Opinion
00 Civ. 4677 (HB)
March 2, 2001
OPINION ORDER
Plaintiff Andrew Alexander ("Alexander") brings this action against defendants The Turner Corporation, Turner Construction Company ("Turner"), Turner Development Corporation, Rickenbacker Holdings, Inc., Rickenbacker Development Inc., Ellis T. Gravette, Jr., Thomas C. Leppert, Robert E. Fee, Donald G. Sleeman, and R. Bruce Ruthven ("Turner") for race, color, and national origin discrimination pursuant to 42 U.S.C. § 1981, 42 U.S.C. § 2000e (Title VII), the New York State Human Rights Law, and the New York City Administrative Code § 8-101, for violations of the common law of the State of New York, and for violation of the Consolidated Omnibus Budget Reconciliation Act of 1985, 29 U.S.C. § 1161 ("COBRA"). Defendants have moved for summary judgment on all of plaintiffs claims. For the following reasons, defendants' motion is granted but for his COBRA claim.
I. BACKGROUND
Although plaintiff claims that there are many disputed issues of fact, upon a thorough review of the papers submitted, including plaintiffs 64 page Rule 56.1 Statement, I find that plaintiff has largely conceded the relevant facts.
Plaintiff, an African-American male, began his employment with Turner in 1989 as a Manager of Accounting. Turner Corporation is a holding company and the remaining corporate defendants are wholly owned subsidiaries of Turner. The individual defendants served as officers of one or more of the corporate defendants. During his tenure at Turner, plaintiff held numerous positions at the different defendant entities both as an employee and as an officer. Plaintiff received yearly raises and was promoted to Assistant Treasurer in 1997. In May, 1998, Turner promoted plaintiff to Treasurer, an executive position, and gave him a salary increase of$ 17, 600. On August 31, 1998, shortly after his promotion, the parties signed a "poison pill" change of control agreement that provided that, if plaintiffs position was eliminated after a change in control of the company, he would receive one year's salary, the average of his prior three years' bonuses, and continued employee benefits (including death benefits, disability benefits, and medical and dental benefits) for one year. In 1999, Turner provided another salary increase of $17,600, raising the plaintiffs annual salary to $110,000.
In early 1999, Turner merged with Hachtief AG and Beta Acquisition Corporation therefore Turner moved its corporate offices, including its financial department, to Dallas, Texas, where Thomas Leppert the Chairman of the Board and CEO had his offices. On June 24, 1999, defendant sent a letter to plaintiff explaining that, due to this restructuring, his position would be eliminated as of January 31, 2000. The letter provided plaintiff with two options — reassignment to Dallas as Treasurer or a severance package. If plaintiff accepted the reassignment, Turner offered to provide him with two months salary as a moving allowance, a moving bonus equal to four months salary, and an option to return to New York, if, up to twelve months after accepting the transfer, plaintiff decided that Dallas was not for him. If plaintiff opted not to move, Turner requested that plaintiff remain on the payroll until January 31, 2000 and offered him a severance package of 6 months salary, a bonus equal to his 1998 bonus, and professional assistance in finding alternate employment. This was in addition to the change of control benefits accepted by the plaintiff.
Plaintiff did not consider the offer sufficient, and Turner attempted to negotiate a more favorable deal. In August, 1999, the defendant offered plaintiff a better deal if he agreed to relocate. It included an increase in salary to $130,000 (a 19% increase), moving bonus of six months salary, a two year employment contract with a six month bonus, a promotion to Vice President, increased stock options, and a country club membership. Defendant also offered to pay plaintiff two years worth of severance pay plus relocation somewhere else in the United States and continued bonus participation if, after plaintiffs move, Turner terminated plaintiffs contract before its expiration. Plaintiff deemed the offer insufficient, and rejected it.
As is reflected in a chart that was exhibit 18 to Alexander's deposition, plaintiff was holding out for a salary of $182,000 a twelve month bonus, and a 5 year contract. Alexander Dep. Ex. 18. Plaintiff testified at his deposition that, "[t]he first issue discussed was salary and once they didn't agree on that the other points became moot." McGahan Aff. Ex. 7 at 56.
On October 8, 1999, defendants offered plaintiff an improved severance package. The package included 11 months salary continuation, the continuation of other benefits until December 31, 2000, the 1999 level bonus, his company car, outplacement assistance, and a mutual release. Plaintiff was unsatisfied with the new offer and rejected it as well. On December 6, 1999, plaintiff filed a charge with the EEOC alleging race, color and national origin discrimination and retaliation.
Plaintiff wanted 32 months' salary plus two more years bonus.
As promised, come January 31, 2001, Turner eliminated plaintiff's position. Although plaintiff had rejected the severance agreement and received no benefits under it, he did receive $122,000 pursuant to the change in control agreement. On February 8, 2000, plaintiff filed a second EEOC charge this time alleging unlawful termination and failure to provide him with adequate benefits upon termination. The EEOC issued plaintiff Right to Sue Notices on March 29, 2000, and plaintiff initiated this action in June 2000.
II. ARGUMENT
A. Standard of Review
Summary judgment is appropriate where there are no disputed issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-52 (1986); Tomka v. Seiler Corp., 66 F.3d 1295, 1313 (2d Cir. 1995). On a motion for summary judgment, the moving party has the burden of demonstrating the absence of any genuine issue of material fact. See Adickes v. S.H Kress Co., 398 U.S. 144, 157 (1970). On the other hand, a party opposing a motion for summary judgment 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 party must enumerate "specific facts and circumstances supported by deposition, affidavits based on personal knowledge, and admissions," and cannot rely on conclusory allegations or denials. General Elec. Co. v. New York State Dep't of Labor, 936 F.2d 1448, 1452 (2d Cir. 1991). Furthermore, a scintilla of evidence in support of the non-moving party's position is not sufficient to oppose successfully a summary judgment motion; "there must be evidence on which the jury could reasonably find for the plaintiff." Anderson, 477 U.S. at 250, 106 S.Ct. at 2511.
B. Plaintiff's Discrimination Claims
In order to prove a discriminatory termination or any discriminatory adverse employment action under Title VII or plaintiffs other statutory claims, plaintiff must first establish a prima facie case by showing four things: (1) he is a member of the protected class, (2) he is qualified for his position, (3) he has suffered an adverse employment action; and (4) the circumstances surrounding that action give rise to an inference of age discrimination. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). If the plaintiff is able to make out his prima facie case, a de minimis burden, a presumption of discrimination arises and the burden of going forward shifts to the employer who can rebut it by articulating a legitimate reason for the adverse employment action. If the defendant does this, "the presumption of discrimination vanishes and the burden shifts back to the plaintiff to come forward with evidence that the employer's proffered explanations were merely pretextual and that the actual motivations more likely than not were discriminatory." Abdu-Brisson v. Delta Air Lines, Inc., No. 99-9359, 2001 WL 123667 (2d Cit. Feb. 12, 2001). However, the court must engage in a "case-by-case approach, with a court examining the entire record to determine whether the plaintiff could satisfy his 'ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff.'" Schnabel v. Abramson, 232 F.3d 83, 90 (2d Cir. 2000) (quoting Reeves v. Sanderson Plumbing Prods., Inc., 120 S.Ct. 2097, 2106 (2000). As the Second Circuit recently underscored, Reeves in no way relaxes the requirement that plaintiff show that the defendant's proffered explanations were pretextual." Abdu-Brisson, 2001 WL 123667 at 10.
All of plaintiffs statutory claims are subject to the same legal standard.
Here, plaintiff has failed to meet even his prima facie burden. While it is undisputed that plaintiff has met the first two prongs as he is a member of a protected class and qualified, it is far from clear from the scant evidence offered by the plaintiff that he suffered an adverse employment action or has shown an inference of discrimination. First, while plaintiff claims that he was denied titles, raises in salary, bonuses, stock options and a severance agreement, commensurate with the work actually performed by him, P1. Opp. Mem. at 8, he fails to support these allegations with any concrete details. Although plaintiffs burden at this stage is de minimis, bald allegations will not suffice.
It is also difficult to find one iota of support for plaintiff's claim that he was terminated by the defendant. It is undisputed that Turner offered the plaintiff a position in Dallas that included a raise and a litany of benefitsrnptto mention a promotion to Vice President. It is further undisputed that plaintiff rejected the offer because he did not believe that it was sufficient. Without more, plaintiff has failed to meet his prima facie burden with respect to his termination claim.
Plaintiff similarly fails to show that the circumstances of his employment give rise to an inference of race discrimination, the fourth prong of the McDonnell Douglas analysis. In all of plaintiffs verbose papers, he has pointed to only one comment that could possibly give rise to an inference of race discrimination. Plaintiff alleges that in 1994, almost six years before he brought this claim, Donald Sleeman, an officer of Turner, "advised plaintiff that a committee attended by members of the Board of Directors and Executive Officers of [Turner] expressed its view that blacks are a problem to employ because blacks are lazy and not capable or smart enough." A single comment made in the course of a ten years employment does not come close to satisfying plaintiffs burden. Woroski v. Nashua Corp., 31 F.3d 105, 109-110 (2d Cir. 1994).
Although it does not impact the analysis, Sleeman disputes that he ever made this comment.
However, even assuming arguendo that plaintiffs conclusory allegations were sufficient to make out a prima facie case, his claim fails. Defendants have met their burden that requires a legitimate business reason for its actions. As to plaintiff's termination, defendant transferred its operations to Dallas after it was acquired by another company. As to plaintiffs other claims, defendant has submitted evidence that all decisions to grant or not to grant the plaintiff employment benefits were made in accordance with normal company practices.
Thus, under Reeves, the presumption falls away, and the plaintiff must show that a reasonable jury could find that the defendant was motivated by discrimination. Stacking up the proof and argument presented by both sides, it is simply no contest. In sharp contrast to plaintiffs lack of proof, defendant has shown that it negotiated with the plaintiff and sweetened his already lucrative separation and transfer agreements, gave plaintiff substantial raises annually, promoted plaintiff at least twice, and offered plaintiff a position as Vice-President if he came to Dallas.
In fairness, plaintiff does attempt some arguments to save his claim, but consistently his bark proves worse than his bite. First, plaintiff reminds us, quite properly, that a court may consider anecdotal and statistical evidence in support of a claim of discrimination. However, this reminder seems largely theoretical since plaintiff has submitted no anecdotal or statistical evidence. Plaintiff also argues that an employer's departure from its normal practices or unequal treatment between similarly situation employees may lend support to a claim of discrimination. It is true that disparate treatment is one way to support a claim of discrimination. Unfortunately, plaintiff offers no examples of disparate treatment, and, for the most part, he does not name the employees who were given better deals than he. On the occasions when plaintiff does name other employees, he offers nothing to dispute defendant's ample evidence that they are differently situated.
The only possible exception is plaintiffs claim that Sleeman said that the Board made a discriminatory comment. However, I have already found this one comment insufficient as a matter of law.
Defendant submits undisputed evidence that these employees have either been in Turner's employ for substantially longer, hold more senior positions, or both. Specifically, defendant submitted evidence that while plaintiff was a Treasurer with 10 years of service, "Smith was Chief Administrative Officer and Senior Vice President, Kimmig was a Vice President and General Manager with 31 years of service, Sibson was Executive Vice President with 31 years of service, Esau was Vice President of Human Resources with 12.5 years of service, Glover was Vice President Construction with 32 years of service, Little was Senior Vice President with 22 years of service, [and] Wund was Vice President and General Manager with 29 years of service." Def. Reply at 6. Plaintiff also alleges that defendant failed to provide him with a company car while other non-minority individuals received one. Defendant introduces unrefuted evidence that the two individuals had a particular need for a car for their respective commutes, while plaintiff took the subway from Queens into Manhattan. Furthermore, Turner gave the plaintiff a new car in 1998 when he was promoted to Treasurer. *See Def's Response to Pl's 56.1 at 10-13.
More significantly, plaintiff has failed utterly to show any inference of a discriminatory motive. There is simply nothing with the exception of one statement made over six years ago. Plaintiffs claim for discrimination must be dismissed.
It is likely that this statement is barred under the statute of limitations for claims of discrimination, however I need not reach the limitations issue as even with the statement, plaintiffs claim fails.
Turning to retaliation, to make out a viable claim, plaintiff must show that (1) he was engaged in a protected activity; (2) his employer was aware of that activity; (3) he suffered an adverse employment action; and (4) there was a causal link between protected activity and the adverse employment action. See Tomka v. Seiler Corp., 66 F.3d 1295, 1308 (2d Cir. 1999). Plaintiff clearly fails to meet prongs two, three and four. Assuming that plaintiff was engaged in a protected activity, defendant has offered no evidence that Turner was aware of it. Plaintiff admitted at deposition that he never complained to anyone at Turner that he had been discriminated against and/or that defendants had engaged in any "unlawful" conduct, although he attempts in his affidavit to circumvent this admission. Plaintiffs failure to satisfy the third prong, whether he suffered an adverse employment action, is explained above. It follows that plaintiff cannot meet prong four, a causal relationship between the adverse employment action and the protected activity. Thus, plaintiffs claim for retaliation must be dismissed as well.
The inconsistencies that exist between plaintiffs deposition and affidavit on this point, do not raise a material issue of fact as a-party's affidavit must be disregarded if it contradicts his own prior deposition testimony. See Raskin v. Wyatt Co., 125 F.3d 55, 63 (2d Cit. 1997) ("[A] party may not create an issue of fact by submitting an affidavit in opposition to a summary judgment motion that by omission or addition contradicts the afflant's previous deposition testimony.").
C. Plaintiff's Claims of Fraud
Plaintiff claims that defendants fraudulently induced him to sign a change of control agreement that gave him a payout of only one year's compensation rather than the payout of 2.99 years for other Executive Officers. Specifically, plaintiff alleges that Donald Sleeman led plaintiff to believe that Sleeman and other officers had signed identical change of control agreements when in fact their agreements provided for a termination benefit of 2.99 years. Plaintiff further alleges that if he had know that the other officers signed more lucrative agreements he would have requested a similar agreement commensurate with the work he performed.
Under New York law, in order to plead a prima facie case of fraud, plaintiff must allege (1) misrepresentation of a material existing fact, (2) falsity, (3) scienter, (4) deception and (5) injury. See Knudsen v. Quebecor Printing (U.S.A.) Inc., 792 F. Supp. 234, 240 (S.D.N.Y. 1992).
Plaintiffs claim falls short. Most fundamentally, plaintiff has failed to show any misrepresentation or intent to misrepresent. Turner's Proxy Statements from 1997 and 1998, which are publicly available documents, clearly state that only five senior executives are entitled to a 2.99 year change of control agreement while all other executives are entitled to only one year's payout. See Ruthven Aff. Ex. A at 10. Alexander admitted at his deposition that he knew that such information was available. See McGahan Aff. Ex. 7 at 563. Plaintiff cannot show misrepresentation or intent to misrepresent when the alleged fraudulently concealed information was contained in a publicly available document. This is especially true when the plaintiff, given his position as Treasurer, could be presumed knowledgeable about and aware of these documents. Thus, plaintiffs fraud claim must be dismissed.
Defendant also argues that plaintiffs fraud claim must be dismissed as the plaintiff has collected his benefits under the change of control agreement. I agree that plaintiffs fraud claim also fails on this ground. See Barrier Sys., Inc. v. A.F.C. Enterprises, Inc., 694 N.Y.S.2d 440, 433 (N.Y.App.Div. 1999) ("[A] party may not avoid an agreement on grounds of fraud if, after acquiring knowledge of the fraud, he affirms the contract by accepting a benefit under it.").
D. Plaintiff COBRA Claims
Finally, plaintiff claims that defendants informed him of his COBRA rights more than 52 days after his termination and failed to provide him with a copy of the Health Benefits Continuation Plan as required by COBRA. Defendants argue that this claim must be dismissed as plaintiff was given health benefits pursuant to the change in control agreement and not pursuant to COBRA, thus the COBRA statute is not applicable. While it is clear that the change of control agreement provided for one year of continued health benefits, it appears that defendant may have been granted health benefits under COBRA based on the fact that the letters to plaintiff were from the COBRA administrator. Therefore, I find that there are material issues of fact as to whether COBRA applies and as to whether Turner violated the statute, and this arm of defendant's motion is denied.
CONCLUSION
For the foregoing reasons, defendants' motion is granted as to plaintiffs claims of discrimination under 42 U.S.C. § 1981, 42 U.S.C. § 2000e (Title VII), the New York State Human Rights Law, and the New York City Administrative Code § 8-10, 1 and fraud, and these claims are dismissed. Defendant's motion is denied as to plaintiffs COBRA claims, and the trial on this claim will commence on March 19, 2001.