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dismissing claim of retaliation where, "[p]laintiff's administrative charge does not mention retaliation and alleges no facts from which one could infer that Plaintiff was asserting a retaliation claim."
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99 Civ. 2658 (JSM).
September 28, 2000.
Laura B. Hoguet, Claire M. Costello, Hoguet Newman Regal, LLP New York, New York, For Plaintiff.
Edward A. Brill, Proskauer Rose LLP New York, New York, For Defendant.
MEMORANDUM OPINION AND ORDER
Plaintiff Margaret A. O'Hara ("Plaintiff") has brought this action, claiming (1) that her former employer, Defendant Memorial Sloan Kettering Cancer Center (the "Hospital"), terminated her because of her age in violation of the Age Discrimination in Employment Act (the "ADEA"), the New York State Human Rights Law (the "NYSHRL"), and the New York City Human Rights Law (the "NYCHRL") and (2) that the Hospital retaliated against her as a result of her complaint of discrimination in violation of Title VII of the Civil Rights Act of 1964, the NYSHRL, and the NYCHRL. This case is presently before the Court on the Hospital's motion for summary judgment on Plaintiff's age discrimination claims, its motion to dismiss Plaintiff's Title VII retaliation claim, and its request that the Court decline to exercise jurisdiction over Plaintiff's remaining state and city law retaliation claims. For the reasons set forth below, the Hospital's summary judgment motion, its motion to dismiss, and its application that the Court decline to exercise jurisdiction are granted.
FACTS
In February 1971, the Hospital hired Plaintiff. In 1987, Plaintiff became the manager of the Hospital's Graduate Medical Education Division (the "GMED"), a position which she held until she was terminated in 1998.
In Summer 1996, Wendy Perchick, then 46 years old, was promoted to the position of Associate Hospital Administrator and became Plaintiff's supervisor. According to Plaintiff, when she and Perchick first met, Perchick told Plaintiff that Plaintiff was a "very mature person with mature knowledge of graduate medical education." O'Hara Dep. at 318. In December 1996, Perchick evaluated Plaintiff and gave her an overall rating of "meets expectations." In this review, Perchick noted that Plaintiff "exceed lied] expectations" in some categories and that one of Plaintiff's strengths was her "mature understanding" of the GMED, but Perchick also expressed some concerns about Plaintiff's performance in other areas.
In 1997 Plaintiff's relationship with Perchick deteriorated. For example, according to Plaintiff, Perchick repeatedly canceled meetings with Plaintiff on short notice and excluded her from meetings that Perchick held with Carl Ferrero, Plaintiff's assistant. According to the Hospital, Perchick developed concerns about Plaintiff's performance at this time based on her own observations, others' complaints, and an outside consultant's report that concluded that the GMED was poorly organized and operated. Perchick also began to suspect that Ferrero was performing many of Plaintiff's responsibilities.
Ferrero was hired in 1995 when he was 38 years old.
In December 1997, in an effort to prevent Ferrero from resigning, Perchick promoted Ferrero, then 41 years old, over Plaintiff, appointing him administrator of the GEMD and making him Plaintiff's supervisor. Plaintiff was not informed of this adjustment until March 12, 1998. While Plaintiff's responsibilities were reduced, she maintained her title and salary.
During his time as Plaintiff's supervisor, Ferrero continued to have a good working relationship with Plaintiff. Perchick frequently questioned Ferrero about Plaintiff's performance, but Ferrero did not report any performance problems. Perchick also told Ferrero to document Plaintiff's job performance as they had "to be very careful with [Plaintiff] because she [was] at that age where she could file for an age discrimination lawsuit." Ferrero Dep. at 122.
In June 1998, Ferrero resigned without notice. Soon after Ferrero's resignation, Perchick hired Tara Spiess, who was then 27 years old, as the administrator of the GMED. In 1996, when Spiess was working at another position in the Hospital, she had submitted a proposal to Perchick that recommended restructuring the GMED and creation of a new Administrative Director position with more responsibilities than Plaintiff held as manager of the GMED.
Upon Spiess' assumption of the administrator position on August 4, 1998, she began to have problems with the performance of both Plaintiff and her 31-year old co-worker, Patricia Rhodie. For example, in Spiess' second week, Spiess gave Plaintiff a verbal warning in connection to what Spiess considered Plaintiff's inability to explain a discrepancy on a budget document and Plaintiff's failure to bring a requested doctor's note for the two days that Plaintiff was absent while Spiess was attempting to resolve the discrepancy.
Rhodie, who was still in her probation period because she had been recently hired, was terminated by Spiess on September 11, 1998, for poor job performance.
On September 10, 1998, Perchick and Spiess met with plaintiff and gave her a written warning regarding other alleged performance problems. On September 18, Plaintiff was sent home without pay. This mandatory leave of absence lasted until Perchick notified Plaintiff by a letter dated December 8, 1998 that she was terminated because her position was eliminated. Plaintiff continued to receive pay until December 31, 1998. Plaintiff was 62 years old when discharged.
DISCUSSION
I. Age Discrimination Claims
Under the familiar burden-shifting framework for analyzing summary judgment motions in ADEA discharge cases, a plaintiff must first establish a prima facie case of age discrimination by showing that (1) she was within the protected age group; (2) she was qualified for the job; (3) she was discharged; and (4) the discharge occurred in circumstances giving rise to an inference of age discrimination. See Hollander v. American Cyanamid Co., 172 F.3d 192, 199 (2d Cir. 1999). If the plaintiff is successful in meeting this threshold requirement, the burden then shifts to the defendant to articulate a legitimate, non-discriminatory reason for the discharge. See id. Finally, if such a reason is articulated, the plaintiff must offer evidence tending to show that the reason is a mere pretext, and the real reason for the discharge was discriminatory animus. See id. at 199-200.
Because the legal standards applicable for age discrimination under the NYSHRL and the NYCHRL are similar to the standard that applies to Plaintiff's ADEA claim, the Court analyzes all of Plaintiff's age discrimination claims under the standard set forth in McDonnell Douglas v. Green, 411 U.S. 792, 802-04, 93 S.Ct. 1817, 1824-25 (1973). See Maniatas v. New York Hosp.-Cornell Med. Ctr., 58 F. Supp.2d 221, 225 (S.D.N.Y. 1999);Da Cunha v. Globo Int'l (New York) Ltd., No. 97 Civ. 7989, 1999 WL 38177, at *5 (S.D.N.Y. Jan. 28, 1999).
For the purposes of this motion, the Hospital accepts that Plaintiff has established a prima facie case. In turn, the Hospital has met its burden of setting forth a legitimate, nondiscriminatory reason for discharging Plaintiff, as the Hospital has provided evidence that it terminated Plaintiff because plaintiff's position was eliminated. See DiCola v. SwissRe Holding (N. Am.), Inc., 996 F.2d 30, 33 (2d Cir. 1993);see also Tarshis v. Reise Org., 211 F.3d 30, 37 (2d Cir. 2000).
To defeat the Hospital's properly supported motion for summary judgment, Plaintiff must present evidence sufficient to allow a rational fact finder to infer that the Hospital was actually motivated in whole or in part by age discrimination. See Grady v. Affiliated Cent., Inc., 130 F.3d 553, 560 (2d Cir. 1997). In other words, Plaintiff must show that there is a material issue of fact as to whether (1) the Hospital's asserted reason for discharge is false or unworthy of belief and (2) more likely than not Plaintiff's age was the real reason for the discharge. See Raskin v. Wyatt Co., 125 F.3d 55, 64 (2d Cir. 1997).
Although the Hospital asserts in its moving papers that its legitimate, non-discriminatory reason for terminating Plaintiff was its elimination of Plaintiff's position as manager, see Def.'s Mem. at 13, the Hospital's papers and its explanations at oral argument suggest that Plaintiff's discharge may have been due to her poor performance, not the elimination of her position. For example, the Hospital cites various problems that Perchick and Spiess had with Plaintiff's performance, such as Plaintiff's inaccurate preparation of a budget document, her failure to complete a requested time study, and her improper referral of a question to Spiess. The Hospital even noted that "although [plaintiff] certainly had serious performance problems, [her supervisors] thought it was more appropriate to treat her termination as a job elimination because her position was in fact being eliminated" and "she would not have been given [benefits] had she been terminated for performance reasons." Def.'s Mem. at 12; see also Def.'s Reply Mem. at 3-4.
Plaintiff claims that these explanations for her termination, i.e., the elimination of her job and poor job performance, are inconsistent and, therefore, raise an issue of material fact regarding the veracity of the Hospital's legitimate, non-discriminatory reason. See Pl.'s Opp'n Mem. at 14 (citing Carlton v. Mystic Transp., Inc., 202 F.3d 129, 137 (2d Cir.), cert. denied, 120 S.Ct. 2718 (2000)). The Hospital argues that it has not given inconsistent reasons for terminating plaintiff. Rather, it fired Plaintiff for poor performance but then gave job elimination as the stated reason for discharge so that plaintiff could receive the benefits associated with termination due to a job elimination.
There is no reason to conclude that these somewhat different statements by the Hospital are evidence of pretext. It is no doubt true that if Perchick had not had serious concerns about plaintiff's job performance, she may not have decided to reorganize the department in a manner that would eliminate her position. But if, as the evidence indicates, Perchick honestly believed that Plaintiff was not performing her job properly, it is reasonable that, given Plaintiff's lengthy service to the Hospital, Perchick would consider it more equitable to classify her termination as resulting from the reorganization and thereby protect her pension rights.
The evidence upon which Plaintiff relies in an attempt to show that the reasons given for her discharge were a pretext does not support such an inference. In this regard, Plaintiff relies heavily on the deposition testimony of Ferrero, which she contends is inconsistent with that of Perchick concerning Plaintiff's job performance. Before examining the details of that testimony it is worth noting that Ferrero was a witness who was clearly hostile to the Hospital and friendly to Plaintiff. He had quit his job at the Hospital without notice because he was unhappy about the way that Perchick dealt with him and he had spoken freely to Plaintiff's counsel before his deposition but had refused to have substantive conversations with defense counsel.
Ferrero testified that when he was promoted over Plaintiff, he agreed with Perchick that Plaintiff lacked the leadership and communication skills necessary for that administrative position.See Ferrero Dep. 94-95. Ferrero also testified that Plaintiff lacked the computer skills needed to implement a new database project. See id. at 107; see also id. at 160. Most significantly, he testified that Perchick "felt that [Plaintiff] was not competent and firmly believed that. . . ." Id. at 98.
In light of the fact that all of the evidence, including that derived from Ferrero, supports the finding that Plaintiff was not competent to handle the administor position, the facts that Perchick promoted Ferrero, who was 41 years old, over Plaintiff and replaced Ferrero with Spiess, who was 27 years old, do not support an inference of age discrimination. Replacement by a younger worker alone is not enough to raise an inference of age discrimination so as to withstand a properly supported motion for summary judgment. See Browne v. CNN America, Inc., No. 98 Civ. 1768, 1999 WL 1084236, at *3 (S.D.N.Y. Dec. 1, 1999); Strohmeyer v. International Bhd. of Painters Allied Trades, 989 F. Supp. 455, 460 (W.D.N.Y. 1997), aff'd, 164 F.3d 619 (2d Cir. 1998).
Nor does an inference of age discrimination arise from the facts that (1) Perchick told Plaintiff at their first meeting that Plaintiff was a "very mature person with mature knowledge of graduate medical education," and (2) Perchick's 1996 review of Plaintiff noted that Plaintiff had a "mature understanding" of the GMED. There is nothing in the use of the term "mature" in this context that suggests a bias based on age.
It should be noted that Perchick's use of the term "mature" is distinguishable from the use of this term in the cases cited by Plaintiff, in which the term could have indicated age bias. See Wilson v. Am Gen. Corp., 167 F.3d 1114, 1122-23 (7th Cir. 1999); Maddow v. Procter Gamble Co., 107 F.3d 846, 852 (11th Cir. 1997); Sciacca v. Shiseido Cosmetics (America) Ltd., No. 86 Civ. 2096, 1988 WL 72621, at *1 (S.D.N.Y. Jan. 27, 1988).
Perchick's comment to Ferrero instructing him to document Plaintiff's job performance problems to protect the Hospital from an age discrimination suit does not show that Plaintiff's supervisors were motivated by discriminatory animus. See Ferrero Dep. at 122. Such evidence alone is not sufficient to establish that the Hospital's reason for terminating Plaintiff is a pretext for discrimination. See Futrell v. J.I. Case, 38 F.3d 342, 349 (7th Cir. 1994); see also Robin v. Espo Eng'g Corp., 200 F.3d 1081, 1089 (7th Cir. 2000); Wichmann v. Board of Trustees of S. Ill. Univ., 180 F.3d 791, 804 (7th Cir. 1999), vacated and remanded on other grounds, 120 S.Ct. 929 (2000). Here, Perchick's comments came after she had promoted Ferrero over Plaintiff and after Perchick had on several occasions expressed her concerns about Plaintiff's job performance to Ferrero. See Ferrero Dep. 97-98. In the current era of employment discrimination litigation it is not surprising that a supervisor who is having doubts about an older employee's performance would be sensitive to the fact that she might ultimately have to prove in court that she had a basis to believe that the employee was not performing her job competently.
While it is true that Ferrero did not share Perchick's concerns about plaintiff's job performance and thought that Perchick seemed overly concerned about that subject, nothing in the testimony contradicts the testimony of both Perchick and Ferrero that she honestly believed that Plaintiff was not performing in a competent manner. There is no factual basis that would support a finding that her stated reason for terminating Plaintiff for lack of competence was a pretext for age discrimination. It is also of some relevance that Perchick terminated the 31-year old Rhodie only a few months before discharging plaintiff and that Perchick, the decision maker, was in the same protected class as Plaintiff. Thus, because there is no evidence to demonstrate that the Hospital's legitimate, nondiscriminatory reason is false or that the Hospital was motivated by age discrimination, the Hospital's motion for summary judgment is granted.
While Plaintiff attempts to create a conflict between Perchick and Ferrero over whether Ferrero told her that he had really been running the department when he was working under Plaintiff, Ferrero testified that during one of their discussions about Plaintiff's job performance Perchick indicated to him that she believed that he had been running the department when he worked for Plaintiff. See Ferrero Dep. at 111. There is no evidence that Ferrero undertook to disabuse Perchick of that opinion.
II. Retaliation Claims
The Hospital moves to dismiss Plaintiff's Title VII retaliation claim for lack of subject matter jurisdiction. In this circuit, a district court only has jurisdiction to hear Title VII claims that either are included in a plaintiff's administrative charge or are based on conduct subsequent to the charge that is "reasonably related" to that alleged in the charge. See Butts v. City of New York Dep't of Hous., 990 F.2d 1397, 1401 (2d Cir. 1993). Here, Plaintiff did not include a retaliation claim in her administrative charge alleging age discrimination, so the question becomes whether Plaintiff's Title VII retaliation claim is based on conduct subsequent to the charge that is "reasonably related" to the conduct alleged in the charge.
While the Second Circuit in Butts identified three different situations in which conduct can be considered "reasonably related" to the conduct alleged in the administrative charge so as to provide jurisdiction over a new claim, see id. at 1402-03, only the first of these situations is relevant here. This first type of situation, which "is essentially an allowance of loose pleading," id. at 1402, allows claims not raised in the administrative charge to be brought in the civil action where the conduct complained of would fall within the reasonable scope of the administrative agency's investigation of the charge. See id.
The second situation does not apply here because Plaintiff's claim does not allege that the Hospital retaliated against her for filing the administrative charge. See Butts, 990 F.2d at 1402; Melendez v. International Serv. Sys., Inc., No. 97 Civ. 8051, 1999 WL 187071, at *8 (S.D.N.Y. Apr. 6, 1999).
Here, the retaliation complained of does not fall within the reasonable scope of Plaintiff's charge of age discrimination. See Melendez v. International Serv. Sys., Inc., No. 97 Civ. 8051, 1999 WL 187071, at *7 (S.D.N.Y. Apr. 6, 1999); see also Steffen v. Meridian Life Ins. Co., 859 F.2d 534, 544-45 (7th Cir. 1988). Plaintiff's administrative charge does not mention retaliation and alleges no facts from which one could infer that Plaintiff was asserting a retaliation claim. See Melendez, 1999 WL 187071, at *7 plaintiff did not check off the retaliation box on the charge sheet or identify the protected activity that underlies such a claim. See Fitzgerald v. Henderson, 36 F. Supp.2d 490, 499-500 (N.D.N.Y. 1998). In fact, Plaintiff failed to make any reference in the charge to the August 1998 letter from her attorney to the Hospital upon which she bases the retaliation claim in her complaint. Accordingly, Plaintiff's retaliation claim is not reasonably related to her administrative charge. Thus, the Hospital's motion to dismiss this claim as barred is granted.
The Hospital also asks to the Court to decline to exercise supplemental jurisdiction over Plaintiff's state and city law retaliation claims. Since all of Plaintiff's federal claims are dismissed, this application is granted. See 28 U.S.C. § 1367 (c). These claims therefore are dismissed without prejudice.
CONCLUSION
For the foregoing reasons, the defendant's motion for summary judgment upon the plaintiff's age discrimination claims, its motion to dismiss the plaintiff's Title VII retaliation claim, and its request that the Court decline to exercise jurisdiction over the plaintiff's state and city law retaliation claims are granted. The complaint is hereby dismissed.
SO ORDERED.