Plaintiff Evelyn McMillan ("Ms. McMillan") filed this pro se action pursuant to Title VII of the Civil Rights Act of 1964 42 U.S.C. SEC.(s) 2000e et seq. ("Title VII") and the Age Discrimination in Employment Act 29 U.S.C. SEC. 626(b) ("ADEA") alleging that her termination by defendant Examination Management Services Inc. ("EMSI") was unlawfully based upon her age and race. EMSI denies these allegations and moves for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. Ms. McMillan opposes the motion arguing that genuine issues of material fact exist that preclude summary judgment. For the following reasons EMSI's motion is granted.

BACKGROUND

EMSI is a corporation that performs paramedical examinations for insurance companies as well as random drug tests on behalf of corporate employers. (McMillan Dep. pp. 159-60). Plaintiff a black woman who was 53 years old at the time she was hired worked at EMSI from 1986 until January 11 1993 when she was terminated. (McMillan Dep. pp. 18 27). She progressed from a position as an "outside examiner" to a position as an "inside examiner" and eventually assumed additional quality control duties while still performing the inside examiner function. (McMillan Dep. pp. 18 20 23). Her responsibilities at the time she was terminated included performing paramedical exams (which comprised a medical history questionnaire a blood draw and a urine sample) and drug screens making appointments and ensuring quality control as well as some clerical duties. (McMillan Dep. p.65). During the period that Ms. McMillan was an outside examiner she was compensated on a per-exam basis but once she began working in the office she received a regular salary. (McMillan Dep. pp. 19 21). At the time of her termination her salary was $19 200 per year. (Declaration of Glen Cokonougher sworn to on October 24 1995 (hereinafter "Cokonougher Decl.") P 15).

It appears that Ms. McMillan was in many ways a model employee for EMSI. She was commended for her professionalism by a satisfied client whose letter appeared in the company newsletter. (McMillan Supplemental Opposition p. 7). *fn1 In addition several clients whose accounts she had serviced protested her discharge and indicated that they would be reluctant to continue using EMSI's services in her absence. (McMillan Dep. pp. 140-48; McMillan Supplemental Opposition pp. 1-2). She appears not to have been subject to any disciplinary actions prior to her termination.

In 1988 Ms. McMillan ceased to be an outside examiner performing

paramedical examinations at the client's office or home and joined EMSI's Westchester office as an inside examiner performing the paramedical examinations in the company's office. (McMillan Dep. p. 20). At that time the Westchester office was under the management of a woman named Zai Hasanally. (McMillan Dep. pp. 33-34). Ms. McMillan assisted Ms. Hasanally and when Ms. Hasanally was transferred to another EMSI office Ms. McMillan felt that she was "next in line" for the manager's position despite the fact that she had no previous managerial experience. (McMillan Dep. pp. 103-04; Declaration of Rita Weeks sworn to on June 20 1996 (hereinafter "Weeks Decl.") PP 8-10). EMSI however gave the position to a newcomer to the Westchester office Joseph Aldorisio. (McMillan Dep. pp. 103-04). Mr. Aldorisio was 68 years old at the time EMSI hired him. (Cokonougher Decl. P 18).

The relationship between Ms. McMillan and Mr. Aldorisio appears to have been a complicated one. In her deposition Ms. McMillan characterized him as "kind of a loveable guy" (McMillan Dep. p. 171) and a "nice fellow " (McMillan Dep. pp. 172-73) but made it equally clear that she felt he was incompetent and that training him in EMSI's procedures and operations was an exasperating task. (McMillan Dep. p. 171). Nonetheless the two continued working together without incident for approximately six months.

On January 7 1993 however Ms. McMillan's relationship with Mr. Aldorisio as well as with EMSI as a whole underwent a radical shift. On that date

Ms. McMillan was working as usual in the Westchester office while Mr. Aldorisio was evidently spending the day or part of it at another EMSI branch office on Long Island. (McMillan Dep. p. 69). A secretary from the New Jersey office named Dottie Craig apparently unaware that Mr. Aldorisio was in the Long Island office sent a fax to Mr. Aldorisio at the Westchester location at about 2:30 p.m. (McMillan Dep. p. 69; Declaration of Dorothy Craig sworn to on October 24 1994 (hereinafter "Craig Decl.") PP 5-7). Ms. McMillan typically reviewed any urgent matters that came in for Mr. Aldorisio in his absence. The fax was therefore brought to her attention. (McMillan Dep. pp. 73-74 90). It read "Large national insurance firm seeking medically trained detail oriented quality control person for office in Westchester Cty. Self starter exp. pref. but I will train excellent working conditions-." (McMillan Dep. p. 74; Craig Decl. Exh. A).

Ms. McMillan instantly concluded that EMSI was seeking to replace her because she was the only quality control person in the Westchester office. (McMillan Dep. p. 74). She became very upset. An outside examiner who happened to be in the office at the time Lori Boden evidently contacted Glen Cokonougher the regional vice president informed him of Ms. McMillan's distress and read him the fax. (McMillan Dep. p. 77). According to Ms. McMillan who says she picked up another extension Mr. Cokonougher said "Oh no that wasn't for our office that's for Westchester Pennsylvania." Id. Mr. Cokonougher himself says that the fax was a draft advertisement to obtain an assistant for Ms. McMillan and that EMSI never had any plans to replace her. (Cokonougher Decl. P 8).

Ms. McMillan was not convinced by Mr. Cokonougher's explanation and remained very upset. At 3:00 or 3:30 p.m. she decided to leave the office and she took Leslie Howell a clerical worker with whom she carpooled with her. (McMillan Dep. p. 116). Their departure left only the receptionist and one outside examiner in charge of the Westchester office. (McMillan Dep. pp. 155-57). On Friday January 8 Ms. McMillan still felt physically ill as a result of what she perceived as EMSI's betrayal of her years of service. (McMillan Dep. p. 188). She says she tried unsuccessfully to contact the Westchester office to report that she was taking a sick day. (McMillan Dep. p. 117). When she failed to get through to the Westchester office Ms. McMillan reported her illness to Ms. Randi Garrisson of the personnel department at EMSI's head office in Dallas Texas. (McMillan Dep. pp. 117-19).

The Westchester office was apparently thrown into chaos as a result of Ms. McMillan's unexpected and unexplained absence. EMSI had to send in substitute personnel from several other branch offices to take over Ms. McMillan's functions. (Cokonougher Decl. P 14). Mr. Cokonougher also had to pitch in. Id. Ms. McMillan returned to her job on Monday January 11. According to her deposition testimony when she arrived at work she was greeted by Mr. Aldorisio who asked her "What are you doing here?" Ms. McMillan responded "I work here." Mr. Aldorisio said "You can't work here anymore." (McMillan Dep. p. 175). EMSI fired Leslie Howell the same day as well. *fn2 (Cokonougher Decl. P 18). EMSI spent four months seeking a replacement for plaintiff; the woman eventually selected was also black and EMSI had to pay her a salary that was $3 000 per year higher than Ms. McMillan's. (Cokonougher Decl. P 15).

Ms. McMillan has charged: (1) that EMSI fired her on account of her age in violation of the ADEA; and (2) that EMSI terminated her employment based on her race in violation of Title VII. She has also claimed that EMSI was similarly unlawfully motivated in its failure to promote her to the office manager position when it became available.

In support of her allegation that EMSI's decisions were racially discriminatory Ms. McMillan offers only the results of her own "little survey " conducted at an unknown date which indicated that of the 160 managerial positions at EMSI only two were held by minorities. (McMillan Dep. p. 104). She also alleges that she was the only black woman performing her types of responsibilities. (McMillan Supplemental Opposition p. 15). EMSI responds that Ms. McMillan was the only person performing her particular responsibilities and that is why her unanticipated absence left the office in disarray. (McMillan Supplemental Opposition p. 10).

In support of her allegation that EMSI discriminated against her on the basis of age Ms. McMillan cites a single conversation she had with Mr. Aldorisio. Mr. Aldorisio said that his legs did not carry him the way they used to, to which Ms. McMillan responded "You must be getting old." (McMillan Dep. p. 98). Mr. Aldorisio retorted "You're not far behind me " id. and made a comment to the effect that he would replace her with a "younger girl." (McMillan Dep. p. 97). Ms. McMillan concedes that at the time the tone of the conversation seemed to be "joking." Id. At the time of this exchange Ms. McMillan was approximately 58 years old while Mr. Aldorisio was approximately 69 years old.

EMSI has moved for summary judgment on several grounds including: (1) that summary judgment is appropriate because plaintiff allegedly lied on her application to proceed in forma pauperis; (2) that plaintiff has failed to submit any evidence in admissible form to contradict defendant's assertions; and (3) that even if the court examines plaintiff's evidence plaintiff has clearly failed to make out a prima facie case of discrimination. Because I conclude that plaintiff has failed to carry her burden of establishing a prima facie case I need not address the questions regarding the in forma pauperis application and admissibility of plaintiff's submissions.

DISCUSSION

I. Summary Judgment Standard

"A motion for summary judgment may not be granted unless Court determines that there is no genuine issue of material fact to be tried and that the facts as to which there is no such issue warrant judgment for the moving party as a matter of law." Chambers v. TRM Copy Centers Corp. 43 F.3d 29 36 (2d Cir. 1994); see Fed. R. Civ. P. 56(c). See generally Celotex Corp. v. Catrett 477 U.S. 317 91 L. Ed. 2d 265 106 S. Ct. 2548 (1986); Anderson v. Liberty Lobby Inc. 477 U.S. 242 91 L. Ed. 2d 202 106 S. Ct. 2505 (1986); Matsushita Elec. Indus. Co. Ltd. v. Zenith Radio Corp. 475 U.S. 574 89 L. Ed. 2d 538 106 S. Ct. 1348 (1986). An issue of fact is genuine when "a reasonable jury could return a verdict for the nonmoving party " and facts are material to the outcome of the particular litigation if the substantive law at issue so renders them. Anderson 477 U.S. at 248.

The burden of establishing that no genuine factual dispute exists rests on the party seeking summary judgment. Chambers 43 F.3d at 36. "In moving for summary judgment against a party who will bear the ultimate burden of proof at trial " however "the movant's burden will be satisfied if he can point to an absence of evidence to support an essential element of the nonmoving party's claim." Goenaga v. March of Dimes Birth Defects Found. 51 F.3d 14 18 (2d Cir. 1995); accord Gallo v. Prudential Residential Servs. Ltd. Partnership 22 F.3d 1219 1223-24 (2d Cir. 1994) ("The moving party may obtain summary judgment by showing that little or no evidence may be found in support of the nonmoving party's case."). The moving party in other words does not bear the burden of disproving an essential element of the nonmoving party's claim.

If the moving party meets its burden the burden shifts to the nonmoving party to come forward with "specific facts showing that there is a genuine issue for trial." Fed. R. Civ. P. 56(e); accord Rexnord Holdings Inc. v. Bidermann 21 F.3d 522 525-26 (2d Cir. 1994). The nonmoving party must "do more than simply show that there is some metaphysical doubt as to the material facts. "Matsushita 475 U.S. at 586. Instead the nonmovant must "'come forward with enough evidence to support a jury verdict in its favor and the motion will not be defeated merely . . . on the basis of conjecture or surmise.' "Trans Sport v. Starter Sportswear 964 F.2d 186 188 (2d Cir. 1992) (citation omitted).

In assessing materials such as affidavits exhibits interrogatory answers and depositions to determine whether the moving party has satisfied its burden Court must view the record "in the light most favorable to the party opposing the motion" by resolving "all ambiguities and drawing all factual inferences in favor of the party against whom summary judgment is sought." Chambers 43 F.3d at 36. "If as to the issue on which summary judgment is sought there is any evidence in the record from any source from which a reasonable inference could be drawn in favor of the moving party summary judgment is improper." Id. at 37 (emphasis added).

Further because Ms. McMillan filed this action pro se I must Court her pleadings by a more lenient standard than that accorded to "formal pleadings drafted by lawyers." Haines v. Kerner 404 U.S. 519 520 30 L. Ed. 2d 652 92 S. Ct. 594 reh'g denied 405 U.S. 948 30 L. Ed. 2d 819 92 S. Ct. 963 (1972); accord Burgos v. Hopkins 14 F.3d 787 790 (2d Cir. 1994) ("We read [the pro se party's] supporting papers liberally and will interpret them to raise the strongest arguments that they suggest."); Hanlin v. Mitchelson 794 F.2d 834 838-39 (2d Cir. 1986) (citing Haines to support the principle that pro se pleadings are given a liberal construction); see Graham v. Lewinski 848 F.2d 342 344 (2d Cir. 1988) (referring to the "special solicitude" afforded pro se litigants when confronted with motions for summary judgment).

Nevertheless proceeding pro se does not otherwise relieve Ms. McMillan from the usual requirements of summary judgment. See Lee v. Coughlin 902 F. Supp. 424 429 (S.D.N.Y. 1995) (holding that a "pro se party's 'bald assertion ' completely unsupported by evidence is not sufficient to overcome a motion for summary judgment") (citing Carey v. Crescenzi 923 F.2d 18 21 (2d Cir. 1991)) reh'g granted on other grounds 914 F. Supp. 1004 (S.D.N.Y. 1996); Kadosh v. TRW Inc. 1994 U.S. Dist. No. 91 Civ. 5080 (PKL) 1994 WL 681763 at 5 (S.D.N.Y. Dec. 5 1994) ("The work product of pro se litigants should be generously and liberally construed but [the pro se's] failure to allege either specific facts or particular laws that have been violated renders his attempt to oppose defendants' motion ineffectual."); Stinson v. Sheriff's Dep't 499 F. Supp. 259 262 (S.D.N.Y. 1980) (holding that the liberal standard accorded to pro se pleadings "is not without limits and all normal rules of pleading are not absolutely suspended").

II. Title VII and ADEA Claims

Title VII of the Civil Rights Act of 1964 provides that "it shall be an

unlawful employment practice for an employer . . . to discharge any individual . . . because of such individual's race color religion sex or national origin. . . ." 42 U.S.C. SEC. 2000e-2(a)(1). Further "except as otherwise provided in this subchapter an unlawful employment practice is established when the complaining party demonstrates that race color religion sex or national origin was a motivating factor for any employment practice even though other factors motivated the practice." Id. SEC. 2000e-2(m).

Title VII however does not "'guarantee a job to every person regardless of qualifications '" McDonnell Douglas 411 U.S. 792 800 (quoting Griggs v. Duke Power Co. 401 U.S. 424 429 28 L. Ed. 2d 158 91 S. Ct. 849 (1971)) nor does it "demand that an employer give preferential treatment to minorities" or "restructure his employment practices to maximize the number of minorities " Texas Dep't of Community Affairs v. Burdine 450 U.S. 248 259 67 L. Ed. 2d 207 101 S. Ct. 1089 (1981). A Title VII plaintiff therefore bears the "burde of persuading the trier of fact [by a preponderance of the evidence] that the defendant intentionally discriminated against the plaintiff." Id. at 253; accord Saulpaugh v. Monroe Community Hosp. 4 F.3d 134 142 (2d Cir. 1993) cert. denied 510 U.S. 1164 127 L. Ed. 2d 539 114 S. Ct. 1189 (1994).

The plaintiff may satisfy this burden either by relying on direct evidence of intentional discrimination or by resorting to circumstantial evidence. "Because an employer who discriminates is unlikely to leave a 'smoking gun' attesting to a discriminatory intent " however "a victim of discrimination is seldom able to prove his claim by direct evidence and is usually constrained to rely on circumstantial evidence." Chambers 43 F.3d at 37 (citations omitted). A "court must be alert" to this fact when resolving a Title VII summary judgment motion. Id. Nevertheless "though caution must be exercised in granting summary judgment where intent is genuinely in issue see Gallo 22 F.3d at 1224 summary judgment remains available to reject discrimination claims in cases lacking genuine issues of material fact." Chambers 43 F.3d at 40; accord McLee v. Chrysler Corp. 38 F.3d 67 68 (2d Cir. 1994) (holding that while Gallo "expressed caution about granting summary judgment in cases where intent is in issue . . . the district court's impression that summary judgment is unavailable to defendants in discrimination cases is unsupportable"); cf. Anderson 477 U.S. at 256 (holding that in order to raise a genuine issue of material fact the plaintiff must offer "concrete evidence from which a reasonable juror could return a verdict in his favor").

The summary judgment rule would be rendered sterile . . . if the mere incantation of intent or state of mind would operate as a talisman to defeat an otherwise valid motion. Indeed the salutary purposes of summary judgment -- avoiding protracted expensive and harassing trials -- apply no less to discrimination cases than to commercial or other areas of litigation.

Meiri v. Dacon 759 F.2d 989 998 (2d Cir.) cert. denied 474 U.S. 829 88 L. Ed. 2d 74 106 S. Ct. 91 (1985).

The ADEA makes it "unlawful for an employer . . . to discharge any individual . . . because of such individual's age." 29 U.S.C. sec 623(a)(1); see Johnson v. New York 49 F.3d 75 78 (2d Cir. 1995). Analysis of ADEA claims follows the same framework as Title VII cases. Viola v. Philips Medical Sys. 42 F.3d 712 715 (2d Cir. 1994); Woroski v. Nashua Corp. 31 F.3d 105 108 (2d Cir. 1994) (citing Trans World Airlines Inc. v. Thurston 469 U.S. 111 121 83 L. Ed. 2d 523 105 S. Ct. 613 (1985)).

1. Discriminatory Termination Analysis

When a plaintiff relies on circumstantial evidence to prove a claim of discriminatory termination the summary judgment test must be applied to the three-prong burden-shifting analysis established by the Supreme Court in McDonnell Douglas Corp. v. Green 411 U.S. 792 802-04 36 L. Ed. 2d 668 93 S. Ct. 1817 (1973) and further expounded upon in Texas Dep't of Comm. Affairs v. Burdine 450 U.S. 248 252-53 67 L. Ed. 2d 207 101 S. Ct. 1089 (1981) and St. Mary's Honor Center v. Hicks 509 U.S. 502 113 S. Ct. 2742 2748-52 125 L. Ed. 2d 407 (1993). This "allocation of burdens and the creation of a presumption by the establishment of a prima facie case is intended progressively to sharpen the inquiry into the elusive factual question of intentional discrimination." Burdine 450 U.S. at 254 n.8. It does not however alter the fact that the "ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff." Burdine 450 U.S. at 253.

At the outset the plaintiff has the burden of "proving by the preponderance of the evidence a prima facie case of discrimination." Id. at 252-53 quoted by Chambers 43 F.3d at 37.

In order to establish a prima facie case of discriminatory discharge the plaintiff must show (1) that he belongs to a protected class; (2) that he was performing his duties satisfactorily; (3) that he was discharged; and (4) that his discharge occurred in circumstances giving rise to an inference of discrimination on the basis of his membership in that class. *fn3

Chambers 43 F.3d at 37. At this stage of the summary judgment motion the plaintiff's burden is de minimis. Goenaga 51 F.3d at 18; Chambers 43 F.3d at 37.

Nonetheless the plaintiff cannot meet this burden through reliance on unsupported assertions. Once the moving party has made a properly supported showing sufficient to suggest the absence of any genuine issue as to a material fact the nonmoving party in order to defeat summary judgment must come forward with evidence that would be sufficient to support a jury verdict in his favor. The motion "will not be defeated merely . . . on the basis of conjecture or surmise." . . . The party opposing summary judgment may not rely simply on conclusory statements or on contentions that the affidavits supporting the motion are not credible . . . or "upon the mere allegations or denials of the adverse party's pleading."

Goenaga 51 F.3d at 18 (citations omitted). If the plaintiff satisfies its burden at this stage a "legally mandatory rebuttable presumption" is established which if not rebutted requires a conclusion of unlawful discrimination. Burdine 450 U.S. at 254 n.7; accord St. Mary's 113 S. Ct. at 2747.

The defendant may rebut this presumption of unlawful discrimination by carrying its burden of producing "admissible evidence " Burdine 450 U.S. at 254-55 and n.8 which sets forth "reasons for its action which if believed by the trier of fact would support a finding that unlawful discrimination was not the cause of the employment action " St. Mary's 113 S. Ct. at 2747 (emphasis in original) (citations omitted). Although "the defendant's explanation of its legitimate reasons must be clear and reasonably specific " Burdine 450 U.S. at 258 its burden at this stage is one of production of evidence rather than one of persuasion id. at 255. Thus the "defendant need only articulate -- but need not prove -- the existence of a non-discriminatory reason." Fisher v. Vassar College 70 F.3d 1420 1433 (2d Cir. 1995); accord Burdine 450 U.S. at 254 ("The defendant need not persuade Court that it was actually motivated by the proffered reasons."). If the defendant proffers a legitimate nondiscriminatory reason for discharging the plaintiff the presumption of discrimination created by the plaintiff's prima facie showing drops from the case. Gallo 22 F.3d at 1224-25. "Placing this burden of production on the defendant thus serves simultaneously to meet the plaintiff's prima facie case by presenting a legitimate reason for the action and to frame the factual issue with sufficient clarity so that the plaintiff will have a full and fair opportunity" to satisfy its burden at the final stage of the analysis. Burdine 450 U.S. at 255.

At the final stage the plaintiff without the benefit of a presumption must satisfy its burden of persuasion on the ultimate question: whether the defendant intentionally discriminated against the plaintiff on an unlawful basis such as race. St. Mary's 113 S. Ct. at 2749. The plaintiff must convince the trier of fact by a preponderance of the evidence that the "employer's reason for its adverse employment decision was a pretext for intentional age discrimination " Gallo 22 F.3d at 1225. In the summary judgment context this requires a plaintiff to "establish a genuine issue of material fact either through the introduction of 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 motivated the employer." Id. (emphasis added). Although the plaintiff must prove both that "the reason was false and that discrimination was the real reason " St. Mary's 113 S. Ct. at 2752 the fact finder's rejection of the defendant's proffered reason together with the elements of the prima facie case "will permit the fact finder to infer the ultimate fact of intentional discrimination." Id. at 2749. The trier of fact in other words must make a finding of discrimination; its rejection of defendant's proffered reasons however "is enough at law to sustain [the] finding of discrimination." Id. at 2749 n.4. *fn4 The plaintiff may satisfy its burden at this stage by proffering either "evidence comprising the prima facie case without more " or evidence which goes beyond that presented in the prima facie case. Chambers 43 F.3d at 38; Gallo 22 F.3d at 1226.

Courts have taken their cue from the Supreme Court in holding that an identical burden-shifting analysis applies to ADEA cases. Sutera v. Schering Corp. 73 F.3d 13 16 (2d Cir. 1995); Hollander v. American Cyanamid Co. 895 F.2d 80 83 (2d Cir. 1990) (citing Lorillard v. Pons 434 U.S. 575 584 & n.12 55 L. Ed. 2d 40 98 S. Ct. 866 (1978)). Ms. McMillan's claims of age and race discrimination will therefore be measured against the same legal standard.

III. Ms. McMillan's Claims

After viewing the summary judgment record in the light most favorable to Ms. McMillan by resolving all ambiguities and drawing all inferences in her favor and after according her pro se pleadings the more lenient treatment to which they are entitled I find that EMSI is entitled to judgment as a matter of law.

A. No Discriminatory Termination

Ms. McMillan has failed to satisfy her de minimis burden at the prima facie stage of showing that her discharge occurred in circumstances giving rise to an inference of EMSI's discrimination. As to this failure no genuine issue exists.

Circumstances contributing to a permissible inference of discriminatory intent may include the employer's continuing after discharging the plaintiff to seek applicants from persons of the plaintiff's qualifications to fill that position . . . or the employer's criticism of the plaintiff's performance in ethnically degrading terms . . . or its invidious comments about others in the employee's protected group . . . or the more favorable treatment of employees not in the protected group . . . or the sequence of events leading to the plaintiff's discharge . . . or the timing of the discharge . . . . Since Court in deciding a motion for summary judgment is not to resolve issues of fact its determination of whether the circumstances 'give rise to an inference' of discrimination must be a determination of whether the proffered admissible evidence shows circumstances that would be sufficient to permit a rational finder of fact to infer a discriminatory motive. Chambers 43 F.3d at 37 38 (citations omitted) (emphasis added).

When all of the available evidence contradicts the plaintiff's claim of discrimination the plaintiff has failed to carry its prima facie burden. In Goenaga for example Court of Appeals held that the employee "failed to satisfy his de minimis burden to show circumstances from which an inference of ethnic discrimination could be drawn." Goenaga 51 F.3d at 19. Jose Goenaga ("Goenaga") a Hispanic male sued under Title VII alleging discrimination on the basis of his ethnicity in granting severance pay. Id. At 16. Goenaga's employer terminated his position as part of a reduction in force allegedly for economic reasons and granted Goenaga severance pay and three months of executive outplacement services. Id. Goenaga complained that four Caucasian managers received proportionately more severance pay than he. Id.

The undisputed material facts included that Goenaga was terminated due to economic reasons he "received more severance pay than the maximum provided" under the employer's policy manual and no other employee below the rank of vice president (Goenaga's rank was below that of vice president) who was terminated under the same reduction in force plan received more than the maximum provided by the employer's policy manual. Id. at 19. Goenaga according to Court presented arguments which ignored or misstated the record and came forward with no evidence of facts to contradict the employer's evidence demonstrating that no other employee of similar rank terminated under the same reduction in force as Goenaga received proportionately more severance pay than Goenaga. Id.

In the present case Ms. McMillan has plainly failed to meet her burden of coming forward with more than mere "conclusory statements " Goenaga 51 F.3d at 18 (citations omitted) in order to raise an inference that her discharge took place under circumstances suggesting that she was the victim of racial discrimination. She has not put forward a single derogatory comment by an EMSI employee nor has she cited a single instance in which her race affected her unfavorably at EMSI. As she herself has admitted she cannot accept that EMSI terminated her on the basis of her work performance; she has therefore felt compelled to conclude that some illicit motive -- race or age -- was a factor in her termination. This case however presents no circumstances from which a rational factfinder could conclude that Ms. McMillan was the victim of racial discrimination. While she had an excellent employment record until January 7 1993 the undisputed material facts are that her abandonment of the office wreaked havoc with EMSI's operations in several branch offices and was the obvious trigger for her termination. Ms. McMillan herself confesses that she is merely speculating that EMSI had a racially discriminatory motive. "Could it be my race?" she wonders in her letter in opposition to the defendant's motion for summary judgment. (McMillan Supplemental Opposition p. 16). "Why I was terminated remains a mystery to me." Id. Given this absence of any indication at all of racial animus and the persuasive if not dispositive fact that EMSI replaced Ms. McMillan with another black woman defendant is entitled to judgment as a matter of law on Ms. McMillan's claim that she was wrongfully terminated on the basis of her race.

Ms. McMillan's charge of age discrimination is similarly unsupported by any real evidence. Ms. McMillan's account of a single apparently good-humored exchange between herself and her manager who was ten years her senior does not offer any basis from which a reasonable factfinder could conclude that her discharge was motivated by age discrimination. The undisputed fact that a thirty-year-old co-worker was fired the same day for engaging in the same conduct as Ms. McMillan is powerful evidence that Ms. McMillan's termination was not based upon her age. Moreover Glen Cokonougher's Declaration which plaintiff has not contradicted states that of the six individuals discharged from the Westchester office in the two years prior to Ms. McMillan's termination five were thirty-six or younger and one's age was unknown. The defendant has also suggested that Ms. McMillan's age was unknown to the decisionmakers at EMSI's Westchester office because her job application did not require that she disclose her age and all other forms from which her age might be determined were kept in the home office in Dallas Texas. Mr. Aldorisio the person who actually fired the plaintiff was ten years older than she. Because the undisputed facts so clearly refute any charge of wrongful termination based on age discrimination defendant is entitled to judgment as a matter of law on plaintiff's claim that she was unlawfully discharged on the basis of her age.

B. No Discriminatory Failure to Promote

Ms. McMillan's claim that she was passed over for promotion to the office manager's position based on racial and/or age discrimination suffers from the same deficiencies as her claim of wrongful termination. Moreover Court of Appeals has indicated that a plaintiff who cannot demonstrate that she possessed the requisite qualifications for a position cannot charge that the position was awarded to someone else on a discriminatory basis. In Lambert v. Genesee Hosp 10 F.3d 46 (2d Cir. 1993) cert. denied 128 L. Ed. 2d 339 __U.S.__ 114 S. Ct. 1612 (1994) for example Court held that the plaintiffs who lacked the qualifications set forth in the employer's job description as prerequisites for the position in question could not maintain a claim that they had been passed over for promotion in violation of Title VII. Id; accord Canino v. EEOC 707 F.2d 468 471 (11th Cir. 1983) (holding that plaintiff had failed to establish a prima facie case of retaliatory failure to promote where plaintiff did not meet qualifications of position sought).

In the present case Ms. McMillan acknowledges that she lacked any managerial experience at the time that the office manager's job became available. (McMillan Dep. p. 104; Weeks Decl. PP 7-8). Rita Weeks EMSI's director of personnel has cited Mr. Aldorisio's extensive managerial experience including substantial experience working for EMSI's competitors in the paramedical industry as the basis for his selection. (Weeks Decl. PP 11-14). In addition to her failure to demonstrate that EMSI's failure to promote her occurred under circumstances giving rise to an inference of discrimination Ms. McMillan cannot make out a prima facie case on her failure to promote claim because she cannot demonstrate that she was otherwise qualified for the office manager's position given her undisputed lack of managerial experience. EMSI is therefore entitled to judgment as a matter of law on this claim as well.

CONCLUSION

Because the record in this case is utterly devoid of any facts from which a rational factfinder could conclude that plaintiff's termination took place under circumstances giving rise to an inference of racial or age discrimination *fn5 defendant EMSI's motion for summary judgment is granted and plaintiff McMillan's complaint is dismissed in its entirety.

The Clerk of Court shall mark this action closed.

SO ORDERED:

DATED: New York New York

September 25 1996

LORETTA A. PRESKA U.S.D.J.