dissenting:
I respectfully dissent.
To afford the plaintiff, because of his age, with consideration under the ADEA, in the face of his undisputed ineffective performance of his assigned tasks, would also lead to the possible exchange, at the option of a jury, of his at-will employment status for a tenured employment without a contract therefor.
The employer presented a legal reason for the discharge — the undisputed performance of the assigned employment. As stated in the majority opinion, the employer’s reason, among other things, was “that there was an overwhelming restructuring of the defense contracting industry in the early to mid 1990’s and that Danzer was let go (along with 80% of the work force) because he simply could not generate the new business that Norden so desperately needed in order to survive.” Danzer’s position was eliminated in May, 1993 (effective June 30, 1993). Arguably, the ineffective performance was correlated with Danzer’s age.
Hazen Paper v. Biggins, 507 U.S. 604, 609, 113 S.Ct. 1701, 123 L.Ed.2d 338 (1993), teaches that even if the reason for a discharge happens to correlate with age, the employee’s age does not ground a claim for legally disparate treatment under the ADEA. Moreover, where, as in this case, an employment decision is motivated by unrefuted economic concerns, a claim does not lie under the ADEA in favor of the employee. Criley v. Delta Air Lines Inc., 119 F.3d 102, 105 (2d Cir.1997).
Dissatisfaction of the employer with the admitted inadequate performance of the employee’s assigned tasks is not grounds for invoking the ADEA, especially where the position has been eliminated for undisputed economic reasons and the position was not to be filled by a replacement, younger or older.
When, as shown here, the employer has met its burden of producing an age-neutral reason for the discharge, the presumption of discrimination raised by a prima facie case “drops out of the picture.” Norton v. Sam’s Club, 145 F.3d 114, 117-18 (2d Cir.1998) quoting St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 511, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993)). Neither the Court, nor a jury, sits as a “super-personnel department” to reexamine an entity’s decisions on the usefulness to the enterprise of an at-will employee. Stern v. Trustees of Columbia Univ. 131 F.3d 305, 315 (2d Cir.1997) (quoting Dale v. Chicago Tribune Co., 797 F.2d 458, 464 (7th Cir.1986), cert. denied, 479 U.S. 1066, 107 S.Ct. 954, 93 L.Ed.2d 1002 (1987)).
As the district court judge so carefully and analytically pointed out and as noted hereafter, the conjectural and problematic excuses proffered by the employee concerning the level of his recent performance does not satisfy the McDonnell Douglas burden shifting analysis to defeat defendant’s motion for summary judgment. The evidence submitted simply does not create a genuine issue for trial.
In its sympathetic assessment of the disconnected, isolated and remote straws woven together by plaintiff in a hapless attempt to meet his burden of answering for his recent nonproductive performance (inadequate in the estimation of the employer), the majority opinion fails to embrace the business quandary of an employer such as Norden. A causal relationship between the wisps of alleged insensitive behavior and the adverse employment decision is starkly lacking, even in light of past satisfactory performance. Overlooking present business conditions for the brighter conditions of the past does not take into account drastic business changes and the present productivity needs of the company.
Plaintiffs replacement was not sought, nor was he replaced. As mentioned in its footnote 4, the majority acknowledges that “Nor-den’s position is that its supposed attempt to relocate Danzer — rather than fire him— shows that it was trying its best to help him out in an era of corporate downsizing.” Plaintiff, a systems engineer who had served the company faithfully and well, over many years, and had aged in the job, needed to stay current with changing technology. He was specifically charged with, and had assumed the assigned function of, developing *59new ideas and obtaining essential new business for the company.
In 1989, Norden lost two of its major contracts which constituted half of its business base, causing further downsizing of its personnel. A new supervisor was reassigned to seek and obtain government contracts and plaintiff was reassigned to the new group. Later, with a transfer of a Shipboard Radar Business Unit to plaintiffs location, plaintiff was put in charge of the unit and became the “new business” manager of the unit. The most important part of his employment was planning and development of new business, obtaining funding for research and marketing ideas for the Navy, or actually responding to a project request by the Navy.
New business was a product of conception and promotion, as well as utilization of the latest technology. The director of Research and Development at Norden exhorted the engineering staff to attend training sessions concerning the latest technology in the industry and, plainly as a spur to their incentive, told the engineers at Norden seventeen months before the instant discharge that they were all a bunch of “alta cockers” (old fogeys) — including himself — in ideas, and in attracting new business. Nearly a year and half later, plaintiff, in charge of the search for new business for the company, was laid off because he had repeatedly failed to develop any needed new ideas and business for the Shipboard Radar program. At the time, plaintiff was part of the senior technical staff and enjoyed a handsome remuneration.
In his deposition, plaintiff acknowlédged that his assignment over the years and just before his termination was to define novel engineering topics and find new business. He admitted that the bulk of his time was spent on new business development. He did not dispute his failure.
No evidence in the record indicated any old-age animus whatever on the part of the company and there was no intent to replace plaintiff with anyone younger or older. No basis was presented in the evidence on which reasonable minds could differ over whether age discrimination — as distinct from a failure to update his performance and results— formed any part of the termination of plaintiffs employment. It all centered on not having “brought in any significant business” and failing to develop “an aggressive initiative to get new business” despite the fact that this was his charter.
The majority opinion merely reiterates plaintiffs prima facie case and declares that such evidence is sufficient to withstand summary judgment. The majority seemingly sets aside the fact that Norden offered ample unrefuted evidence of a legitimate, nondiscriminatory reason for Danzer’s discharge — namely, that Danzer’s performance in creating and attracting new business was deficient. Under the McDonnell Douglas burden shifting analysis, to defeat Norden’s motion for summary judgment, Danzer was required, in response to the motion, to produce evidence sufficient to support a rational finding that the legitimate, nondisériminato-ry reasons proffered by Norden for his discharge were pretextual and that Danzer’s age was more likely than not the real reason for his discharge. Woroski v. Nashua Corp., 31 F.3d 105, 108-09 (2d Cir.1994). Nowhere in the majority opinion is there any mention of the fact that Danzer had made no response to Norden’s economic evidence or the adequacy of Danzer’s conjectural claims of a premeditated, orchestrated plot to set him up for failure. Those contentions, without more, are specious at best. See Mack v. Great Atl. & Pac. Tea Co., 871 F.2d 179, 181 (1st Cir.1989) (a nonmovant does not meet its burden of setting forth facts showing the existence of a genuine issue for trial by submitting conjectural or problematic evidence).
As stated by the district judge:
Plaintiff offers no evidence that he brought in new business, developed an aggressive initiative to get new business or properly adapted to. the new business environment. Rather, he merely asserts that until the time of his termination, he performed his job at the same above-average performance level but that Held denied him the funding to work on proposals and projects, intentionally left him off assignments to make it appear that he was underemployed, and gave him poor performance reviews to cover up the unlawful age discrimination. This conjectural evidence is *60not sufficient to create genuine fatal dispute as to whether the defendant’s reasons were false.
A review of the record plainly supports Judge Nevas’ decision. Danzer’s rebuttal evidence consisted almost exclusively of speculative statements contained in his own affidavit that he would have performed better had he been given funding for projects from Held. However, he does not answer Held’s description of how business was conducted at Norden. In his deposition, Held indicated without contradiction that obtaining approvals for funding was a process involving several people and required a pro-active approach for funding:
Q. Well, would he go on his own or would he always have to clear it through you?
A. No. No. My — the senior guys on my staff basically were empowered to try and form a consortium within the company and go out and get new business. And as such, they would get some IR & D pieces, some engineering support to management pieces and some bid proposals pieces. To do that you had to approach many people.
Q. So you expected your senior people to get the approval for this various funding on their own?
A. Oh, yeah.
Q. Is that true of engineering support and marketing also?
A. They had to get it from marketing. I could help advocate for them. They had to be internal entrepreneurs and convince a number of customers within the company, of which I was one, to support their efforts to either do research or go out and market or actually respond to a written proposal.
The District Court fairly and reasonably concluded that no rational fact finder could conclude from the evidence submitted by Danzer that the defendants’ proffered reasons for discharging him (1) were false or unworthy of belief and (2) that, more likely than not, Danzer’s age was the real reason for his discharge. See, e.g., DeMarco v. Holy Cross High Sch., 4 F.3d 166, 170 (2d Cir.1993).
Accordingly, I would affirm.