Summary
noting that "an employer's actions in objecting to the provision of unemployment benefits to a former employee is not an adverse employment action cognizable under the employment discrimination laws"
Summary of this case from Griffin v. South Piedmont Community CollegeOpinion
02-CV-5406 (SLT) (SMG).
March 28, 2005
MEMORANDUM AND ORDER
Defendant moves for summary judgment on Plaintiff's age discrimination, retaliation, and intentional infliction of emotional distress claims. For the reasons set forth below, Defendant's motion is GRANTED.
BACKGROUND
Salvatore Belardo ("Plaintiff") was employed by Con-Way Transportation Servs., Inc. ("Defendant") as a Driver/Sales Representative from August 1995 until his termination on September 21, 2000. Plaintiff was 52 years old when he was hired by Defendant. Upon being hired, Plaintiff signed a written acknowledgment that he was an employee at will and that failure on his part to comply with the company policies could result in his termination. During his employment with Defendant, Plaintiff received satisfactory performance evaluations and multiple safety awards, but he was also involved in several on-the-job accidents. On September 14, 2000, Plaintiff was on duty and driving a company vehicle when he was involved in an accident that resulted in the death of a bicyclist. According to Plaintiff's testimony, he was trying to make a right turn when he realized that he did not have enough room to complete the turn. He then backed up and tried to make the turn again, at which point someone yelled at him to stop. When he exited the vehicle he saw a bicyclist lying under the wheel of the truck.
Gerald Krisa ("Krisa"), Director of Safety for Defendant, reviewed the accident and determined that it had been preventable under Con-Way safety standards. Defendant's safety policy provides that any employee involved in a single preventable accident resulting in death or total destruction of a company vehicle is subject to immediate termination. The policy also provides that legal responsibility is not the criteria for determining preventability, and that an accident for which an employee bears no legal responsibility may still be deemed to have been preventable. Acting on Krisa's determination that the accident was preventable, Richard Trott ("Trott"), Director of Human Resources, informed Plaintiff during a September 21, 2000 conference call that he was being terminated. Trott informed Plaintiff of his right to appeal the decision to Defendant's Accident Review Board, which Plaintiff did. Plaintiff submitted to the Review Board photographs of the accident scene, witness statements, and his personal account of the accident. Proceedings before the Review Board are generally conducted anonymously, and Plaintiff admits that he has no reason to believe that the Review Board members were aware of his identity when they made their determination. The Review Board upheld Krisa's determination that the accident had been preventable.
Plaintiff filed the instant action on September 6, 2002, claiming that he was fired as a result of age discrimination at the company, that he was retaliated against by Defendant, and that he suffered emotional distress as a result of Defendant's intentional actions. Defendant removed the suit to federal court on October 4, 2002, on the basis of diversity jurisdiction. Defendant filed the instant motion for summary judgment on March 29, 2004.
DISCUSSION
I. Standard of Review
Summary judgment is appropriate where "there is no genuine issue as to any material fact" such that the moving party is entitled to "judgment as a matter of law." Fed.R.Civ.P. 56(c). "A fact is `material' for these purposes if it `might affect the outcome of the suit under the governing law.'" Holtz v. Rockefeller Co., 258 F.3d 62, 69 (2d Cir. 2001) ( quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). To be "genuine," an issue of fact must be supported by evidence "such that a reasonable jury could return a verdict for the nonmoving party," Holtz, 258 F.3d at 69, and "a court must resolve all ambiguities and draw all reasonable inferences against the moving party." Alston v. New York City Transit Auth., 2003 U.S. Dist. LEXIS 21741, at *4 (S.D.N.Y. Dec. 3, 2003) ( quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)).
The Second Circuit has noted that it "is now beyond cavil that summary judgment may be appropriate even in the fact-intensive context of discrimination cases," and that "the salutary purposes of summary judgment — avoiding protracted, expensive and harassing trials — apply no less to discrimination cases than to . . . other areas of litigation." Abdu-Brisson v. Delta Air Lines, Inc., 239 F.3d 456, 466 (2d Cir. 2001) (quoting Meiri v. Dacon, 759 F.2d 989, 998 (2d Cir. 1985) (internal quotation marks omitted); see also Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 148 (2000) ("[W]e have reiterated that trial courts should not `treat discrimination differently from other ultimate questions of fact.'") (quoting St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 524 (1993)); Weinstock v. Columbia Univ., 224 F.3d 33, 41 (2d Cir. 2000) (noting that the Second Circuit has expressly sought to "remind [the] district courts that the `impression that summary judgment is unavailable to defendants in discrimination cases is unsupportable.'" (quoting McLee v. Chrysler Corp., 38 F.3d 67, 68 (2d Cir. 1994)); Arrocha v. City Univ. of New York, 2004 U.S. Dist. LEXIS 4486, at *8 (E.D.N.Y Feb. 9, 2004) (Feuerstein, J.) ("[S]ummary judgment may be appropriate if a discrimination case is devoid of genuine issues of material fact.").
II. Age Discrimination
A. Burden-Shifting Framework
Plaintiff brings his age discrimination claim pursuant to Chapter I, Title 8 of the Administrative Code of the City of New York, § 8-107 ("NYC Human Rights Law"), which provides that it is unlawful for an employer to discriminate against any individual with respect to the terms and conditions of his employment because of his age. Where, as here, there is no direct evidence of age discrimination, Plaintiff's claim must be examined under the three step burden-shifting framework established in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See Farias v. Instructional Sys., Inc., 259 F.3d 91, 98 (2d Cir. 2001) (NYC Human Rights Law discrimination claims are evaluated using the same analytical framework as Title VII actions); Cruz v. Coach Stores, Inc., 202 F.3d 560, 565 n. 1 (2d Cir. 2000) (same).
Under the McDonnell Douglas test, a plaintiff must first state a prima facie case of age discrimination. Once a plaintiff has established a prima facie case, the burden shifts to the defendant, who must then state a legitimate, non-discriminatory reason justifying the allegedly improper employment action. If the defendant meets this burden, the presumption of discrimination created by the prima facie case drops out of the picture, and the defendant will be entitled to judgment as a matter of law unless the plaintiff can point to evidence that reasonably supports a finding of prohibited age discrimination. See McDonnell Douglas, 411 U.S. at 802; James v. N.Y. Racing Ass'n, 233 F.3d 149, 154 (2d Cir. 2000); Arrocha, 2004 U.S. Dist. LEXIS 4486, at *10.
In order to state a prima facie case of age discrimination, Plaintiff must show "`(1) that he was within the protected age group, (2) that he was qualified for the position, (3) that he was discharged, and (4) that the discharge occurred under circumstances giving rise to an inference of age discrimination.'" Schnabel v. Abramson, 232 F.3d 83, 87 (2d Cir. 2000) (quoting Woroski v. Nashua Corp., 31 F.3d 105, 108 (2d Cir 1994).
B. Prima Facie Case
There is no dispute as to the first and third elements, as the employee provisions of the NYC Human Rights Law have no specific age limitation and all parties agree that Plaintiff was terminated following the accident. As to the second element, Defendant argues that Plaintiff was not qualified for his position because he was involved in a fatal accident involving a company vehicle in contravention of company policy. However, "McDonnell Douglas requires only a minimal showing of qualification for the employment in question to establish a prima facie claim. Plaintiff need not demonstrate that [his] performance was flawless or superior . . . plaintiff must show only that [he] possesses the basic skills necessary for performance of the job." Branson v. Allen, 2004 U.S. Dist. LEXIS 22135, at *14-15 (E.D.N.Y. Nov. 3, 2004) (Gleeson, J.) (citations and internal quotation marks omitted). Further, the fact that an employer hired an individual and retained him in its employ for a significant period of time supports an inference that he possessed at least minimal qualifications for the job. Id. at 15. Finally, it is clear that "[m]isconduct . . . is distinct from the issue of job qualification." Id. Thus, Defendant's claim that Plaintiff violated its safety standards does not make him unqualified for the position for which Con-Way hired him and employed him for five years.
NYC Human Rights Law; Abdu-Brisson v. Delta Air Lines, Inc., 239 F.3d 456, 467 n. 3 (2d Cir. 2001).
Plaintiff's evidence as to the fourth element of the prima facie case is extremely weak, and it is doubtful that it would permit any inference that his termination was due to unlawful age discrimination. The sole argument advanced by Plaintiff in his brief is that Defendant's alleged request that Plaintiff train two younger workers to perform the same duties he performed one month before his discharge raises the requisite inference. If Plaintiff had presented further evidence that after his termination his position was filled by one of these significantly younger workers, then that would likely have sufficed to satisfy the minimal burdens at this stage. See Roge v. NYP Holdings, Inc., 257 F.3d 164, 168 (2d Cir. 2001) (evidence demonstrating that a "substantially younger" employee replaced the plaintiff is one of the ways that a plaintiff can show the existence of circumstances giving rise to an inference of discrimination); Farulla v. N.Y. Sch. Constr. Auth., 277 F.Supp. 2d 140, 147 (E.D.N.Y. 2003) (Weinstein, J.) (finding plaintiff's testimony that she was replaced by a younger worker sufficient to raise an inference of discrimination for purposes of establishing a prima facie case); Elliott v. British Tourist Auth., 172 F.Supp.2d 395, 400 (S.D.N.Y. 2001) ("It is ordinarily the case that a plaintiff's replacement by a significantly younger employee is sufficient evidence to establish a prima facie case.").
However, there is no evidence in the record as to who, if anyone, took over Plaintiff's position after his termination. Plaintiff's wholly conclusory statement that "I had to train my own replacement," immediately clarified after questioning by defense counsel to mean that he had trained two younger workers whom he could not name shortly before his discharge, is insufficient to raise a factual issue on this point, particularly when Plaintiff admitted to training numerous employees of various ages during his employment with Defendant. See Pl. Depo. at 225-27; Elliott, 172 F.Supp. 2d at 400 (failing to even consider plaintiff's assertion that he trained a younger individual to replace him where there was no evidence in the record that plaintiff was actually replaced by a younger employee).
The only other evidence in the record which could potentially give rise to an inference of age discrimination is Plaintiff's testimony regarding certain comments that were made to him during his employment at Con-Way that he perceived to be age-related and his belief that the company wanted to get rid of him because he was at the apex of the benefits scale. Plaintiff points to three comments that were made to him during his tenure at Con-Way that he believes point to the existence of age discrimination at the company: (1) his supervisor, Jim Bethel, once remarked to Plaintiff in a discussion about eyesight that "at your age, that's one of the first things to go" (2) Service Center Manager Bob Campbell wrote in Plaintiff's July 2000 performance review that "Sal is a good teacher, a model `senior' man'" and (3) his co-workers sometimes referred to him as "old man." (Pl. Depo. at 82, 159-60.) None of these comments are facially discriminatory, and indeed Plaintiff testified that he thought Bethel's comment was a joke because he wore glasses as well. (Pl. Depo. at 82-83.)
Nevertheless, even accepting Plaintiff's position that he perceived these comments to be ageist, they were made by individuals who had no involvement whatsoever in Plaintiff's termination, and are thus the sort of stray remarks made by non-decision makers that have been held insufficient by themselves to raise an inference of discrimination. See Slattery v. Swiss Reinsurance Am. Corp., 248 F.3d 87, 92 n. 2 (2d Cir. 2001) (refusing to consider remarks that were either "age-neutral on their face or `stray remarks' unrelated to [plaintiff's] discharge" in determining whether plaintiff had met his prima facie burden); Mars v. Serv. Now For Adult Persons, 305 F.Supp.2d 207, 214 (E.D.N.Y. 2004) (Gershon, J.) (plaintiff's evidence that defendant made vague comments about "some people complaining about old men driving vehicles" was insufficient to satisfy his prima facie burden); Silverman v. City of New York, 216 F.Supp.2d 108, 117-18 (E.D.N.Y. 2002) (Glasser, J.) (holding that the clear religious bias of certain of plaintiff's co-workers could not be imputed to the individuals responsible for plaintiff's suspension for purposes of prima facie analysis); Douglas v. Dist. Council 37 Mun. Empl. Educ. Fund Tr., 207 F.Supp.2d 282, 291 (S.D.N.Y. 2002) (holding that ambiguous and abstract comments made by non-decision makers were insufficient to raise an inference of discrimination); Corcoran v. GAB Bus. Servs., 723 F.Supp. 966, 968-69 (S.D.N.Y. 1989) (finding that plaintiff failed to meet even his de minimis burden where he introduced only two isolated comments made by individuals who had no involvement in his termination); see also Pasha v. Mercer Consulting, Inc., 2004 U.S. Dist. LEXIS 1226, at *14-17 (S.D.N.Y. Feb. 3, 2004) (holding that a few "isolated and ambiguous" remarks, even when made by decision makers, could not support an inference that age discrimination played a part in the decision not to hire plaintiff).
Finally, Plaintiff continually stressed in his deposition that he believes Defendant wanted to get rid of him because he was making "top pay, top benefits." (Pl. Depo. at 139-40, 148-49.) However, Plaintiff admits that drivers employed by Defendant were compensated based on years of service with the company and not based on age. (Pl. Rule 56.1 ¶ 4.) An employment decision based on seniority or benefits or some other "objective factor which may in fact be closely correlated with age" is not unlawful. Elliott, 172 F. Supp. 2d at 403; Hazen Paper Co. v. Biggins, 507 U.S. 604, 608 (1993) (holding that an employer does not violate the ADEA "by acting on the basis of a factor, such as an employee's pension status or seniority, that is empirically correlated with age."); Criley v. Delta Air Lines, 119 F.3d 102, 105 (2d Cir. 1997) ("[E]mployment decisions driven by factors that are empirically intertwined with age are not discriminatory so long as they are motivated by `some feature other than the employee's age.' Thus, decisions motivated by economic concerns do not violate the ADEA.") (citation omitted.) Plaintiff's allegations regarding Defendant's desire to get rid of highly compensated workers therefore do not raise any inference of age discrimination.
C. Legitimate Non-Discriminatory Reason and Pretext
In any case, even if Plaintiff could satisfy his initial burden of proving a prima facie case of age discrimination, his claim fails to withstand summary judgment because Defendant has articulated a legitimate non-discriminatory reason for firing Plaintiff (his involvement in a fatal accident that was determined to have been preventable under company policy) and Plaintiff has not raised a triable issue of fact as to whether this reason was a pretext for unlawful age discrimination.
Plaintiff does not dispute that he was involved in the accident and that he was terminated one week later after Defendant informed him that his accident had been rated preventable. Nor does Plaintiff argue that Defendant departed from its written policies in firing him, as the Con-Way safety policy states that involvement in a single preventable accident that results in death or total destruction of a company vehicle is grounds for immediate termination. Instead, Plaintiff argues that Defendant's application of subjective standards in evaluating whether the accident was "preventable," as well as its failure to take into account all available evidence in making its determination, indicate that he was disproportionately punished and that the articulated reason for dismissal was pretextual. However, it is clear that "the use of subjective criteria does not support an inference of discrimination" without some other indicia of improper motive. Buompane v. Citibank, 2002 U.S. Dist. LEXIS 6692, at *40-41 (S.D.N.Y. Apr. 19, 2002) (citing Lieberman v. Gant, 630 F.2d 60, 67 (2d Cir. 1980)). Moreover, the focus of a pretext analysis is not whether a defendant's stated reason for the adverse action was unwise or unreasonable, but only whether it was the actual reason for the challenged action. Demarco v. Holy Cross High School, 4 F.3d 166, 170-71 (2d Cir. 1993); Alston v. New York City Transit Auth., 14 F. Supp. 2d 308, 313-14 (S.D.N.Y. 1998); see also Argueta v. North Shore L.I. Jewish Health Sys., Inc., 2003 U.S. Dist. LEXIS 20456, at *28 (E.D.N.Y. Nov. 6, 2003) (Gleeson, J.) ("It is not the province of this Court . . . to second-guess the nondiscriminatory business decisions of private employers."); Jordan v. Olsten Corp., 111 F. Supp. 2d 227, 236 (W.D.N.Y. 2000) (noting that the protection of the discrimination statutes does not extend to circumstances where a defendant "conducted a shoddy investigation . . . and subsequently made a poorly informed decision" to fire the plaintiff, where there was no evidence that any discriminatory motivation played a role).
This is where Plaintiff's claim falls apart, because even granting that Plaintiff has presented some evidence that Defendant fired him without the careful consideration he might have wished for and chose termination over some lesser sanction that it had the option to impose, there is still no evidence in the record from which a reasonable jury could conclude that Defendant's stated reason for terminating him was intended to mask impermissible age discrimination. All Plaintiff offers at this stage are the same three isolated, ambiguous, stray comments made in circumstances completely separate from and unrelated to the decision to fire him that barely, if at all, sufficed to meet his minimal burden at the prima facie stage. Plaintiff attempts to construct an argument that these comments, taken together, suggest the existence of a "discriminatory atmosphere" at Con-Way. The cases cited by Plaintiff to support this contention are inapposite. In Hardin v. Hussman Corp., 45 F.3d 262 (8th Cir. 1995), the offending statements (that it "was unusual for [the company] to hire someone over the age of 40 as an engineer" and that plaintiff should keep his "antiquated book . . . out of sight as it might give their customers the wrong image") not only directly indicated a desire to present a youthful image to the company's clients, one of the statements was actually made in the presence of the individual who would later terminate plaintiff and therefore may have had some impact on his decision. Similarly, in Dickson v. Amoco Perf.Prods., Inc., 910 F. Supp. 629, 635-36 (N.D.G.A. 1994), plaintiff's supervisor made "numerous age-based remarks and jokes to plaintiff about plaintiff's age" and also provided negative information about plaintiff to the decision makers responsible for the reduction in force. Finally, in Edwards v. Winfield Sec. Corp., 1995 U.S. Dist. LEXIS 12601, at *8 (S.D.N.Y, Sept. 1, 1995), the only Second Circuit case cited by Plaintiff on this point, the court found that a handful of gender and race-related comments were sufficient to defeat summary judgment where plaintiff's employment was terminated "for no apparent legitimate reason."
None of these cases indicate that isolated statements made by non-decision makers with no connection to the termination decision can defeat a defendant's legitimate, non-discriminatory reason for its employment decision and, indeed, cases within this circuit have held quite the opposite. See, e.g., Argueta, 2003 U.S. Dist. LEXIS 20456, at *24 ("Stray remarks are not evidence of discrimination if they are not temporally linked to an adverse employment action or if they are made by individuals without decision-making authority.") (internal quotation marks and citation omitted). Because the comments cited by Plaintiff are not sufficiently probative of age discrimination to satisfy Plaintiff's "ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against [him]," Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000), his age discrimination claim must be dismissed. See Schnabel, 232 F.3d at 88 (upholding a grant of summary judgment where the plaintiff failed to demonstrate that the asserted pretextual reasons were intended to cover acts of age discrimination: "[B]eyond the minimal proof required to state a prima facie case, [plaintiff] has offered no evidence that he was discriminated against because of his age").
III. Retaliation
The NYC Human Rights Law mirrors Title VII's retaliation provisions in prohibiting an employer from discriminating against an employee who opposes allegedly unlawful employment practices or assists in any investigation of such practices. See N.Y.C. Admin. Code § 8-107(7). The burden-shifting analysis set forth in McDonnell-Douglas for discrimination claims applies as well to retaliation claims. Treglia v. Town of Manlius, 313 F.3d 713, 719 (2d Cir. 2002). However, before any burden-shifting may be performed, a plaintiff must first demonstrate a prima facie case for retaliation by showing that he "engaged in protected activity, that the employer was aware of this activity, that the employer took adverse action against the plaintiff, and that a causal connection exists between the protected activity and the adverse action, i.e., that a retaliatory motive played a part in the adverse employment action." Sands v. Runyon, 28 F.3d 1323, 1331 (2d Cir. 1994) (quoting Sumner v. United States Postal Service, 899 F.2d 203, 208-209 (2d Cir. 1990)). Plaintiff's showing fails on every prong.
Plaintiff does not present any evidence that he engaged in a protected activity, much less one that Defendant was aware of. When defense counsel queried Plaintiff in his deposition as to what he believed was Defendant's motive for the alleged retaliation, Plaintiff answered that "[o]bviously, they thought I — they made me feel like I murdered this man. By telling me that I was terminated because it was preventable, they made me feel like I murdered this man." (Pl. Depo. at 243.) Plaintiff's statement evidences a clear misunderstanding of what constitutes the sort of protected activity that could trigger retaliation, as his involvement in a fatal accident cannot form the required predicate for a retaliation action.
Plaintiff's arguments regarding the adverse employment action he allegedly suffered as part of the retaliation are similarly unavailing. In his complaint, Plaintiff alleged that after his accident he was subjected to a "hostile, offensive, and intimidating work environment" that "was designed to force [him] to quit his job." (Compl. ¶¶ 30, 33.) However, with respect to the only two examples of the allegedly hostile environment at Con-Way that Plaintiff mentioned in his deposition — the offensive manner in which supervisor Clyde Hawley treated all employees and the stress of working with constant time pressure — Plaintiff never raised any connection between such actions and the accident, which was the alleged impetus for the retaliation. (Pl. Depo. at 257-59.) In fact, far from alleging that these purportedly hostile actions commenced as a result of some protected activity, Plaintiff clearly indicates that these conditions were ongoing and that he planned to stay with the company despite these difficult aspects of his job. (Pl. Depo. at 259.) Plaintiff's testimony simply cannot be read to support the allegation that he was subjected to a hostile work environment as a result of the alleged retaliation.
At one point in his testimony, Plaintiff clarified that he believed that the retaliatory action was Defendant's alleged role in attempting to prevent Plaintiff from receiving his unemployment benefits:
Q: So what was that retaliation for?
A: Retaliation? Why did they try to stop my Unemployment? It wasn't bad enough that they terminated me.
Q: So, the stopping of the Unemployment, is that what you're saying is retaliation?
A: I believe so.
(Pl. Depo. at 243.) However, as noted by Defendant, an employer's actions in objecting to the provision of unemployment benefits to a former employee is not an adverse employment action cognizable under the employment discrimination laws. See Trigg v. New York Transit Auth., 2001 U.S. Dist. LEXIS 10825, at *30 (E.D.N.Y. July 27, 2001); Whalley v. Reliance Group Holdings, Inc., 2001 U.S. Dist. LEXIS 427, at *34-35 (S.D.N.Y. Jan. 22, 2001); Roman v. Cornell Univ., 53 F.Supp.2d 223, 245 (N.D.N.Y. 1999).
Finally, Plaintiff's complete failure to argue for the preservation of his retaliation claim in his moving papers only further underscores the weakness of the claim. Thus, Plaintiff's retaliation claim must be dismissed.
IV. Intentional Infliction of Emotional Distress
Under New York law, a claim of intentional infliction of emotional distress requires: "(1) extreme and outrageous conduct; (2) intent to cause, or reckless disregard of a substantial probability of causing, severe emotional distress; (3) a causal connection between the conduct and the injury; and (4) severe emotional distress." Stuto v. Fleishman, 164 F.3d 820, 827 (2d Cir. 1999). This standard is "rigorous, and difficult to satisfy." Conboy v. ATT Corp., 241 F.3d 242, 258-59 (2d Cir. 2001) (quoting Howell v. New York Post Co., 612 N.E.2d 699, 702 (1993)). To rise to an actionable level, the conduct at issue must be "so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized society." Stuto, 164 F.3d at 827 (quoting Howell, 612 N.E.2d at 702-03). Plaintiff's most serious accusations here are that Defendant failed to conduct a thorough investigation into his accident, fired him, and then subsequently tried to obstruct him from collecting unemployment. Even if true, this conduct falls far short of the outrageous atrocity and indecency required to sustain a claim under this common law tort. See Conboy, 241 F.3d at 258 (granting motion to dismiss emotional distress claim where plaintiffs "were not physically threatened, verbally abused, or publicly humiliated in any manner"). Thus, Plaintiff's intentional infliction of emotional distress claim fails as a matter of law.
CONCLUSION
Because Plaintiff has failed to raise a genuine issue of material fact requiring trial on any of his claims, summary judgment is hereby granted for the Defendant and Plaintiff's claims are dismissed.
SO ORDERED.