Summary
granting defendants summary judgment because "[t]here is no evidence that the reasons defendants proffered for plaintiff's discharge are untrue or are merely pretext for a retaliatory motive."
Summary of this case from Lue v. JPMorgan Chase & Co.Opinion
No. 02-CV-9070 (TPG).
January 24, 2006
OPINION
In this action plaintiff Steven A. Ennis asserts claims against his former employers, defendants Sonitrol Management Corp. and Mid-Atlantic Security, Inc., for religious discrimination and retaliatory termination in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. He also claims age discrimination and retaliatory termination in violation of the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. §§ 621 et seq. Similar claims are brought under the New York State Human Rights Law ("NYSHRL"), Exec. Law §§ 290 et seq., and New York City Human Rights Law ("NYCHRL"), N.Y.C. Admin. Code, §§ 8-101 et seq. Plaintiff also alleges that defendants wrongfully withheld his sales commissions in violation of New York Labor Law §§ 190 et seq.
Defendant Tyco International Ltd. was previously found not to be plaintiff's employer and was therefore dismissed from this action. See Ennis v. Tyco Int'l Ltd., 02-CV-9070, 2004 U.S. Dist. LEXIS 4329 (S.D.N.Y. March 19, 2004). The record is unclear as to whether plaintiff was employed by Sonitrol Management Corp., Mid-Atlantic Security, Inc., or both. In the present motion, neither of these defendants argues for summary judgment on the basis that they were not plaintiff's employer. For the purposes of the present motion, the court will therefore assume that the plaintiff was employed by both Mid-Atlantic Security and Sonitrol Management Corp.
Plaintiff claims that he was subjected to a religious hostile work environment, and that he was thereafter terminated because of his religion, and in retaliation for complaining about religious discrimination he allegedly experienced while in defendants' employ. Plaintiff also claims that he was terminated because of his age and in retaliation for complaining about defendants' alleged age discrimination. Finally, plaintiff asserts that defendants wrongfully refused to pay him certain unspecified commissions he earned.
Defendants move for summary judgment. The motion is granted.
FACTS
Defendants are in the business of selling and installing alarm systems. Defendants' corporate headquarters are located in Baltimore, in addition to which they maintain sales offices in New York City and Rutherford, New Jersey. Plaintiff was hired on March 8, 1991 as a sales representative in defendants' New York City office. Plaintiff is Jewish and, at the time of his discharge on January 29, 2002, was 54 years old.
During his employment with defendants, plaintiff was acknowledged to be a generally good employee. According to management, plaintiff was, for a time, the highest producing salesperson in the office, was conscientious about his job, and introduced "good ideas" throughout his 12-year employment tenure. Plaintiff did have some job related difficulties, however, and received warnings and reprimands about his attitude and job performance in 1994 and 1998.
On September 4, 2001, defendants hired Jim Wright as general manager for the Northern New Jersey and Metro New York territory. In this position, Wright became plaintiff's direct supervisor. Wright generally worked from the Rutherford, New Jersey office. However, as part of his managerial responsibilities, Wright occasionally visited the New York City office where plaintiff was based.
In his position as general manager, Wright reported to Wesley France, Executive Vice President and Chief Operating Officer of Mid-Atlantic Security. During the relevant time, Phil Adams was the Director of Administration at Mid-Atlantic Security and John Rausch was Mid-Atlantic Security's Director of Sales and Marketing. Both Adams and Rausch reported to France.
Wright was a devoutly religious Christian, and during his tenure hired certain salespeople of his religious persuasion. These employees were personally associated with Wright and shared a close religious bond with him. On September 17, 2001, Wright hired Derek Dalmolin, 23, and on October 15, 2001, Wright hired Timothy Van Winkle, 35. Wright also hired two other Christians; Duane Pickney, 26, on November 28, 2001, and Todd DiMartino, 36, on October 17, 2001. On November 15, 2001, Van Winkle began working at defendants' New York City office together with plaintiff. The others worked in the New Jersey office.
Plaintiff's Original Allegations of a Hostile Religious Environment
Plaintiff's complaint and his brief in the present motion contained detailed allegations in support of his hostile religious work environment claim. These were substantially modified at the oral argument of the motion. It is of interest to note the original allegations (in the complaint and plaintiff's brief), and also to note how they were subsequently modified. The original allegations were as follows.
Wright was a priest in the Charismatic Episcopal Church and believed it was his duty to convert others to Christianity. Plaintiff alleged that, on a daily basis, Wright made references to his religion and the Bible. Wright regularly conducted open prayer sessions at the office with Van Winkle and Dalmolin in attendance, and frequently made the sign of the cross at work. Plaintiff claimed that Wright came to work with a cap embroidered "Father Jim" and a clerical collar. Plaintiff also asserted that, when plaintiff mentioned that he would be out for Rosh Hashanah and Yom Kippur, Wright said "Oh, you guys get these holidays all the time."
Plaintiff claimed that the "in your face" religious environment created by Wright was intensified by the religious conduct of the "young followers from Wright's church who seemed to revere him." Plaintiff asserted that these new hires had no experience in the alarm industry and were hired only because they shared Wright's religious beliefs and fervor. In addition to participating in Wright's workplace prayer sessions, Wright's young followers also "constantly" referred to him as "Father Jim" around the office, a practice to which Wright did not object.
One of these young disciples, Timothy Van Winkle was assigned to the New York office where he shared a single office with plaintiff. Plaintiff found it extremely offensive to be in the same office with Van Winkle because of his "in your face type pushing his religion, like he is trying to convert me." Plaintiff alleged that Van Winkle prominently displayed his Bible at the office and regularly talked about his prayer schedule at the nearby St. Patrick's Cathedral. Van Winkle frequently hummed religious hymns and used religious terminology around the office, for example greeting plaintiff with "Good morning, how are you in Christ?" Plaintiff also alleged that Van Winkle left a stack of religious writings and quotations from Bible passages on plaintiff's desk for him to discover, containing religious statements such as "Get behind me Satan!" Plaintiff claimed that Wright encouraged Van Winkle in these activities.
The above allegations were the essence of plaintiff's hostile work environment claim as originally stated. The modifications to these allegations will be described shortly. However, plaintiff also makes certain allegations of discriminatory treatment as part of his hostile work environment claim which have not been modified. These are as follows.
Plaintiff claims that Wright often spoke to him in a demeaning and bullying way, sometimes yelling at him for no reason in front of his coworkers. Plaintiff asserts that this abuse began barely a month after Wright arrived when, on October 18, 2001, Wright left two voice messages for plaintiff screaming that plaintiff had an attitude problem. According to plaintiff, the messages were in response to the fact that plaintiff had unintentionally hung up on Wright when their cell phone conversation was disconnected. On November 5, 2001, Wright allegedly called from the Rutherford office and berated plaintiff in a tone audible to other employees in the New York City office. Wright was apparently angered at plaintiff for calling corporate headquarters to ask for computer printing assistance before speaking with him first. According to plaintiff, Wright yelled "Hey Dude" in a nasty tone, and taunted him as to whether he knew how to spell the word "Kinko's."
Prior to Wright's tenure, plaintiff's sales territory had consisted of all five boroughs of New York City, plus Nassau County and Westchester County. Plaintiff claims that Wright "engaged in a systematic scheme to divert existing business and any worthwhile leads" to his "young Christian recruits" thereby depriving plaintiff of sales commissions from customers within his sales territory, many of whom he had cultivated for years. Plaintiff alleges that Wright based these reassignments on favoritism toward his own co-religionists, and discrimination against plaintiff as a Jew.
Some explanation is required as to the claim just described. A discriminatory distribution of sales accounts by an employer would normally give rise to a standard employment discrimination claim, not necessarily a hostile work environment claim. But plaintiff is not making a standard discrimination claim with respect to the alleged diversion of business. It appears that this is part of his hostile work environment claim.
Plaintiff also complains about Wright's requirement that he attend defendants' weekly 8:00 a.m. sales meetings in New Jersey. Plaintiff claims that he had never been required to attend such meetings until Wright began working for defendants. Plaintiff asserts that there was "no legitimate business need" for him, a twelve year veteran sales person, to attend these introductory training sessions which were, in plaintiff's words, the equivalent of "Sales 101." Plaintiff proffers the affidavits of his coworker DiMartino and former supervisor Mark Cardaci, both of whom state that, for someone of plaintiff's sales experience, attendance at introductory sales meetings was unnecessary. Plaintiff claims that the only reason Wright wanted him to personally come to these sales meetings was to "`stick it to him' — to show him that Wright was the boss," and that Wright was motivated in this by his antagonism toward plaintiff's religion.
Plaintiff's Hostile Work Environment Claim as Modified
Many of plaintiff's original assertions regarding the intense, pervasive and "cult like" religious environment at defendants' workplace were withdrawn or modified at the argument of the motion. It is now conceded that Wright visited the New York office where plaintiff was stationed only a "few times" over the course of the five-month period during which their employment overlapped, and only once did he visit while plaintiff was actually present at the New York office. Plaintiff never personally saw Wright conduct prayer sessions or wear his clerical collar to the office and only saw Wright wearing the "Father Jim" hat on one occasion. Plaintiff also acknowledges that it was Wright's general practice to remove the "Father Jim" cap before entering the office. Plaintiff saw Wright cross himself only one time, prior to lunch, while the two were traveling on business. Most importantly, plaintiff admits that Wright never tried to proselytize him and did not make disparaging remarks about the Jewish religion.
Plaintiff also admits that Van Winkle's conduct was never abusive or coercive toward plaintiff. Thus, plaintiff does not allege that Van Winkle ever made anti-Semitic remarks or disparaging comments about the Jewish faith. Nor is there any evidence in the record that Van Winkle actually attempted to proselytize plaintiff or directed religious remarks toward him because he is Jewish. Rather, the evidence shows that Van Winkle's deliberately overt religious behavior arose from, and was intended to further, only Van Winkle's own religious involvement. Finally, contrary to plaintiff's assertion, there is no evidence that Wright encouraged Van Winkle's behavior.
Plaintiff has not withdrawn his claims that he was yelled at by Wright, that his sales accounts were discriminatorily reassigned, and that Wright's requirement that he attend the weekly sales meetings was the result of anti-Jewish bias. However, he does not claim that there was any express reference to the Christian religion or the Jewish faith in any of these situations. The court will discuss later whether the circumstances give rise to any triable issue of fact regarding a religious hostile work environment in what occurred.
Todd DiMartino's Complaint
Plaintiff refers to a complaint to management by Todd DiMartino, a coworker of plaintiff's and a Catholic. However, DiMartino was assigned to the New Jersey office and had much more contact with Wright than did plaintiff. Nevertheless, the DiMartino complaint is significant for two reasons. First, the complaint shows that Wright's conduct was bothersome even to a Christian, and that Wright's hostility was not specifically directed toward plaintiff because he was Jewish. Second, DiMartino's complaint demonstrates that the reassignment of sales territory and opportunities was not limited to an older or Jewish employee.
On January 11, 2002, DiMartino wrote to Adams complaining of Wright's behavior and the deterioration of his working relationship with Wright. He asserted that Wright had an in your face attitude about religion. The letter further stated:
Jim's display of religion is offensive to me. . . . He wears a baseball hat to appointments and in the office that reads `Father Jim.' He makes many references to the Bible. When something goes wrong in the office or in current events he stops what he is doing, makes the sign of a cross and says a short prayer.
DiMartino also complained in this letter that Wright was showing religious favoritism to his co-religionists Van Winkle and Dalmolin, by reassigning to them customers and leads from his and other sales representatives' territories.
Adams responded to DiMartino in a letter dated January 15, 2002. With regard to DiMartino's complaints about Wright's religious displays, Adams wrote:
We cannot censure Jim, however Jim cannot impose upon your rights either. While this means that sales leads should not be doled out according to what church someone attends, it also means Jim has a right to say a prayer if indicated. While Jim cannot make you say a prayer, he should not have to leave the room to do so. He can talk about the Bible just like someone else talks about a TV show.Plaintiff's Complaints to Management
On November 5, 2001, plaintiff experienced difficulties printing a sales document from his computer in the New York office. Plaintiff called Rausch to complain that he wasn't getting support from his supervisor and that nobody was helping him with his computer printing troubles. According to Rausch, this conversation lasted approximately one hour. Later on November 5, Rausch spoke with Wright about plaintiff's call. Wright then called plaintiff and, according to plaintiff, berated him in a loud and belligerent manner. This call is referred to earlier in this opinion. The following day, November 6, 2001, plaintiff sent a letter to Rausch in which he complained about this November 5, 2001 altercation with Wright. In his letter, plaintiff stated that Wright had "verbally abused" him but mentioned nothing about age or religious discrimination.
On January 15, 2002, plaintiff sent Adams a "follow-up to my letter on 11/06/01 citing abusive treatment to me from Jim Wright" and to inform him of issues he was having with Wright that were making it "extremely difficult for me to do my job." In his letter, plaintiff asserted a litany of complaints:
To begin with, I now firmly believe that because I am Jewish, Jim Wright is discriminating against me in numerous ways:
He has been making defamatory remarks against me to people in the NJ office as well as asking them whether he should fire me.
Jim has been sending reps to accounts that in the past would normally be given to me (one in particular — Westchester Airport which is only five minutes from my house). Also, another rep who lives with Jim has been contacting some of my existing customers (as I understand it)
Since Jim has two salesmen living with him and paying him a considerable amount of rent, is that a conflict of interest?
Why has he hired new sales people at a higher base salary than mine? Does twelve years of my dedicated service have any meaning?
When Jim came to my office on 12/14/01, his baseball cap reading FATHER JIM was extremely offensive to me as well as religious material one of his boy's left for me on my desk when I returned from vacation on 12/14/01
Another form of harassing me is Jim having me attend meetings in NJ much more often than I have ever been required to in the past. This has made me lose time in NY as well as incur additional unreimbursed expenses to get to N.J.
Jim has slowly been giving customers that I developed to other sales reps
. . .
Jim has hired primarily younger workers while displaying hostility to older personnel. This is age discrimination!
Plaintiff closed by stating that Wright had created a "pervasive fundamentalist cult like working environment that is hostile to both Christians and Jews alike." Adams testified that during a subsequent telephone conversation with plaintiff, plaintiff again complained about his required attendance at the weekly 8:00 a.m. sales meetings. During this conversation Adams warned plaintiff that if he did not attend the weekly sales meetings he risked being terminated.
Two days later, on January 17, 2002, plaintiff called Rausch to discuss the problems he was having with Wright. Plaintiff asserts that, during this conversation, he complained to Rausch that Wright was discriminating against him because he was Jewish and on account of his age. Defendants, on the other hand, claim that plaintiff never actually discussed his discrimination complaints with Rausch, and that the conversation revolved solely around their inability to "get along." Also, defendants maintain that Rausch never saw plaintiff's letter to Adams, and never had any knowledge that plaintiff lodged discrimination complaints against Wright. Rausch's notes from this conversation indicate, however, that plaintiff told Rausch that "Wright has a problem that I am Jewish."
The parties are in agreement that, during this conversation, plaintiff told Rausch that he "wanted to be terminated so he could collect unemployment."
On January 18, 2002, Adams responded in writing to plaintiff's January 15, 2002 letter. In his response, Adams expressed surprise that plaintiff's allegations of discrimination contained so few specifics and stated that he could do nothing without more specific details. As to plaintiff's complaint that his territory was being reassigned, Adams responded that management had decided that having only one salesman for New York was leaving a lot of potential business untapped and that additional salespeople for the area would attract more business. Regarding his allegation that Wright was requiring his attendance at the weekly sales meetings solely to harass him, Adams responded: "Jim has every right to require you to attend these meetings." Responding to plaintiff's complaints regarding Wright's religious conduct, Adams stated that Wright's "Father Jim" cap was "just that, a cap" and that he would not "compile a list of types of hats that are inappropriate." Adams also denied that Wright was discriminating based on age.
Plaintiff was frustrated upon receiving Adams' letter, and on January 18, 2002, he left two voicemail messages for Rausch again asking to be discharged so that he could collect unemployment. Plaintiff's Termination
On January 21, 2002 plaintiff's mother passed away and plaintiff took a one-week bereavement leave from work. He was expected to return on the morning of January 28, 2002 to attend a training session for Sonitrol sales employees about fire alarm systems. Plaintiff failed to attend the training class.
On January 28, 2002, after hearing of plaintiff's failure to attend that morning's sales meeting, Adams asked Wright "to remind Ennis in writing that the sales meetings were mandatory and that it was not acceptable to miss the sales meetings." However, Rausch sent an email to Adams and France later that day indicating that he had decided to terminate plaintiff. In his email, Rausch wrote: "I can no longer deal with one hour rambling sessions with Steve Ennis. He refuses to even speak to Jim let alone work for him. I don't see much choice but to let Steve go." Rausch testified that the troublesome "rambling sessions" he referred to in this email were his phone conversation with plaintiff on November 5, 2001, and January 17, 2002, and he could not recall any other particularly lengthy or inappropriate phone calls with plaintiff.
The morning of January 29, 2002, Wright, responding to Adams' request, and unaware that Rausch had decided to terminate plaintiff, prepared a written warning to plaintiff for failing to attend the January 28 training class.
On January 29, 2002 plaintiff returned to the office to find a letter from Rausch terminating his employment together with Wright's written reprimand for failure to attend the January 28 training class. In the termination letter, Rausch cited plaintiff's unwillingness or inability to work with Wright and his failure to attend the weekly sales meetings as Wright had directed. The letter stated that plaintiff's conflict with Wright had reached the point that plaintiff had asked to be discharged on three occasions. The letter also stated that, although plaintiff complained of Wright's discriminatory animus, he has been "unable to provide any sustentative information to lend credence to this statement."
DISCUSSION
Under Fed.R.Civ.P. Rule 56(c), summary judgment is proper "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, 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."Id. Summary judgment is thus inappropriate if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
In considering a motion for summary judgment, "the inferences to be drawn from the underlying facts . . . must be viewed in the light most favorable to the party opposing the motion." United States v. Diebold, Inc., 369 U.S. 654, 655 (1962).
If the moving party has carried its burden under Rule 56(c), its opponent must do more than simply show that there is some metaphysical doubt as to the material facts. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Rather, the adverse party must set forth specific facts showing that there is a genuine issue for trial. Fed R. Civ. P. 56(e). "If the adverse party does not so respond, summary judgment, if appropriate, shall be entered against the adverse party." Id. I. Hostile Work Environment
In order to prevail on a hostile work environment claim under Title VII, a plaintiff must establish two elements. First, the plaintiff must show that his workplace was permeated with discriminatory intimidation that was sufficiently severe or pervasive to alter the conditions of his work environment. Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993); Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 65-67 (1986). Second, a Title VII hostile work environment claim requires plaintiff to show that a specific basis exists for imputing the conduct that created the hostile environment to the employer. Karibian v. Columbia University, 14 F.3d 773, 779 (2d Cir. 1994); Kotcher v. Rosa Sullivan Appliance Center, 957 F.2d 59, 62 (2d Cir. 1992).
Proving the first element, that the plaintiff's workplace was permeated with severe or pervasive discriminatory intimidation requires plaintiff to show both objective and subjective elements. The misconduct shown must be severe or pervasive enough to create an objectively hostile or abusive work environment, and the victim must also subjectively perceive that environment to be abusive. Harris, 510 U.S. at 21.
Though Harris involved a case of gender discrimination, the courts have applied the same standard to religious hostile work environment claims. Feingold v. New York, 366 F.3d 138, 149 (2d Cir. 2004); Abramson v. William Paterson College of New Jersey, 260 F.3d 265 (3d Cir. 2001).
In determining whether conduct in a workplace environment is hostile or abusive enough to constitute an actionable claim under Title VII, the court is to consider the totality of the circumstances. Harris, 510 U.S. at 23; Schwapp v. Town of Avon, 118 F.3d 106, 111 (2d Cir. 1997). Among the more important factors to be considered are (1) the frequency of the discriminatory conduct (2) its severity (3) whether it is physically threatening or humiliating, or a mere offensive utterance and (4) whether it unreasonably interferes with the employee's work performance. Harris, 510 U.S. at 23.
The religious hostility complained of must also be directed at the individual "because of such individual's . . . religion." 42 U.S.C. § 2000e-2(a)(1). An environment that would be equally harsh for all workers, or that arises from personal animosity, is not actionable under the civil rights statutes. Brennan v. Metropolitan Opera Ass'n, 192 F.3d 310, 318 (2d Cir. 1999).
Moreover, it is fundamental that "Title VII is not a general civility code." Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 78 (1998); Bickerstaff v. Vassar College, 196 F.3d 435, 452 (2d Cir. 1999). Hostile work environment claims are meant to protect individuals from abuse and trauma that is severe. They are not intended to promote or enforce civility, gentility or even decency. Curtis v. DiMaio, 46 F. Supp. 2d 206, 213-214 (E.D.N.Y. 1999). Thus, to qualify as sufficiently hostile or offensive for a claim under Title VII, an employer's conduct must be motivated by discriminatory intent, and severely abusive or disparaging toward the plaintiff. Oncale, 523 U.S. at 78;Terry v. Ashcroft, 336 F.3d 128, 148 (2d Cir. 2003).
Where a hostile work environment claim is grounded in religious hostility, courts have been particularly cautious in adhering to the principle that the hostile or offensive conduct must involve some coercive or abusive behavior. Three cases will illustrate this requirement.
In Rosen v. Baker, CV-88-1969, 1995 U.S. Dist. LEXIS 22234 (E.D.N.Y. May 4, 1995), the court rejected the plaintiff's claim that he had been subjected to a religiously hostile work environment because his supervisor, a born-again Christian, made references to the New Testament and kept a Bible in his office. Importantly, the court noted that the supervisor "never sought to impose his religious beliefs upon any of his subordinates . . . or to proselytize anyone." Id. at *15. The court concluded:
The cases discussing hostile work environments due to religious animus have consistently been in the context of spoken derogatory remarks or coerced religious activity. There is no such allegation here.
There is no evidence that any epithet which engendered offensive feelings was ever uttered. Nor is there any evidence of an environment which a reasonable person would find hostile or abusive.Id. at *19.
In Durant v. NYNEX, 101 F.Supp.2d 227 (S.D.N.Y. 2000), the plaintiff, a Seventh Day Adventist, argued that harassment by her supervisor in the form of repeated offers of overtime shifts on Saturdays when he knew she could not work, and asking her in a condescending tone whether she was Jewish, created a religiously hostile work environment. The court rejected the plaintiff's claim because she did not charge that anyone at her work place made profane comments about her faith, coerced her to engage in religious activity, insulted her religion, or even mentioned her religious beliefs. Id. at 234-35.
In Shabat v. Blue Cross Blue Shield, 925 F.Supp. 977 (W.D.N.Y. 1996), the court rejected the plaintiff's religious hostile work environment claim because it was not a situation where the plaintiff had been subjected to vicious anti-Semitic comments, or a pattern of anti-Jewish behavior over an extended period of time, which is what the court found had been required for hostile work environment claims in the in race and gender contexts. Id. at 984. See also Kaplan v. Banque Nationale, 94-CV-3965, 1995 U.S. Dist. LEXIS 18885 (S.D.N.Y. December 19, 1995).
A case that illustrates the type of conduct that is sufficient to sustain a religious discrimination claim based upon a hostile work environment is Tillery v. ATSI, Inc., 242 F. Supp. 2d 1051 (D. Ala. 2003). In Tillery, the plaintiff proffered evidence that her supervisor repeatedly subjected her to lectures about her prospects for salvation during working hours, made highly personal inquiries into her private life (e.g., the legitimacy of her children, and whether a prior marriage had been terminated by divorce versus annulment, as sanctioned by the Catholic Church), and strongly suggested she talk with God. Id. at 1064. The court denied the employer's motion for summary judgment, finding that a reasonable person in the plaintiff's position could have found such a work environment to be hostile and abusive. Id.
To summarize, conduct involving religion will not be held to create a religious hostile work environment unless that conduct is in some way abusive, disparaging, or coercive with respect to the plaintiff. On the other hand, abuse or mistreatment in the workplace does not amount to a religious hostile work environment unless such conduct was motivated by religious animus. As noted in Rosen and exemplified by Tillery, in the religious context, these two elements are most commonly found where the alleged discriminatory conduct consists of repeated derogatory remarks or coerced religious activity.
In the present case, plaintiff has failed to raise a triable question of fact with respect to his hostile work environment claim. The workplace religious activities of Wright and Van Winkle, while perhaps unpleasant or disturbing, cannot in any sense be characterized as abusive or coercive. The conduct of which plaintiff complains, including Van Winkle's singing of religious songs and leaving religious passages and a Bible on his desk, and Wright's "Father Jim" hat and his crossing himself before lunch, is simply not the sort of abusive behavior prohibited by Title VII. Moreover, none of this behavior was in any meaningful way directed at plaintiff because of plaintiff's religion.
The one specific remark about plaintiff's Jewish practices was Wright's reference to plaintiff's absence during the Jewish holidays. This was of a mild nature. In any event, the Supreme Court has held that a single statement which "`engenders offensive feelings in an employee' would not affect the conditions of employment to a sufficiently significant degree to violate Title VII." Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 67 (1986).
As indicated earlier in this opinion, there are three other aspects of plaintiff's hostile work environment claim, but they do not involve any overt religious aspect. They involve: (1) Wright's alleged verbal abuse toward plaintiff in the telephone conversations of October 18, 2001 and November 5, 2001; (2) Wright's reassignment of some of plaintiff's sales territory to Christian employees; and (3) Wright's insistence that plaintiff attend weekly 8:00 a.m. sales meetings in New Jersey.
Plaintiff has not adduced any evidence to suggest that Wright's anger in the two telephone conversations had anything at all to do with plaintiff's religion. On neither of those occasions was there any express reference to religion, or even a hint that Wright's or plaintiff's religion caused Wright to act differently toward plaintiff than he would have behaved toward a non-Jewish employee. Rather, Wright's behavior expressed the frustration and annoyance of a normal supervisor. On October 18, Wright became irritated when his cell phone conversation with plaintiff was disconnected and plaintiff failed to call back immediately. On November 5, Wright was angered by plaintiff's going over his head to complain to the management about his computer problems, and "casting me in the light where he was making it appear as if I was uncooperative, unsupportive." Wright's behavior did not reflect any religiously motivated abuse toward plaintiff.
As to the reassignment of plaintiff's sales territory and the requirement that he attend the weekly sales meetings, plaintiff has failed to adduce any evidence at all tending to show that this alleged mistreatment was related either to Wright's Christian religion or his own Jewish faith.
Wright stated that he reassigned a portion of plaintiff's sales territory to other employees because, in his judgment, "one person could not handle all five boroughs and do a through job," and because positioning additional salespeople in the region would make the company look "bigger and more substantial." In his January 18, 2002 response to plaintiff's complaint, Adams confirmed Wright's explanation:
Regarding the complaint that Jim is sending new reps to accounts that in the past would have been given to you, the company has agreed that one salesman in the Metro New York area was leaving a lot of potential business untapped. Many other alarm companies have multiple representatives in the Manhattan area. In order to bring new sales representatives into the area your territory will have to be adjusted. You may recall you were given an increase last year to become a mentor of sorts to the new reps that would be placed in the territory.
Plaintiff has not set forth with any evidence that Wright's reassignment of his sales territory was motivated by religious animus or was anything other than what it appears to be, a management decision based on reasonable business considerations.
Plaintiff has also failed to raise an inference of religious discrimination with respect to Wright's requirement that he attend the weekly 8:00 a.m. sales meetings in New Jersey. Wright testified that he accompanied plaintiff on sales calls, observed plaintiff's sales technique, and found that plaintiff could use some improvement. Plaintiff has submitted affidavits from a former supervisor, Mark Cardaci, and Todd DiMartino which state that plaintiff did not need any training. However, it is not for the court to substitute its judgment for that of plaintiff's supervisor. Argueta v. N. Shore Long Island Jewish Health Sys., 01-CV-4031, 2003 U.S. Dist. LEXIS 20456 at *28 (E.D.N.Y. November 6, 2003). The record contains not a hint of evidence that plaintiff's religion influenced Wright to require plaintiff to attend the sales meetings.
Plaintiff also suggests that Wright's intense Evangelical Christian beliefs and behavior are alone sufficient to impute a religious motivation into his management decisions. It would be incorrect, however, both as a matter of fact and of law, to infer the necessary discriminatory intent merely from Wright's fervent religious proclivities and his "in your face" religious behavior. Accordingly, plaintiff's hostile work environment claim is dismissed. II. Plaintiff's Discriminatory Discharge Claims
Plaintiff's Title VII religious discrimination and ADEA age discrimination claims are analyzed using the traditional burden-shifting procedure set forth by the Supreme Court inMcDonnell Douglas v. Green, 411 U.S. 792 (1973). Cruz v. Coach Stores, 202 F.3d 560, 565 n. 1 (2d Cir. 2000); Woroski v. Nashua Corp., 31 F.3d 105, 108 (2d Cir. 1994). Plaintiff's state and city law discrimination claims are also evaluated under theMcDonnell Douglas framework. Cruz, 202 F.3d at 565;Abdu-Brisson v. Delta Air Lines, Inc., 239 F.3d 456, 466 (2d Cir. 2001).
Under McDonnell Douglas, plaintiff bears the initial burden of establishing a prima facie case of discrimination. Such a prima facie case requires a showing that (1) plaintiff was a member of a protected class, (2) plaintiff was qualified for his position, (3) plaintiff suffered an adverse employment action, and (4) that action took place in circumstances giving rise to an inference of discrimination. Schnabel v. Abramson, 232 F.3d 83, 87 (2d Cir. 2000). If plaintiff successfully establishes his four-part prima facie case of discrimination, the burden then shifts to the defendant to articulate "legitimate non-discriminatory" reasons for the adverse action. Quaratino v. Tiffany Co., 71 F.3d 58, 64 (2d Cir. 1995). If defendants succeed in articulating a legitimate non-discriminatory reason for terminating plaintiff, the burden shifts back to plaintiff, who "must adduce evidence sufficient to raise a fact issue as to whether the employer's reason was merely a pretext" for discrimination or retaliation.Quinn v. Green Tree Credit Corp., 159 F.3d 759, 769 (2d Cir. 1998). In order to prove pretext, the plaintiff must show " both that the [stated] reason was false, and that discrimination was the real reason" for the employer's action. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 507 (1993); Gallo v. Prudential Residential Services, 22 F.3d 1219, 1225 (2d Cir. 1994). The burden of persuading the trier of fact that the defendant intentionally discriminated . . . remains at all times with the plaintiff.'" St. Mary's Honor Ctr., 509 U.S. at 507.
a. Age Discrimination
The analysis of plaintiff's age discrimination claim begins with an evaluation of plaintiff's four part prima facie case under McDonnell Douglas. First, plaintiff, as an individual over the age of 40, is a member of a protected class under the ADEA. See 29 U.S.C. § 631(a). Second, the court finds that plaintiff was qualified for his sales position. Third, plaintiff's termination was obviously an adverse employment action.
The final element of plaintiff's prima facie case requires him to show that his termination took place in circumstances giving rise to an inference of discrimination. Schnabel, 232 F.3d at 87.
Defendants state that this requirement presents an insurmountable obstacle for plaintiff. According to defendants, the undisputed fact that it was Rausch who terminated plaintiff, without the involvement of Wright, negates any possible inference that the decision to terminate plaintiff was the product of discrimination. Defendants argue that even if plaintiff were able to show that Wright harbored age related bias toward him, as plaintiff suggests is evidenced by Wright's reassignment of plaintiff's sales territory to younger employees, this fact is irrelevant because Wright did not participate in the decision to terminate plaintiff. Indeed, defendants point out that Wright's issuance of a "written warning" to plaintiff on January 29, after the decision to terminate plaintiff had already been made, shows that Wright was completely unaware that Rausch had decided to terminate plaintiff. Defendants argue that since plaintiff has never ascribed any discriminatory motivation to Rausch, his termination by Rausch cannot have been the result of any alleged age discrimination.
Plaintiff responds that defendants' employment record alone gives rise to an inference of discriminatory intent. Plaintiff asserts that over the course of Wright's tenure, defendants terminated two salespeople over age 50 (plaintiff, 54, and Hortensia Tafini, 52) while hiring Dalmolin, Van Winkle, DiMartino, and Pickney, ages 23, 35, 37, and 26 respectively. Moreover, according to plaintiff, an inference of discrimination is suggested by the fact that during Wright's tenure plaintiff's sales territory was assigned to substantially younger employees. Plaintiff asserts that these facts are sufficient to provide an inference of discrimination so as to establish his prima facie case.
A plaintiff may establish a claim of age discrimination through "direct evidence, such as statements by the employer that age was the reason for the discharge, or through proof of circumstances from which an inference of age discrimination may be drawn."Haskell v. Kaman Corp., 743 F.2d 113, 119 (2d Cir. 1984). In the absence of direct evidence, "a plaintiff may through statistical evidence establish a pattern or practice of discharging or failing to promote older employees, from which an inference of age discrimination may be drawn." Fisher v. Vassar College, 70 F.3d 1420, 1450 (2d Cir. 1995).
In this case, plaintiff has offered no direct evidence that his termination was a result of age discrimination. Instead, he seeks to employ statistical arguments to suggest that his discharge was the result of discrimination. To support his argument plaintiff cites several "reduction in force" cases, in which an employer's termination of an older employee while retaining similarly qualified younger workers in the course of a corporate consolidation was found to give rise to an inference of discrimination. For example, inMaresco v. Evans Chemetics, 964 F.2d 106 (2d Cir. 1992), the decision to terminate two of the three older accounting employees, and none of the twenty younger employees "presented circumstances which give rise to an inference sufficient to withstand a motion for summary judgment that age was impermissibly considered in allocating the post-consolidation employment positions." Id. at 110. See also Lichtenstein v. Triarc Cos., 02-CV-2626, 2004 U.S. Dist. LEXIS 8610 at *16-17 (S.D.N.Y. May 14, 2004).
The court finds Maresco inapplicable to the facts of this case. First, unlike the present case, the statistical argument found persuasive in Maresco was based upon a sample size large enough to provide a "reliable inference" that the plaintiff's termination was likely influenced by discriminatory motives.Maresco involved a consolidation of two corporate offices. Prior to the consolidation, a combined total of 23 employees worked in the two offices, three of whom were members of the ADEA protected class. As part of its consolidation, the employer terminated two of the three protected individuals while retaining all of the twenty younger employees. The court found these facts sufficient to support an inference of discriminatory intent.
The Second Circuit has cautioned against the use of "statistical samples too small to be meaningful" Fisher, 70 F.3d at 1451. In Haskell v. Kaman Corp., 743 F.2d 113 (2d Cir. 1984) the court stated that "for such statistical evidence to be probative . . . the sample must be large enough to permit an inference that age was a determinative factor in the employer's decision.". Id. at 121. In Hawkins v. Astor Home for Children, 96-CV-8778, 1998 U.S. Dist. LEXIS 3599 (S.D.N.Y. March 25, 1998), the court rejected a terminated employee's contention that an inference of discrimination arose from the fact that she was the oldest social worker in the program, and that she was the only one fired. Id. at **23-24. The court stated that "Maresco is distinguishable . . . because the inference there arose from a larger statistical sample than Hawkins presents, and thus its probative value was greater." Id.
The sample size in the present case, less than a quarter of that found relevant in Maresco is simply too small a basis for generalization.
In addition, plaintiff has chosen only a brief five-month period by which to evaluate and generalize defendants' employment actions. In view of the small number of employment decisions made during this period, five months is an insufficient length of time from which to generalize and draw discriminatory inferences about defendants' employment practices.
Plaintiff also argues that an inference of age discrimination arises from Wright's reassignment of plaintiff's sales territory and customers to the "significantly younger" Van Winkle, Damolin, and Pickney. It is suggested that this reassignment of work was essentially a "replacement" of plaintiff by younger employees, a set of facts that courts have repeatedly deemed to be a "reliable indicator of age discrimination." O'Connor v. Consol. Coin Caterers Corp., 517 U.S. 308, 313 (1966).
This argument is flawed for two reasons. First, as stated above, Wright's reassignment of plaintiff's sales territory was based upon reasonable business considerations. Indeed, when plaintiff complained about the reassignment to Adams, to whom plaintiff does not ascribe any discriminatory motive, Adams confirmed that the company had decided that having only one salesman for New York was leaving a lot of potential business untapped and that additional sales people for the area would attract more business. Furthermore, plaintiff's suggestion that the reassignment of his sales territory was based on his age is belied by the fact that DiMartino, 37, also complained about reassignment of his territory. Thus, Wright's reassignment of plaintiff's sales territory cannot serve as a reliable indicator of age discrimination.
There is a second reason that no inference of age discrimination with respect to plaintiff's termination may be drawn from the reassignment of plaintiff's sales territory. It was Wright's decision to reassign plaintiff's territory to the younger employees. So, if Wright had terminated plaintiff, some discriminatory motive for that termination might possibly be imputed to him on the basis of his prior alleged discriminatory conduct. It is undisputed, however, that it was Rausch who decided to terminate plaintiff and that Rausch made this decision without Wright's input. Wright's conduct is therefore irrelevant to an analysis of Rausch's decision to terminate plaintiff. There has been no evidence whatsoever to suggest that Rausch himself was biased or that he had any discriminatory motive in discharging plaintiff.
Plaintiff's prima facie case of age discrimination therefore fails because there is no triable issue as to whether his termination took place under circumstances giving rise to an inference of discrimination. His discriminatory discharge claim based upon age is therefore dismissed.
b. Religious Discrimination
Plaintiff has also failed to raise a factual issue with regard to his religious discrimination claim. Plaintiff claims that he was terminated because he is Jewish. To support this claim he asserts that (1) during Wright's tenure defendants terminated plaintiff, Sonitrol's only Jewish salesperson, and hired four Christian salespeople, leaving no Jews on Sonitrol's 35 person sales staff, and Mid-Atlantic with only one Jewish employee out of 200; (2) Wright reassigned plaintiff's sales territory to Van Winkle, Dalmolin, and Pickney because they were Christians; and (3) Wright engaged in intensely religious conduct in the workplace. These allegations are insufficient to create an inference of religious discrimination required to sustain plaintiff's prima facie case.
While statistical arguments may theoretically suffice to support a claim of religious discrimination, the evidence presented by plaintiff in this case does not. Defendants correctly point out that a number of other non-Jewish employees were terminated during approximately the same period as plaintiff. Furthermore, plaintiff's alleged status as defendants' sole Jewish employee does not create any inference of discrimination where, as here, defendants terminated a number of other non-Jewish employees during the same period.
As discussed above, Wright's reassignment of plaintiff's sales cannot serve to raise an inference of discriminatory termination, both because Wright's decision was based solely upon his genuine business judgment, and because Wright was not responsible for the decision to terminate plaintiff.
Plaintiff finally attempts to buttress his discriminatory discharge claim by reference to Wright's intense "in your face" religious conduct in the office. This argument also fails for two reasons. First, plaintiff has failed to link Wright's overt "in your face" brand of evangelical Christianity with any anti-Jewish bias. Moreover, like plaintiff's argument about Wright's reassignment of his sales territory, this argument ignores the important fact that it was Rausch, rather than Wright, who made the decision to terminate plaintiff. Plaintiff has adduced no evidence that Rausch had any religious bias toward him.
Plaintiff's prima facie case of religious discrimination therefore fails because there is no triable issue as to whether his termination took place under circumstances giving rise to an inference of discrimination. His discriminatory discharge claim based upon religion is therefore dismissed. III. Plaintiff's Retaliatory Discharge Claim
Plaintiff alleges that he was terminated from defendants' employ because he complained to management that Wright was discriminating against him because of his age and religion. Plaintiff's retaliation claims under Title VII, ADEA, and state law are all evaluated under the same McDonnell Douglas framework discussed above. Abrahamson v. Bd. of Educ., 374 F.3d 66, 71 (2d Cir. 2004); McPhatter v. Cribb, 1999 U.S. App. LEXIS 34233 at *4 (2d Cir. 1999).
a. Prima Facie Case
Plaintiff's prima facie case of retaliation requires him to show that: (1) he engaged in protected activity by opposing a practice made unlawful by Title VII; (2) the employer was aware of that activity; (3) he suffered an adverse employment action; and (4) there was a causal connection between the protected activity and the adverse action. Terry v. Ashcroft, 336 F.3d 128, 141 (2d Cir. 2003); Holtz v. Rockefeller Co., Inc., 258 F.3d 62, 79 (2d Cir. 2001); Cifra v. GE, 252 F.3d 205, 216 (2d Cir. 2001).
Plaintiff has satisfied all four elements. First, in order to show that he engaged in a "protected activity" plaintiff need not establish that the conduct he opposed was actually a violation of Title VII, but only that he possessed a "good faith, reasonable belief that the underlying employment practice was unlawful" under that statute.Galdieri-Ambrosini v. National Realty Dev. Corp., 136 F.3d 276, 292 (2d Cir. 1998); Reed v. A.W. Lawrence Co., 95 F.3d 1170, 1178 (2d Cir. 1996). For the purposes of this motion the court will assume that plaintiff reasonably believed that Wright was unlawfully discriminating against him.
Defendants assert that plaintiff's prima facie case fails at step two because he failed to show that Rausch, the "termination decision-maker" was aware of his complaints. However Rausch himself testified that in his January 17 phone conversation with plaintiff, plaintiff told him that Wright was mistreating him because of his religion. Rausch testified:
Q: Did Steve Ennis tell you that Jim Wright had a problem that he is Jewish?
A: I think that he flat out just said that. I think that is pretty much what he said. . . .
Rausch's notes from this conversation also indicate that plaintiff stated during their January 17 conversation that "[Wright] has a problem that I am Jewish."
Even if Rausch had no knowledge that plaintiff complained of discrimination, Adams' knowledge of plaintiff's complaint would be deemed imputed to Rausch for the purposes of plaintiff's required showing that "his employer was aware of the [protected] activity." In Gordon v. New York City Bd. of Educ., 232 F.3d 111 (2d Cir. 2000), it was held that to succeed in a Title VII retaliation action, an employee's complaints of discrimination need not be known to the individual who ultimately decides to discharge the employee. To the contrary, to satisfy the knowledge requirement, nothing more is necessary than general corporate knowledge that the plaintiff has engaged in a protected activity.Id. at 116; Reed, 95 F.3d at 1178; Alston v. New York City Transit Auth., 14 F.Supp.2d 308, 311 (S.D.N.Y. 1998). Thus, even if plaintiff had never directly communicated his complaints to Rausch, Adams' receipt of plaintiff's January 15 letter complaining of age and religious discrimination would be imputed to Rausch to satisfy the second prong of plaintiff's prima facie retaliation claim.
Since plaintiff's termination was clearly an "adverse employment action" the only question remaining with respect to plaintiff's prima facie case is whether there is sufficient evidence for a reasonable jury to find that there was a causal connection between his protected activity and subsequent termination. To establish this "causal connection" plaintiff relies primarily on the close proximity in time between his January 15 letter to Adams and his termination on January 29.
It is well established that such causal connection "can be established indirectly by showing that the protected activity was closely followed in time by the adverse action." Reed, 95 F.3d at 1178; Manoharan v. Columbia University College of Physicians Surgeons, 842 F.2d 590, 593 (2d Cir. 1988).
In Quinn v. Green Tree Credit Corp., 159 F.3d 759 (2d Cir. 1998), the court found that the plaintiff had established a causal connection sufficient to withstand summary judgment where her discharge occurred less than two months after she complained to the defendant's management and just ten days after she filed a complaint with the State Division of Human Rights. Id. at 763-764. In Cifra v. GE, 252 F.3d 205 (2d Cir. 2001) the court found that the plaintiff had met her burden of establishing a causal connection between her protected activity and her termination by showing that she was terminated a mere twenty days after the defendant learned that she had hired an attorney to pursue gender discrimination claims. Id. at 217-218
In light of these precedents, the court finds the fourteen-day period between plaintiff's complaint letter to Adams and his subsequent termination sufficient to establish a causal connection between the protected activity and discharge. Plaintiff has thus satisfied all four elements of his prima facie case of retaliatory termination.
b. Defendants' Reasons for Terminating Plaintiff
Defendants have articulated a number of reasons for terminating plaintiff. First, defendants cite plaintiff's failure to attend the weekly sales meetings, and particularly the January 28, 2002 training session held the day preceding plaintiff's discharge. Both Rausch and Wright testified that, prior to the January 28 meeting, they each told plaintiff that his attendance at the weekly meetings was required. Adams also testified that he warned plaintiff that he would be terminated if he failed to attend the meetings.
Second, defendants assert that plaintiff was terminated because "his failure to attend weekly sales meetings, refusal to work with Wright, etc. amounted, in Rausch's opinion, to insubordination to Wright and Rausch." As evidence of plaintiff's unwillingness to work with Wright, defendants cite the undisputed fact of plaintiff's repeated requests to be terminated. Finally, defendants submit that plaintiff was terminated for the reason Rausch stated in his January 28 email; that is, because plaintiff's constant complaints and hour-long "rambling sessions" with Rausch had become disruptive to the normal working environment within the local and corporate offices.
An employee may be discharged on the basis of subjective business judgments for any reason that is not discriminatory or retaliatory. Fierro v. Saks Fifth Ave., 13 F. Supp. 2d 481 (S.D.N.Y. 1998). As stated in Argueta v. N. Shore Long Island Jewish Health Sys., 01-CV-4031, 2003 U.S. Dist. LEXIS 20456 (E.D.N.Y. November 6, 2003), "it is not the province of this Court . . . to second-guess the non discriminatory business decisions of private employers." Id. at *28. See also Thornley v. Penton Publ., 104 F.3d 26, 29 (2d Cir. 1997) ("[A]n employer who is sued on allegations of age discrimination is not compelled to submit the reasonableness of its employment criteria to the assessment of either judge or jury.").
It was certainly within defendants' authority to terminate plaintiff because of his failure to attend the weekly sales meetings as instructed or because he was failed to comply with the explicit direction of Adams, Rausch or Wright. Plaintiff admits to having been told repeatedly that he must attend the meetings. Plaintiff's assertion that Rausch later retracted this requirement finds no support in the record. Rausch also felt that plaintiff's inability to work with Wright, as evidenced by his repeated requests to be terminated, and plaintiffs repeated phone calls and messages to corporate headquarters were disruptive to defendants' work environment and business operations.
The court will not entertain plaintiff's arguments questioning the need for his attendance at the weekly meetings, or the correctness of Rausch's assessment that plaintiff's inability to work with Wright, and repeated phone calls and complaints to management, were disruptive enough to require his termination. An employer need not be correct in his assessment of an employee's conduct to justify his discharge. All that is needed is legitimate belief that there is a reasonable basis for termination. Arguenta, 2003 U.S. Dist. LEXIS 20456 at *28;Thornley, 104 F.3d at 29.
c. Pretext Analysis
Plaintiff has not directed the court to any evidence that his discharge was in retaliation for his complaint rather than the other non-retaliatory reasons offered by defendants. There is no evidence that the reasons defendants proffered for plaintiff's discharge are untrue or are merely pretext for a retaliatory motive. Nor is there evidence that plaintiff's termination was actually motivated by retaliatory purposes. Plaintiff has thus failed to meet his burden on the third stage of the McDonnell Douglas test requiring him to show retaliatory motive played a part in his termination or that his employer was motivated by retaliatory animus. Sumner v. U.S. Postal Service, 899 F.2d 203, 209 (2d Cir. 1990). Plaintiff's retaliatory discharge claims are therefore dismissed.
IV. Plaintiff's Claim for Unpaid Sales Commissions
In his complaint, plaintiff also claims that defendants "willfully failed and refused to pay plaintiff commissions he earned." Plaintiff has not discussed this claim in his brief or provided the court with any facts to support this claim. Accordingly, plaintiff's claim for unpaid sales commissions is dismissed.
CONCLUSION
Defendants' motion for summary judgment is granted.
SO ORDERED.