noted that plaintiff did not perform his work in a timely manner in four of the accountabilities. For the four general business accountabilities, plaintiff received three ratings of marginally meets requirements and one meets requirements. Comments focused on plaintiff's lack of timeliness and need to improve communications skills. Plaintiff received an overall rating of marginally meets requirements.

On June 25, 1992, plaintiff received a memorandum regarding his performance review from Walter J. Nicoletti, his supervisor. The memo set forth five corrective actions that plaintiff was required to perform within the following 60 days in order to raise his overall performance.

Plaintiff's next PMP covered the period July 1, 1992 through December 31, 1992. The ratings for the six major accountabilities were generally at the meets requirements level and the comments noted improvement in plaintiff's skills. For the four general business accountabilities, plaintiff received one rating in between does not meet requirements and marginally meets requirements; two marginally meets requirements and one meets requirements. The comments emphasized the need for better time management and for a more pro-active approach in handling his work. Plaintiff received an overall rating in between marginally meets requirements and meets requirements.

In April 1993, Christine Curcio-Smith replaced Nicoletti as plaintiff's supervisor. Plaintiff's next PMP covered the 1993 calendar year. On the major accountabilities, plaintiff received the following ratings: one in between marginally meets requirements and meets requirements; four meets requirements; and one exceeds requirements. The comments focused on plaintiff's need to take a pro-active position regarding his claims and his lack of communication with the account team. For the four general business accountabilities, plaintiff received one in between does not meet requirements and marginally meets requirements; two marginally meets requirements; and one meets requirements. Comments noted time management problems and the need for a more pro-active approach. The evaluator also noted that plaintiff had received negative feedback from customers and account executives in the area of planning and organizing and communication and interpersonal effectiveness. Some risk managers asked that plaintiff be replaced on their accounts. Plaintiff received an overall rating of meets requirements. Final comments noted that plaintiff's overall performance in 1993 had been erratic. In response, plaintiff wrote on the PMP that he was handling more accounts than the two other claim account executives combined.

On March 31, 1994, plaintiff received a memorandum regarding his performance review from Curcio-Smith. In response to plaintiff's comments on his 1993 PMP, Curcio-Smith stated that plaintiff was not handing more accounts than the two other claim account executives combined. The memorandum explained that account assignments and workloads were based on the amount of activity that an account generates. Therefore, while plaintiff may have had a greater account listing, the number of his active accounts was in line with his colleagues. In addition, plaintiff's colleagues had more in-person quarterly claim reviews, which required extensive preparation.

Plaintiff's 1994 PMP followed a different format that rated four "Individual Accountabilities," including, inter alia, support account teams' marketing and production efforts; monitor large/sensitive claims, and conduct claim review; and provided an overall rating. Plaintiff received the following ratings: one does not meet requirements, two in between marginally meets requirements and meets requirements, and one meets requirements. In the comments section, the evaluator noted that four accounts requested that plaintiff be replaced as their claim coordinator and other accounts complained about plaintiff's servicing capabilities. In addition, plaintiff was advised to focus on time management skills. Plaintiff received an overall rating of marginally meets requirements.

In his 1995 PMP, plaintiff received one rating of marginally meets requirements, two ratings of meets requirements and one rating of periodically exceeds requirements. The overall rating was meets requirements. The PMP recognized plaintiff's improvement and noted that time management issues were being addressed. Plaintiff was advised to improve his pro-active skills.

In his 1996 PMP, plaintiff received a rating of meets requirements for all four individual accountabilities and for the overall rating. The review noted improvements in timing issues and taking a pro-active role in certain situations. On the other hand, the review noted that plaintiff needed to improve his communication skills and increase his interpersonal interaction.

III. Job Performance of Plaintiff's Colleagues

Plaintiff's colleagues included Orysia Iwasiw, Mike DiLella and Elaine Demske. Following is their overall ratings considered by Curcio-Smith in determining whose position to eliminate. See Curcio-Smith Depo. at 122-40.

Iwasiw received an overall rating of periodically exceeds requirements on her 1992, 1993, 1994 and 1995 PMPs; and an overall rating of meets requirements on her 1996 PMP.

DiLella received an overall rating of periodically exceeds requirements on his 1993 PMP; an overall rating of meets requirements on his 1994 PMP; and an overall rating of periodically exceeds requirements on his 1995 PMP. DiLella's 1996 PMP was not considered.

Demske received an overall rating of meets requirements on her 1993, 1994 and 1995 PMPs. Demske's 1996 PMP was not considered.

IV. The 1996 Performance Management Plain

Michael Collins was the supervisor for plaintiff and his colleagues, Iwasiw and DiLella, at the time of the 1996 review. Collins had prepared a draft PMP for plaintiff that gave him a rating of periodically exceeds for two accountabilities and for the overall rating. See Collins Depo. at 64; Byrne Depo. at 230-31. Collins also prepared draft PMPs for Iwasiw, DiLella and Colleen Rose, an administrative assistant, and gave all four employees drafts of their PMP to review. See Collins Depo. at 64. Based on his memory of the events, Collins testified that he gave similar ratings of periodically exceeds requirements to all of the employees with the exception of Rose, who received an overall rating of exceeds requirements. Id. at 67-68.

Collins then had a meeting with Bob Davis to finalize the PMPs. Id. at 65. Collins testified that Davis indicated that he did not think that the employees deserved an overall rating of periodically exceeds, which he interpreted as defining an exceptional employee. Id. at 66. Davis testified that he was responsible for ensuring consistency of the evaluations, which were completed by different supervisors but were supposed to represent the group as a whole. See Davis Depo. at 52. Collins told Davis that he had interpreted the periodically exceeds rating literally to define an employee who exceeded the requirements of the position on occasion. See Collins Depo. at 66. According to Collins, Davis requested that Collins lower the evaluation for plaintiff, as well as for all of the members of his staff at that time. Id. at 66-67. Davis testified that he could not recall whether he told Collins to reduce the evaluation of plaintiff or his colleagues. See Collins Depo. at 57.

After the final draft of the evaluations were distributed, Davis and Collins had a meeting with the four employees. See Collins Depo. at 68-69; Byrne Depo. at 230. During the meeting, Davis explained his interpretation of the ratings system and some of the employees expressed their dissatisfaction with his interpretation. See Collins Depo. at 69; see also Davis Depo. at 56. Plaintiff testified that he was told that his overall rating was reduced because Davis had not received a periodically exceeds rating for that year and, therefore, "no one else in the office was going to receive a periodically exceeds if he didn't receive a periodically exceeds." See Byrne Depo. at 230. Plaintiff acknowledged that Iwasiw, who was 35 to 40 years old, also had her 1996 overall rating lowered from periodically exceeds requirements to meets requirements. See Byrne Depo. at 107, 109, 231.

V. Zurich's Restructuring and Plaintiff's Termination

In a memorandum dated July 20, 1997, *fn2 Davis addressed the staffing requirements of the Risk Management Group - Northeast Division. The memorandum states that under the proposed structure of the new Northeast Region, the headcount would be reduced from 83 to 78 employees. In essence, Zurich combined its national and international claims division. See Davis Depo at 15. Davis was appointed Northeast regional manager of the combined division. Id. at 18. Davis then informed Curcio-Smith that she would lead plaintiff's group. See Curcio-Smith Depo. at 19-20.

Pursuant to the restructuring, one position was eliminated from plaintiff's group and Curcio-Smith was responsible for determining which person to terminate. Id. at 21, 23. She was instructed to base her decision on performance appraisals. Id. at 23. Curcio-Smith testified that she used four PMPs to evaluate plaintiff *fn3 ; three PMPs to evaluate Elaine Demeski, three to evaluate DiLella and five to evaluate Iwasiw. See Curcio-Smith Depo. at 122-40. Curcio-Smith did not review any PMPs for Bill Salvatore, a man in his mid-thirties, who had been hired in June 1997. Id. at 53-54. However, Curcio-Smith stated that she took into account her personal observation of Salvatore's work and feedback from account executives. Id. at 55. Besides reviewing the PMPs, Curcio-Smith spoke to account executives, claims division personnel and head office employees regarding all of the employees in her group. Id. at 24-25. Curcio-Smith also relied on her past experience working with the employees and her discussions with members of the brokerage community. Id. at 35-36.

Based on her experience working with plaintiff, Curcio-Smith stated that she would not have assigned accounts to him that needed daily intensive handling. Id. at 74-75. Curcio-Smith also spoke to Collins, plaintiff's prior supervisor. According to Curcio-Smith, Collins, without going into specifics, told her that the other people in plaintiff's group, Iwasiw and DiLella, had good reviews and that plaintiff met requirements. Id. at 35. Curcio-Smith also remembered that Collins stated that plaintiff had some time management issues, which he had had while under Curcio-Smith's supervision, but that he was handling some global accounts in a satisfactory manner. Id. at 33, 35. Curcio-Smith testified that plaintiff's ability to handle global accounts did not factor into her staffing decision because this responsibility would not be significant in the newly formed group and because the new accounts would require daily intensive handling which was not required of the global accounts. Id. at 79-80. Collins testified that he did not remember talking to Curcio-Smith about the evaluations of employees whom he had supervised. See Collins Depo. at 25-26. During his deposition, Collins stated that he believed plaintiff was an asset to the group. Id. at 17-20.

Plaintiff alleges that Judy Dillon of the Home Office suggested that plaintiff was a likely candidate for termination. In support of the allegation, plaintiff refers to Curcio-Smith's deposition testimony. On the subject, Curcio-Smith testified as follows:

A. In my discussion with Judy Dillon, she brought up Mr. Byrne's name because of the feedback she had heard about his performance.

Q. In your conversation with Dillon, which took place in September or October, she indicated to you that Mr. Byrne may be a likely candidate to lose his position.

A. No.

Q. What did she indicate? How did she bring up Byrne's name?

A. We discussed different people in the department. And she said "I have heard some negative commentary about Mr. Byrne."

Q. Did she tell you what she had heard?

A. Just overall perception that he just did not handle the job well. Curcio-Smith Depo. at 41.

On October 27, 1997, plaintiff was notified that his position was eliminated due to a reduction in force. Plaintiff's position was not refilled. Plaintiff's last day of work was on November 22, 1997, and he received severance pay and accrued vacation pay through April 6, 1998. VI. Other Circumstantial Evidence

In opposition to summary judgment, plaintiff submits a deposition of Elam J. Angstadt, Jr. taken on December 15 and 16, 1997 for a New Jersey Superior Court case entitled Angstadt v. Zurich-American Ins. Group, Inc. et al., No. GLO-L-536-97 (N.J. Sup. Ct., Law Div. -Gloucester Cty.). In his deposition, Angstadt referred to a meeting he attended at Zurich's Home Insurance Office in Philadelphia in December 1995. Angstadt testified that CEO Iordanou gave a speech during the meeting and announced that he wanted more dynamic, young and highly educated employees. Id. at 98-99. Following the speech, Angstadt received a memorandum from Iordanou. Id. at 131. During the deposition, Angstadt read from the memorandum:

The claim[s] division, by any standard, has undergone a significant personnel transformation. A rough estimate suggests 300 years of Zurich claims experience in the name of numerous employees has been turned over. . . . Turnover is always destructive to an organization, so we try to minimize it as much as possible. Having said that, though, we need improvements in core skills. We felt that with that dramatic change in our organization over the last four or five years and the additional demand of having specialized claims expertise in lines of business that we never before entertained, there was a need for us to improve the ability of the staff. In addition to that, I think some of the turnover was related to the ability of our people to change and become more customer focused and more customer friendly. Even though some individuals had quite a few years of experience, that didn't fit the profile of individuals we need to have in our claims department in order to succeed in the market place.

That is the reason we made the changes. I strongly believe the changes will make the claims department stronger in its core skills and more focused in providing customized service to our customers if we execute well. I believe we have an improved claims department. Id. at 131-32; see Staff Bulletin dated 6/12/96.

Plaintiff also points to several comments made by Zurich employees in depositions taken during the course of the Angstadt case. Rosemary Sedalis, a former supervisor at Zurich, testified that she heard Iordanou state at the meeting in Philadelphia that "Zurich was going to be looking to hire young people right out of college and bringing them up through the ranks." Sedalis Depo., Angstadt v. Zurich-American Ins. Group, Inc. et al., at 89-90. Jean Barnabei, a former Zurich employee, stated that she had discussions with colleagues that certain employees who were terminated or who left Zurich were "in a certain age group":

A. . . . And I guess the source of our discussion was really more along the lines of whether or not we wanted to continue in the industry. Because we didn't want to be 55 and let go of by a company with no place to go.

Q. So, am I correct in saying that you had a fear you would become 55 and just be let out?

A. It's a concern.

Q. You think that Zurich was doing that?

A. I think they may have been. Barnabei Depo., Angstadt v. Zurich-American Ins. Group, Inc. et al., at 58.

Finally, defendants submitted a certification of Janet Hoggay, the Retirements Benefits Manager of Zurich, which was also submitted in the Angstadt case. Attached to the certification is Census Data, which was maintained for actuarial purposes and used in the administration of Zurich's Retirement Income Plan. The documents show that the average age of Zurich's workforce increased from 40.52 in January 1992 to 42.6 in January 1997.

Defendants now moves for summary judgment. Plaintiff opposes the motion.

DISCUSSION

I. Summary Judgment Standard

A court may enter summary judgment if no genuine issue exists as to any material fact and the moving party is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the moving party satisfies this initial burden, the opposing party must establish that a genuine issue exists. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Not every issue of fact will be sufficient to defeat a motion for summary judgment; issues of fact are genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. Further, the opposing party cannot rest upon mere allegations, but must present actual evidence that creates a genuine issue of material fact. Id. at 249 (citing First Nat'l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 290 (1968)). The court must draw all reasonable inferences in favor of the opposing party and accept that party's evidence when considering the merits of the summary judgment motion. See Pollock v. American Tel. & Tel. Long Lines, 794 F.2d 860, 864 (3d Cir. 1986).

II. Age Discrimination under the ADEA and LAD

A. Standards

Age discrimination claims under the ADEA and LAD are governed by substantially similar standards and allocation of burdens of proof, and in light of this, the Court will consider plaintiff's claims under those statutes together. *fn4 See Lawrence v. National Westminster Bank of New Jersey, 98 F.3d 61, 65 (3d Cir. 1996); Barone v. Gardner Asphalt Corp., 955 F. Supp. 337, 344 n.14 (D.N.J. 1997). Since plaintiff does not have any direct evidence of discrimination, he seeks to prove using circumstantial evidence that defendant's proffered reason for her termination is merely pretextual.

In a pretext case, the plaintiff must first establish a prima facie case of discrimination. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). Where a reduction in force is alleged, the prima facie case requires a showing that: (1) the plaintiff is in the protected class, (2) the plaintiff is qualified for the position in question, (3) the plaintiff was laid off, and (4) workers who were retained were sufficiently younger than the plaintiff. See Showalter v. University of Pittsburgh Medical Center, 190 F.3d 231, 235-36 (3d Cir. 1999) (citing O'Connor v. Consolidated Coin Caterers Corp., 517 U.S. 308 (1996)).

Once a prima facie case is established, it creates a presumption of age discrimination that the employer may rebut by presenting a legitimate nondiscriminatory reason for the adverse employment decision. See St. Mary's Honor Center v. Hicks, 509 U.S. 502, 506-07 (1993). The plaintiff then has the opportunity to demonstrate that the employer's articulated reasons were merely a pretext for discrimination. Id. at 507-08.

B. Prima Facie Case

There is no dispute as to three of the four elements of the prima facie case. Plaintiff, at age 50, was a member of the protected class when he was terminated and employees sufficiently younger than plaintiff were retained. However, defendants dispute that plaintiff was qualified for the position of claims account executive. Because plaintiff's burden at this stage is easily met, see Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981), the Court will assume for the purposes of this motion that plaintiff was qualified for the position.

C. Defendants' Intermediate Burden

Since plaintiff's prima facie case is established, the Court now looks to defendants' proffered reason for plaintiff's termination. The Court notes that defendants need not prove that the articulated reason actually motivated plaintiff's discharge. See St. Mary's Honor Center, 509 U.S. at 510. Defendants assert that plaintiff was discharged because of a corporate reorganization and reduction in force when two departments were combined. Deposition testimony and a memorandum regarding the reduced staffing requirements of the new department support this assertion. The memorandum explained that five positions would be eliminated under the proposed structure of the new department. Curcio-Smith, plaintiff's supervisor, gave testimony stating that a position was being eliminated from her group and that she was responsible for making the final decision based upon job performance.

In making the decision, Curcio-Smith stated that she considered PMPs for all relevant years for all of the employees; she spoke to account executives, claims division personnel and head office employees as well as members of the brokerage community; and she relied on her own personal experiences working with the employees. Specifically, based on her past experience working with plaintiff, Curcio-Smith testified that plaintiff had time management problems and that she did not believe that he could handle accounts that needed daily intensive handling. Despite the fact that plaintiff handled global accounts in a satisfactory manner, Curcio-Smith did not believe those particular skills would be significant in the newly formed group. Curcio-Smith also remembered that Collins, plaintiff's former supervisor, noted that plaintiff had time management problems and implied that plaintiff's performance reviews were not good as his colleagues.

Plaintiff contends that Curcio-Smith did not use the PMPs in evaluating the employees and never talked to Collins about the employees he had supervised. Although Collins does not remember talking to Curcio-Smith about the evaluations, there is no evidence that Curcio-Smith was fabricating her deposition testimony.

The Court finds that defendants have clearly articulated that Zurich terminated plaintiff after determining in a corporate reorganization and reduction in force that his position should be eliminated. Thus, this evidence satisfies defendants' intermediate burden of articulating a legitimate, nondiscriminatory reason for terminating plaintiff.

D. Plaintiff's Burden as to Pretext

As defendants have provided ample evidence that the reduction in force was the legitimate, nondiscriminatory reason for plaintiff's discharge, this Court must determine whether plaintiff can raise a genuine issue of material fact as to whether this articulated reason is a pretext.

Plaintiff's allegation that supervisors followed CEO Iordanou's direction to replace older workers with younger employees is not supported by the evidence. Iordanou's comments were made in December 1995 in the past tense and appear to address a prior turnover and/or change in staff. See Elam J. Angstadt, Jr. Depo., Angstadt v. Zurich-American Ins. Group, Inc. et al., at 131-32 ("[T]here was a need for us to improve the ability of the staff. . . . . That is the reason we made the changes."). Iordanou concluded that "I believe we have an improved claims department." Id. Plaintiff remained in that "improved" department for almost two more years prior to being terminated. In addition, Iordanou was not involved in the decision to terminate plaintiff and his stray remarks a couple of years before plaintiff's termination are insufficient to show pretext. See Keller v. ORIX Credit Alliance, Inc., 130 F.3d 1101, 1111 (3d Cir. 1997).

Nor does the generalized fear of a former employee that Zurich "may have been" terminating people over 55 support plaintiff's allegation. See Barnabei Depo. at 58. In fact, the Census Data shows that the average age of Zurich's employees actually increased following Iordanou's speech.

The testimony regarding Dillon's comments is insufficient to show pretext. During her deposition testimony regarding her conversation with Dillon, Curcio-Smith rejected the questioning attorney's suggestion that Dillon indicated that plaintiff might be a likely candidate for termination. Instead, Curcio-Smith testified that while she and Dillon were discussing different people in the department, Dillon merely stated that she had heard negative feedback about plaintiff.

Plaintiff has not shown that defendant Davis' instructions to reduce plaintiff's 1996 PMP overall rating was pretext or that discrimination was more likely than not a motivating factor for this decision. Plaintiff was not the only employee to have his PMP downgraded. Two of plaintiff's colleagues also had their 1996 PMPs downgraded and, significantly, those colleagues were substantially younger than plaintiff. Thus, there is no evidence that Davis' actions were taken because of plaintiff's age.

Furthermore, the evidence does not support plaintiff's allegation that had he received the higher overall rating in 1996, he would have proved that he was outperforming his younger colleagues. See Pl.'s Br. at 16. The evidence shows that plaintiff's supervisors determined that he marginally met the requirements of his job from mid-1991 and through 1992 and in 1994; and met the requirements in 1993, 1995 and 1996. On the other hand, none of plaintiff's colleagues ever received an overall rating as low as marginally meets requirements. Iwasiw received an overall rating of periodically exceeds requirements four years in a row and a meets requirements rating on her 1996 PMP; DiLella received two overall ratings of periodically exceeds requirements, a meets requirements on his 1994 PMP and, according to the deposition testimony, a meets requirements on his 1996 PMP; and Demske consistently received an overall rating of meets requirements for the three relevant years. In addition, plaintiff's PMPs also showed that he received negative feedback from customers and account executives and that several customers asked that plaintiff be replaced on their accounts. Thus, there is ample evidence that Curcio-Smith chose to eliminate plaintiff's position for legitimate nondiscriminatory reasons. This Court is not in a position to second guess management decisions in the context of a downsizing. See Kelly v. Drexel University, 94 F.3d 102, 109 (3d Cir. 1996).

In sum, the evidence presented by plaintiff is insufficient to show that the termination was pretext for discrimination. Plaintiff cannot meet his burden of discrediting defendants' legitimate reason for his discharge. Therefore, defendants' motion for summary judgment on plaintiff's claims of age discrimination will be granted. CONCLUSION

For the foregoing reasons, the motion is granted. The Court will file an appropriate Order.

ORDER

This matter having been brought before the Court upon the motion of defendants Zurich American Insurance Company, Dinos Iordanou, and Bob Davis for summary judgment pursuant to Fed. R. Civ. P. 56, and the Court, having reviewed and considered the papers submitted in support of and in opposition to said motion, and having considered the arguments of counsel, and for good cause shown,

IT IS on this 5th day of February 2001,

ORDERED that defendants' motion is GRANTED; and it is further

ORDERED that the case is CLOSED.

ANNE E. THOMPSON, U.S.D.J.


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