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Duane Reade, the N.Y. metropolitan area’s largest pharmacy retailer, will have to go to trial on claims that it discriminated against two employees as part of a January 2004 downsizing. Two managers have raised age discrimination claims, and one of them a claim of religious discrimination, that will require a trial to resolve, Southern District Judge Denise Cote concluded in denying the drug chain’s motion for summary judgment. Referring to the age discrimination claims, Cote wrote in Abrams v. Duane Reade, 04-5518, that the two managers had presented evidence that “could be read to suggest both an ageist bias in one of the chief decision makers and a general effort by him to eliminate older persons” holding the job title held by the plaintiffs. To reduce its number of employees, Duane Reade had decided to consolidate three different managerial titles: district manager, pharmacy supervisor and photography supervisor. Before the reorganization, district managers headed the general operations of several stores within a defined geographic zone while pharmacy and photography supervisors were responsible for overseeing the pharmacies and photography operations in stores within the zone. The downsizing folded the duties of photography and pharmacy supervisors into those handled by district managers. The net effect was to leave 29 people competing for 14 district manager jobs. The two plaintiffs were the two oldest of 14 district managers employed before the downsizing. At the time, Steven Abrams was 57 and had worked for nearly 30 years with Duane Reade and a drugstore it had acquired. The other plaintiff, Dante Scioscia, was 62 when the new district managers were selected in January 2004. After he was turned down for a district manager position, Abrams became a store manager with the same pay and benefits he had been receiving. Scioscia left Duane Reade after his application for the expanded position was rejected. The two plaintiffs compiled statistical evidence showing that Duane Reade had lowered the average age of those holding the district manager title by 20 years during the two-year period around the downsizing. The company countered that the plaintiffs had gathered statistics over too long a period and looked at an unnecessarily narrow subset of employees who had been affected by the staff-reduction effort. Companywide, 88 positions were eliminated, 15 of which resulted from the consolidation of the three supervisory titles. Thomas Ordemann, Duane Reade’s vice president of operations, had advised the court that the plaintiffs were not given the new assignments because they had ranked poorly in a system used to evaluate the job performance of all the district managers competing for the new jobs. Ordemann stated that both he and Abrams’ direct supervisor had ranked Abrams lowest of all those reviewed. Similarly, Ordemann stated that Scioscia had been rated low by both himself and his direct supervisor. But Cote noted that Duane Reade had not presented any documents to support the rankings or the review process. Additionally, she wrote, Duane Reade conceded that the ranking process was “completely subjective.” RELIGIOUS BIAS CLAIM Separately, Abrams had made a sufficient showing to force a trial on his claim that he had been denied the new position because he is Jewish, Cote ruled. Abrams’ evidence concerning the treatment of another Jewish district manager and a claimed anti-Semitic e-mail sent by Ordemann raised questions of fact that required a trial, she ruled. Cote, however, rejected Scioscia’s claim that he had been discriminated against on the basis of a disability. She found that Scioscia’s kidney stone problem did not rise to the level of a major life activity impairment that would qualify for recognition under the federal Americans with Disabilities Act of 1990. The plaintiffs were represented by David G. Gabor of Gabor & Gabor. Duane Reade was represented by Craig Benson and Stephen A. Fuchs of Grotta, Glassman & Hoffman.

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