Opinion
No. 02 CIV. 5171 (DLC).
September 1, 2004
Thomas F. Bello, Esq., Staten Island, New York, for Plaintiff.
Matthew T. Miklave, Epstein Becker Green, P.C., New York, New York, for Defendant.
OPINION AND ORDER
Kevin Bass ("Bass") filed this action pro se on July 3, 2002, alleging that his former employer NYNEX discriminated against him on the basis of his race and retaliated against him for complaining of racial discrimination, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., ("Title VII") and 42 U.S.C. § 1981 ("Section 1981"). Bass also asserts a claim of racial discrimination under New York State Human Rights Law, N.Y. Exec. Law § 296. Bass is an African-American male who was hired by NYNEX in 1995 as a Senior Account Executive ("Account Executive") and whose employment was terminated in 1997 on the ground that he had failed to complete a Performance Improvement Plan ("PIP").
Although Bass's complaint refers to gender discrimination, the substance of the complaint clearly alleges discrimination on the basis of his race. Bass has pursued only a claim of racial discrimination throughout this litigation. Consequently, neither the parties nor this Opinion consider a claim of discrimination on the basis of his gender.
After filing this action Bass retained counsel, who submitted a notice of appearance on April 3, 2003. NYNEX's subsequent motion to dismiss was withdrawn when the parties agreed to the dismissal of Bass's state law claim. Following the conclusion of discovery, NYNEX has moved for summary judgment. For the reasons below, NYNEX's motion for summary judgment is granted.
Background
The following facts are undisputed or taken in the light most favorable to the plaintiff, unless otherwise noted. Bass has a college degree from Iona College and considerable experience in the sales industry. In June 1995, Mark Van Hoesen ("Van Hoesen"), the Director of Sales at NYNEX, interviewed and hired Bass as an Account Executive assigned to the NYNEX Systems Marketing department. NYNEX's description of the Account Executive position states that the employee is responsible for ensuring overall customer satisfaction and for meeting revenue objectives by managing, proposing, and selling services to the company's top accounts. Thirty percent of the Account Executive's function is to attain an annual revenue sales objective of $3 million. The remaining seventy percent of the duties require developing strong customer relationships, identifying customer needs, and completing administrative and other account management tasks.
Bass's counsel asserts that Bass had an "unblemished" record of twenty years' experience in the sales industry and had "never been terminated or disciplined from any other position" prior to his employment at NYNEX. These statements are contradicted by Bass's deposition testimony, in which he states that a prior employer placed him on a PIP and terminated his employment for his failure to complete the program. Bass subsequently brought suit against the prior employer for racial discrimination. An attorney's misrepresentation of facts raises serious concerns as it undermines the integrity of the judicial process. Bass's employment history does not impact the analysis in this Opinion, however, and it is unnecessary to impose any sanction at this time.
During Bass's first year of employment, he was considered to be in training and was assigned small accounts whose customers had simpler network needs. He was paid a fixed salary without commission. For the first nine months of this training period, Bass was supervised by Chris Sacco ("Sacco"), who reported to Van Hoesen.
Sacco's March 1996 review of Bass's performance at NYNEX in 1995 was generally positive in tone although Bass had failed to meet his sales objective. The review evaluates Bass's work according to six "business objectives" and eight "core competencies." Bass received a "below target" rating with respect to the most important objective, the attainment of his sales revenue quota. Sacco noted, however, that Bass's module had not produced much revenue the previous year and that Bass was making great strides to improve sales. Sacco rated Bass as "on target" with respect to four business objectives — attaining account management objectives, demonstrating professional selling skills, demonstrating product knowledge, and utilizing appropriate resources — and "exceeded target" with respect to the objective of self-development. Bass received an overall "below target" rating since the attainment of sales revenue comprises fifty percent of the business objective overall score.
Sacco's additional comments on the review, dated June 12, 1996, emphasize that Bass had made "outstanding headway" toward his sales objective and note that Bass's sales objective for the module was "an unfair challenge." Sacco stated that he believed Bass's below target rating in this category was unjust and that Sacco would have preferred to have given him a "not applicable" grade with respect to the attainment of his sales revenue objective.
Bass was ranked by Sacco as "effective" in all but one of the core competencies, or general management skills. In the category labeled "Planning, Organizing, and Implementing," Sacco gave Bass a "Needs Development" rating. Sacco determined that Bass's organizational skills needed improvement, specifically, "the non-selling skills related to being a NYNEX account manager such as organization and planning." Bass did not receive any "very effective" or "extremely effective" grades.
As the result of a departmental reorganization in or around April 1996, third-level sales manager Jim Jones ("Jones") was assigned to supervise Bass. In June, approximately one year after Bass began his employment, NYNEX placed Bass on a plan tying his compensation to the attainment of his $3 million sales objective (the "Compensation Plan"). Jones soon noted that Bass did not appear to be on track to meet his sales objective and that he had difficulty establishing account plans, utilizing time management skills, and responding to client needs in a timely fashion.
Jones gave Bass a mid-year review in June 1996, summarizing his performance as follows:
Mr. Bass is a relatively new employee having come to NYNEX from Lexmark in June of 1995. He has made excellent progress in developing an understanding of the NYNEX product line and issues related to the provisioning of service. In addition, he has made progress in understanding the linkage between customer applications and our products and services. Until now, his sales success has been disappointing. Increased emphasis on planning, organizing and applications development are needed if Kevin is to be successful.
(Emphasis supplied.) As had Sacco, Jones gave Bass a "below target" rating with respect to his sales results, four "on target" grades, and one "exceeded target" mark. The review states that as of May, Bass had achieved approximately two percent of his 1996 revenue objective. Jones rated Bass as "effective" in each core competency except "Planning, Organizing and Implementing." Under that category Jones wrote: "This is the single biggest challenge for Kevin. His weakness when it comes to planning skills is the major reason for his disappointing sales results."
Between July and August 1996, Jones received complaints about Bass from NYNEX customers. Jones recalls that some customers complained that Bass did not return telephone calls or follow-up on customer inquiries and that several customers asked to have Bass removed from their accounts.
In September 1996, Jones informed Van Hoesen that Bass was having problems with his account management, organization, and selling skills. Jones and Van Hoesen agreed to allow Bass the opportunity to participate in a PIP or to resign from NYNEX, and Jones described these options to Bass in a September 19 letter. On September 24, Bass chose to take part in the PIP. Jones wrote a letter to Bass two days later scheduling a meeting for September 30, and asking that Bass come to the meeting prepared to discuss his thoughts and suggestions for improvement under the PIP.
Jones and Bass met on September 30. Bass acknowledges that during the meeting Jones told Bass what was expected of him and that Bass did not make many contributions. Following the meeting, Jones wrote Bass a letter explaining that he was "more than a little disappointed" in how the meeting had progressed, and particularly in the lack of input from Bass. Jones reminded Bass that he was responsible for the successful completion of the PIP, and Jones offered to make himself available to assist Bass.
Jones's September 30 letter included a copy of the PIP, which described four performance deficiencies to be remedied under the plan: (1) Bass's lack of responsiveness to customers, (2) the length of time it took his proposals to reach customers, (3) his failure to take action on problems with customer installations, and (4) the insufficiency of his "sales funnel" in relation to his sales objective. The causes of these deficiencies are described as Bass's poor time management techniques, insufficient account management, and his failure to spend adequate time with customers. The PIP then lists four proposed solutions and objectives for Bass's successful completion of the PIP:
1. Kevin will insure that at times he is out of the office, he will check his voice mail in two hour intervals and return any customer calls he receives. . . .
[2.] Kevin will, during the week of September 30th, fully implement the principles discussed in the recently completed Time Management course. . . . We will meet on Friday, October 4th at 9:00 AM to review this time management system. Kevin will explain each component of this time management system and we will jointly review his follow-up system and calendar. . . .
[3.] Kevin will include in his follow-up pending implementation projects and the steps he has taken or will take to insure the support forces are reacting in a timely manner. We will also review these follow-up items at our weekly meeting.
[4.] Finally, during the week of September 30th, Kevin will establish a schedule designed to insure that all accounts in his module are visited during the fourth quarter of 1996. We will review this schedule at our meeting on October 4th and will review progress toward this objective at our weekly meetings.
(Emphasis supplied.)
Jones and Bass met as scheduled on October 4 to discuss Bass's progress. Jones kept contemporaneous notes of the meeting, which state that Bass was unprepared to present his time management plan and had not developed a schedule for visiting his accounts in the fourth quarter. Jones writes that Bass commented at the meeting that he didn't understand why he had to follow the PIP so long as he met his sales quota. Jones's notes indicate that he informed Bass that the PIP was about organizational skills and that he would be terminated if he failed to complete the PIP, regardless of whether he exceeded his sales quota. Jones also wrote Bass a letter dated October 4, in which he states that he believed the morning's meeting to have been "unsuccessful" in that he had intended to review Bass's time management plan and schedule of customer visits during the meeting.
In the October 4 letter, Jones informs Bass that his quota for 1996 was properly $3 million dollars and that a recent report listing the figure as $1,250,000 was incorrect. The letter explains that under the terms of the Compensation Plan, an employee is responsible for the annual sales objective even if he begins the Compensation Plan mid-year.
On October 29, Jones provided written feedback on Bass's progress, as required monthly under the terms of the PIP. This letter concludes that Bass's performance had been "unsatisfactory." Specifically, Jones states that he had seen no evidence that Bass had implemented the time management system, as there were no future appointments listed in his planner and as Bass admitted that he filled in events after they occurred. In addition, Jones writes that the other PIP objectives had not been completed, including Bass's preparation of a schedule of fourth quarter customer visits. A second piece of written feedback, dated December 9, describes the same failures in Bass's performance and urges him to take steps to demonstrate implementation of the PIP prior to its expiration on December 31, 1996.
Bass alleges that Jones made racial comments to Bass at work and at an evening business development event. Bass recalls that Jones twice told a "white man, black man, Chinese man" joke that Bass found offensive, although he couldn't remember its substance. In addition, Bass describes an incident in which Jones told a customer joining them for a hockey game that blacks "didn't belong in hockey," that "there is no black leadership in America," and that "Jesse Jackson is no leader." Bass did not mention these remarks to any supervisor at NYNEX.
After beginning the PIP and receiving feedback from Jones, Bass complained to Van Hoesen that Jones had unfairly placed Bass on a PIP. He did not tell Van Hoesen that Jones falsely claimed that Bass had failed to implement a time management system and schedule customer visits, nor did he mention any racist remarks by Jones. On November 22, 1996 Bass wrote a letter to Wayne Zuckerman ("Zuckerman"), Vice President of Sales at NYNEX, stating that he had attained 100% of his sales objective and complaining that his progress was "being detoured by several unfair, ethical personal and professional incidents." There is no mention of any form of racial discrimination.
After conferring with Jones and Zuckerman, Van Hoesen fired Bass in January 1997 for failing to complete the PIP. In April 1997, Bass filed a charge of racial discrimination with the State Division of Human Rights. The complaint does not mention any offensive remarks by Jones and does not allege any retaliation by NYNEX.
Discussion
Summary judgment may not be granted unless the submissions of the parties taken together "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." Rule 56(c), Fed.R.Civ.P. The moving party bears the burden of demonstrating the absence of a material factual question, and in making this determination the court must view all facts in the light most favorable to the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). When the moving party has asserted facts showing that the non-movant's claims cannot be sustained, the opposing party must "set forth specific facts showing that there is a genuine issue for trial," and cannot rest on the "mere allegations or denials" of the movant's pleadings. Rule 56(e), Fed.R.Civ.P.; accord Burt Rigid Box, Inc. v. Travelers Property Cas. Corp., 302 F.3d 83, 91 (2d Cir. 2002).
1. Termination Claim
Claims of employment discrimination brought pursuant to Title VII or Section 1981 are analyzed under the burden-shifting approach set forth in McDonnell-Douglas Corp. v. Green, 411 U.S. 792, 802-03 (1973). See also Patterson v. McLean Credit Union, 491 U.S. 164, 186 (1989) (Section 1981 claim). A plaintiff bears the initial burden of establishing a prima facie case of discrimination. Williams v. R.H. Donnelly Corp., 368 F.3d 123, 126 (2d Cir. 2004). "To meet this burden, a plaintiff must show: (i) membership in a protected class; (ii) qualifications for the position; (iii) an adverse employment action; and (iv) circumstances surrounding that action giving rise to an inference of discrimination." Collins v. New York City Transit Authority, 305 F.3d 113, 118 (2d Cir. 2002). A plaintiff's burden in presenting prima facie evidence is de minimis. Abdu-Brisson v. Delta Airlines, Inc., 239 F.3d 456, 467 (2d Cir. 2001).
If the plaintiff establishes a prima facie case, he "creates a presumption that the employer unlawfully discriminated, and thus places the burden of production on the employer to proffer a nondiscriminatory reason for its action." James v. New York Racing Ass'n, 233 F.3d 149, 154 (2d Cir. 2000) (citation omitted); Mandell v. County of Suffolk, 316 F.3d 368, 380 (2d Cir. 2003). Once the employer articulates a nondiscriminatory explanation, the burden shifts back to the employee "to prove, by a preponderance of the evidence, that the real reason for the adverse employment decision was discrimination." Mandell, 316 F.3d at 381. A plaintiff's demonstration that the employer's proffered reason is pretextual may provide evidence of discrimination. Id.
The plaintiff bears the ultimate burden of persuading the trier of fact that his employer intentionally discriminated against him. James, 233 F.3d at 154; see also Reeves v. Sanderson Plumbing Products, 530 U.S. 133, 153 (2000). "Thus, once the employer has proffered its nondiscriminatory reason, the employer will be entitled to summary judgment . . . unless the plaintiff can point to evidence that reasonably supports a finding of prohibited discrimination." James, 233 F.3d at 154. Conclusory statements and general attacks on the defendant's credibility are insufficient to defeat a motion for summary judgment. Opals on Ice Lingerie v. Body Lines, 320 F.3d 362, 370 n. 3 (2d Cir. 2003); Crawford El v. Britton, 523 U.S. 574, 600 (1998). Rather, the plaintiff must identify affirmative evidence upon which a jury could find that he carried his burden of proving defendant's illicit motive. See, e.g., Crawford, 523 U.S. at 600.
Viewing the facts in the light most favorable to Bass, he has met his de minimis burden of establishing a prima facie case. As an African-American male who was qualified for the job of NYNEX Account Executive and was later fired from that position, he satisfies the first three elements. Bass was the only African-American in his sales group. This circumstance suffices to permit an inference of discrimination.
NYNEX argues that Bass has failed to establish a prima facie case because any inference of discrimination is belied by the fact that he was hired and fired by the same person, Van Hoesen. There is generally a strong inference that when the actor who fires an employee within a protected class also hired that employee a short time earlier, the termination was not motivated by discriminatory intent. Carlton v. Mystic Transp., Inc., 202 F.3d 129, 137-38 (2d Cir. 2000). In this instance, however, the decision to place Bass on a PIP and to terminate his employment when he failed to complete the program originated with Jones, who did not take part in Bass's hiring. Although Van Hoesen approved these decisions, the evidence suggests that the employment actions were initiated by Jones and that Van Hoesen relied on Jones's assessment of Bass's performance. Given the importance of Jones's role in the adverse employment action, Van Hoesen's involvement does not preclude a finding that Bass has presented prima facie evidence of discrimination.
NYNEX has put forward a legitimate, non-discriminatory reason for placing Bass on a PIP. Both of Bass's employment reviews in 1996 identified that Bass was not achieving his sales objective and needed to develop his planning and organizational skills. NYNEX states that when Bass's performance failed to improve after the June evaluation, he was placed on a PIP designed to assist him in implementing a time management system and in developing the account management skills required of a NYNEX Account Executive. NYNEX has also put forward a legitimate, non-discriminatory reason for terminating Bass's employment — his failure to complete the PIP satisfactorily. The evidence demonstrates that Bass did not meet the objectives set forth in the plan, specifically the implementation of a time management system and development of a schedule designed to ensure that all customers were visited during the fourth quarter of 1996.
Bass has failed to raise a genuine issue of material fact as to whether NYNEX's proffered reason for the termination of his employment is pretextual or whether the termination was motivated by unlawful consideration of his race. To begin, Bass has not presented evidence genuinely disputing NYNEX's explanation of the reason for the termination. First, he argues that he was unfairly placed on the PIP and was not offered a reduction in his sales objective, as was provided to other white Account Executives. Bass provides no evidence to support this conclusory claim that he was treated differently from other NYNEX employees. Moreover, since Bass was discharged for failing to implement the time and account management objectives described in the PIP, there is no reason to believe that a reduction in his sales quota would have altered the decision to fire him.
Second, Bass offers an exhibit described in his opposition papers as a "rebuttal to the performance improvement plans [sic] requirements." There is no date on the document nor any explanation of when or why it was written by Bass. The paper describes his successes at NYNEX and contains numerous complaints that he was unfairly placed on a PIP, such as "I am not drinking the juice Jim Jones serves when he says `I want you to be a success.' This is not an Improvement Plan. This is a plan which is all over the place, a plan to single me out to fail. When it comes to diversity, he deserves a Significantly Below Target in performance." The relevance of this exhibit is unclear and its conclusory accusations of discriminatory treatment are insufficient to raise a material issue of fact.
Third, Bass points to a January 1997 NYNEX Business Market Plan indicating that he had exceeded his $1,750,000 sales objective for 1996. Bass has not shown that his ability to meet a reduced sales objective is evidence that he was a victim of discrimination. NYNEX has presented evidence that Bass was fired for failing to achieve the objectives set forth in the PIP, which were related to the organizational and account management skills required of an Account Executive. Jones's notes indicate that Bass was informed that he was required to complete the PIP successfully in order to keep his job, independent of whether he achieved his sales objective. Bass has presented no evidence to dispute that he was informed that this would be the standard by which he would be judged.
Bass testified that although his sales objective was initially $3 million dollars, certain complexities in the formula affect the final total. Jones's letter of October 4th states that the use of the lower figure was an error by the compensation staff.
At his deposition, Bass claimed that he fully implemented the time management system and fourth quarter schedule of customer visits described in the PIP, but that he lost or discarded the planner evidencing his progress after he filed this lawsuit. He does not raise this argument or rely on the planner in his papers in opposition to summary judgment.
Bass also has not offered evidence raising a material issue of fact as to whether NYNEX's decision to terminate his employment was motivated by intentional discrimination. He claims that Jones twice told a joke involving a black man that Bass found offensive. In addition, he cites Jones's statements at a hockey game that blacks shouldn't play hockey and that there is no leadership in black America. "[T]he stray remarks of a decision-maker, without more, cannot prove a claim of employment discrimination. . . ." Abdu-Brisson, 239 F.3d at 468. Bass provides no additional evidence of intentional discrimination that would bolster these comments. It is worth noting, moreover, that he did not mention these remarks either in his letter of complaint to Zuckerman or in the complaint he filed with the New York State Division of Human Rights. These stray remarks alone are insufficient to establish discriminatory intent.
2. Retaliation Claim
"In order to establish a prima facie case of retaliation, an employee must show (1) participation in a protected activity known to the defendant; (2) an employment action disadvantaging the plaintiff; and (3) a causal connection between the protected activity and the adverse employment action." Feingold v. New York, 366 F.3d 138, 156 (2d Cir. 2004) (citation omitted). A complaint may constitute protected activity if an employee has a good faith and reasonable belief that the challenged action violates Title VII, even if the conduct is not actually illegal.Ouinn v. Green Tree Credit Corp., 159 F.3d 759, 769 (2d Cir. 1998). In order to be protected, however, "the complainant must put the employer on notice that the complainant believes that discrimination is occurring." Ramos v. City of New York, No. 96 Civ. 3787 (DLC), 1997 WL 410493, at *3 (S.D.N.Y. July 22, 1997).
Bass has failed to show that he participated in a protected activity. His only complaints prior to his firing were his oral conversation with Van Hoesen and his letter to Zuckerman. Bass made no allegations of racial discrimination in either of these communications, raising only general claims that his placement on the PIP was "unfair." These complaints did not provide notice that Bass believed he was the subject of discrimination and therefore do not constitute protected activity within the meaning of Title VII. Bass does not discuss the retaliation claim in his opposition to NYNEX's motion for summary judgment.
Conclusion
The defendant's motion for summary judgment is granted. The Clerk of Court shall enter judgment for the defendant and shall close the case.
SO ORDERED: