OPINION OF THE COURT
The primary issue here is whether plaintiff has demonstrated *626 that a factual issue exists to withstand defendant’s motion for summary judgment to dismiss plaintiff’s age discrimination claim under New York’s Human Rights Law (Executive Law § 296). We conclude that plaintiff has sufficiently raised a question of fact as to whether defendant’s proffered reasons for plaintiff’s termination were merely a pretext for age discrimination. Accordingly, the order of the Appellate Division should be affirmed.
Plaintiff alleged that he was employеd by defendant as controller from June 21, 1982 until September 12, 1991, at which point plaintiff’s employment was terminated by defendant. Plaintiff was 58 years old at the time he was fired. During the almost 10 years plaintiff was employed by defendant, he received salary increases for merit every year until the last such increase on July 6, 1990. In or about that same month, July 1990, plaintiff’s supervisor retired from defendant corporation and plaintiff began reporting to a newly hired Chief Financial Officer.
According to plaintiff, his new suрervisor "engaged in a campaign of harassment and discrimination against plaintiff culminating in plaintiff’s unlawful termination.” For example, plaintiff claimed that the new supervisor disparaged and humiliated plaintiff by calling him "the old man” in front of other emрloyees. At his termination, plaintiff claimed that his supervisor failed to provide him with a written explanation or an "exit interview,” a procedure typically afforded to terminated employees. Plaintiff noted that a "substantially younger person” assumed plaintiff’s former position. On March 10,1992, plaintiff commenced an action claiming that he was fired in violation of New York State’s Human Rights Law (Executive Law § 296).
Following discovery, in December 1994, defendant moved for summary judgment to dismiss plaintiff’s complaint. Defendant claimed that plaintiff was fired for nondiscriminatory reasons related to his poor work performance. Among other problems, defendant claimed that plaintiff (1) made serious errors in his financial reporting; (2) failed to preрare preliminary financial statements and job plans in a timely fashion; (3) was remiss in learning the new computer system and arranging for computer training for his staff; and (4) persistently failed to respond to initiatives and suggestions made by his immediate supervisor. The majority of defendant’s proof of plaintiff’s performance stems from a memorandum written by plaintiff’s supervisor. Defendant also tried generally to discredit plaintiff’s allegations of disparaging remarks made by the same supervisor.
*627 Though generаlly conceding the accuracy of many of the claimed deficiencies in his performance, plaintiff countered that such proof was only a pretext to the real reason for his termination — age discrimination. Plaintiff noted that thе memorandum that served as the basis for most of defendant’s legitimate reasons for his termination was written by the same supervisor who had allegedly made the disparaging remarks to plaintiff about his age, the Chief Financial Officer. Importantly, plaintiff аlso highlighted the fact that the subject memorandum was dated more than a month after he had been fired. According to plaintiff, the credibility of the memorandum was undermined by the timing of its production and the fact that such posttermination memoranda dеviated from defendant’s standard procedure. Plaintiff also pointed out that none of the comments made in the memorandum were cited when he was terminated. Finally, plaintiff asserted that none of the negative comments about his performance were raised in any other notes in his personnel file or in any memoranda written at the time his salary was reduced several months before his termination.
The record contains one memorandum that was written by the Chief Financial Officer tо plaintiff which explains that the salary decrease was an "adjustment” due to a "change in [plaintiff’s] functional and staff responsibility” stemming from the Chief Financial Officer’s realignment of "the divisional structure” and procedures of the "information system management and constituent and affiliate reporting.” Defendant claimed that this memorandum demonstrates that the "salary decrease was based upon [plaintiff’s] failure or inability to perform the evolving computer services responsibilities under the controller’s position.” Plaintiff countered that the. salary reduction was "a subterfuge to cloak defendant’s true campaign of harassment and discrimination against plaintiff based upon his age.” The parties offered similarly disparate characterizations of other documents in the record.
Plaintiff also submitted a memorandum dated November 7, 1991, written by the Chief Operating Officer to the Chief Financial Officer concerning "rumors and second/third hand reports of comments you hаd made that had upset some people, most of whom work in your division.” The memorandum states that:
"In most cases it is probable that these remarks were meant to be nothing more than good-natured *628 banter. However, the stress caused by the higher expectations we share for your division has put some people on edge. What could have been perceived as banter has sometimes been given a less benign twist.”
On January 2, 1992, two months after the memorandum was written, the Chief Financial Officer resigned from defendant association. Defendant offered no explanation for the subject matter of the memorandum. Plaintiff also contested the evidence as to the number of other employees over 50 years of agе who had been "either fired, placed on probation, or slated for removal” by the Chief Financial Officer during the same period. Furthermore, plaintiff noted that defendant advertised in trade publications for a new controller prior to actually terminating him from that position. In fact, plaintiff argued that defendant deviated from many of its usual pretermination procedures when it fired him.
Supreme Court found that plaintiff had proved a prima facie case of age discrimination. However, the court also found that the defendant had come forward with proof of a legitimate, nondiscriminatory reason for plaintiff’s termination. In examining the issues raised by the parties, the court granted defendant’s motion for summary judgment beсause plaintiff had "not met his burden of showing by a preponderance of the evidence that the reasons offered by defendants were a pretext for discrimination.”
The Appellate Division reversed and denied defendant’s summary judgment motion. The Court ruled that "plaintiff was only required to identify a disputed material issue of fact with respect to whether or not defendant’s articulated basis for the dismissal was merely a pretext for discriminatory action” (
DISCUSSION
The standards for recovery under section 296 of the Executive Law are in accord with Federal standards under title VII of the Civil Rights Act of 1964 (42 USC § 2000e
et
seq.)
(see, e.g., Matter of Laverack & Haines v New York State Div. of Human Rights,
The burden then shifts to the employer "to rebut the presumption of discrimination by clearly setting forth, through the introduction of admissible evidence, legitimate, independent, and nondiscriminatory reasons to supрort its employment decision”
(Matter of Miller Brewing Co. v State Div. of Human Rights,
If the trier of fact believes the plaintiff’s evidence, and if the defendant is silent in the face of the presumption of discrimination, judgment must be entered for plaintiff because no issue of fact remains in the casе
(Texas Dept. of Community Affairs v Burdine,
Despite the absenсe of the presumption, plaintiff is still entitled to prove that the legitimate reasons proffered by de
*630
fendant were merely a pretext for discrimination
(see, e.g., McDonnell Douglas Corp. v Green,
"The factfinder’s disbelief of the reasons put forward by the defendant (particularly if disbelief is accompanied by a suspicion оf mendacity) may, together with the elements of the prima facie case, suffice to show intentional discrimination. Thus, rejection of the defendant’s proffered reasons will permit the trier of fact to infer the ultimate fact of intentional discriminatiоn” (St. Mary’s Honor Ctr. v Hicks,509 US, at 511 [emphasis in original]).
On the other hand, "[i]t is not enough * * * to disbelieve the employer; the fact finder must
believe
the plaintiffs explanation of intentional discrimination”
(St. Mary’s Honor Ctr. v Hicks,
The defendant has confused plaintiff’s ultimate burden with the showing needed to withstand a summary judgment motion. Generally, a plaintiff is not required to
prove
his claim to defeat summary judgment
(see, Zuckerman v City of New York,
It is not the court’s function on a motion for summary judgment to assess credibility
(see, Glick & Dolleck v Tri-Pac Export Corp.,
We have stated that "discrimination is rarely so obvious or its practices so overt that recognition of it is instant and conclusive, it being accomplished usually by devious and subtle means”
(300 Gramatan Ave. Assocs. v State Div. of Human Rights,
The order of the Appellate Division should be affirmed, with costs, and the certified question answered in the affirmative.
Chief Judge Kaye and Judges Titone, Bellacosa, Levine, Ciparick and Wesley concur.
Order affirmed, etc.