Opinion
97-CV-0868E (H)
July 28, 2000
Attorneys for the Plaintiff, David C. Merino, Esq., 749 Seventh St., Niagara Falls, NY.
Attorneys for the Defendant, Paula M. Eade Newcomb, Esq., c/o Volgenau Bosse 750 Main Seneca Bldg., 237 Main St., Buffalo, NY.
MEMORANDUM and ORDER
Plaintiff alleges herein that he was wrongfully terminated by defendant in November 1996 in violation of the Employees' Retirement Income Security Act, 29 U.S.C. § 1040 ("ERISA"). This Court's jurisdiction derives from, inter alia 28 U.S.C. § 1331. Presently at issue is the defendant's motion for summary judgment brought pursuant to Rule 56 of the Federal Rules of Civil Procedure ("FRCvP"). Because the undersigned finds that plaintiff has failed to adduce evidence sufficient to create a genuine issue of material fact as to defendant's rationale for terminating his employment, defendant's motion will be granted.
The Complaint also contains claims asserted under the Pair Labor Standards Act 29 U.S.C. § 201, the Civil Rights Act of 1964, 42 U.S.C. § 2000 et seq., and New York common law. However, inasmuch as plaintiff has failed to oppose — in papers and at oral argument — those portions of defendant's motion for summary judgment pertaining to such claims, such claims will be dismissed without further discussion.
On a preliminary note, there is some question as to plaintiff's identity. This suit was commenced by the filing of a summons on September 10, 1997 in the Niagara County Clerk's Office. On November 10, 1997 defendant filed a notice of removal to the Western District of New York and, on December 6, 1997, plaintiff served the Complaint on defendant. The summons, Complaint and subsequently filed papers designated "Richard J. Campana, Jr." as plaintiff, whereas the employee who is the subject of this action seems clearly to be Eugene J. Campana. One of defendant's summary judgment arguments is that Eugene does not have standing to pursue this case because he is not a party to it. Eugene's explanation is that the Complaint "inadvertently" contained the wrong name. In any event, it is not disputed that, since the earliest stages of discovery, this litigation has proceeded between Eugene and Goodyear. While admittedly a bit mystified as to how the Complaint came to contain the wrong name, I am satisfied that Eugene is the proper litigant. Accordingly, the caption will be amended to replace "Richard" with "Eugene." Moreover, all subsequent references to "plaintiff" contemplate Eugene, not Richard, Campana.
The following facts are undisputed. Plaintiff applied for employment with defendant by application dated July 22, 1978. Said application contained the following admonition in large, bold, capital letters: "Note — the company does not approve of dual employment. Violators are subject to release." July 19, 1999 Aff. Of Paula M. Eade Newcomb, Esq., Exh H. Plaintiff was hired by defendant the following November to work in the company's Niagara Falls, N.Y plant.
In June 1996, plaintiff was advised by defendant that the production department in which he worked was to be shut down December 27, 1996. In October, defendant offered and plaintiff declined a position in Goodyear's Houston, Texas plant. In early November and while still employed by defendant, plaintiff accepted a position with Carbide/Graphite Group, Inc. ("Carbide"). At approximately the same time, he requested vacation days from defendant for the week of November 4-8. After working for defendant on November 9, 10 and 11, plaintiff requested time off for November 12 and 13. Meantime, he worked for Carbide on all seven of the days for which he requested time off from defendant.
There is some dispute as to whether plaintiff learned of the exact date of the shutdown in June or in November. Compare Dft's Local Rule 56 Statement, ¶ 7, with Pltf's Local Rule 56 Statement, ¶ 4. The Court considers the matter immaterial and will adopt plaintiff's version.
Upon returning to work at Goodyear on November 14, plaintiff was suspended "pending [his] signing of a release form to investigate [his] employment at Carbide Graphite." Ibid. It was explained to plaintiff at that time that he was being suspended pursuant to the company policy prohibiting Goodyear employees from working for another employer when such secondary employment interferes with the Goodyear job. The follow-up letter plaintiff received added that his failure to comply with this investigative request would "leave [defendant] little choice but to terminate [his] employment with Goodyear." Ibid.; see also August 13, 1999 Aff. of Eugene J. Campana, ¶ 13. According to plaintiff, he did not sign the release because defendant could point to no policy requiring such and because he believed he was being treated differently than were his peers who had engaged in supposedly impermissible dual employment. See Campana Aff., ¶¶ 13, 14.
Four documents are appended to the Newcomb Affidavit behind the tab designated "Exhibit H."
On November 25, 1996 and in the midst of his suspension, plaintiff was contacted by Diane Bosse, an attorney representing Goodyear in a case that had been brought by Jack Pardee, one of plaintiff's co-workers. While it is not clear what was said during the conversation, this much is certain: Bosse and plaintiff discussed Pardee's case, immediately after which Bosse forwarded to plaintiff an affidavit ("the Pardee Affidavit") regarding their conversation. There is also no question but that plaintiff never signed it. According to plaintiff's deposition testimony, he informed Bosse during their conversation that he could not "in good conscience" sign it. See December 18, 1998 Deposition of Eugene J. Campana, at 54. In his own affidavit, plaintiff sought to characterize the Pardee Affidavit as one designed to "bolster Goodyear's defense of the Pardee case." Campana Aff., ¶ 16; see also Pltf's Local Rule 56 Statement, ¶ 19 (Bosse asked him to sign affidavit "which bolstered Goodyears' [sic] defense of the Pardee case ). According to defendant, there is a dispute as to the intended effect of the affidavit. See Dft's Response to Pltf's Rule 56 Statement, at 2-3. While a fair reading of the proposed Pardee Affidavit (appended as Exh E to Newcomb Affidavit) leads to the conclusion that it might well have benefitted Goodyear, for reasons explained below, neither the substance of the affidavit nor plaintiff's refusal to sign it is relevant to the instant action. By letter dated December 1, 1996 plaintiff was informed that, because of his failure to sign the release regarding his employment at Carbide, he was being terminated effective November 15, 1996.
A motion for summary judgment shall be granted if the moving party demonstrates both that there exists no genuine issue as to any material fact and that it is entitled to judgment as a matter of law. See FRCvP 56; Anderson Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). Conversely, the motion will not be granted if the evidence is such that a reasonable jury could resolve an outcome-determinative issue in favor of the non-moving party. See Anderson, at 248. Nevertheless, "[i]f the evidence is merely colorable or is not significantly probative, summary judgment may be granted." Id. at 249-250 (internal citations omitted). Moreover, "the plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
To overcome a summary judgment motion "made and supported as provided in [FRCvP 56]," the non-moving party must "go beyond the pleadings" and, by his own affidavit or other materials countenanced by the rule, designate those facts which create a genuine issue for trial. Id. at 324. In so doing, plaintiff must present "concrete particulars" and not simply "conclusory allegations of discrimination." Meiri v. Dacon, 759 F.2d 989, 998 (2d Cir. 1985). At the same time, it is incumbent upon the Court at the summary judgment stage to "'resolve all ambiguities and draw all reasonable inferences in favor of the party against whom summary judgment is sought, with the burden on the moving party to demonstrate the absence of any material issue genuinely in dispute.'" Meiri, at 997-998 (quoting Patrick v. LeFevre, 745 E2d 153, 161 (2d Cir. 1984)).
Under ERISA, it is unlawful for an employer to discharge an employee participant of an employee benefits plan "for the purpose of interfering with the attainment of any right to which such participant may become entitled" under the plan. 29 U.S.C. § 1140. To prevail on a claim under this ERISA provision, the plaintiff must show that his employer was motivated, at least in part, by the specific intent to engage in activity proscribed thereunder. See Dister Continental Group, Inc., 859 F.2d 1108, 1111 (2d Cir. 1989). In other words, the aggrieved employee must show that the loss of benefits was a motivating factor behind, not merely a consequence of, the decision to terminate the employee. Ibid. (citing Titsch v. Reliance Group, Inc., 548 F. Supp. 983, 985 (S.D.N.Y. 1982), aff'd mem., 742 F.2d 1441 2d Cir. (1983)).
Like its age discrimination and racial discrimination counterparts, an ERISA claim travels the familiar path of presumptions and shifting burdens pioneered in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-805 (1973). See Dister, at 1112 (citing Gavalik v. Continental Can Co., 812 F.2d 834, 852 (3d Cir.), cert. denied, 484 U.S. 979 (1987)); Blanke v. Rochester Telephone Corp., 36 F. Supp.2d 589, 592 (W.D.N.Y 1999). Under this analysis, the employee creates a presumption that he has been unlawfully denied benefits by making out a prima facie case of discrimination. In turn, that presumption may be rebutted by the defendant's articulation of a legitimate, non-discriminatory rationale for the subject termination. Should the defendant successfully carry its burden, the presumption vanishes and the plaintiff is obligated to prove, by the preponderance of the evidence, that he was the victim of intentional discrimination. "This may be accomplished `either directly by persuading the court that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer's proffered explanation is unworthy of credence.'" Dister, at 1112 (quoting Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 256 (1981)).
The United States Supreme Court's recent decision, Reeves v. Sanderson Plumbing Products, Inc., No. 99-636, ___ U.S. ___, 2000 WL 743663 (June 12, 2000), clarified what the Second Circuit Court of Appeals held in Dister but subsequently and apparently incorrectly refined in subsequent cases such as Fisher v. Vassar College, 114 F.3d 1332 (2d Cir. 1997) — viz., that a plaintiff need not establish by independent direct evidence that the defendant's explanation was pretext for illegal discrimination; rather, such conclusion may be inferred from proof of the falsity of the defendant's explanation. See Reeves, 9.
By its motion for summary judgment, defendant seems to concede that plaintiff has established a prima facie case. See Dft's Mem. of Law at 6 (acknowledgment that "[i]t is easy for a plaintiff to plead a prima facie case coupled with no further mention of the requirements thereof). It then sets out its purported "legitimate, non-discriminatory" rationale —
"Mr. Campana was terminated because he failed to report to work and called in sick in order to work for another employer and/or because he was working for another employer which caused him to be unable and/or unavailable and/or unwilling to fulfill his obligations to Goodyear, and because plaintiff refused to provide an authorization permitting Goodyear to obtain plaintiff's employment records from Carbide/Graphite to verify whether or not he was working at Carbide/Graphite on the days he was supposed to report to work at Goodyear." Dft's Mem. at 8.
Choosing to oppose defendant's motion by attempting to expose as pretextual defendant's stated termination rationale, plaintiff contends that defendant's "reasoning for Campana's termination has no basis in fact and cannot be substantiated by any policy or practice." September 10, 1999 Affirmation of David C. Merino, Esq., ¶ 27. Plaintiff disagrees with what he perceives as defendant's position that Goodyear's "policy" on dual employment consists of nothing more than the verbiage contained in the 1978 employment application plaintiff signed. To plaintiff's mind, defendant has never had such a policy and, in any event, such was never enforced.
In support of this argument, plaintiff offers his own affidavit to the effect that "[i]t was common knowledge to Goodyear both before and after the shutdown was announced that several Goodyear employees worked other jobs and more particularly that employees including myself, were employed by Carbide Graphite." Campana Aff., ¶ 22. Similarly, "[a]fter the shutdown was announced several employees were given the opportunity to change their hours which they were scheduled to work at Goodyear, in an effort to accommodate their second job." Id., at 23. As regards his own schedule, plaintiff claims that his shifts at Carbide and Goodyear did not overlap on November 12 and 13, 1996 and that reason for requesting time off from Goodyear was "totally unrelated" to his employment at Carbide. Id., ¶ 25. Plaintiff also offers three performance appraisals from 1991, 1993 and 1994 which he maintains evidence his exemplary attendance record and performance. See id., ¶ 26 and Exh B. Plaintiff's final piece of pretext evidence is his refusal to sign the affidavit on the Pardee case mailed to him by attorney Bosse. The temporal proximity of such refusal to his termination, he reasons, suggests that defendant sought to retaliate against him for his decision to stand by a fellow employee. See id., ¶ 16. Plaintiff concludes that the foregoing contentions are sufficient to raise genuine issues of material fact as to defendant's proffered rationale and thereby preclude summary judgment. They are not.
The party opposing summary judgment must do more than offer vague and conclusory allegations of misconduct in an attempt to satisfy the requirements of FRCvP 56(e). See Meiri, at 998. In Meiri, a Title VII case, the plaintiff seeking to establish pretext opined that her employer "conspired to get rid of [her]," that he "misconceived [her] work habits because of his subjective prejudice against [her] Jewishness," and that she "heard disparaging remarks about Jews, but, of course, don't ask me to pinpoint people, times or places . . . It's all around us." Ibid. Rejecting such allegations as conclusory, the Court at once acknowledged the difficulties inherent in proving an employer's "state of mind" and found that "the mere incantation of intent or state of mind" cannot "operate as a talisman to defeat an otherwise valid motion." Ibid.
Conclusory evidence such as that upon which plaintiff attempts to rely has uniformly been rejected. In Dister, the Court found sufficient for prima facie purposes both the close proximity of plaintiff's discharge to his vesting under the employer's benefits plan and the substantial savings to accrue to the employer as a result of not having to pay the terminated employee. See Dister, at 1117. The Court declined, however, to allow such evidence to suffice for purposes of evaluating whether the plaintiff had carried the ultimate burden of establishing discriminatory intent. Important to the Court's conclusion was the utter failure by the plaintiff to present evidence to rebut the defendant's proffered explanation for the plaintiff's termination. See ibid. In this case, plaintiff has offered insufficient evidence to rebut defendant's explanation and has offered no evidence as to any savings defendant supposedly enjoyed to his detriment.
In Corcoran v. GAB Business Services, Inc., 723 F. Supp. 966 (S.D.N.Y 1989), the Court granted summary judgment against a plaintiff who, like Campana, had failed to present evidence that his employer was concerned about the cost of benefits or that those making the decision to terminate him even knew when or to what extent he was to receive benefits. See id. at 971. Finally, in Burger v. Litton Industries, Inc., No. 91 Civ. 0918 (WK) (AJP), 1996 WL 421449 (S.D.N.Y April 25, 1996), where the plaintiff's evidence, like Campana's, amounted to little more than the fact that she was terminated within several months of her vesting date, the Court found that "[a]t most, plaintiff Burger has shown that ERISA benefit denials were a consequence of, but not a motivating factor behind' her termination, which is clearly insufficient to state a claim." Id. at 18.
In this case, plaintiff's evidence consists of his own affidavit. While summary judgment may be opposed by such evidence — see Celotex, at 324 —, the affidavit itself must be based on the affiant's knowledge and must point to specific facts from which a reasonable trier of fact could infer discriminatory intent. All that the plaintiff offers are his claims that "other employees" used vacation and sick time during the shutdown, that "it was common knowledge" that "several Goodyear employees worked other jobs" and that "several employees" were allowed to change their hours at Goodyear in order to accommodate their second jobs. See Campana Aff., ¶¶ 21-23.
Against plaintiff's general allegations, defendant has set forth a legitimate basis for discharging plaintiff. That other employees may have worked two jobs without being disciplined therefor does not, in and of itself, undermine defendant's contention that it was seeking, via the request for plaintiff's signature on the release, to determine whether plaintiff's dual employment was interfering with his job performance at Goodyear. Such suspected interference — not dual employment per se — was the stated focus of defendant's inquiry. Moreover, even if plaintiff had been the first person targeted for such scrutiny, evidence of that inconsistency, standing alone "is insufficient to demonstrate intent unless the inconsistent application is linked with a motivation to deprive the employee of benefits." Barbour v. Dynamics Research Corp., 63 F.3d 32, 41 (1st Cir. 1995); see also Fong v. American Airlines, Inc., 626 F.2d 759, 762 (9th Cir. 1980) (failure to link inconsistent application of rule with discriminatory motive is ground for summary judgment). In the final analysis, plaintiff has presented no evidence that he was treated differently — if in fact he was — based on a desire by defendant to avoid paying him benefits.
Thus and as in Meiri, plaintiff "has provided no indication that any evidence exists that would permit the trier of fact to draw a reasonable inference of pretext." Meiri, at 598. "To allow a party to defeat a motion for summary judgment by offering purely conclusory allegations of discrimination, absent any concrete particulars, would necessitate a trial in all [employment discrimination] cases.
On a final note, plaintiff has argued that he was discharged in part because of his unwillingness to assist attorney Bosse in her preparation of Goodyear's defense in the suit brought by Jack Pardee. On one hand, it seems entirely unlikely that such was the case inasmuch as Bosse contacted plaintiff after he had been suspended and because it seems not to have been clear to Bosse by the time plaintiff was fired that he was unwilling to sign the Pardee Affidavit. See July 19, 1999 Aff. Of Diane F Bosse, Esq., ¶ 6. On the other hand, even if defendant terminated plaintiff because he was unwilling to assist in the Pardee action, such fact does little if anything to advance plaintiff's argument that he was terminated because defendant wanted to avoid paying him benefits.
Thus, because plaintiff has failed to adduce evidence sufficient to create a genuine issue of material fact as to defendant's stated termination rationale, it is hereby ORDERED that defendant's motion for summary judgment is granted and that this case shall be closed.