[*1]

In his underlying complaint, Plaintiff states that his employment with Defendant was illegally terminated in November of 2007 in violation of Executive Law §296(1)(a) as a result of Defendant's systematic program of favoring women over men in a discriminatory fashion and because he is over forty years of age.

Executive Law §296(1)(a) provides, in pertinent part, that it is an unlawful discriminatory practice for any employer to discharge from employment, or to discriminate against an individual in compensation or in terms or conditions of employment, based upon age or sex.

A plaintiff asserting an age or sex discrimination claim carries the burden of proving by a preponderance of the evidence that age or sex was the determinative factor in the adverse employment action. Ioele v Alden Press, Inc. et al, 145 AD2d 29, 1st Dept., 1989; Bockino v. Metropolitan Transp. Auth., 224 AD2d 471, 2d Dept., 1996.

Once a defendant in a claim under this statute sets forth a legitimate non-discriminatory reason for a plaintiff's discharge, the burden shifts to the plaintiff to show that the explanation offered by the defendant is false and a pretext for discrimination (Roundtree v. School Dist. of Niagara Falls, 294 AD2d, 4th Dept. 2002) and once a proponent of a summary judgment motion shows its entitlement to judgment as a matter of law, the burden shifts to the party opposing the motion to produce evidentiary proof, in admissible form, demonstrating material questions of fact requiring a trial for resolution (Gonzalez v. 98 Maq Leasing Corp., 95 NY2d 124 (2000), citing Alvarez, supra, and Winegrad v. New York University Med. Center, 64 NY2d 851, 1985) and this rule is no different in discrimination cases. Ioele v. Alden Press, Inc. et al, 145 AD2d 29. 1st Dept. 1989.

A reduction in workforce as a result of an employer's fiscal crisis does not constitute a discriminatory act. Steele v.Board of Education, 40 NY2d 456; Laverack v. NYS Division of Human Rights, 88 NY2d 734, 1996; Manning v. Norton, 189 AD2d 971. A reduction in work force due to economic conditions has been recognized as a legitimate, independent and nondiscriminatory reason for an employment decision. Kipper v. Doron Precision Sys., Inc. 194 AD2d 855, 3d Dept.,1993.

Cronyism, preferential treatment and favoritism, while unjust and unfair, are not unlawful forms of discrimination. Fella v. County of Rockland, 297 AD2d 813, 2d Dept., 2002. In the absence of demonstrable discrimination or the pretext of a permissible [*2]non-discriminatory process, the court should not second-guess the wisdom of a supervisor's employee evaluations and the selections used in the process of workforce reductions required by financial need. Orisek v. American Institute of Aeronautics and Astronautics, 938 F. Supp. 185, S.D.NY,1996.Mere conclusions or unsubstantiated allegations unsupported by competent evidence are insufficient to raise a triable issue. Gilbert Frank Corp. V. Federal Ins. Co., 70 NY2d 966, 1988; Zuckerman v. City of New York, supra. A shadowy semblance of an issue is not sufficient to defeat summary judgment. Ben Strauss Industries, Inc. v. City of New York, 90 AD2d 751, 1st Dept. 1982. A motion for summary judgment may not be defeated by bare allegations, arguments and contentions based on surmise, conjecture and suspicion. Shaw v. Time Life Records, 38 NY2d 201, 1975; Shapiro v. Health Insurance Plan, 7 NY2d 56, 1959.

In opposition to the allegations in Plaintiff's complaint and in support of it's motion, Defendant submits admissible proof demonstrating that at the time Plaintiff's employment came to an end it was experiencing significant fiscal problems and deficits; that it was unable to ameliorate it's financial problems by cost cutting measures, or by renegotiating contracts and loan interest rates, or by instituting a hiring freeze, or by implementing new overtime policies and holding back pay raises, or by increasing it's credit line with its bank. As a result of the foregoing, Defendant came to the conclusion that reductions in it's workforce was necessaryto ameliorate it's financial problems.

Of the twenty-one employees whose employment was terminated in order to reduce the expense of it's workforce in or about October 2007, fourteen were females, seven were males, fourteen were forty or over forty years of age and seven were under forty years of age. Plaintiff rejected an offer of continued employment with reduced responsibility at an hourly salary rate reduced by less than $2.00 per hour. The proposed offer also credited Plaintiff for his years of prior employment. Defendant states that Plaintiff was the only laid-off employee who was afforded the opportunity to displace another employee, a female, who otherwise would have been unaffected by the layoffs, and to earn more than she. Plaintiff rejected that offer of continued employment. Defendant points out that at Plaintiff's deposition he testified (at page 141) that at no time during his tenure at Jawonio was he ever denied a promotion that he applied for, had his pay cut, demoted or formally disciplined.

In opposition to the motion, Plaintiff states that he was employed by Defendant in excess of eighteen years and he sets forth a series of contentions that when viewed as a whole is little more than a narrative litany of mixed observations, hearsay and bare assertions - contentions that, for the most part, are inadmissible hearsay that are offered as admissible proof.

The Court finds that Plaintiff has failed to meet his burden and show that the explanation offered by the Defendant for his termination is false and a pretext for discrimination. Accordingly, Defendant's motion for summary judgment dismissing the [*3]complaint is granted and the complaint is dismissed.

This decision constitutes the order of the court.

Dated: New City, New York

June 17, 2009