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holding that the plaintiff must show that he "`possesses the basic skills necessary for the performance of job'" (quoting Slattery v. Swiss Reinsurance America Corp., 248 F.3d 87, 92 (2d Cir. 2001))
Summary of this case from Mendelsohn v. University Hosp.Opinion
00 CIV. 6150 (DLC)
August 8, 2001
Jeffrey L. Liddle, Liddle Robinson, LLP, New York, NY, For Plaintiff.
Barbara M. Roth, Thomas I. Sheridan, III, Jonathan L. Bing, TORYS, New York, NY, For Defendant.
OPINION AND ORDER
In this employment discrimination action, brought pursuant to the Age Discrimination in Employment Act of 1967, 29 U.S.C. § 621 et seq. ("ADEA"), the New York State Human Rights Law, N.Y. Exec. L. § 290 et seq., and the New York City Human Rights Law, Admin. Code of the City of New York § 8-101 et seq., plaintiff James Alban-Davies ("Alban-Davies") asserts that defendant Credit Lyonnais Securities (USA), Inc. ("CLS") discriminated against him on the basis of age and retaliated against him for filing an EEOC complaint and this lawsuit alleging age discrimination. Alban-Davies contends principally that after approximately four years of employment with the defendant and four years of substantial bonuses, the defendant gave him no annual bonus in 2000, in an effort to encourage him to leave because of his age, and that after he complained of age discrimination the defendant retaliated by denying him a business trip to Mexico and by downgrading his responsibilities and depriving him of a private office. CLS has moved for summary judgment. For the reasons that follow, CLS' motion is granted in part.
BACKGROUND
The following facts are undisputed or asserted by the plaintiff, unless otherwise noted. Defendant CLS is a securities broker-dealer in New York City. It is a subsidiary of Credit Lyonnais, S.A. ("Credit Lyonnais"), a bank organized and existing under French law, with a branch in New York. The assignments of the individuals involved in the events associated with this litigation are as follows. Since February 1999, Francis Pages ("Pages") has been President and Chief Executive Officer ("CEO") of CLS. From January 1997 to January 2001, Jerome Brunel ("Brunel") was the CEO of the Credit Lyonnais activities in North and South America ("Credit Lyonnais Americas" or "CLA"), of which CLS is a wholly-owned subsidiary. Since January 2001, Brunel has been head of human resources for Credit Lyonnais in France. From May 1995 through June 1999, Alan Rosenberg ("Rosenberg") was the Head of Treasury, Trading and Distribution ("TTD") for CLA.
Robin Moser ("Moser") has been the Head of TTD for Credit Lyonnais since August 1999. Alban-Davies reported directly to Rosenberg from August 1995 to June 1999, and to Moser from August 1999 to July 2000. From July 2000 until approximately October 2000, Alban-Davies reported to Omar Abukhadra ("Abukhadra"), identified as a "Managing Director," who reported to Moser.
After October 2000, Alban-Davies was supervised by Mark Thompson ("Thompson"), the Head of Trading for CLS, who reported to Abukhadra (who, in turn, reported to Moser). Alban-Davies was recruited by Rosenberg and hired by CLS in August 1995, when he was 50 years old, to create and develop a Latin America Fixed Income Trading and Sales Group ("LAFI Group"). Alban-Davies hired ten employees for the LAFI Group.
In or about April 1998, at age 53, Alban-Davies was asked to oversee the "risk-taking positions" of the High Yield group. The Emerging Markets Debt Trading and Sales Desk (formerly, LAFI Group), and the High Yield group merged, and Alban-Davies was named Co-Head of this newly-formed group, called High Yield and Emerging Markets. Paul Phaneuf ("Phaneuf") was the other Co-Head of High Yield and Emerging Markets.
A. Alban-Davies' Compensation and Bonuses, 1995-1999
At the time he was hired, Alban-Davies signed a letter agreement ("Letter Agreement") providing that he would receive an annual salary of $225,000 and a minimum bonus of $600,000 for his work through December 31, 1996. Under the terms of the Letter Agreement, $400,000 of the minimum bonus was to be paid in early 1996, and $200,000 of the minimum bonus was to be paid in early 1997. In early 1996, CLS paid Alban-Davies a $400,000 bonus. In early 1997, CLS paid Alban-Davies a $700,000 bonus. Alban-Davies did not seek any compensation or bonus guarantees after the Letter Agreement expired on December 31, 1996. In early 1998, CLS paid Alban-Davies a $727,000 bonus. In early 1999, CLS paid Alban-Davies a $350,000 bonus.
CLS' employee handbook provides that "[p]ayment of a bonus is not guaranteed; management may choose to grant or not grant a bonus at year-end to any or all of its employees."
In December 1999, Moser told Alban-Davies that Credit Lyonnais was planning to give the Emerging Markets group a bonus pool of $350,000. By that time, five of Alban-Davies' employees had left CLS, and none had been replaced. In January 2000, Alban-Davies had a conversation with one of his employees, Francis Rodilosso ("Rodilosso"), who was being solicited by competing employers. Rodilosso told Alban-Davies that he expected a bonus of at least $150,000. Alban-Davies told Moser that Rodilosso expected a $150,000 bonus and said that CLS should "do everything in their power to retain" Rodilosso. Emerging Markets was ultimately given a $300,000 bonus pool.
Moser asserts that Alban-Davies told him that another employee, Ivo Almuli ("Almuli"), expected a bonus in excess of $100,000. Alban-Davies disputes that he discussed Almuli's bonus expectations with Moser.
On February 7, 2000, Moser told Alban-Davies that he would receive no 1999 bonus. Moser explained to Alban-Davies that Alban-Davies had been paid well in the past and if Alban-Davies' employees, including Rodilosso, did not receive bonuses, there was a risk that they would leave the firm. Alban-Davies told Moser that the proposal was unacceptable and "gave [Alban-Davies] the message that [CLS] did not want to keep him." Alban-Davies met later that day with Pages and the following day with Brunel, and both offered substantially the same reasons Moser had for the proposed bonus pool allocation. Following these conversations, Moser offered Alban-Davies the opportunity to reallocate the bonus pool, and take a portion for himself if he wished. Alban-Davies declined to propose any reallocation.
The parties dispute whether Moser told Alban-Davies in this meeting (1) that the bonus pool was $300,000, and (2) the manner in which the bonus pool would be divided (half would be given to Rodilosso, with the remaining $150,000 divided between Emerging Market's four salespeople). Alban-Davies testified that he learned this information when he and Moser "handed out the bonus notifications to employees."
Alban-Davies then told Moser, and later wrote in e-mail messages dated February 9 and March 10, 2000, that he would pursue arbitration regarding his 1999 "compensation package." In his February 9 email message, Alban-Davies explained to Moser that he was pursuing arbitration because, he wrote, "I cannot take money from those who have worked hard and produced a great result for us, nor can I accept a zero figure for myself." In the March 10 email, Alban-Davies informed Moser that he had retained counsel to represent him in the arbitration process.
Alban-Davies filed a claim for arbitration against CLS with the New York Stock Exchange on August 9, 2000. Alban-Davies' claim has yet to be decided by an arbitration panel. In early 2001, Alban-Davies received a $105,000 bonus for his work in 2000.
B. Protected Activity
Alban-Davies filed a charge of discrimination with the Equal Employment Opportunity Commission ("EEOC Charge") on March 14, 2000, asserting that he was not given a 1999 bonus because of his age. On July 28, 2000, the EEOC dismissed plaintiff's charge. On August 17, 2000, Alban-Davies filed this lawsuit.
C. Retaliation Claims
Alban-Davies asserts that CLS retaliated against him for filing his EEOC complaint and for filing this lawsuit by: (1) preventing Alban-Davies from going on a trip to Mexico in September 2000 ("the Mexico Trip"), (2) removing his as Co-Head of High Yield in April 2000, and, in the Fall of 2000, (3) conducting a reorganization that resulted in Alban-Davies losing his position as Head of Emerging Markets, his direct reports and supervisory responsibilities, and (4) renovating the trading floor in a way that caused Alban-Davies to lose his private office (collectively, "the Demotion"). Plaintiff points to three conversations in July 2000, that he asserts reflect retaliatory animus against him. In the first conversation, plaintiff asserts that Pages told him that Alban-Davies "should not be suing the firm and continuing to work for it." In the second conversation, plaintiff asserts that Abukhadra told Alban-Davies that "you cannot have sex while going through a divorce," and, when Alban-Davies asked Abukhadra what that meant, Abukhadra said he would "freeze [plaintiff] out of the business" if Alban-Davies did not "drop these charges," and that, "so long as [plaintiff's] lawyer was in the equation, [plaintiff] would have no real career with Credit Lyonnais."
Alban-Davies asserts that Abukhadra also said that Brunel was "very annoyed" with plaintiff, and that plaintiff should "go away and review what [Abukhadra] had said and not . . . discuss it with any senior officers." In the third conversation, Alban-Davies told Abukhadra that he was not "prepared to drop [his] lawyer" or "put a number on the table which would make this go away," and Abukhadra said "it was [Alban-Davies'] decision and if that is the way that [Alban-Davies] wanted to play it, [Abukhadra] would play it that way."
Abukhadra has denied making most of these statements to Alban-Davies but does admit making a comment to Alban-Davies related to Alban-Davies' employment at CLS that referred to sex and divorce. Abukhadra asserts that he did not know about Alban-Davies' EEOC claim until November 2, 2000, when Alban-Davies filed his retaliation claim with the EEOC but asserts that he did know, when he began supervising Alban-Davies in July 2000, that Alban-Davies had not received a bonus in 1999 and that it had been a "big issue" for Alban-Davies. Abukhadra also acknowledges knowing, at the time he began supervising Alban-Davies, that "Alban-Davies had a problem with the bank and he was taking legal action against the bank," though he was "not aware . . . what legal action that was."
D. EEOC Retaliation Claim
Alban-Davies filed a second charge of discrimination with the EEOC against CLS on November 2, 2000, asserting that CLS had retaliated against him. That charge was dismissed at Alban-Davies' request, for administrative convenience. Alban-Davies filed an amended complaint in this action, adding a retaliation cause of action, on January 2, 2001.
DISCUSSION
Summary judgment may not be granted unless the submissions of the parties, taken together, "show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Rule 56(c), Fed.R.Civ.P. The substantive law governing the case will identify those issues that are material, and "only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1987). The moving party bears the burden of demonstrating the absence of a material factual question, and in making this determination the Court must view all facts in the light most favorable to the nonmoving party. See Azrielli v. Cohen Law Offices, 21 F.3d 512, 517 (2d Cir. 1994). When the moving party has asserted facts showing that the nonmovant's claims cannot be sustained, the opposing party must "set forth specific facts showing that there is a genuine issue for trial," and cannot rest on the "mere allegations or denials" of his pleadings. Rule 56(e), Fed.R.Civ.P. See also Goenaga v. March of Dimes Birth Defects Found., 51 F.3d 14, 18 (2d Cir. 1995). In deciding whether to grant summary judgment, this Court must, therefore, determine (1) whether a genuine factual dispute exists based on the evidence in the record and (2) whether the facts in dispute are material based on the substantive law at issue.
A. Discrimination Claims
Under the ADEA, it is "unlawful for an employer . . . to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's age." 29 U.S.C. § 623(a)(1). Courts analyzing discrimination claims under the ADEA apply the three step burden-shifting framework established by McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1972). See Tarshis v. Riese Org., 211 F.3d 30, 35 (2d Cir. 2000).
Under McDonnell Douglas, a plaintiff must first establish a prima facie case of discrimination. To state a prima facie case of discrimination under the ADEA, Alban-Davies must show that, at all times relevant to the action: (i) he was a member of the protected class; (ii) he was qualified for the job; (iii) he suffered an adverse employment action; and (iv) the adverse employment action occurred under circumstances giving rise to an inference of discrimination. Byrnie v. Town of Cromwell, Bd. of Educ., 243 F.3d 93, 101 (2d Cir. 2001). "[T]he qualification necessary to shift the burden to defendant for an explanation of the adverse job action is minimal; plaintiff must show only that he `possesses the basic skills necessary for performance of [the] job.'" Slattery v. Swiss Reinsurance America Corp., 248 F.3d 87, 92 (2d Cir. 2001) (citation omitted). Upon establishing a prima facie case of discrimination, the burden shifts to the employer to articulate a legitimate, non-discriminatory reason for the employment action. Byrnie, 243 F.3d at 102. If the employer has met its burden, the plaintiff bears the ultimate burden of showing that defendant intentionally discriminated against the plaintiff. Reeves v. Sanderson Plumbing Products, 530 U.S. 133, 143 (2000); Byrnie, 243 F.3d at 102.
In the context of a summary judgment motion, a court "should examine the record as a whole, just as a jury would, to determine whether a jury could reasonably find an invidious discriminatory purpose on the part of an employer." Byrnie, 243 F.3d at 102. An employer that has put forth nondiscriminatory reasons for its employment action is entitled to summary judgment "unless the plaintiff can point to evidence that reasonably supports a finding of prohibited discrimination." James v. New York Racing Ass'n, 233 F.3d 149, 154 (2d Cir. 2000).
Alban-Davies has stated a prima facie case of age discrimination based upon his failure to receive a bonus in 1999. The parties do not dispute that Alban-Davies is a member of a protected class, that he was qualified for his job, or that his failure to receive a bonus in 1999 amounts to an adverse employment action. The fact that plaintiff did not receive a bonus while all of his subordinates did, each of whom were younger — although one was just seven months younger — is sufficient to raise an inference of discrimination adequate to satisfy the low threshold required to state a prima facie case. See Schnabel v. Abramson, 232 F.3d 83, 87 (2d Cir. 2000) (60-year-old plaintiff's replacement by 31-year-old is sufficient to raise an inference of discrimination); Tarshis, 211 F.3d at 38-39 (plaintiff replaced by younger employee is sufficient to raise an inference).
CLS has met its burden of providing nondiscriminatory reasons for the adverse employment action. CLS has identified four age-neutral factors that informed Moser's decision to propose that Alban-Davies receive no bonus in 1999: (1) the bonus requirements of Alban-Davies' employees; (2) the limited size of the 1999 bonus pool; (3) the size of Alban-Davies' past bonuses; and (4) and Moser's belief that "the head of a business activity was responsible for maintaining his team and for showing leadership in difficult times."
To support his claim that the decision not to pay him a bonus was nonetheless motivated by age discrimination, Alban-Davies points to statements by his supervisor to the effect that the payments to his younger subordinates were necessary to retain them. He also asserts that Moser did not have the authority to allow Alban-Davies to reallocate the bonus pool. None of these alleged facts, however, are material to his discrimination claim.
The adverse action at issue here is the failure to pay Alban-Davies a bonus. Alban-Davies does not contend that the decision to give Emerging Markets a bonus pool of only $300,000 was discriminatory. Alban-Davies can not establish that his failure to receive a bonus was caused by the defendant's discriminatory decision since the defendant was willing to leave the decision on allocation to Alban-Davies. It is undisputed that Alban-Davies had the opportunity to reallocate the bonus pool to give himself a bonus but declined to do so. Even if Alban-Davies' age had been a motivating factor in Moser's initial allocation of the 1999 bonus pool, ultimately, Alban-Davies did not receive a 1999 bonus because he did not reallocate Emerging Market's bonus pool to give himself one. Because the evidence submitted by Alban-Davies is insufficient to permit a reasonable trier of fact to find that any discrimination by the defendant caused the adverse action, defendant's motion for summary judgment on plaintiff's ADEA discrimination claim, and his parallel New York State and New York City claims, is granted.
The analysis of Alban-Davies' ADEA claim disposes of his claims brought under the New York State and City Human Rights Laws. Cruz v. Coach Stores, 202 F.3d 560, 565 n. 1 (2d Cir. 2000).
B. Retaliation Claims
The McDonnell Douglas burden-shifting regime applies to plaintiff's retaliation claims. Slattery, 248 F.3d at 94. Accordingly, if plaintiff establishes a prima facie case of retaliation, the burden shifts to defendant to provide a neutral reason for the adverse employment action, and plaintiff carries the burden of proving retaliation. To establish a prima facie case of retaliation under the ADEA, a plaintiff must show that: "(1) the plaintiff was engaged in an activity protected under the ADEA; (2) the employer was aware of the plaintiff's participation in the protected activity; (3) the plaintiff was subject to an adverse employment action; and (4) there is a nexus between the protected activity and the adverse action taken." Wanamaker v. Columbian Rope Co., 108 F.3d 462, 465 (2d Cir. 1997).
To establish that he suffered an "adverse employment action," as a result of his protected activity, Alban-Davies must point to a "materially adverse change in the terms and conditions of employment." Galabya v. New York City Bd. of Educ., 202 F.3d 636, 640 (2d Cir. 2000) (citation omitted). A materially adverse change is "more disruptive than a mere inconvenience or an alteration of job responsibilities." Id. (citation omitted).
A materially adverse change might be indicated by a termination of employment, a demotion evidenced by a decrease in salary, a less distinguished title, a material loss of benefits, significantly diminished material responsibilities, or other indices . . . unique to a particular situation.
Id. (citation omitted).
1. The Mexico Trip
Alban-Davies contends that CLS' decision not to allow him to go on the Mexico Trip prevented him from "adding value" to the transaction for CLS. In September 2000, CLS was asked by Credit Lyonnais to broker the sale of Mexican par bonds, owned by Credit Lyonnais, to the Mexican government. Ivo Almuli ("Almuli"), a salesperson in Emerging Markets, was scheduled to go to Mexico to complete the transaction. Alban-Davies had been involved in discussions with Credit-Lyonnais about the value of these par bonds. The minimum sales price of the par bonds was set by Credit Lyonnais before the trip. Almuli invited Alban-Davies to accompany him and booked an airplane ticket for Alban-Davies. The day before Almuli and Alban-Davies were scheduled to leave, Abukhadra told Alban-Davies that it was unnecessary for Alban-Davies to accompany Almuli to Mexico. Almuli went to Mexico and completed the transaction alone. Just prior to the Mexico Trip, Abukhadra had approved a request by Alban-Davies to take a business trip to Brazil and Argentina, and CLS paid Alban-Davies' expenses for that trip.
The decision not to let Alban-Davies travel to Mexico does not constitute an adverse employment action. At most, it shows that CLS was not using Alban-Davies to his full potential. Bennett v. Watson Wyatt Co., 136 F. Supp.2d 236, 247-48 (S.D.N.Y. 2001) (decrease in workload without demotion or reduction in pay is not an adverse employment action); Boise v. Boufford, 127 F. Supp.2d 467, 473 (S.D.N.Y. 2001) (reduction of professor's workload is not an adverse employment action); Brennan v. City of White Plains, 67 F. Supp.2d 362, 374 (S.D.N.Y. 1999) (exclusion from meetings is not an adverse employment action).
Even if Alban-Davies could have raised the sales price of the Mexican par bonds if he had gone on the Mexico Trip, and even if that increase could have increased the commission for CLS — which is disputed — Alban-Davies has identified no actual change in the terms or conditions of his employment resulting from his inability to accompany Almuli on the Mexico Trip. Defendant's motion for summary judgment on this portion of plaintiff's retaliation claim is, therefore, granted.
Alban-Davies speculates that had he been able to "add value" to the transaction while on the Mexico Trip, and had that added value resulted in an increased commission for CLS, he might have received a higher 2000 bonus. This is far too speculative to constitute an actual change in the terms and conditions of his employment.
Particularly because it is undisputed that Abukhadra authorized Alban-Davies' business trip to Brazil and Argentina at around the same time that he denied authorization for the Mexico Trip, there is no evidence that the decision regarding the Mexico Trip was anything other than an isolated event, or that the decision reflects any material change in the terms or conditions of his employment.
2. The Demotion
It is not, however, appropriate to grant summary judgment to defendant on plaintiff's second claim of retaliation, based upon changes in his employment following the reorganization of CLS and the renovation of the trading floor. Plaintiff has established each of the elements of a prima facie case of retaliation, and has presented facts based upon which a jury could reasonably find that the Demotion consists of a series of retaliatory actions against him.
It undisputed that plaintiff's EEOC complaint and this action constitute protected activities. It is also undisputed that Moser and Pages knew about Alban-Davies' protected activity and were involved in the CLS reorganization. While the parties dispute when Abukhadra became aware of Alban-Davies' EEOC claim and federal lawsuit, CLS can be held responsible for Abukhadra's allegedly retaliatory actions whether or not Abukhadra was aware that Alban-Davies was engaged in protected activity against CLS because it is undisputed that Abukhadra consulted with his superiors regarding the Demotion and that his superiors were aware of the protected activity.
A jury . . . can find retaliation even if the agent denies direct knowledge of a plaintiff's protected activities . . . so long as the jury . . . concludes that an agent is acting explicitly or implicitly upon the orders of a superior who has the requisite knowledge. This is so, moreover, regardless of whether the issue of causation arises in the context of plaintiff's satisfaction of her prima facie case or as part of her ultimate burden of proving that retaliation "played a motivating role in, or contributed to, the employer's decision."
Gordon, 232 F.3d at 117 (citation omitted) (emphasis supplied). In any event, it is for a jury to decide when Abukhadra became aware of plaintiff's protected activities.
Plaintiff has additionally met his burden of raising a material issue of fact as to whether the Demotion was an adverse employment action. Defendant argues that the changes in Alban-Davies' job responsibilities and workspace following the reorganization and renovation do not constitute material adverse changes in Alban-Davies' employment. Although each of these changes, considered in isolation, might not amount to adverse employment actions, Alban-Davies has raised a material issue of fact as to whether his removal as Co-Head of High Yield and Head of Emerging Markets, and his loss of private office space, supervisees, and trading authority, are sufficient, when considered together, to constitute an adverse employment action.
Even if Alban-Davies' salary, benefits, and title did not change following the reorganization, he may still be able to establish that the charges in the other terms and conditions of his employment constitute an "adverse action."
Plaintiff has additionally satisfied the fourth element of a prima facie case of retaliation in that he has established a "nexus" between the protected activity and the adverse employment action, both by showing that "the protected activity was followed closely by discriminatory treatment," and by showing direct evidence of "retaliatory animus" directed against him by Abukhadra and Pages. Gordon, 232 F.3d at 117. Defendant has provided non-discriminatory reasons for the Demotion, and plaintiff has presented evidence raising questions of fact for a jury to decide whether defendant acted with retaliatory intent. Accordingly, defendant's motion for summary judgment on plaintiff's retaliation claim, to the extent that it concerns the Demotion, is denied.
CONCLUSION
Defendant's motion for summary judgment on plaintiff's age discrimination claim, brought under the ADEA and the New York City and State Human Rights Laws, is granted. Defendant's motion for summary judgment on plaintiff's retaliation claim, brought under the ADEA and the New York City and State Human Rights Laws, is granted insofar as it concerns the Mexico Trip, and denied insofar as it concerns the Demotion.
A scheduling order accompanies this Opinion and Order.
SO ORDERED: