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holding that failure to allege protected activity in EEOC complaint and reliance on sole allegation that defendant “committed unlawful discriminatory practices and retaliation against me based upon my age and national origin” was fatal to unexhausted retaliation claim
Summary of this case from Bernard v. Care Design N.Y.Opinion
02 Civ. 4951 (MEM)
December 2, 2003
SAUL D. ZABELL, ESQ; JEFFREY D. FIELDS, ESQ; Somma, Zabell Associates, Farmingdale, NY, for Plaintiff
ANDREW M. LASKIN, ESQ., The Kelly Group, New York, NY, for Defendant
OPINION AND ORDER
Gloria Cordoba sues Beau Dietl Associates ("BDA"), her former employer, alleging national origin discrimination, age discrimination, and retaliation, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. ¶ 2000e et seq. (2000) ("Title VII"); the Age Discrimination in Employment Act, 29 U.S.C. ¶ 621 et sea. (2000) ("ADEA"); the New York State Human Rights Law, N.Y. Exec. Law ¶ 296 ("NYSHRL"); and the New York City Human Rights Law, N.Y.C. Admin. Code ¶ 8-107 et sea. ("NYCHRL"). BDA moves for summary judgment dismissing all of Cordoba's claims pursuant to Fed.R.Civ.P. 56, and an award of costs and attorney's fees pursuant to 42 U.S.C. ¶ 1988(b). For the reasons stated below, BDA's motion for summary judgment is granted and all of Cordoba's claims are dismissed. BDA's motion for costs and fees is denied.
I.
The following relevant facts are either undisputed or presented in the light most favorable to Cordoba.
In September 1996, BDA, a private investigation and security firm, employed Cordoba as a bookkeeper. (Amended Complaint ("Compl.") ¶¶ 10-11; Def.'s Mem. at 3) Cordoba worked in BDA's accounting department until April 27, 2001, when BDA terminated her employment. (Compl. ¶¶ 10-11; Cordoba Aff. ¶ 4) No employment contract existed between Cordoba and BDA. (3/2/03 Cordoba Dep., Laskin Decl. Ex. 7 ("Cordoba Dep."), at 45)
Cordoba is a Hispanic woman of Colombian origin. (Cordoba Aff. ¶ 3) Cordoba's supervisor at BDA was Patrick Bernard, who is of Jamaican origin. (Compl. ¶ 17; Cordoba Aff. ¶ 6) Bernard has testified that Cordoba was a "good employee, very good employee," "always truthful and honest," and "a friendly person." (3/21/03 Bernard Dep., Laskin Decl. Ex. 10 ("Bernard Dep."), at 11, 46) Similarly, BDA's president, Michael Ciravolo, has testified that he liked Cordoba and had no reason to doubt her honesty, and that Cordoba was an "okay" employee. (3/21/03 Ciravolo Dep., Laskin Decl. Ex. 10, at 29, 57) On a "Salary Change Form" dated August 30, 1999, signed by Bernard and Ciravolo, Cordoba is described as "able to work with minimal supervision, [though] she needs to better organize her work flow," "get [ting] along well with fellow employees and work[ing] hard in making sure the ongoing investigation case report is accurate," and "a very good worker . . . willing to work extended hours in order to complete her assignments." (8/30/99 Salary Change Form, Zabell Decl. Ex. E) Although Ciravolo noticed that Cordoba occasionally would use her lunch hour for shopping and then eat lunch at her desk when she was supposed to be working (Def.'s Rule 56.1 Statement ¶ 21), he never reported to Bernard any problems with Cordoba's work or behavior. (Bernard Dep. at 44) Cordoba received salary increases of 13.45% in 1998; 17.28% in 1999; and 3.43% in 2000. (Pl.'s Rule 56.1 Counter-Statement ¶ 11)
Although Cordoba states in her amended complaint that she is "of Columbian [sic] national origin," (Compl. ¶ 10.), she states in the affidavit accompanying her opposition memorandum that she "was born in Columbia [sic] and . . . [is] of Hispanic national origin." (Cordoba Aff. ¶ 3) The term "national origin" is defined as "the country where a person was born, or more broadly, the country from which his or her ancestors came." Pasic v. Eatzi's Texas Holding Corp., 01 Civ. 1114 (ACS), 2003 U.S. Dist. LEXIS 305, at *14 (S.D.N.Y. Jan. 9, 2003) (citing Espinoza v. Farah Mfg. Co. 414 U.S. 86, 88 (1973)). Accordingly, I construe Cordoba's submissions to mean that she is of Colombian national origin.
Winny Tarn worked with Cordoba in BDA's accounting department. (Compl. ¶ 18) Cordoba had helped to train Tarn, who joined BDA in 1999. (Cordoba Aff. ¶ 11) Bernard has testified that Tarn was a "good employee" with "good accounting knowledge." (Bernard Dep. at 24, 47) However, Tarn's written performance appraisal for the year 2000 states that "Winnie need [sic] to improve her overall accounting knowledge, that way she will better understand her responsibilities," "Winnie need [sic] to pay closer attention to her responsibilities so that she can recognize mistakes and spot problems," "Winnie need [sic] to keep her personal calls to a minimum and improve on her tardiness by coming to work on time," and "Winnie need [sic] to better understand her responsibilities. Especially [sic] in the areas of payroll and producing reports. She need [sic] to take time to review her assignments upon completion." (9/20/00 Tarn Performance Appraisal, Zabell Decl. Ex. E) Bernard has acknowledged that Tarn's performance in the year 2000 "wasn't so hot." (Bernard Dep. at 23-24). Nevertheless, Tarn, like Cordoba, received a salary increase of 3.43% in that year. (9/22/00 Tarn Salary Change Form, Zabell Decl. Ex. E)
Cordoba alleges that, over the course of her employment at BDA, Ciravolo "ridiculed [her] national origin on many occasions." (Cordoba Aff. ¶ 10) According to Cordoba, Ciravolo made faces at her, said he did not understand her, mocked her English language skills, and "systematically" asked her to repeat herself. (Compl. ¶ 13-14; Cordoba Aff. ¶ 10; Pl.'s Rule 56.1 Counter-Statement ¶ 15) On one occasion, Ciravolo suggested that Cordoba "send [her] children into Spanish Harlem on an undercover assignment" being conducted by BDA. (Cordoba Aff. ¶ 10; Pl.'s Rule 56.1 Counter-Statement ¶ 15) Cordoba left Ciravolo's office crying many times. (Cordoba Aff. ¶ 10) She complained to Bernard and at least one other BDA employee, Frank Renaldt, about Ciravolo's comments. (Compl. ¶ 15; Cordoba Aff. ¶ 10) Bernard told Cordoba "not to pay attention to Mr. Ciravolo" and instructed her to return to work. (Compl. ¶¶ 16-17; Cordoba Aff. ¶ 10) Likewise, Renaldt told Cordoba to disregard Ciravolo's comments, and to "go to work, relax." (Cordoba Dep. at 30)
Cordoba testified in a deposition that she also complained about Ciravolo's ridicule to a BDA employee named Bob Babdock. (Cordoba Dep. at 30) However, Cordoba states in her amended complaint and affidavit only that she complained to * Bernard and Renaldt, and does not mention Babdock.
In or about January 2001, Tarn began maternity leave. (Compl. ¶ 18) BDA hired Carril Lindsay, a woman of Jamaican origin, as a temporary replacement for Tarn. (Compl. ¶¶ 19-22) According to Bernard, Lindsay "knew how to process payroll" and displayed "good accounting knowledge." (Bernard Dep. at 46-47)
On or about April 27, 2001, Cordoba was called into a meeting with Ciravolo, Bernard, and other BDA personnel. (Compl. ¶ 23) In the meeting, Bernard told Cordoba that Tarn was scheduled to return from maternity leave on April 30, 2001, and, because there was not enough work for three employees in the accounting department, BDA had decided to fire Cordoba based on a comparison of her and her co-workers' abilities. (Compl. ¶ 23; Cordoba Aff. ¶ 6; Bernard Dep. at 12) Bernard said also that the company could not fire Tarn because she was returning from maternity leave. (Compl. ¶ 23) At the time BDA fired Cordoba, she was 59 years old, Tarn was 27, and Lindsay was 34. (Cordoba Aff. ¶ 11)
At the April 27 meeting, Cordoba was promised that BDA would pay her for three weeks of accrued vacation and four weeks severance, and would not contest her receipt of unemployment insurance. (Cordoba Aff. ¶ 7) Ciravolo confirmed these benefits in a letter to Cordoba dated May 2, 2001. (5/2/01 Ciravolo Letter, Laskin Decl. Ex. 2) The letter did not state that Cordoba's receipt of these benefits was conditioned upon her execution of a release. (Id.) At some point after receiving Ciravolo's letter, Cordoba received payment for the three weeks of accrued vacation. (Cordoba Dep. at 54)
On or about June 1, 2001, Cordoba received from Ciravolo a letter agreement dated May 30, 2001 (the "Release"), setting forth certain terms governing Cordoba's separation from the company. (Cordoba Aff. ¶ 9) The Release stated, in relevant part:
Payments and Benefits
3. Upon your execution of this letter agreement, you will receive a special lump sum payment equal to four (4) weeks of your current salary, less all federal, state and local taxes and withholdings. . . .Complete Waiver and Release
5. You agree for yourself, your heirs, executors, administrators, assigns and agents to fully, finally and forever release and discharge BDA . . . from any and all claims, actions, causes of action, suits and demands whatsoever, known or unknown, asserted or unasserted, at law or at equity, in any and all forums which you . . . have had or may have including, but not limited to, any and all rights under The Age Discrimination in Employment Act, Title VII of the Civil Rights Act, The American with Disabilities" Act, any claim of breach of any express or implied contract, wrongful, abusive or retaliatory discharge or employment discrimination whether based on federal, state or local law or judicial or administrative decision, and any and all claims arising out of the terms or conditions of your employment. . . .Employment Inquiries
9. You should direct all inquiries from prospective employers to Michael A. Ciravolo. Prospective employers will be given only the dates of your employment, your last position held, duties, and last salary unless you expressly authorize in writing that further information may be disclosed. The stated reason for your separation from BDA will be `resignation.' . . .
11. By signing this agreement, you acknowledge that you have reviewed it carefully and understand its terms. You further acknowledge that you have been given an opportunity to consult an attorney concerning this agreement and its terms.
12. This proposal is null and void if not signed and returned to [Ciravolo] by June 6, 2001.
(5/30/01 Release, Laskin Decl. Ex. 1 ("Release")) Before receiving the Release, Cordoba was not told that she would have to execute a waiver of claims against BDA in order to obtain the severance payment promised her at the April 27 meeting. (Cordoba Aff. ¶ 9; Pl.'s Rule 56.1 Counter-Statement ¶ 9)
Cordoba read the Release, showed it to her husband, and discussed it with an attorney who worked in her husband's office. (Pl.'s Rule 56.1 Counter-Statement ¶ 2; Def.'s Rule 56.1 Statement ¶ 5; Pl.'s Mem. at 8) On June 5, 2001, Cordoba signed the Release in her husband's presence and returned it. (Def.'s Rule 56.1 Statement ¶ 5; Cordoba Aff. ¶ 9) Cordoba acknowledges having "understood everything" in the Release. (Cordoba Dep. at 59) However, she claims that she "signed . . . and returned, [the Release] believing that it was not valid." (Cordoba Aff. ¶ 9). Cordoba received the promised severance payment from BDA in June or July 2001. (Cordoba Dep. at 77; Def.'s Rule 56.1 Statement ¶ 7) She then filed for and obtained unemployment benefits until approximately October 2001, when she began a new job. (Def.'s Rule 56.1 Statement ¶ 7)
Tarn resigned from BDA approximately four months after returning to the firm from maternity leave. (Cordoba Aff. ¶ 12) BDA did not re-hire Cordoba after Tarn resigned. (Id.)
On or about August 30, 2001, Cordoba filed a complaint with the Equal Employment Opportunity Commission ("EEOC") (the "EEOC Complaint"), alleging that BDA "committed unlawful discriminatory practices and retaliation against me based on my age and national origin . . ." (8/30/01 EEOC Complaint, Laskin Decl. Ex. 4, ¶ 1) The EEOC subsequently issued a right-to-sue letter. (3/27/02 EEOC Dismissal of Notice and Rights, Compl. Ex.)
On June 26, 2002, Cordoba filed an initial complaint in this court, alleging national origin discrimination in violation of Title VII, NYSHRL, and NYCHRL. In a letter to the court dated April 8, 2003, Cordoba sought leave to file an amended complaint adding various age discrimination and retaliation claims. On April 18, 2003, BDA filed a Memorandum of Law in support of its pending motion for summary judgment, seeking dismissal of Cordoba's initial complaint and denial of Cordoba's request to amend her complaint. On April 28, 2003, Cordoba filed her amended complaint, alleging the following claims for relief: (1) national origin discrimination in violation of Title VII, NYSHRL, and NYCHRL; (2) age discrimination in violation of the ADEA, NYSHRL, and NYCHRL; and (3) retaliation in violation of the ADEA, Title VII, NYSHRL, and NYCHRL. I issued an order, dated April 29, 2003, granting Cordoba leave to file her amended complaint and deeming BDA's Memorandum of Law addressed to the amended complaint. On June 17, 2003, BDA filed a Reply Declaration in further support of its motion for summary judgment.
BDA seeks summary judgment on two principal grounds: (1) Cordoba knowingly and voluntarily signed a release waiving all of her non-ADEA claims and, in any event, those claims fail on the merits as a matter of law; and (2) Cordoba's ADEA claims fail on the merits as a matter of law.
II.
BDA first argues for dismissal of all of Cordoba's non-ADEA claims — her first, second, third, fifth, sixth, eighth, ninth, and tenth causes of action — on the ground that the Release precludes her from raising those claims. (Def.'s Mem. at 1-5; Def.'s Reply Decl. at 2-5) Cordoba argues that the Release is unenforceable as to her non-ADEA claims because it was not a knowing and voluntary waiver. (Pl.'s Mem. at 7-10) Whether the Release is enforceable as to Cordoba's non-ADEA claims depends on whether the claim in question arises under a federal (Title VII) or a state or local (NYSHRL and NYCHRL) statute.
BDA acknowledges that the Release is unenforceable* as to Cordoba's ADEA claims. See infra discussion at page 17.
A. Title VII Claims
The enforceability of the Release as to Cordoba's Title VII claims — her first (national origin) and eighth (retaliation) causes of action — is governed by federal law. See Olin Corp. v. Consolidated Aluminum Corp., 5 F.3d 10, 15 (2d Cir. 1993) (federal law determines validity of release of federal statutory claim). Under Title VII, an employee may validly waive a discrimination claim so long as the waiver is made knowingly and voluntarily. See Alexander v. Gardner-Denver Co., 415 U.S. 36, 52 n. 15 (1974);Bormann v. AT T Communications, Inc., 875 F.2d 399, 402 (2d Cir. 1989).
The Second Circuit has adopted the "totality of the circumstances" inquiry to determine whether a release of Title VII claims is knowing and voluntary. See Bormann. 875 F.2d at 403. In Bormann. the Court identified several factors relevant to this inquiry (the "Bormann factors"): (1) the plaintiff's education and business experience; (2) the amount of time the plaintiff had possession of or access to the release before signing it; (3) the plaintiff's role in deciding the terms of the release; (4) the clarity of the release; (5) whether the plaintiff was represented by or consulted an attorney; (6) whether the consideration given in exchange for the employee's waiver exceeds benefits to which the employee was already entitled by contract or law; (7) whether the employer encouraged the employee to consult an attorney; and (8) whether the employee had a fair opportunity to do so.Id. These factors are not exhaustive, and all need not be satisfied before a release is deemed enforceable. Id. at 403 n.l. "The essential question is `whether, in the totality of the circumstances, the individual's waiver of his right can be characterized as `knowing and voluntary." Baba v. Warren Mgmt. Consultants, Inc., 882 F. Supp. 339, 344 (S.D.N.Y. 1995) (quoting Laniok v. Advisory Comm., 935 F.2d 1360, 1368 (2d Cir. 1991) andBormann, 875 F.2d at 403).
Here, the balance of Bormann factors supports a finding that Cordoba's waiver of Title VII claims was knowing and voluntary. First, Cordoba's education and business experience — a high school diploma, one year of college, an associate business degree in Accounting, employment in BDA's accounting department for five years, and employment generally for approximately 25 years (Def.'s Rule 56.1 Statement ¶¶ 3,4) — warrants the inference that she was capable of understanding the terms of the Release. See Prunella v. Carlshire Tenants, Inc., 94 F. Supp.2d 512, 516 (S.D.N.Y. 2000) (release valid where employee had a", high school diploma and was a certified plumber); Bachiller v.Turn On Prods. Inc., 00 Civ. 8701 (JSM), 2003 U.S. Dist. LEXIS 6164, at *9-10 (S.D.N.Y. Apr. 11, 2003) (release valid where employee had a high school equivalency diploma and was an accounts payable clerk). Second, BDA gave Cordoba approximately four days to sign and return the Release — a period sufficient for Cordoba to acquaint herself with the Release's terms and make a considered decision. See Evans v. Waldorf-Astoria Corp., 827 F. Supp. 911, 913 (E.D.N.Y. 1993) (a few hours is sufficient), aff'd 33 F.3d 49 (2d Cir. 1994); Dewey v. PTT Telecom Netherlands, US, Inc. 94 Civ. 5983 (HB), 1995 U.S. Dist. LEXIS 13134, at *6 (S.D.N.Y. Sept. 12, 1995) (four days is sufficient). Third, although Cordoba did not have an opportunity to negotiate the terms of the Release, this fact alone does not warrant a trial on "voluntariness." See Bormann. 875 F.2d at 403 n.l; Branker v. Pfizer, Inc., 981 F. Supp. 862, 867 (S.D.N.Y. 1997) ("[I]n light of the balance of the other [Bormann] factors to be considered, lack of input [in determining release's terms] alone cannot support invalidating the release."). Fourth, the Release is unambiguous and comprehensible. It is slightly longer than two typewritten pages and refers specifically to Cordoba's waiver of Title VII claims. See Laramee v. Jewish Guild for the Blind, 72 F. Supp.2d 357, 360 (S.D.N.Y. 1999) (upholding validity of release that was three pages and written in plain English); Dewey, 1995 U.S. Dist. LEXIS 13134, at *6 (upholding validity of release that was less than two typewritten pages and written in clear and simple language). Cordoba has testified that she read and in fact understood the terms of the Release. (Cordoba Dep. at 51) Fifth, the Release states plainly that the signer is aware of the right to consult an attorney, and Cordoba acknowledges discussing the Release with an attorney before signing it. (Release ¶ 11; Pl.'s Rule 56.1 Counter-Statement ¶ 2) Cordoba protests that her attorney did not participate in negotiating the Release (Pl.'s Mem. at 8), but that alone does not preclude a finding that the Release was knowing and voluntary.See Baba, 882 F. Supp. at 344 (upholding validity of release where employee was represented by an attorney, even though the release contained standardized language). Cf. George v. Mobil Oil Corp., 739 F. Supp. 1577, 1581 (S.D.N.Y. 1990) (invalidating release where attorney did not participate in negotiating the agreement but advised employee that release was not binding).
The parties have used considerable space debating whether Cordoba's receipt of severance was additional consideration in excess of benefits to which she was already entitled. BDA contends that Cordoba, an at-will employee, was not entitled to a severance package when BDA terminated her, and thus the severance was additional consideration. (Def.'s Mem. at 4; Def.'s Reply Decl. at 2-4) Cordoba argues that she was already entitled to the severance payment because BDA promised it to her at the April 27, 2001, meeting predating her execution of the Release. (Pl.'s Mem. at 5-6, 8-9) I need not resolve this debate because Cordoba received other valid consideration for her waiver — namely, BDA's promise to tell prospective employers that Cordoba had resigned.
Cordoba nowhere alleges that she would have been entitled to BDA's promise to tell prospective employers she had resigned even had she not signed the Release. It is plain, moreover, that BDA's promise constitutes valid consideration in exchange for Cordoba's waiver of claims. See Startech, Inc. v. VSA Arts, 126 F. Supp.2d 234, 237 (S.D.N.Y. 2000) (defining "consideration" as a bargained-for gain or advantage to the promisee or a bargained-for legal detriment or disadvantage to the promisor). Cordoba obtained an advantage from BDA's promise insofar as it made her a more attractive job applicant to prospective employers. Moreover, as discussed above, the Release is written in clear and understandable language, and Cordoba consulted an attorney before signing it, and read and understood its terms. These facts warrant the inference that Cordoba bargained for BDA's promise.
Cordoba invests considerable significance generally in Bernard's and Ciravolo's deposition testimony that she did not receive any additional consideration in exchange for signing the Release (Pl.'s Mem. at 6,9). I find that testimony to be of little weight because Bernard and Ciravolo, as non-lawyers, would have no reason to be familiar with the legal concept of consideration. See United States v.DiGiulio, 95 Civ. 219S, 1997 U.S. Dist. LEXIS 19062, at *25 (W.D.N.Y. Nov. 5, 1997) (non-lawyer's statement that he received no "actual consideration" was not dispositive); United States v. Nirelli, 92 Civ. 563C, 1996 U.S. Dist. LEXIS 5472, at *7 (W.D.N.Y. Jan. 4, 1996) (non-lawyers' statements that they had not received anything of value for transfer were not admissions of lack of consideration)
In sum, the totality of the circumstances shows that Cordoba signed a knowing and voluntary release precluding her from asserting Title VII claims against BDA. Accordingly, Cordoba's first and eighth causes of action are dismissed.
BDA argues that even if the Release was not knowing and voluntary, dismissal of Cordoba's Title VII claims is still warranted because: (1) Cordoba never repudiated the release, and ratified the release by retaining benefits she received in exchange for signing it (Def.'s Mem. at 4); and (2) the Title VII claims fail on the merits as a matter of law. (Def.'s Mem. at 5-7; Def.'s Reply Decl. at 8-9) Because Cordoba's release is enforceable as to her Title VII claims, I need not consider these arguments.
B. NYSHRL and NYCHRL Claims
The enforceability of the Release as to Cordoba's NYSHRL and NYCHRL claims — her second (NYSHRL national origin discrimination), third (NYCHRL national origin discrimination), fifth (NYSHRL age discrimination), sixth (NYCHRL age discrimination), ninth (NYSHRL retaliation), and tenth (NYCHRL retaliation) causes of action — is governed by ordinary contract law principles. See Bank of Am. Nat'l Trust and Sav. Ass'n v. Gillaizeau, 766 F.2d 709, 715 (2d Cir. 1985) (applying New York law); Cramer v. Newburgh Molded Prods., Inc., 228 A.D.2d 541, 541, 645 N.Y.S.2d 46, 47 (2d Dep't 1996). Under New York contract law, a valid release that is clear and unambiguous on its face, even one relinquishing a discrimination claim, is enforceable so long as the release has been knowingly and voluntarily entered into. See Zveiter v. Brazilian Nat'l Superintendency of Merchant Marine, 833 F. Supp. 1089, 1096 (S.D.N.Y.), opinion supplemented, 841 F. Supp. 111 (S.D.N.Y. 1993).
It is well settled that the totality-of-the-circumstances standard is stricter than ordinary contract law principles for determining whether a release is knowing and voluntary. See Bormann. 875 F.2d at 403; Laramee, 72 F. Supp.2d at 359; Nicholas, 929 F. Supp. at 730. Because Cordoba's waiver of her Title VII claims was knowing and voluntary under the totality-of-the-circumstances standard, for the reasons discussed above at pages 10-15, and Cordoba does not raise any novel arguments concerning the Release's enforceability as to her NYSHRL and NYCHRL causes of action, BDA is entitled to summary judgment dismissing all of Cordoba's NYSHRL and NYCHRL causes of action.See Laramee, 72 F. Supp.2d at 359, 361 (dismissing NYSHRL causes of action because employee was found, under totality-of-the-circumstances standard, to have released federal claims); Bachiller, 2003 U.S. Dist. LEXIS 6164, at *10 (dismissing NYSHRL and NYCHRL causes of action because employee was found, under totality-of-the-circumstances standard, to have released federal claims). Accordingly, Cordoba's second, third, fifth, sixth, ninth, and tenth causes of action are dismissed.
III.
BDA concedes that the Release, even if knowing and voluntary, does not bar Cordoba's ADEA claims — her fourth (age discrimination) and seventh (retaliation) causes of action — because it fails to satisfy the requirements set forth in the Older Workers Benefit Protection Act, 29 U.S.C. ¶ 626(f)(1) ("OWBPA"). (Def.'s Reply Decl. at 2 n. 1) However, BDA argues that Cordoba's ADEA claims nevertheless should be dismissed because they fail on the merits. (Id. at 2 n. 1, 9-11)
Non-compliance with the OWBPA provisions does not invalidate Cordoba's release of her Title VII, NYSHRL, or NYCHRL claims because the OWBPA applies only to ADEA claims. See Branker v.Pfizer. Inc., 981 F. Supp. 862, 867 (S.D.N.Y. 1997).
Cordoba's ADEA claims are to be assessed by applying the burden-shifting rules of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), and its progeny. See Slattery v. Swiss Reinsurance America Corp., 248 F.3d 87, 91 (2d Cir. 2001). Under theMcDonnell Douglas framework, Cordoba has the initial burden of establishing a prima facie case of discrimination or retaliation.Id. at 91, 94. The burden then shifts to BDA to rebut the presumption of discrimination or retaliation by articulating a legitimate, non-discriminatory reason for its action. Id. at 91, 94-95. If BDA does so, the burden shifts back to Cordoba to show that BDA's articulated non-discriminatory reason is simply a pretext for discrimination or retaliation. Id. at 91, 95.
The Second Circuit Court of Appeals has repeatedly advised that a plaintiff's presentation of evidence rebutting an employer's proffered justification will not always preclude summary judgment. See, e.g.,Farias v. Instructional Sys., Inc., 259 F.3d 91, 98-99 (2d Cir. 2001); James v. New York Racing Assoc., 233 F.3d 149, 154-56 (2d Cir. 2000). See also Cobian v. New York City, 99 Civ. 10533 (KMW) (AJP), 2000 U.S. Dist. LEXIS 17479, at *28 n. 21 (S.D.N.Y. Dec. 6, 2000) (citing cases where courts within the Second Circuit have granted summary judgment despite evidence of pretext). As the Court of Appeals has reasoned, a plaintiff's success in persuading a jury that his employer's given reason for an adverse employment action is pretextual does not constitute affirmative evidence that the actual reason was the sort of discrimination prohibited under the applicable statute. See James, 233 F.3d at 154. It follows that "evidence that the defendant's articulated nondiscriminatory reason is false, when added to the prima facie case, may or may not be `sufficient to support a reasonable inference that prohibited discrimination occurred' and warrant submitting the case to the jury." Farias, 259 F.3d at 98-99 (citation omitted). When the employer proffers an explanation and the plaintiff attempts to refute it, the court's responsibility is to "analyze the particular evidence to determine whether it reasonably supports an inference of the facts plaintiff must prove. . . ." James, 233 F.3d at 157.
Because ADEA age discrimination and retaliation claims contain different elements, the McDonnell Douglas test must be applied to each separately.
A. Age Discrimination
The ADEA makes it unlawful "for an employer to . . . 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). To establish a prima facie case of age discrimination under the ADEA, Cordoba must show that: (1) she was within the protected age group; (2) she was qualified for her position; (3) she suffered an adverse employment action; and (4) the action took place under circumstances giving rise to an inference of discrimination.Schnabel v. Abramson, 232 F.3d 83, 87 (2d Cir. 2000). The burden of proof for establishing a prima facie case of age discrimination is minimal. Id.
Cordoba has carried this minimal burden. First, she was almost 60 when BDA fired her (Cordoba Aff. ¶ 11), and thus falls within the protected class. See 29 U.S.C. ¶ 631(a) (limiting prohibitions of ADEA to individuals who are at least 40 years old). Second, as discussed above, Cordoba had an associate's business degree in Accounting, almost 20 years of professional experience before joining BDA, and almost five years of experience in BDA's accounting department when she was fired. A jury easily could find that Cordoba was qualified to serve as a bookkeeper for BDA. See Gregory v. Daly, 243 F.3d 687, 696 (2d Cir. 2001) (inference of minimal qualification is not difficult to draw where employer has already hired employee and discharge is at issue); Slattery, 248 F.3d at 92 ("[P]laintiff must show only that he `possesses the basic skills necessary for performance of [the] job.'") (alteration in original) (citation omitted). Third, Cordoba's termination constitutes an adverse employment action. See Perry v. Manocherian, 675 F. Supp. 1417, 1423 (S.D.N.Y. 1987). Fourth, that BDA terminated Cordoba but retained Tarn, who was 27, and Lindsay, who was 34, is enough to warrant the inference — at the prima facie stage — that Cordoba was the victim of age discrimination. See Schnabel. 232 F.3d at 87 (plaintiff was over 60 years old and replacement was 30); Tarshis v. Riese Org., 211 F.3d 30, 38 (2d Cir. 2000) (plaintiff was 67 years old and replacement was 59).
In turn, BDA argues that it dismissed Cordoba because there was insufficient work for three employees in the accounting department, and Bernard and Ciravolo determined that Cordoba was less qualified than Tarn and Lindsay. (Def.'s Reply Decl. at 5-8). In furtherance of its claim that Cordoba was less qualified than her co-workers, BDA points to Cordoba's inability to process payroll, as well as Cordoba's written performance evaluations indicating certain work-related shortcomings. (Def.'s Reply Decl. at 7 10 n. 6). In light of this evidence, I find that BDA satisfies its burden of stating a legitimate, non-discriminatory reason for firing Cordoba.
Because BDA has articulated a legitimate, non-discriminatory reason for firing Cordoba, the burden shifts back to Cordoba to present sufficient evidence for a reasonable jury to conclude that BDA discriminated against her because of her age. Cordoba offers testimonial and documentary evidence that BDA's proffered justification for terminating her is pretextual, including: she had the most seniority among the employees in the accounting department; her written performance evaluations reveal that she completed her work at least as satisfactorily as Tarn; BDA hired Lindsay as a permanent employee after firing Cordoba; and BDA failed to re-hire Cordoba after Tarn resigned. (Pl's Mem. at 14-15) Although a reasonable jury could conclude, based on this evidence, that BDA's stated explanation is pretext, Cordoba fails to allege a single fact — aside from the age difference between Cordoba and her co-workers — supporting the claim that BDA fired her on the basis of age. For instance, Cordoba does not allege that any BDA personnel discussed her age as a justification for terminating her. Nor does she allege, let alone present any evidence, that she ever encountered any age-related comments or criticisms on the job. In short, Cordoba fails to present sufficient evidence that age was a determinative factor in BDA's decision to dismiss her. See Jetter v. Knothe Corp., 324 F.3d 73, 76 (2d Cir. 2003); Slattery, 248 F.3d at 94; Schnabel, 232 F.3d at 91; Newsom-Lang v. Warren Int'l, Inc., 249 F. Supp.2d 292, 303 (S.D.N.Y. 2003) (all dismissing ADEA age discrimination claims in final McDonnell Douglas step because plaintiff failed to present sufficient evidence of age-based animus). Cf. Reeves v. Sanderson Plumbing Prods., Inc.. 530 U.S. 133, 151 (2000) (denying summary judgment where, among other things, employee testified that his supervisor said he "was so old [he] must have come over on the Mayflower" and he "was too damn old to do [his] job") (alterations in original). Accordingly, Cordoba's fourth claim is dismissed.
B. Retaliation
The ADEA also makes it unlawful "for an employer to discriminate against any of his employees . . . because such individual . . . has opposed any practice made unlawful by this section." 29 U.S.C. ¶ 623(d). To establish a prima facie case of retaliation under the ADEA, Cordoba must show that: (1) she participated in an activity protected under the ADEA; (2) BDA was aware of her participation in the protected activity; (3) she suffered an adverse employment action; and (4) a causal connection exists between the protected activity and the adverse action. Wanamaker v. Columbian Rope Co., 108 F.3d 462, 465 (2d Cir. 1997). Although the burden of proof for establishing a prima facie case of retaliation is minimal,id., Cordoba fails to carry this burden.
The only discernible theory of retaliation in Cordoba's pleadings is that BDA fired her because she complained to Bernard and Renaldt about Ciravolo's alleged ridicule of her national origin. However credible that theory, it does not state a cognizable ADEA retaliation claim because her complaints did not pertain to age discrimination — the particular offense against which the ADEA is directed — and thus do not constitute "protected activity" within the meaning of the statute.See Banez v. New York Foundling HOSD., 98 Civ. 518 (GEL), 2001 U.S. Dist. LEXIS 13883, at *16-18 (S.D.N.Y. Sept. 6, 2001) (demands for overtime pay not causally connected to age discrimination were not "protected activity" under ADEA); McCalman v. Partner in Care, 01 Civ. 5844 (FM), 2003 U.S. Dist. LEXIS 17211, at *17-18 (S.D.N.Y. Sept. 29, 2003) (complaints to Department of Health about employer's non-age related practices did not constitute "protected activity" under ADEA).
In short, the ADEA does not protect against retaliation in the abstract. See McCalman, 2003 U.S. Dist. LEXIS 17211, at *17 (ADEA is not "an all-purpose whistleblower statute"). Absent a showing that Cordoba opposed the particular species of discrimination targeted by the ADEA, she cannot establish a prima facie case of ADEA retaliation. Accordingly, her seventh claim is dismissed.
IV.
It appears that Cordoba's Title VII and ADEA retaliation claims — her seventh and eighth claims for relief — should be dismissed also because she failed to assert these claims in her EEOC Complaint. As a precondition to filing Title VII and ADEA claims in federal court, a plaintiff must assert those claims in a timely complaint filed with the EEOC. See Legnani v. Alitalia Linee Aeree Italiane, S.p.A., 274 F.3d 683, 686 (2d Cir. 2001). However, a defendant's failure to raise a timely objection about lack of exhaustion may constitute a waiver of the right to complain on that ground. See Francis v. City of New York. 235 F.3d 763, 768 (2d Cir. 2000) (finding waiver where defendant failed to object to unexhausted Title VII claim until after entry of judgment and twice elected not to object after judge raised doubts about whether claim belonged in the case).
Here, although it is a close question, BDA does not seem to have waived its right to object to Cordoba's failure to exhaust her retaliation claims. While BDA does not explicitly seek dismissal of Cordoba's Title VII and ADEA retaliation claims on exhaustion grounds, it repeatedly observes that she failed to assert any retaliation claims in her EEOC Complaint. (Def.'s Mem. at 7 n. 2; Def.'s Reply Decl. at 9)
A careful reading of the EEOC Complaint substantiates this observation. Cordoba marked the "NATIONAL ORIGIN" and "AGE" boxes on the cover sheet of the EEOC Complaint, and she alleges facts therein corresponding to those claims. (EEOC Complaint) By contrast, Cordoba does not appear to have marked the "RETALIATION" box on the cover sheet of the EEOC Complaint, and the only language therein referring to retaliatory conduct is Cordoba's statement that BDA "committed unlawful discriminatory practices and retaliation against me based upon my age and national origin." (Id.) That statement says merely that BDA committed national origin and age discrimination against Cordoba; it cannot reasonably be read to have alerted the EEOC that Cordoba suffered retaliation because she complained about BDA's discriminatory practices. Indeed, the EEOC Complaint does not contain a single reference to Cordoba's complaints to Bernard and Renaldt. This omission is critical because Cordoba's complaints are the predicate of the retaliation claims set forth in her amended complaint.
The cover sheet of the copy of the EEOC Complaint submitted to the court is partly illegible, and thus I cannot say with absolute certainty that Cordoba did not check the "RETALIATION" box as a cause of discrimination. However, in a subsequent EEOC letter notifying BDA of the claims Cordoba asserted in the EEOC Complaint, the only causes marked are "nat. origin" and "age." (10/23/01 EEOC Notice of Charge of * Discrimination, Laskin Decl. Ex. 4)
Claims not asserted before the EEOC may be pursued directly in federal court if they are "reasonably related" to claims already filed with the agency. Legnani, 274 F.3d at 686. The Second Circuit has recognized three types of unasserted claims that are reasonably related to those asserted in an EEOC complaint: (1) claims falling within the scope of the EEOC investigation which can reasonably be expected to grow out of the discrimination charged in the EEOC complaint; (2) claims alleging retaliation against an employee for filing an EEOC complaint; and (3) claims alleging further incidents of discrimination carried out in the precise manner alleged in the EEOC complaint. Terry v. Ashcroft, 336 F.3d 128, 151 (2d Cir. 2003) (citing Butts v. City of New York Dep't of Hous. Pres. and Dev.. 990 F.2d 1397, 1402-03 (2d Cir. 1993)).
Cordoba's Title VII and ADEA retaliation claims do not fall within any of these exceptions. The first exception is inapplicable because the EEOC's investigation into national origin and age discrimination claims cannot be expected to evolve into an investigation of retaliatory motive.See Susslen v. Sirina Protection Sys. Corp., 269 F. Supp.2d 285, 314-15 (S.D.N.Y. 2003) (citing cases). The second exception is inapplicable because Cordoba's retaliation claim is premised upon her complaints to Bernard and Renaldt — which she made before she was fired and before she filed the EEOC Complaint — not on her filing of the EEOC Complaint. See Gambrell v. National R.R. Passenger Corp., 01 Civ. 6433 (NRB), 2003 U.S. Dist. LEXIS 1515, at *29 (S.D.N.Y. Jan. 31, 2003). The third exception is inapplicable because Cordoba's retaliation claim plainly is not a further incident of discrimination carried out in precisely the same manner as the national origin and age discrimination alleged in the EEOC Complaint. See id. at *29.
Because Cordoba failed to allege retaliation in the EEOC Complaint, and her retaliation claims are not reasonably related to the claims alleged therein, her Title VII and ADEA retaliation claims are dismissed also for failure to exhaust administrative remedies. Moreover, because the time for Cordoba to cure this defect has expired, these claims are dismissed with prejudice. See Berry v. Kerik, 345 F.3d 126, 127-28 (2d Cir. Sept. 25, 2003) (failure to pursue administrative remedies while they are available results in dismissal with prejudice).
Under Cordoba's theory of retaliation, BDA's retaliatory conduct — i.e., terminating Cordoba for complaining to Bernard and Renaldt about Ciravolo's ridicule — took place on or about April 27, 2001. Thus, Cordoba's last day for filing an administrative charge with the EEOC alleging retaliation was on or about February 21, 2002. See Flaherty v. Metromail Corp., 235 F.3d 133, 136 (2d Cir. 2000) ("To sustain a claim for unlawful discrimination under Title VII and/or the ADEA, a plaintiff must file administrative charges with the EEOC within 300 days of the alleged discriminatory acts.").
V.
BDA moves under the Civil Rights Attorney's Fees Awards Act of 1976, 42 U.S.C. ¶ 1988(b) (the "Attorney's Fees Award Act"), for costs and attorney's fees on the ground that Cordoba's counsel filed the initial complaint in this action after BDA's counsel advised him that the Release barred all of Cordoba's national origin discrimination claims. (Def.'s Mem. at 8) The Attorney's Fees Award Act enables a court, in its discretion, to award reasonable attorney's fees to the prevailing party "in any action or proceeding to enforce a provision of sections 1981, 1981a, 1982, 1983, 1985, and 1986 of this title, title IX of Public Law 92-318 [20 U.S.C.A. ¶ 1681 et seq.], the Religious Freedom Restoration Act of 1993 [42 U.S.C.A. ¶ 2000bb et seq.], the Religious Land Use and Institutionalized Persons Act of 2000 [42 U.S.C.A. ¶ 2000cc et seq.], title VI of the Civil Rights Act of 1964 [42 U.S.C.A. ¶ 2000d et seq.], or section 13981 of this title." Because Cordoba does not assert claims arising under any of the enumerated statutes, BDA's motion for costs and attorney's fees is denied.
To the extent BDA seeks costs and attorney's fees directly under the attorney's fee provision of Title VII, 42 U.S.C. ¶ 2000e-5(k), that request is denied because Cordoba's Title VII claims were not "frivolous, unreasonable, or groundless," nor did she "continue to litigate after [they] clearly became so." Am. Fed'n of State, County Mun. Employees v. County of Nassau, 96 F.3d 644, 646 (2d Cir. 1996) (citing Christianburq Garment Co. v. EEOC, 434 U.S. 412, 422 (1978)).
For the above reasons, BDA's motion for summary judgment is granted, and all of Cordoba's claims are dismissed. BDA's motion for costs and attorney's fees is denied.
SO ORDERED.