Summary
finding that the defendant articulated legitimate nondiscriminatory reason for demotion of the plaintiff in part based on evidence that the plaintiff's management style created conflicts with other employees
Summary of this case from Dowrich v. Aramark Healthcare Support Services, Inc.Opinion
No. 02 CV 5475.
January 7, 2005
OPINION AND ORDER
Plaintiff Thomas Lumpkin brings this action against H.E.L.P. USA ("H.E.L.P.") alleging discriminatory constructive discharge on the basis of race and age under Title VII of the Civil Rights Act of 1964 ("Title VII"), as amended, 42 U.S.C. §§ 2000(e), et seq., and the Age Discrimination in Employment Act (the "ADEA"), 29 U.S.C §§ 621-634, as amended. Defendant moves for summary judgment pursuant to FED. R. CIV. P. 56 on all claims.
Background
Unless otherwise indicated, the following facts are undisputed:
Plaintiff Thomas Lumpkin, a 67 year old African-American man, was an employee at H.E.L.P. from November 29, 1993 to July 9, 2001. Throughout those years, he held a number of positions with varying salaries and levels of responsibility, culminating in his final role as Director of H.E.L.P.'s Housing Building Maintenance Employment Training (HBMET) Program. The HBMET program trained individuals transitioning from homelessness into the workforce for various types of employment such as work as security guards. Prior to his work at H.E.L.P., plaintiff worked as a security manager for private and public entities and as a New York City Police officer. His formal education consists of a high school diploma, paralegal training, and three years of college. Plaintiff does not possess a college degree.
Plaintiff's initial role at H.E.L.P. was as a Safety Supervisor at one of their facilities, for which he earned $25,000 annually. In 1997, he was promoted by his direct supervisor, Thomas Mauro, a 62 year old white male, to the position of Director of Safety at the Brownsville Women's Shelter. This transition involved a salary increase from $25,000 to $33,000. One year later, in 1998, Mauro transferred plaintiff to H.E.L.P.'s Crotona shelter, where he also worked as Director of Safety, and received a raise from $33,000 annually to $40,000. Approximately one year after that, Mauro authorized a $2,000 pay increase for plaintiff, bringing his annual salary to $42,000. On December 7, 1999, Mauro again transferred plaintiff to a new role, this time to the position of Director of the HBMET program. Mauro also elevated plaintiff's salary grade to "Level 10," which brought his annual pay to $50,000. Finally, in 2001, Mauro authorized a salary increase of $2,000 for plaintiff, bringing his annual compensation to $52,000.
Throughout the time that plaintiff worked at H.E.L.P., he received glowing evaluations from his supervisors. The only apparent exceptions to plaintiff's highly positive professional history at H.E.L.P. were small incidents involving disputes with colleagues. For example, plaintiff was transferred at one point from the Genesis Homes facility to H.E.L.P. Haven after a dispute developed with his supervisor, an African-American man who was approximately the same age as plaintiff, who cited problems with plaintiff's "attitude." However, in spite of such sporadic incidents, Mauro characterized plaintiff's work as "good" in every role that he had assumed up until he was promoted to his position as Director of the HBMET program.
During plaintiff's tenure as Director of HBMET, he received ratings of "excellent" on his performance evaluations. Nevertheless, he became involved in several conflicts with his colleagues related to allegations of mistreatment. In one instance, one of plaintiff's subordinates, an African-American woman, filed a complaint against him asserting that he had inappropriately "yelled" at her and referenced her religion, charges that the plaintiff admits are factual. In a separate documented instance, plaintiff was accused of publicly humiliating a fellow director over his attempt to participate in a dining event. Such disputes were the subject of multiple complaints made to Mauro, plaintiff's supervisor. In spite of the complaints, however, Mauro viewed plaintiff as an asset to H.E.L.P., and held positive views about many aspects of plaintiff's job performance. He noted that in some respects plaintiff was a "superstar," even while his interpersonal skills were sometimes deficient. Though each of the complaints was investigated by H.E.L.P. and documented, plaintiff was never disciplined as a result of any complaints.
In July of 2001, Mauro decided to transfer plaintiff from his position as Director of the HBMET Program to Director of Safety at the Brownsville Women's Shelter. Plaintiff was notified of this decision via a letter from John T. Kelly, H.E.L.P.'s Director of Security, sent on July 3, 2001. Plaintiff was notified that he would retain the same salary and benefits at the new position and that he would be supervising approximately fourteen individuals at the Brownsville Women's Shelter. Plaintiff responded to Kelly with a memorandum that stated that he believed the transfer to be a "constructive discharge" as well as a "demotion." In a subsequent conversation with Kelly, plaintiff stated that he believed the transfer "to be so painful and so embarrassing and so unacceptable . . . that it constituted constructive discharge." On July 9, 2001, plaintiff tendered his resignation to Kelly. Later in the workday, Kelly responded with an e-mail which stated that he had received e-mails from plaintiff regarding the transfer and Lumpkin's resignation, and that Mauro was in the process of e-mailing plaintiff a response. The e-mail from Kelly further stated "[t]he option is still open to you to talk to [Mauro]. If you like, you can contact me or Tom." However, plaintiff never received this e-mail because he was already in the process of preparing his office for departure and he did not check his e-mail or speak with Mauro before departing.
Standard
A motion for summary judgment is properly granted where there is no genuine issue as to any material fact, and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.Proc. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Lipton v. Nature Co., 71 F.3d 464, 469 (2d Cir. 1995). The burden is on the moving party to demonstrate that there are no material facts genuinely in dispute. See Weinstock v. Columbia Univ., 224 F.3d 33, 41 (2d Cir. 2000). In deciding a motion for summary judgment, the court must view the inferences to be drawn from the facts in the light most favorable to the party opposing the motion. Howley v. Town of Stratford, 217 F.3d 141, 150-151 (2d Cir. 2000); Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). The non-moving party must produce specific facts sufficient to establish that there is a genuine factual issue for trial. Celotex Corp., 477 U.S. at 322-23. A motion for summary judgment cannot therefore be defeated by "mere speculation or conjecture." Giordano v. City of New York, 274 F.3d 740, 749-50 (2d Cir. 2001). Summary judgment is appropriate if the evidence produced would not allow any reasonable jury to find in favor of the nonmoving party. See Mitchell v. Shane, 350 F.3d 39, 47 (2d Cir. 2004).
In employment discrimination actions, courts are particularly cautious about granting summary judgment where intent is at issue. This is because "a victim . . . [is] seldom able to prove his or her claim by direct evidence and is usually constrained to rely on the cumulative weight of circumstantial evidence." Rosen v. Thornburgh, 928 F.2d 528, 533 (2d Cir. 1991). Consequently, where a defendant's intent and state of mind are placed at issue, summary judgment is ordinarily inappropriate." Id. On the other hand, "the summary judgment rule would be rendered sterile . . . if the mere incantation of intent or state of mind would operate as a talisman to defeat an otherwise valid motion." Meiri v. Dacon, 759 F.2d 989, 998 (2d Cir. 1985), cert. denied, 474 U.S. 829 (1985); accord Weinstock v. Columbia Univ., 224 F.3d 33, 41 (2d Cir. 2000). Therefore, in the discrimination context, a plaintiff "must provide more than conclusory allegations of discrimination to defeat a motion for summary judgment." Micari v. Trans World Airlines, Inc., 43 F.Supp.2d 275, 278 (E.D.N.Y. 1999); Schwapp v. Town of Avon, 118 F.3d 106, 109 (2d Cir. 1997).
In McDonnell Douglas Corp. v. Green, 411 U.S. 792, 793, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), the Supreme Court set forth the burden-shifting framework for discrimination cases. See Raskin v. Wyatt Co., 125 F.3d 55, 60 (2d Cir. 1997) (framework the same in Title VII and ADEA cases). First, a plaintiff claiming unlawful termination must make a prima facie case showing: (1) membership in a protected class; (2) qualification for the position; (3) that he was discharged; and (4) that the discharge occurred under circumstances giving rise to an inference of discrimination. McLee v. Chrysler Corp., 109 F.3d 130, 134 (2d Cir. 1997).
Once a plaintiff has established all four elements of the prima facie case, the burden shifts to the defendant to articulate a legitimate, nondiscriminatory reason for the challenged termination. Once an employer has done so, the presumption of discrimination drops from the case, St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993), and the burden shifts back to the plaintiff to prove "that the legitimate reasons offered by the defendant . . . were a pretext for discrimination." Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000). Proof of pretext alone, however, is not necessarily sufficient to defeat a motion for summary judgment. See St. Mary's, 509 U.S. at 524, 113 S.Ct. 2742 ("proof that the employer's proffered reason is unpersuasive does not necessarily establish that plaintiff's proffered reason is correct"). "Once a minimal prima facie case is proved and the employer's nondiscriminatory explanation has been given, the McDonnell Douglas presumptions disappear from the case and the governing standard is simply whether the evidence, taken as a whole, is sufficient to support a reasonable inference that prohibited discrimination occurred." James v. New York Racing Assoc., 233 F.3d 149, 156 (2nd Cir. 2000).
Discussion
Plaintiff's Title VII and ADEA claims are based on the theory that he was discriminatorily demoted from his position and that the demotion constituted a constructive discharge. Plaintiff has produced sufficient evidence to create an issue of fact as to whether he was demoted, i.e., whether he suffered an adverse employment action. A plaintiff sustains an adverse employment action if he is subjected to a "materially adverse change" in the terms and conditions of employment. See Galabya v. New York City Bd. of Educ., 202 F.3d 636, 640 (2d Cir. 2000). "To be materially adverse a change in working conditions must be more disruptive than a mere inconvenience or an alteration of job responsibilities." Id. (quoting Crady v. Liberty Nat'l Bank and Trust Co., 993 F.2d 132, 136 (7th Cir. 1993)). "A materially adverse change might be indicated by a termination of employment, a demotion evidenced by a decrease in wage or salary, a less distinguished title, a material loss of benefits, significantly diminished material responsibilities, or other indices . . . unique to a particular situation." Galabya, 202 F.3d at 640. (quoting Crady, 993 F.2d at 136).
Here, although plaintiff did not lose benefits or salary in the transfer, he was moved to a position that was lower on the H.E.L.P. organizational chart and that involved arguably less desirable responsibilities. However, as plaintiff's counsel acknowledged on oral argument, plaintiff's case hinges completely on whether or not constructive discharge occurred. This is because plaintiff quit immediately after his alleged demotion; therefore, unless plaintiff can demonstrate that there is an issue an of fact as to whether he was constructively discharged, there can be no remedy. There being no independent demotion claim, the only adverse employment action in question is the alleged constructive discharge.
I. Prima facie case
Plaintiff cannot make a prima facie case of employment discrimination because he cannot demonstrate that he was constructively discharged from his employment at H.E.L.P., and he cannot demonstrate that any discharge occurred under circumstances giving rise to an inference of discrimination.
A. Constructive Discharge
A plaintiff is constructively discharged "when his employer, rather than discharging him directly, intentionally creates a work atmosphere so intolerable that he is forced to quit involuntarily." Petrosino v. Bell Atlantic, 385 F.3d 210, 229 (2d Cir. 2004) (quoting Terry v. Ashcroft, 336 F.3d 128, 151-52 (2d Cir. 2003)). The constructive discharge analysis is typically broken into two questions: whether the employer's conduct was intentional and whether the work conditions were sufficiently "intolerable." See id. Because here it is clear that the employer's conduct was "deliberate" rather than "negligent," the court need only address the question of whether or not plaintiff's work conditions were sufficiently intolerable to meet the standard for constructive discharge. See id. at 229-230. The question of "whether the employer's deliberate actions rendered the employee's work conditions so intolerable as to compel resignation . . . is assessed objectively by reference to a reasonable person in the employee's position." Id.; Pennsylvania State Police v. Suders, ___ US ___, 123 S.Ct 2342, 2351 (2004) ("The inquiry is objective: Did working conditions become so intolerable that a reasonable person in the employee's position would have felt compelled to resign?").
The record cannot support the conclusion that a reasonable person in plaintiff's position would have felt compelled to resign. Plaintiff would have retained the same salary and pay grade after his transfer. As Safety Director for the Brownsville facility, plaintiff would have continued to work in a supervisory role in his area of expertise — security. Plaintiff has not alleged that defendants harassed or mistreated him apart from the transfer decision itself. Though plaintiff states that he viewed the demotion as a "tremendous step down in prestige and a tremendous step down in responsibility," (Lumpkin Dep. at 127) his subjective feelings regarding the transfer are not dispositive. He has produced no evidence to support the conclusion that a reasonable person would have viewed the transfer in the same way. Though plaintiff has raised an issue of fact as to whether or not his demotion constituted a step down in prestige and responsibility, this falls far short of demonstrating that work conditions were "so intolerable as to compel resignation." See Petrosino, 385 F.3d at 229. No reasonable juror could find otherwise.
Plaintiff's demotion does not approach the standard for constructive discharge illuminated by precedent. In Petrosino, the Court of Appeals for the Second Circuit decided that the plaintiff could not demonstrate constructive discharge where she had been subjected to pervasive sexual harassment, including being repeatedly confronted with "crude sexual graffiti. . . . depict[ing] . . . headless women with their legs in the air, women's legs wide open, men with their penises out, and men having sex with animals." See Petrosino, 385 F.3d at 214, 230; see also Stetson v. NYNEX Corp., 995 F.2d 355, 360-61 (2d Cir. 1993) (holding that combination of mundane assignments, harsh treatment from supervisor, and alleged demotion did not constitute constructive discharge). In Green v. Harris Publications, 331 F. Supp.2d 180 (S.D.N.Y. 2004), the Court found that plaintiff could not demonstrate constructive discharge where defendants had attempted to transfer plaintiff to an undesirable position after he had been subjected to numerous racial slurs and racially insensitive language. In contrast, in Kirsch v. Fleet Street Ltd., 148 F.3d 149, 161-62 (2d Cir. 1998), the Court upheld a jury finding of constructive discharge where the employer announced that it was slashing plaintiff's salary from $60,000 to $26,000, and where the employer had nodded in response the plaintiff's assertion that the company was attempting to force him to quit. In Lopez v. S.B. Thomas, 831 F.2d 1184, 1188 (2d Cir. 1987), the Court found that there was a genuine issue of material fact where the employer informed the plaintiff that his work was deficient and that he would be fired at the end of a 90 day probationary period no matter what he did to improve his performance. In Morris v. N.Y. City Dep. of Sanitation, 2003 U.S. Dist. LEXIS 5146 at *15 (S.D.N.Y. April 2, 2003), the Court found that the plaintiff had established constructive discharge as part of his prima facie case where plaintiff's supervisor told him that "if he did not retire, he would be demoted down two levels resulting in a salary reduction of approximately $25,000 and attendant dilution of future pension benefits." Plaintiff's transfer, even if regarded as a demotion, cannot meet the standard applied in these cases.
B. Inference of Discrimination
Even if plaintiff could demonstrate that he was constructively terminated, he cannot demonstrate that the discharge occurred under circumstances giving rise to an inference of discrimination. The court's "determination with respect to the circumstances that give rise to an inference of discrimination must be a determination of whether the proffered admissible evidence shows circumstances that would be sufficient to permit a rational finder of fact to infer a discriminatory motive." See McLee, 109 F.3d at 135. Here, plaintiff admits that he never heard any employee at H.E.L.P., including his supervisors, make any discriminatory comments regarding his race or his age. Lumpkin Dep. at 8, 11, 18. Furthermore, plaintiff's admissions make clear that his tenure as Director of HBMET was plagued by conflicts with his colleagues over his management style. These conflicts included a documented complaint filed by an African-American employee containing allegations that plaintiff shouted at her and inappropriately referenced her religion, a charge that the plaintiff admits is factually true while denying the significance of the altercation. Lumpkin Dep. at 79. Plaintiff has also admitted to being in conflict at H.E.L.P. with other individuals, including other African-Americans. See Lumpkin Dep. at 17 ("Mr. Cruz, on a number of occasions, complained to my superior, Mr. Mauro, about actions that I had taken with regard to my position as the program director of HBMET"), 73, 74 ("Let me state this clearly, I had no problem with Mr. Graham. Mr. Graham had a problem with me."). While plaintiff has provided evidence demonstrating that he was very effective in some aspects of his job, he has not presented any information which tends to suggest that the transfer was discriminatorily motivated. Indeed, plaintiff admits that the individual who made the decision to transfer him, Thomas Mauro, was responsible for plaintiff being promoted on at least five prior occasions during his tenure at H.E.L.P., with corresponding increases in salary, benefits and pay grade. Plaintiff further admits that Mauro was "supportive" of his work as Director of HBMET, and, when asked during his deposition what reason would Mauro have for discriminating against him, Plaintiff responded "I have no idea." Lumpkin Dep. at 126.
Plaintiff makes three arguments in attempting to demonstrate this his alleged discharge occurred under circumstances giving rise to an inference of discrimination, but each of these arguments is unsound. First, plaintiff argues that the court can infer discrimination because plaintiff reported to John Kelly, the Director of Safety, while none of the other white employees at his level were forced to report to someone other than Mauro. Plaintiff's only support for the assertion that it was inappropriate for him to report to Kelly is an organizational chart that seems to put him at the same level as Kelly, and a memo that states he will report to Mauro. Lumpkin Afft, exs. 1, 5. No rational factfinder could infer discrimination from this evidence, since plaintiff's entire career at H.E.L.P. was in the Safety Department, and Kelly was the Director of Safety, regardless of his geographic position on the organizational map.
Second, plaintiff argues that his salary lagged behind the salaries of similarly situated white employees. However, plaintiff has failed to show that the comparators he identified at his deposition, other individuals in the Safety Department, were similarly situated in education, experience, or prior salary. Furthermore, plaintiff has failed to rebut evidence that, beneath the director, the highest paid individual in the Safety Department at H.E.L.P. was an African-American male who was approximately the same age as plaintiff, Eddie Lewter. See Bonilla afft. ¶ 17. Though plaintiff's counsel now suggests that his client may have identified the wrong comparators, there is no reason to believe that plaintiff, a high level employee, was not in the best position to identify individuals to whom he should be compared.
Third, plaintiff argues that he was disciplined more harshly than white employees at H.E.L.P. His only evidence to support this conclusion is his assertion that a Richard Miltonberg committed a number of serious offenses without penalty. However, the record indicates that Miltonberg was actually terminated by Mauro for performance reasons. See Mauro Reply Afft. ¶ 8; Lumpkin Dep. at 144-145. The court cannot infer discrimination when the white employee plaintiff identifies was ultimately terminated while plaintiff was, at worst, demoted with no loss in pay or benefits. While it is de minimis in nature, the burden is on the plaintiff to make the prima facie case of discrimination. See McLee, 109 F.3d at 134. Plaintiff has not provided evidence that would allow a rational factfinder to infer that plaintiff's discharge occurred under circumstances giving rise to an inference of discrimination. Thus, plaintiff has failed to make a prima facie case.
II. Totality of the Evidence
Even if plaintiff could establish all four elements of a prima facie case, summary judgment for defendant would be appropriate because H.E.L.P. has given a legitimate, nondiscriminatory reason for plaintiff's demotion, and, as discussed above, plaintiff has failed to offer proof suggesting that H.E.L.P.'s reason is a pretext for discrimination. Furthermore, the evidence in this case, taken as a whole, is insufficient "to support a reasonable inference that prohibited discrimination occurred." James, 233 F.3d at 156. The evidence is sufficient only to support plaintiff's argument that he was demoted, but none of it supports the conclusion that he was demoted because of his age or race.
III. Disparate Treatment Claim
Plaintiff filed a pro se complaint on July 3, 2001. At the time plaintiff filed the complaint, he was still employed by H.E.L.P., and the complaint indicated that he had a claim for "disparate treatment." While plaintiff's counsel suggested on oral argument that plaintiff possibly viewed this as a claim for discrimination in pay, plaintiff has made no attempt to amend his original complaint and state a claim for disparate treatment in pay. Insofar as he attempts to amend his complaint now, after extended discovery and a motion for summary judgment, the court denies leave to replead as it would be futile. Plaintiff has offered no evidence of disparate treatment.
Conclusion
For the reasons set forth above, defendant's motion for summary judgment is granted in its entirety. The Clerk of Court is directed to enter judgment for defendant.